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Most Often Asked Questions of a Matrimonial & Family Lawyer
(provided by J. Timothy Smith, Esq.)

QUESTION #1

MY SPOUSE HAS NOT PAID CHILD SUPPORT IN THE LAST FOUR MONTHS, YET IS SEEING MY SON/DAUGHTER EVERY OTHER WE EMEND IN ACCORDANCE WITH WHAT THE DIVORCE DECREE SPECIFIES. BASED UPON MY EX-SPOUSE'S NONPAYMENT OF CHILD SUPPORT TO ME, MAY I WITHHOLD VISITATION?

ANSWER

No. The fact that your ex-spouse is not paying child support, as ordered by the divorce decree, is an independent provision of the divorce decree and cannot be used to withhold visitation. Alternatively, if you denied visitation, your ex-spouse could not withhold child support payments.

In essence, the visitation provisions and the child support payment provisions of your divorce decree operate independently. If the custodial parent denies the other parent visitation rights, the noncustodial parent could ask the judge to hold the custodial parent in contempt of court for noncompliance with this provision. In the alternative, if the non-custodial parent is not paying support, as ordered by the decree, the custodial parent could ask the judge to hold the non-custodial parent in contempt for non-compliance with the decree. Contempt can be civil or criminal. A civil contempt is punishable by the judge placing the party in contempt until he or she complies. A criminal contempt is punishable by five (5) days in jail for each violation. Therefore, both parents should be aware of the penalties in their dealings with each other.

QUESTION #2

MY SPOUSE HAS BEEN FAITHFUL THROUGH THE YEARS, BUT LATELY I FOUND THAT HIE/SHE IS HAVING AN AFFAIR. IN FACT, RECENTLY I HAVE CONTRACTED A SEXUALLY TRANSMITTED DISEASE AND NOW AN CONSIDERING DIVORCE BASED ON HIS/HER EXTRAMARITAL ACTIVITIES. WHAT SHOULD I DO?

ANSWER

In Alabama, there is an affirmative duty on the part of a person affected with a sexually-transmitted disease to relay such information to anyone with whom he/she is having sex. In fact, in Alabama, there is a statute which states: "Any person affected with a sexually transmitted disease who shall knowingly transmit, or assume the risk of transmitting, or do any act in which will probably or likely transmit such disease to another person shall be guilty of a Class C misdemeanor. "

A person who contracts receives a sexually-transmitted disease and goes though a divorce without addressing this issue waives any right to address the issue at a later date. In other words, Jane is married to Dick. Dick has an extramarital affair with Sally. Jane and Dick get a divorce and three months after the divorce, Jane discovers she has AIDS. Because she has AIDS, she has incurred $75,000 in medical expenses, not because of her activities, but because of Dick's extramarital affair. Dick refuses to pay these medical bills. She files a petition with the Court. The law in Alabama, at the current time, is that Dick does not have to pay these bills, as Jane should have addressed these concerns in the divorce. If they are not addressed, they are no longer addressable and Jane will have to bear all expenses. Therefore, the issue of sexually-transmitted diseases is extremely important in divorce proceeding.

The same is true of other domestic torts; i.e., a spouse beats another spouse causing brain damage, tumors, etc. If these issues are not addressed in the divorce proceeding, the issues cannot be addressed at a later date. It is extremely important that your attorney be informed of all issues prior to the divorce being finalized.

QUESTION #3

I HAVE BEEN INFORMED THAT 15% OF MY INCOME WILL GO TO CHILD SUPPORT IF I DIVORCE. IS THIS TRUE?

ANSWER

Child support may or may not be around 15% of your income. On August 29, 1989, the Alabama Supreme Court adopted what is known as Rule 32, Alabama Rules of Judicial Administration, otherwise known as Child Support Guidelines. Child support is based upon the gross income of the parties, any previous child support or alimony obligations, cost of day care and cost of health insurance. Therefore, one cannot accurately state that child support is any certain percentage of income. The formula has to be calculated before any determination can be made regarding the actual amount of income that will go to child support.

Information provided by:
J. Timothy Smith, Esq.


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