As covered in previous articles by the Birmingham divorce attorneys at Boles Holmes White, the Alabama Supreme Court recently issued a landmark decision in Christopher v. Christopher, which overturned a well-established 24 year old legal precedent within Alabama.  Prior to the opinion in Christopher, which was released on October 4, 2013, non-custodial parents in Alabama could be ordered by a divorce judge to pay post minority support for a child in the form of college tuition and costs.  This now defunct law came into effect with the Alabama Supreme Court case of Bayliss in 1989, which had become black letter law for every Alabama divorce attorney from Birmingham to Dothan and Huntsville to Mobile.

With the ruling in Christopher, Bayliss has now be expressly overturned, meaning a parent can no longer be forced by a divorce court to pay for a child’s college education as part of child support.

But what happens if two parents enter an agreement whereby, one parent is willing to pay for the children’s college tuition as part of a negotiated settlement.   While this will become less common in Alabama after the Christopher decision, it is foreseeable that such an agreement could be reached where one parent agrees to such a payment, in exchange for some other concession by the other party.  Such a concession could be the waiver of alimony or agreement to a smaller property settlement than the custodial parent was originally seeking.  It is also conceivable that the parents’ values are such that they both want to ensure their children obtain a college education and want that agreed upon in advance in the divorce decree.

It is likely that payment of college tuition could still be negotiated into a divorce settlement and enforced by a Court, if both parties agreed to the terms at the time of settlement.

What could be interesting is how the divorce courts of Alabama deal with such voluntary agreements, and the breach of those agreements.  After the ratification of such an agreement by the divorce court, could the non-custodial parent simply change their mind and decide not to pay for college as agreed?  If not, what are the divorce court’s remedies for the breach of the agreement to pay college tuition and costs?  Can they enter a contempt order, or a money judgment against the non-paying party?

What if the parent had encountered a significant material change in circumstances from the time of the agreement when perhaps the children were very young, until a decade later when they enter college?  Would such a material change in circumstances allow the parent to negate their previous agreement, or would they still be on the hook regardless?  These, and other questions, will likely have to be settled on a case-by-case process through the judicial system over the next several years.

If you have a question about a divorce, child support, or payment of college tuition in a divorce setting, call the Birmingham divorce attorneys at the Birmingham legal team of Boles Holmes White for assistance with your family law question.

For over 20 years in the State of Alabama, post-minority “child support” through the payment of college tuition and expenses could be ordered against a non-custodial parent as a form of child support.

This rule came into effect in the late 1980’s with the Alabama Supreme Court’s ruling in Bayliss, which became one of the most controversial legal opinions of its time related to divorce, custody, and family law.  The court in Bayliss, held that a custodial parent could petition the Court, prior to a child’s entering college or reaching the age of majority, for post-minority support against the non-custodial parent.  This meant that parents (usually non-custodial fathers although the petitioner in Christopher was a noncustodial mother) could be required to pay college fees and costs, despite the fact that the child had reached the age of majority, which is 19 in Alabama.

However, in the recent family law case of Christopher v. Christopher, the Alabama Supreme Court reversed the findings of the divorce court, as well as its own long- standing legal precedent regarding child support by overturning the Bayliss decision.  As of October 4, 2013, post minority support cannot be judicially required in the State of Alabama.

Before those of you that are spending tens of thousands of dollars paying college tuition under a court order get too excited, the Alabama Supreme Court opinion made it clear that its ruling only applies prospectively and not retroactively.  This means that if anyone is under a final order to pay the college costs of a child who has reached the age of majority; such child support order is still binding.

If the case is still on appeal, the Court indicates that Christopher would provide relief from post-minority child support.  It also presents a bar on future Bayliss hearings where college costs are sought from the non-custodial parent.

If you have any questions about the Alabama laws regarding child support you should speak to a qualified Alabama divorce attorney.  Call our Birmingham child support attorneys with the Birmingham legal team of Boles Holmes White to discuss your rights today.

When parties file for divorce, courts consider the current financial situation of both husband and wife, including whether they are working, and any assets that they may have. This is because, if a divorce is granted, courts will attempt to divide the assets of the marriage (known as the marital estate) between the two parties in an effort to ensure that both can continue to life the lifestyle they are accustomed to after the divorce becomes final. This process is known as equitable division of the marital assets.

Generally, if one party has received an inheritance before the beginning of the marriage, it is not counted as marital property and therefore not subject to equitable division. It is possible, however, for a party’s previous inheritance to become part of the marital estate in certain circumstances. If this happens, a former husband or wife may be awarded part or all of one person’s inheritance.

There are two ways an individual inheritance can become part of the marital estate. One way is if the assets are co-mingled or mixed with marital property. A common way this happens is if the parties create a joint checking account after they are married. Because the joint checking account is created after the marriage, it is considered marital property. Therefore, if an individual chooses to deposit some or all of their inheritance into the joint account, the funds become co-mingled. This mingling or mixing cannot be undone: even if a party could show the precise amount of the inheritance that was deposited, any funds in the joint checking account at the time of divorce are subject to equitable division.

The second way an inheritance can become part of the marital estate is if some or all of the funds are used for the benefit of the family. Family here includes both the spouse and any children of the marriage. One example of using funds for the benefit of the family is making car payments from the inheritance account; using the account for educational expenses, such as tuition, books, or other fees; using inheritance funds to finance vacations or trips for the family. If a court finds this use is so common as to create an expectation of the family that the funds are for their benefit, the inheritance can become subject to equitable division.

The attorneys at Boles Holmes White are very familiar with how courts calculate the size of the marital estate, equitable division, and other procedures that are part of filing for divorce. If you are going through a divorce now, or simply wish to discuss your options with experts in family law, please call the divorce attorneys at Boles Holmes White. With over 100 years of combined experience, our seasoned divorce lawyers have the skills and expertise to guide you through the process and obtain the results you desire. Call today for a free consultation, and let us put our experience to work for you.

The Pop Star’s Divorce Lawyer Took It Nice & Slow. Usher, a highly successful pop icon who has been the subject of recent headlines involving a custody dispute with his ex-wife, Tameka Foster, got a ruling Friday that will enable him to retain custody of his child, Usher V. The child was hospitalized earlier in the week after a pool accident in which he got his arm stuck in an underwater drain. Tameka petitioned the court to change their custody agreement, and an “emergency” hearing was held in an Atlanta courtroom.

          The events that unfolded in the courtroom Friday were nothing short of dramatic. Lasting nearly two hours, evidence heard by the judge included Tameka’s own testimony as well as a tape of the 911 call that was placed immediately after the pool accident. At one point, Tameka broke down on the stand, and lamented that she knows very little about the whereabouts or activities of her children, adding that she doesn’t “know the phone number to the house where they are.” Tameka also accused Usher’s aunt, Rena Oden, of not having “any control over the kids.”

           Usher’s divorce attorney, John Mayoue, represented to the court that the children are “thriving,” and said that Usher V was expected to be released from the hospital on Sunday. Ultimately, the judge dismissed Tameka’s petition to change their custody agreement. This means that Usher can retain custody of Usher V and his brother, Naviyd. Usher V and Naviyd are age 5 and 4, respectively.

           If you are involved in a child custody dispute, going through a divorce, or simply need to discuss your options with someone who understands the process and its implications, please call the divorce attorneys at Boles Holmes White. With over 100 years of combined experience, our seasoned divorce lawyers have the skills and expertise to guide you through the process and obtain the results you desire. Call today for a free consultation, and let us put our experience to work for you.

The divorce attorneys at the Birmingham firm of Boles Holmes White, LLC often have divorce and child custody cases where one parent moves out of the marital home, where the children reside, at the request of the other. These requests can take the form of asking for time to breathe, time apart, or other similar issues. However, leaving the marital home prior to initiating a divorce proceeding can have significant legal consequences.

In a custody dispute, the court must determine which parent is the most suitable to have full or joint custody. When considering this issue, courts will consider which parent is the primary caretaker of the children. Especially in the case of minor children, this is normally the parent which remains in the marital home. This is because, in most cases, the minor children continue to reside in the marital home during the divorce proceeding.

As a result, a temporary move out of the marital home in order to attempt to solve problems in the marriage can have effects on a child custody proceeding down the line, if the parties do not resolve their differences. It is important to remember that, unless the co-habitation of the parents presents a danger of violence to the children, or an unsafe home for whatever reason, no party is under a legal obligation to move out prior to the beginning of the divorce proceeding.

If you are experiencing difficulties in your marriage, or simply wish to become more informed about the process of divorce and child custody disputes in Alabama, it is important to consult with an attorney as soon as possible. The family law attorneys at Boles Holmes White, LLC have a wealth of knowledge about these and other matters. Although it can be difficult to “get lawyers involved,” speaking with an attorney early in the process can help to protect rights you currently have with regard to divorce, equitable distribution, and child custody. More importantly, it can help you avoid decisions that may unknowingly waive or otherwise reduce your rights to full custody, partial custody, or possession of the marital home.

It is common knowledge that, when two people are getting divorced, assets will be split. This includes both larger items (house, car, other property), liquid assets (bank accounts, retirement accounts), but also items that are more difficult to value. Items with “sentimental value” are considered those that don’t give an economic advantage, but instead they have value because of emotional attachment.

For instance, when considering the value of a record collection, and how to divide the records, Alabama courts have considered which party has the greatest attachment to a particular item. Although this can be difficult to determine, courts consider if one party has had the item in their possession, how old the item is, and any other testimony regarding the importance of the item.

Because such items can be divided in a divorce, it is important not to forget about them when you are filling out forms associated with divorce, which require a listing of assets, as well as monthly expenses. The attorneys at Boles Holmes White, LLC are experienced with these and other family law matters.

In the recent weeks, our Birmingham divorce attorneys have had several clients embroiled in Alabama divorce cases, which seem to have been caused by social media, primarily Facebook.  This popular social media website allows users to “friend” others and engage in private online communication with members of the opposite sex.  The Facebook site even suggests persons for you to friend, often those that you went to school with, and maybe even dated earlier in your life.  You can then interact with these people, either publicly, by posting information on their public wall, or privately by sending them personal messages for their eyes only.  Mix such opportunity with an unhappy marriage, and it has turned into a temptation many just can’t resist.

A recent survey given to divorce attorneys indicated that 80% of all divorce attorneys have seen an increase in divorce cases caused by social networking sites like Facebook.

To fight this trend, many family counselors have suggested that spouse’s share Facebook accounts so that both partners can see each other’s online activity.  Others suggest getting off of social media altogether.

It is current practice for our divorce attorneys to try to obtain information from the Facebook account of our client’s spouse in our divorce cases.   A spouse’s computer history, texts, emails, and Facebook activity can be admitted into evidence in a divorce trial to prove their misbehavior.  One court even ordered one spouse to provide their Facebook password to the other spouse to allow full discovery in their divorce action.

Even if a spouse is not caught cheating on their spouse on Facebook, it can prove useful information in painting that party in a negative light.  It is likely you can find information about their drug or alcohol use, possession of firearms, propensity to party, parenting styles, and more from their Facebook posts.  Such information can be useful to a judge who is trying to determine appropriate child custody, property division and alimony.

If you are going through a divorce, it is not advisable to steal your spouse’s password to search their Facebook account.  However, if they leave their Facebook page open on the family computer, you may be within your right to look at its content.  At a minimum, you should “friend” your spouse, and save a copy of the public content contained on their page for your divorce attorney to review for relevant information.

Our Birmingham divorce attorneys at Boles Holmes White have experience in dealing with divorces arising from social media use, as well as other problems.

If you find out your spouse has cheated on you, and you want to use that as grounds for a divorce, its probably not in your best interest to have any more intimate encounters.  The divorce attorneys at Boles Holmes White often counsel clients considering divorce due to their spouse’s infidelity.  It is not uncommon for the couple to try to work through their problems before finding it is too difficult and deciding to proceed with the divorce.

However, much of the leverage the faithful spouse had at the time they learned of the cheating spouse’s activity can be lost if they are found to have forgiven the cheating before the divorce is filed.  An old Alabama statute, found at Code of Alabama (1975) §30-2-3, codifies this idea stating:  “No judgment can be entered on the confession of the parties . . . where there has been a condonation of adultery by the admission of the offending party to conjugal embraces after knowledge of the commission of the crime.”

It is interesting in reading this statute, which is nearly 80 years old, refer to adultery as a “crime.”  Indeed, that is how it was viewed in the early 20th century.  Even when it was viewed as a crime, such crime was forgiven when the non-offending spouse “condoned” the adultery by admitting the offending party to their “conjugal embraces” or in laymen’s terms, by having sex with them.

Alabama divorce judges today can grant a divorce without any grounds, unlike days past.  When the above referenced statute was passed, a judge had to have grounds to divorce a couple.  The statute basically states that a judge cannot grant a divorce on the grounds of adultery if the couple has had sex since the innocent spouse learned of the cheating.  This is not the situation now that Alabama no longer requires a specific ground in granting a divorce.

However, it has been the experience of our divorce attorneys that adultery is not held against the offender when the parties have engaged in intercourse after the non-offender learned of the adultery.  An exception to this general rule typically exists when the offender fails to stop their cheating behavior against the wishes of their spouse.

If you have learned that your spouse has cheated, make the decision as to whether that is the end of the relationship.  If so, do not go to bed with them or you risk losing a huge advantage in the divorce action.  On the other hand, if your spouse learns you are the cheat, it might be in your best interest to seek forgiveness and “make up sex” before you find out your behavior costs you both your relationship and your assets.

Child support is a sensitive issue. Every parent, even after a divorce, wants to make sure his or her child is cared for and has the proper finances to do so.

By Statute

Alabama has enacted straightforward legislation about child support payments post divorce. Attorneys play a vital role by getting all the information and documents ready that are required by Rule 32 Alabama Child Support Guidelines. BHW has Birmingham family law attorneys who will guide you through the Rule 32 requirements. However, the rule itself creates a very specific formula, which allows most children to get the support they deserve.

What the Courts consider

Alabama courts look at a variety of factors when considering the amount a child support necessary for the child’s livelihood.

  • Parental income
  • Health care costs
  • Child care costs
  • Custody agreements
  • Other child support exceptions