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Expert Advice on Divorce & Child Custody

Expert Advice on Divorce & Child Custody

Divorce & Child Custody

From time to time we like to invite local experts from the community to answer questions about parenting and raising kids in Huntsville and North Alabama. Today we asked Caleb Ballew with Martinson & Beason, P.C. to address Reader’s questions about divorce and child custody.

If you and your current spouse are considering a divorce, there are a few important things you need to know that will help you break the news to your children. But before you do that, you need to do your research. Unfortunately, there is no cookie-cutter solution that suits every family when it comes to divorce.

Your Divorce Questions Answered by an Expert

Q.) My spouse and I decided we want a divorce. Now what?
If you and your spouse are in agreement as to the terms of the divorce, then the process is quick, simple, and relatively stress free. An attorney can draft documents that the court requires for an uncontested divorce and which will cover all relevant issues such as and child support (if you have children), property division, debt division, and others. Once that paperwork is prepared, both parties sign and the documents are filed with the court. There is a 30-day waiting period after the documents are filed and then a final order is issued granting a divorce.

Q.) If I want a divorce, is it mandatory that I hire an attorney?
No. However, there are many complicated issues that arise, even in uncontested divorces. If these issues are not handled or addressed correctly with the court, then there is a risk of the matter getting dismissed, or one party missing out on certain relief because they did not know the law.

Q.) What is the difference between an uncontested divorce and a no-fault divorce?
An uncontested divorce is one where both spouses agree on all terms of separation and divorce and have an attorney draft up the necessary documents to have that agreement formalized and approved by the judge. The divorce is granted solely on the paperwork that is filed and neither spouse has to appear in court. This divorce involves no litigation or legal fighting.

A no-fault divorce is a divorce granted on incompatibility of temperament or irreconcilable differences, as opposed to a fault-based divorce which includes issues like adultery, habitual alcohol or drug use, imprisonment, and other serious breaches of the marital relationship. Even in no-fault divorces, spouses can disagree as to the terms of the divorce or separation, and are entitled to try their case in front of a judge; a “no fault” divorce is not based on a specific fault, but on a general inability to get along.

Q.) How is child custody determined in a divorce?
The gold legal standard for determination of custody is the “best interests of the child.” So what will a court consider when determining the best interests of the child? Most courts and judges start with the baseline premise that both parents have equal capacity to care for and protect their children, so they are generally inclined to begin the analysis from the standpoint that parents should have equal time, if practically possible.

In their analysis judges consider EVERY aspect of a child’s life and compare each parent’s ability and willingness to meet the needs of the child. Factors typically considered by a court include: school schedules, work schedules, participation in extracurricular activities, presence at home, meal preparation, homework assistance, medical care, monthly income and budget, transportation, etc.

If there is one parent whose work schedule or military deployment prevents them from being home on a consistent basis, then that will loom large for a court’s determination. Participation in the child’s day-to-day schedule is also important and the court will focus on whether either parent has played more of a role in maintaining the day-to-day life of the children.

Your divorce questions answered live!
Q.) If my ex stops paying child support, can I stop him from seeing our kids?
Absolutely not. Two “wrongs” do not make a “right”. If a parent stops paying child support, the consequences come from the court, not the custodial parent.

Q.) What is the recourse when a parent refuses to give support they previously agreed to? What to do about “new” expenses not discussed in the original order or agreement?
If the agreement to pay a certain type of expense or a specific expense is in the written agreement or court order, then the recourse would be to send a demand letter requesting reimbursement, and then sue them if they do not respond or object to the demand. When parents agree to pay for things, and that agreement is written down to a contract, there is not much wiggle room.

However, certain expenses may not have been contemplated at the time the agreement was made, i.e. cellphone expense for the child, car insurance and car expenses for a teenage child. If you and your ex-spouse cannot agree outside of court on how those expenses can be made, either parent has the option to go to court to get a determination on how those expenses should be divided.

Under current Alabama law, college expenses cannot be ordered by a court without an agreement. However, the parties can include the payment of college expenses in their agreement if they choose, but a court cannot order that relief following a trial. If the college expenses are agreed to be paid in writing and that agreement is incorporated into the final judgment, then they can be enforced.

Q.) If a parent becomes delinquent on alimony or child support because the parent was fired from their job, can they be required to make it up?
Yes. Even after a parent loses a job, the orders to pay support and alimony are still active and enforceable. However, the parent losing their job can petition the court to amend their support or alimony amount or to eliminate it all together if they lose their job. Getting fired or losing employment will not guarantee that financial obligations go away. For child support, a court will look to the earning potential or capacity for a parent as opposed to what that parent is actually earning.

For instance, if a parent loses a job because of a recent onset disability, then their earning capacity is diminished because their ability to work anywhere is affected by that disability. But, if a parent loses a job because they show up late and leave early, then their capacity to work is not affected and their financial obligations may not be affected as much.

Q.) Can life insurance be required of any parent who is responsible for child support?
Absolutely, and this is fairly routine practice. Many judges will require that a spouse who has significant earning capacity and the ability to pay child support and/or alimony also maintain the other spouse as a beneficiary on a policy insuring the payor’s life. Note, this generally only applies in situations where one spouse earns significant income AND there is a significant discrepancy in income between the spouses.

The reasoning behind requiring one spouse to name the other as beneficiary on life insurance is to provide that spouse with a guarantee of income in the event that the income-generating spouse predeceases. If one parent relies on alimony and child support to pay children’s expenses and bills, life insurance proceeds will help supplement the lost income from an untimely death. Many courts will allow the life insurance payor to remove the ex-spouse as beneficiary once obligations for support or alimony terminate.

Q.) How do you file taxes after a divorce?
Taxes are always addressed in a divorce, especially if the parties have children. If the parties have children, and one parent is awarded primary physical custody of the children, the legal presumption is that parent will claim the children as dependents for tax purposes. Often times, parents will alternate years of claiming the children or agree to claim one child or another each year. Regardless of how well parents get along after a divorce, taxes are specifically addressed in all final orders to avoid confusion and fighting.

Q.) When a couple is divorcing, how is it determined who pays for medical insurance?
There is no bright-line rule or specific formula. Generally, the parent who has insurance coverage either through work or the military is designated as the person responsible for maintaining that coverage. If that parent also has to pay child support, the calculations provide for a reduction of that support based on the monthly premium for the child’s insurance. If the children are on Medicaid, then the parent who filed the application will likely be responsible for continuing that coverage for all future years. For medical expenses not covered by insurance, parties are almost always ordered to split those out-of-pocket expenses.

Q.) For divorced couples with older kids, how does that affect navigating financial aid like FAFSA?
A court has no authority to order either parent to pay for college expenses of a child who is 19 or older. Parents can certainly agree between themselves to pay those in a certain way, but if there is a disagreement, a court cannot order one parent or the other to pay them. So, a divorce has no effect on how college can be afforded for an adult child.

For more good resources on divorce in Alabama, click here

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Caleb BallewMartinson & Beason, P.C., where he has practiced since 2012. Caleb’s practice areas include divorce, domestic relations, criminal defense, general civil litigation, and estate litigation. In addition, he is a certified guardian ad litem and often represents the rights of juveniles. Caleb’s wife, Kourtney, is also an attorney, and they live in the medical district of Huntsville.

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