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Family Law FAQs

Getting through a divorce is an emotionally-trying experience, and try as you might, it can be difficult to make the best rational decisions for the future when emotions get in the way. Read the following FAQs for answers to questions you may have about Alabama family law and divorce, and call Smith & McGhee in Dothan at 334-702-1744 for advice and representation in your divorce, child custody dispute or other family law matter.

How does domestic violence affect divorce?

A pattern of domestic violence may be a reason that led to one spouse filing for divorce, or there may be no history of domestic violence prior to filing for divorce, but the divorce process itself can spur an act of domestic violence in a highly contentious or emotional divorce. The biggest impact of domestic violence on divorce is in the matter of child custody. Alabama law establishes a presumption against giving an abuser custody; someone who has been found guilty of domestic violence faces an uphill battle to prove that sharing in custody would be appropriate. Even obtaining visitation rights can be difficult for someone convicted of domestic violence. The court may put many conditions on the visitation, such as requiring that visitation be supervised, establishing a particular setting for the exchange, or prohibiting overnights.

Although alimony is awarded based on the need of the requesting spouse and the other spouse’s ability to pay, the conduct of the parties is one of the factors used by the court in determining whether to grant alimony and how much. The fact of domestic violence may play a role here as well.

My new husband loves my kids and wants to adopt them, but I think my ex will object, even though he has nothing to do with them. Do we need his permission?

Completing a stepparent adoption where the biological parent objects can be difficult. It requires going to court to terminate that parent’s parental rights, and to do that you would basically have to prove that the parent has abandoned his kids or is otherwise unfit as a parent. With so much at stake, make sure you obtain strong representation from experienced trial lawyers when seeking or challenging a stepparent adoption.

What’s different about a military divorce?

While a divorce in Alabama involving a spouse who is a military servicemember will follow Alabama divorce law in many respects, there are important federal laws which may come into play as well. For instance, the Servicemembers Civil Relief Act may work to postpone divorce proceedings for 90 days or more in certain cases. Also, the Uniformed Services Former Spouses’ Protection Act will enable the court to divide military pay and a military pension, but only under certain circumstances. Former spouses of military personnel may also be able to continue commissary and exchange benefits, as well as health care benefits such as TRICARE, under certain conditions. If your divorce involves an active or retired military spouse, make sure you hire an attorney who understands the special rules which apply to military divorces, such as the 10/10 rule, the 20/20/20 rule and the 20/20/15 rule.

Does the wife always get alimony in an Alabama divorce?

Alimony is not automatically awarded in every divorce, and when it is granted, it may be ordered for either the husband or the wife. One party has to request it and demonstrate that it is needed or justified. The other party may of course oppose the motion, in which case the matter would have to be litigated. The court looks at a wide variety of factors to determine whether an alimony award is appropriate.

Do grandparents have any right to visitation with their grandchildren?

Grandparents can petition the court for visitation rights in any of the following circumstances:

  • the parents are divorced

  • one or both parents are deceased

  • the child has been abandoned by a parent

  • the child was born out of wedlock

  • the parents are married, but one or both parents are prohibiting a relationship between the child and grandparent (this circumstance may not necessarily be enforced by the courts)

When parents are denying a relationship between grandparent and grandchild, the courts start by giving deference to the parents. They assume that the parents know best and will deny visitation, unless the grandparents can prove otherwise. In any petition for visitation, the grandparents must prove that visitation is in the child’s best interests, and the court will look at a long list of factors to decide whether this is the case.

Grandparents may be awarded custody of their grandchildren in some cases, such as where drug use or mental health issues make the parent unfit, and living with the parent would be harmful to the child whereas living with the grandparent would be beneficial. If seeking to establish or challenge grandparent visitation rights, strong legal representation by experienced courtroom family litigators will likely be needed.

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