Tag Archive for: Settlement

When Your Inheritance Becomes Our Money

When Your Inheritance Becomes Our Money. When parties file for divorce, courts consider the current financial situation of both husband and wife. Moreover, 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 between the two parties. Therefore, 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. For instance, 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. Furthermore, 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.

Recent Decisions May Make Personal Injury Suits Against Alabama Doctors Easier

Recent Decisions May Make Personal Injury Suits Against Alabama Doctors Easier. Personal injury suits against doctors are generally referred to as medical malpractice lawsuits. Such lawsuits are governed by the Alabama Medical Liability Act (AMLA). Which generally requires the filer of the lawsuit to retain a medical expert to testify that the doctor against whom they wish to bring the lawsuit has violated the appropriate standard of care. Without providing this expert testimony, a lawsuit against a doctor is generally dismissed.

The AMLA provides an exception to this requirement if the wrong done by the doctor or medical institution is so obvious that one does not have to be a doctor to recognize that it is inappropriate. In other words, the “common layman” could understand, based on common experience. That the doctor or medical institution made an error. It is important to remember that this exception is a narrow one; however, in two recent cases, the Alabama Supreme Court identified situations where errors are such that expert testimony is not required.

In Morgan v. Publix, a customer of Publix brought a lawsuit against the chain’s pharmacy department. She alleged that she received the wrong medication from a Publix pharmacist when she went to have a prescription filled. Upon consuming the incorrect medicine, she suffered several negative medical reactions. Therefore, similar to an allergic reaction, such as swelling and hives. The lawsuit stated that she would not have suffered these personal injuries if she had been issued the proper medication.

In McGathey v. Brookwood Health Services, a patient brought a lawsuit against the hospital where she underwent surgery. During the operation, which involved surgery on her shoulder, the rest of her arm was attached to a metal bar in order to hold the arm still. As a result of a sterilization procedure, the bar was very hot. When the patient woke up after surgery she had sustained second and third-degree burns on her arm. The lawsuit stated these burns would not have happened if the bar had been properly cooled prior to surgery.

In both of these cases, the Alabama Supreme Court said that expert testimony was not necessary for the lawsuit to proceed. The Court said that one did not have to be a medical expert to understand that it was dangerous to either consume improper medication or to have one’s arm directly touching a bar that was very hot. As a result, the lawsuits were not dismissed and the plaintiffs were able to recover monetary damages.

During its discussion of the AMLA, the Supreme Court emphasized that the common layman exception to the AMLA’s requirement of expert testimony was a narrow one. Despite this, by providing specific examples of cases where expert testimony is not required. The Court has made similar lawsuits easier to bring in the future. The attorneys at Boles Holmes White, LLC are very familiar with the AMLA specifically and personal injury lawsuits more broadly. If you are interested in bringing a lawsuit against a doctor or medical institution please contact the firm at 205-502-2000.

Divorce and Objects with Emotional Value

Divorce and Objects with Emotional Value. 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.

Divorce and Objects with Emotional Value Conclusion: 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.

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Facebook Status: Divorced

Facebook Status: Divorced? 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. In addition, 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, and emails. 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. Furthermore, 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 that’s different. You may be within your right to look at its content.  At a minimum, you should “friend” your spouse. After that, 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.

Will Contests in Alabama

Will Contests in Alabama. Our Birmingham probate attorneys have experience preparing wills, probating wills, and even defending or attacking wills in will contest actions.  A will contest is a lawsuit filed with the Circuit Court challenging a will that has been admitted to probate in the probate court.

In order for a will to be valid, it has to be validly executed. Which means it has to be in writing and signed by the deceased in the presence of two witnesses.  Additionally, if the witnesses signatures are notarized with a notary seal, then the will is “self proving”. Therefore, meaning it is presumed to have been executed validly.  However, even if a will is not “self proving”, that does not mean it is unenforceable.  It simply means there is no presumption of valid execution, and valid execution must be proven through other evidence.

However, just because the will was validly executed, that does not mean it will survive a will contest.  Wills must also be validly executed by someone who has “testamentary capacity.”  In other words, the person signing the will must know what they are doing.  Show the testator did not have proper capacity at the time they signed the will. Include obtaining copies of their medical records to show they were being treated for mental illness or dementia.  Evidence can also be presented of witnesses that interacted with the testator near the time of the will execution. However, who can testify of the testator’s lack of mental ability.

Wills are also contested on the basis of fraud.  The most common example of this type of will contest includes allegations that the will at issue was not created or signed by the purported testator.  In other words, wills can be contested if it is believed that the will is a fraud, and has been forged.

One of the most common forms of will contest seen by our probate attorneys in Alabama involves allegations of undue influence.   Commonly, elderly parents are cared for by one child. Who lives near the parent, and whose schedule allows them to spend time with the parent.  It is not unusual for that parent to show appreciation to that child by preparing a will that gives the care taking child a larger portion of the parent’s estate than other children. May even give them the entire estate.  In such situations, the non care taking children often become suspicious of the caretaker’s influence on the parent. Furthermore, in creating the will and may contest the terms of the will.

If a will is successfully contested, the testators estate will either be distributed through the Alabama laws of intestacy, or through a prior valid will.

If you are involved in litigation over a will in Alabama, contact one of our Birmingham probate attorneys at Boles Holmes White to assist you and guide you through the will contest procedure.

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Boles Holmes White LLC is a full-service law firm providing transactional, litigation, government relations and white collar/criminal defense. We represent both businesses and individuals throughout the Southeast Region. As a full-service law firm with roots in the small town of Dothan and with large Birmingham firm experience, all of our attorneys strive to provide clients “big firm” representation with “small town” accessibility and personal attention. That is what sets us apart.

No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

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