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COLLEGE TUITION – POST MINORITY SUPPORT – NON CUSTODIAL PARENT’S OBLIGATION FOR COLLEGE EXPENSES



Christopher v Christopher Decision 10 4 13 (3)  (see attached)

Breaking news! Today the Supreme Court of Alabama overrulled a long standing tradition of ordering the non-custodial parent to pay college expenses to their minor children. The Supreme Court overrulled Bayliss which has long stood for the ability to Order the noncustodial parent to contribute to a percentage of the college expenses for their children. This included tuition, room & board, transportation expenses, books and fees. The case Christopher v. Christopher attached to this post explains the case.  Children of divorced parents will have to rely on the voluntary support of their parents just as children of nondivorced parents. 

This news plays both ways to those parents trying to figure out college expenses.  The custodial parent trying to figure out how to pay for college might need to assist their child in seeking scholoarships or student loans if the noncustodial parent refuses to assist in the expense.  The noncustodial parent is allowed to discontinue support in Alabama once the child reaches 19 years of age as long as that child is not a special needs child.  In most cases, child support will automatically terminate when the minor child reaches 19 years old.  Now with Christopher v. Christopher, any support paid for college expenses by a noncustodial parent is voluntary.

Of course, parents can agree in writing to any form of support for college if they so desire.  The courts are just bound not to enforce its own order for college support from the noncustodial parent.  If the parents agree voluntarily to execute an agreement, the court will incorporate that agreement into any order for support.  This puts the tasks upon the parents to voluntarily agree and discuss all decisions prior to unilaterally racking up college expenses and expecting the courts to force the other parent to pay or be found in contempt.

Most parents truly want their children to go to college.  It is rare that parents will deny any support of any kind for college support.  Of course, there is that group of parents who feel that the child should take out any scholarships and student loans to pay for their own education.  This gives the child a sense that the money they are spending is not “monopoly” money.  They understand the debt they are incurring during college will be a bill they will have to pay back with their job following their degree.  This is helpful in making the children realize they cannot be career students and facilitates their decision of a chosen professional that will alow them to pay back their debts.

In today’s market, college degrees are becoming less valuable by the day.  It is said that a technical license can pay more and jobs are more readily available for technical jobs than jobs requiring a degree.  The costs of going to college must be weighed against the ability to gain employment in that chosen field. 

In summary, any financial support given following a divorce for college expenses must be by agreement or voluntary.  If you have questions about this new development in the field of family law call us today (205) 623-1001.  We are always here to answer your questions.



Checklist for Divorce? Why use a checklist is important.



BELOW ARE APPS THAT HAVE CHECKLIST WHEN GOING THROUGH A DIVORCE: 

Android application for Divorce Checklists.

Android application for Divorce Checklists.

Divorce App for Apple.

Divorce App for Apple.

 

The applications above are helpful when thinking of getting organized for a divorce.  These applications include checklists that will help you when emotions are running high.  A checklist will give you a guide to make sure all items have been addressed. Items to include in the divorce checklist are locations of checking and savings accounts with account numbers if possible. Include any retirement information with updated balances. List personal property that is to be divided. Keep a detailed list of what debts are owed with balances. Write in your checklist where your tax returns can be found and what accounting service was used to compile them. These are financial checklists.

Other items to list:
Where the birth certificates are kept?
Where any wills are maintained?
Any biographical information on your children.
Who is the insurance carrier for home, auto, health, and life insurance?
What is the agent’s contact information?
When was the last time a policy was issued?

Within the Divorce App designed by Zwiebel Law Firm there is also a divorce journal and asset tracker. These two items will assist you in keeping organized when asked questions about your accumulated assets and recent events.



Picking an Attorney



Points to consider when deciding which attorney to use are often discussed in inner circles but not put out for everyone to read. When going through any divorce, child custody, child support or paternity issue it is vital that you ask the right questions. Listed below is points you should be asking:
1. Do they practice in the county you are going to file in?
2. Do they regularly practice in family law?
3. How much of their practice is in family law?
4. Have they tried a case like yours or with similar facts?
5. Do they know professionals for counseling or therapy if such a need arises?
6. What kind of billing scheme do they have?
7. Do they bill for phone calls, emails, texts?
8. Do they have a different rate for in-court time?
9. How often will you be updated on the amount left on your retainer or account?
10. Have they been to a CLE recently to get the new case law updates?
11. What is the policy for returning phone calls?
12. What is the best way to communicate with your lawyer?
13. How many years experience do they have in the area of law you are confronted with?

These are some basic questions each potential client should consider. Be bold and ask what you need upfront. Waiting until you are in the middle of a case to find out you have retained the wrong type of lawyer can be costly. Also, if you do not get rate information up front, you may use all your retainer and still have months to go before the end.



Child Support Arrearages



In today’s job market there are reasonable excuses for noncompliance with child support payments.  A recent job loss and inability to secure employment may be one reason that a parent cannot pay their child support.  However, a caution to those taking advantage of this excuse.  If there is a history of noncompliance, judge’s are less likely to take into account that a lack of employment resources is sufficient to explain the nonpayment of your child support.  The history of nonpayment will only work against the parent who has the obligation to pay when they argue that recent unemployment is the reason for their noncompliance.  Typically, a judge will order the parent who has not paid to be incarcerated until such time that a cash bond in the amount of the arrearage is paid or until a substantial amount toward the arrearage can be paid.  Along with this, a judge typically requires a plan from the paying parent to put into action their future compliance for paying their support obligation.  The only defense to child support is inability to pay but that defense is very difficult to prove.  If a parent can pick up cans on the highway, sell their property, borrow money from relatives, apply at fast-food places, then the inability to pay their support obligation will not be sufficient to stay out of jail.  Nonpayment of child support will also not afford them the ability to seek remedy from the court for other issues such as refusal of visitation by the custodial parent.  Because they would be coming to court with “unclean hands” the judge’s hands are tied at affording them relief in other issues surrounding custody and visitation. 

If you are a custodial parent and you are not receiving your child support, you have a definite obligation to file contempt on the parent owing you that support.  A lack of pursuit on your behalf will be seen by the court as accepting this behavior and will hurt you in the long run.  It is best to seek relief as soon as the child support becomes past due for only a few months than to wait until a year or two has gone by.  However, even then a judge will assist you in receiving the support due to you.  Child support is the child’s constitutional right to receive support from both parents.  The child is the one who suffers when their lifestyle is affected because the support due to them is not being paid. 

At Swann-Zwiebel Law, we take child support contempt cases very seriously.  We have payment plans to assist our clients with attorney’s fees so that every client has adequate representation.  We have assisted custodial parents and parents who owe child support.  We are able to assist either party to get the best possible outcome.  Even parents who owe child support have solutions available to them to keep from being incarcerated.  Call us today if you have a child support issue (205) 623-1001.



Child Support and College Expenses



The big “buzz” words today in family law are college tuition support or post-minority support.  What this means is that the non-custodial parent may be ordered to support their child while that child is attending college.  It is called post-minority support because after the age of 19 in Alabama a child is considered to be an adult and no longer a minor.  Basically up until now it was clear that an award ordering the non-custodial parent to pay for college tuition, books, fees, room & board, etc was possible.  Since Ex Parte Bayliss in 1989, parents have chosen to take each other back to court following a final divorce and modify the child support portion to include college expenses for the minor child. 

Now there is a “buzz” going around in Family Law circles about post-minority support.  There is a case Christopher v. Christopher, 2012 Ala. Civ. App. Lexis 357 decided December 21, 2012 that may be successful in deciding that the obligation of the non-custodial parent to pay college expenses is unconstitutional.  The case basically argues that by treating children of undivorced parents unequal as well as the fact that forcing only divorced parents to pay for college expenses is unconstitutional.  This class discrimination is prohibited by the constitution and making it apply to those non-custodial parents is a new twist regarding post-minority support.

As many may know, Grandparents rights to visitation over the objection of a fit parent was deemed unconstitutional in 2011.  So applying constitutional framework to Family Law is not new by a long shot.  If Christopher v. Christopher is successful in our Supreme Court it will most likely overturn Ex Parte Bayliss.  Plus, there are more arguments made in this case that seem to suggest that it may very well be successful after it has run its full course in Alabama courts. 

Currently until it is finished its course, there is a procedure still available to parents of college-aged children.  Any petition for college support must be filed before the child turns 19 to be sure that it will survive any statute of limitations.  If a parent is ordered to provide support for college expenses, it may hold up once this case has run its course.  Since its effectiveness is not likely to be retroactive.

Of course, this news comes on the heels of the “tide” that is brewing against children going to college.  Once the cost of college is measured against their ability to earn a living without a college degree, it would seem that the return on investment is not likely to be a positive one.  The job market is dictating that a college degree may not gain a child a better chance at employment like it used to do in the past.  College graduates are being sued by their colleges for outstanding student loans that they cannot afford to pay.  The degree that cost so dearly did not give them a career after graduation.  There are stories all over the news about college graduates who are working two and three jobs at minimum wage despite the fact they have paid in excess of $50,000.00 to earn a degree.  Colleges are not being responsive to the job market and this leaves the graduates without the means to pay back their student loans.  It is very important to make sure students are choosing colleges based on their ability to assist the graduate in obtaining employment.  If the colleges continue to be non-responsive and turn a “blind eye” toward the difficult job market, they too will suffer when students cannot repay loans.  Eventually colleges will start to feel the pinch of the economic climate because they have not assisted their graduates with finding employment. 

Watching the trends in family law is exciting.  The attorneys at Swann-Zwiebel are here to answer any of your family law needs.  Call us today (205) 623-1001.  We understand your need to stay informed.



Divorce and Prenuptial Agreements



A prenuptial agreement is a contract in anticipation of marriage.  It is lawful in every state including Alabama.  It can be referred to as a super contract with brave consequences.  Prior to marriage a couple may decide that they would like to protect the assets they acquired prior to marriage.  If they have acquired anything by earning it, by gift, or by inheritance, it is a good idea to put it in a prenuptial agreement.  This allows this property to maintain its character as separate property in the event of a divorce.  Without a prenuptial agreement, every piece of property or income becomes part of the marital estate and is subject to division upon divorce. 

There are elements or requirements that each prenup must meet to be enforceable.  Like any contract to be enforceable it must have:

  1. Offer;
  2. Acceptance;  and
  3. Consideration.

These requirements in legal terms can be broken down into more simple ideas.  The offer and acceptance can be assumed because it is a written contract and each party signed it.  Consideration will be a property right both parties are giving up in return for something else – namely the marriage to each other.

When the parties have children to a prior marriage, it may be written in the prenuptial agreement that each agrees waive any rights that accrue to them at the death of the other party.  This protects the children from losing any inheritance they would have received had their parent stay unmarried.

In Alabama, Consideration is broken down to even a simpler form in that case law says the mere agreement to marry is consideration enough to support a prenup agreement.

Alabama divorce case law also indicates that other forms of consideration are the giving up of rights to alimony and future rights that would be received upon the death of either party.  This is important because if one spouse gives up two rights the fact that the other spouse agrees to marry is consideration enough to support the enforcement of the prenup.

It is always a good idea to have a prenup prior to marriage.  After the prenup is signed and the couple is married, they still have the option of enforcing the prenup at their election in the event of divorce.  It gives each party a clear answer to what may happen in the event the marriage does not last. 

While prenups are available, the same case law and rules apply to post nuptial agreements.  If a party is already married, a post nuptial agreement may be executed at any time.  It is just as enforceable as a prenup but occurs post marriage.  The typical situation that gives rise to a post nuptial agreement may be after one spouse has inherited a part of their parent’s estate or a gift that needs protecting from divorce division.  Some couples have signed post nuptial agreements following a reconciliation after trial separation and begin to realize the importance of having assets pre-divided by agreement. 

Protection of your assets is key in a divorce and a prenup or postnup may be the tool that gives you this ability.  Consult our lawyers today about either at (205) 623-1001.  We are Swann-Zwiebel are here to help you with any of our family law and divorce needs.



Avoiding Parental Alienation



 

This time of the year is especially difficult for divorced parents to spend quality time with their children. Parental alienation is a tough thing to overcome, especially during this time of the year. The Parental Alienation Awareness Organization defines the phrase on their website, “Parental alienation (or Hostile Aggressive Parenting) is a group of behaviors that are damaging to children’s mental and emotional well-being, and can interfere with a relationship of a child and either parent. These behaviors most often accompany high conflict marriages, separation or divorce.”

 

“These behaviors whether verbal or non-verbal, cause a child to be mentally manipulated or bullied into believing a loving parent is the cause of all their problems, and/or the enemy, to be feared, hated, disrespected and/or avoided.”

 

Parental Alienation is difficult for parents to identify until it happens. Targeting a problem early is key in developing a health relationship and loving parent/child bond. There are ways to prevent any issues later on in life. Talk with your child to understand what is going on and ensure that you love them. If you are having issues and need advice, don’t be afraid to seek help from professionals.

 

This time of the year is especially difficult for divorced parents to spend quality time with their children. Parental alienation is a tough thing to overcome, especially during this time of the year. The Parental Alienation Awareness Organization defines the phrase on their website, “Parental alienation (or Hostile Aggressive Parenting) is a group of behaviors that are damaging to children’s mental and emotional well-being, and can interfere with a relationship of a child and either parent. These behaviors most often accompany high conflict marriages, separation or divorce.”

“These behaviors whether verbal or non-verbal, cause a child to be mentally manipulated or bullied into believing a loving parent is the cause of all their problems, and/or the enemy, to be feared, hated, disrespected and/or avoided.”

Parental Alienation is difficult for parents to identify until it happens. Targeting a problem early is key in developing a health relationship and loving parent/child bond. There are ways to prevent any issues later on in life. Talk with your child to understand what is going on and ensure that you love them.  If you are having issues and need advice, don’t be afraid to seek help from professionals.



Three Common Divorce Terms To Know



 

Our attorneys attend to all matters associated with legal separation and marital dissolution.  Whether your particular situation is complex or simple it takes knowledgeable attorneys to guide you through the framework of getting a divorce.  One piece of advice important to all clients contemplating divorce is to hire an attorney who specializes in the area of family law.  Family law evolves, and the ground rules change every year.  It is vital to have attorneys that keeps themselves informed of the changes, since some of them could apply to your unique situation.  Some key words often found in this field include the following:

 

Grounds for Divorce: Incompatibility is the most commonly used ground for divorce.  Generally, it is not difficult to convince the court incompatibility is sufficient to dissolve the marriage.  The mere fact one party wants to divorce goes to the grounds for divorce in Alabama.  If one party desires to divorce, it is granted.  The fact the parties cannot agree to stay married is enough to grant a divorce.

 

Uncontested: This is the cheapest and easiest type of divorce if both parties agree on every issue. An uncontested divorce can only occur if both parties agree to the divorce and no disagreements over the division of marital assets and custody exist.

 

Contested Divorce: Contested Divorce occurs when two parties cannot agree on all aspects of the divorce. We provide clients with vigorous representation in domestic court for contested divorce cases. We help our clients negotiate, mediate, and fight for divorce agreements that include an equitable property settlement agreement and reasonable child custody, and support agreements.

 

Some divorces start out with both parties in agreement on every issue only to turn into a battle over sentimental objects, the home, or custody of the children.  Either way, each stage of the divorce process needs vital representation.  Parties can agree on and incorporate any terms during resolution into a final order, if by agreement.  If the divorce requires a judge, they will have to hear all the issues and decide what is equitable and legally fair.

 

 



Protection From Abuse Orders



 

It’s possible that protection from abuse orders may be used to gain advantage prior to filing for divorce.  A Protection from Abuse Order (PFA) is an ex parte remedy at first.  The requirements are to have been in a romantic relationship with someone whether married or not.  If one party feels they need protection from violence, threats or feel their life may be in danger in some way they can apply for a PFA.  The application is simple and does not require an attorney.  The party fills out the application, meets with a magistrate, and if the magistrate decides there is adequate cause, they issue an ex parte PFA immediately before that party leaves the office.  This creates a problem with the opposing party since ex parte in and of itself means without notification to the opposing party at first.  The opposing party is served with the PFA as soon as a sheriff can locate them to serve it.  Once served the opposing party now cannot contact the other side by phone, email, text or through any third person to find out why.  Any contact is a violation of the PFA and can be punished for up to five days in jail for each and every violation.

 

I’ve even seen text messages in cases where they are broken up into several texts and the defendant is charged with contempt for each text message.  So for instance if there was one long text sent but the recipient’s phone broke it up into several text on their end it could be seen as a separate violation and five days in jail for each one independently.  This is a problem the defendant faces when served with the PFA.  The first reaction is to reach out to the opposing party to discuss what has been filed and that in and of itself is a violation.  The allegations in the PFA will be addressed at the first hearing.  Many times the allegations start with a recent event and reach far into the past making it almost impossible for the defendant to line up credible witnesses and evidence to disprove them.   During the first hearing the defendant may plead to “true” or “not true” in regards to the allegations.  If “not true” the PFA containing the allegations will be set for trial.  If “true” the defendant doesn’t have a charge that can be seen as a domestic violence problem and has to undergo classes for anger management and continue to not contact the plaintiff in any way.

 

Often a PFA is obtained prior to filing for divorce to gain advantage in a divorce proceeding.  If this is done the PFA gives the plaintiff possession of the home place and custody of any children of the marriage.  The defendant is then placed at a disadvantage because they cannot contact or see their children until the PFA is heard in court.  If the defendant cannot disprove the allegations, they will have to exercise visitation with their children under supervision and most likely at the YWCA in a monitored room for a couple of hours every week.  If divorce is contemplated at the time the PFA is filed, an attorney can motion the court to move the PFA to the divorce court where the issues can be consolidated and litigation to its fullest extent.  This takes the PFA out of its original court and places it in a court where the divorce will be heard.  It is highly advisable if a defendant is served with a PFA and divorce is imminent that they contact a lawyer, like Swann-Zwiebel, immediately to find out their rights.  Then the lawyer can explain how violation occurs and have the case moved to a domestic relations court where a trial of the PFA can be done swiftly and often times the defendant can get visitation with the children sooner.

 

Having a PFA on a person’s record can be damaging especially if the person’s occupation is dealing with daycare children, schools or in law enforcement.  It is vital that if a defendant received paperwork that grows out of a PFA being filed, they must seek legal representation immediately.  A defendant’s lack of knowledge of the ways to violate a PFA will not keep them from being taken to jail for five days for each instance of a violation.  The old saying that “ignorance of law is no excuse” readily applies to Protection from Abuse Orders.

 

 



Dealing with the Alabama Department of Human Resources



Parents are often confronted with the Department of Human Resources coming into their lives due to allegations regarding safety of their children.  It is vital parents seek counsel immediately. Through no fault of DHR due to their large caseload and overprotective measures, children may be removed from the home.  Although a DHR social worker may act as your confidant and friend while removing your children or investigating allegations related to the removal of your children, anything said to a DHR social worker can be used against the parent during a hearing.   It is important that when children are removed, the parents act quickly to correct their behavior.  If at all possible, children put under a safety plan should be placed with a relative.  Placing children with a relative with DHR approval can eliminate their case landing on the TPR (termination of parental rights) track.  If children are placed with relatives and the parents are unable to correct any problems that led to the children’s removal, the case will simply be closed out with the relative retaining custody.  If there is no relative placement, the parents’ rights can be terminated, and after six months or less the children may be adopted or left in foster care.

 

Hiring counsel immediately can help eliminate issues that would lead to the case being closed or terminated.  Attorneys such as those at Zwiebel Law Firm, LLC practice regularly in these courts.  Their relationships with DHR attorneys, social workers and judges can greatly affect the outcome of the case.  If the requirements to have custody returned are things like parenting classes, random drug screens or psychological evaluations, an attorney may assist a parent in obtaining these.  Upon successful completion of the requirements, an attorney can ensure custody is returned to the parent promptly.

 

Removing a child from their parent is an emotional time for both the parents and the child.  For the parent, the spider web of DHR recommendations may be a daunting task.  Having counsel to interrupt court orders and recommend additional steps can be the most positive thing a parent can do in a DHR case.  Parents need to know if they are unrepresented they are going up against a state agency fully staffed with DHR attorneys and social workers.  During a DHR case the social worker that handles your case may change several times.   Many times parents are faced with a social worker who has positive feelings about their case only to have that social worker changed just prior to the next hearing.   When this happens it is typical the parents have to start all over again with earning the new social worker’s recommendation.  Having counsel during the case from the onset can alleviate transitions that would be negative for the parent.  The attorney can ensure all drug screens, parenting certificates, etc follow the case through each hearing.

 

When deciding whether to obtain an attorney for a DHR case, do it early and make sure they regularly work in the area of law.  Juvenile case law that governs DHR cases is its own set of laws.  Some attorneys have difficulty transitioning from other areas of law into the world of DHR cases.  An attorney who regularly works in this area brings with them the professional familiarity with social workers, DHR attorneys, and Judges.  This can be a great benefit when having to fight for custody of your child in a strange environment.  Call today (205) 623-1001 – do not go unrepresented.