Family Law

FAMILY LAW

Family Law, often called domestic relations law, is the broad term used to encompass divorce and property settlements; child custody, placement & visitation, child support, alimony, paternity and related proceedings. These issues also necessarily raise considerations of tax consequences and needed changes to estate planning.

The field is too broad to address all aspects, but below is information on some of the more frequently encountered areas.

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ANTENUPTIAL AGREEMENTS

Antenuptial agreements, more commonly called prenuptial agreements, allow parties to enter into a contract which governs their rights following marriage to the estate of the other and to define their obligation to each other in the event of divorce. To be valid, a prenuptial agreement must:

  1. Be in writing and signed by the party who’s alleged waiver of rights are an issue;
    a. There must have been a fair disclosure of the estate and assets of the parties at the time of entering into the agreement;
    b. The agreement must have been entered into freely and voluntarily and not under any duress; It is preferable if both parties have had the opportunity to consult with independent counsel of their own choosing before entering into the agreement to ensure that the waiver was made with full understanding.

ANNULMENT AND DIVORCE

These two terms should not be confused. An annulment is a radically different process from a divorce. An annulment is a remedy for the problem of an invalid marriage. In other words, the purported marriage was never legally valid to begin with. This can be for various reasons to include being underage, already married, lack of mental capacity to consent, etc. The procedure is not available to end a marriage that is otherwise valid. For that, the action is one for divorce.

An Alabama divorce may be obtained on either fault grounds or no-fault grounds. Fault grounds would include such things as adultery, abandonment, habitual drunkenness or drug addiction, incurable insanity and others set forth in the Alabama Code. No-fault divorce was recognized in Alabama beginning in the 1970’s, and is now the most common basis, because the parties are incompatible and there has been a breakdown of the marriage that is irreconcilable.

The dissolution of the marital bonds raises many other issues which have to be addressed by the Court or by negotiated agreement including:

  1. Division of property, debts, retirement funds and personal goods;
  2. Custody and physical care & placement of children;
    a. Child support (in Alabama, child support is subject to a formula for calculation pursuant to uniform guide lines).
  3. Possible Alimony

The procedure can either be what is referred to as uncontested or contested. In general terms, an uncontested procedure is where the parties have worked out all of the details on property and support issues, custody and placement, and simply need all the legal documents prepared. These can be signed, processed and a divorce obtained without a trial or court hearing. A contested proceeding occurs when there is one or more of the issues on which the parties cannot agree. That results in preparation and trial of the case, before a family court judge. In Alabama, divorce trials are by Judge alone and juries are not available.

There are many, many more aspects of family law which can be discussed such as protection from abuse, paternity actions, jurisdiction issues, termination of parental rights and more. A qualified attorney, with experience in family law matters, can be invaluable in making an extremely personal and difficult time of life more manageable.