May
23
Posted on 23-05-2013
Filed Under (family-law) by admin

The Alabama legislature enacted the Alabama Grandparent Visitation Act (Ala.Code 1975, § 30-3-4.1) so that grandparents would have the right to be a part of their grandchildren’s lives in situations where the parents were blocking access to the children. The Act gives grandparents the right to sue for visitation rights where either or both parents have denied it, and a judge may grant such visitation over the parents’ objection if it is in the best interests of the child.

This is just what a Jefferson County judge did in a case brought before the court in 2007. The Alabama Court of Civil Appeals, however, reversed the trial court’s decision in E.H.G. v. E.R.G.
because the grandparents had not proven “by clear and convincing evidence” that to deny visitation to the grandparents would cause substantial harm to the children. So it is not enough according to the court to show that visitation is in the child’s best interest; grandparents must go further and prove that it would be harmful to the kids not to allow visitation.

On June 10, 2011, the Supreme Court of Alabama upheld the Appeals Court decision, but for a different reason. This court held that the Act is unconstitutional because allowing a court to award visitation to a grandparent – even “in the best interests of the child” – over the objection of a parent’s wishes violates the “fundamental right of a fit parent to direct the upbringing of his or her child.”

This case was appealed all the way to the U.S. Supreme Court, which decided not to hear the case when it denied the writ of certiorari on February 21, 2012. This means that the Alabama decision is the current state of the law, and the Alabama Grandparent Visitation Act remains declared unconstitutional. Until the legislature amends the current law, grandparents who are being denied a relationship with their grandchildren may have a difficult time trying to enforce a legal right to meaningful access to their grandkids.

With offices in Arab, Albertville, and Guntersville, The Hawkins Law Firm handles family law matters including grandparent rights issues throughout Marshall County and surrounding areas. If you have a grandparent’s rights issue or other family law matter, contact The Hawkins Law firm to discuss your case with a caring, compassionate and capable family law attorney.

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On March 26th, the United States Supreme Court heard oral arguments in Hollingsworth v. Perry regarding the constitutionality of California’s Proposition 8, an initiative petition which amended the state constitution to define marriage as the union of a man and a woman. Challengers to the law say that Prop 8 violates the U.S. Constitution, in particular the Equal Protection clause of the Fourteenth Amendment. If so, the decision of the Supreme Court may go beyond California and affect how marriage can be defined in all 50 states, including Alabama.

You can listen to the oral arguments made to the court and read the transcript here.

Was the case properly brought before the court?

It is not uncommon for the Supreme Court to deal with a controversial case on procedural grounds, rather than dealing with the merits of the case. There was considerable discussion during the hearing about whether the proponents of Prop 8, who brought the suit to enforce the law, have standing to sue. Normally, it is the Attorney General’s job to enforce or defend the laws of the state, and not the job of private citizens. The court would have an easy way out to say that the citizens lacked standing to bring the suit, or that the issue is a political question better addressed through the political process than the courts, and decline to reach a decision on the merits.

Is a ban on Same-Sex Marriage Constitutional?

A state cannot enact a law that discriminates against a group of people unless it has at least some rational basis for doing so. But if that group of people belong to what is known as a “suspect class,” such as a racial minority, then the government’s action is strictly scrutinized and will probably fail. Much of the debate in court focused on whether homosexuals should be considered a suspect class. Counsel for Prop 8 admitted that other discrimination against people based on sexual orientation would not be allowed, although he held fast that the state’s interest in defining marriage is different.

The proponents of Prop 8 seemed to rest their argument on the state’s interest in responsible procreation. But what about marriages between senior citizens or infertile couples? Not every marriage has to have procreation as its purpose. And does allowing same-sex marriage actually harm the state’s interest in procreation, even if it doesn’t further that interest? These vexing questions were posed by the Justices during oral argument. Expect a discussion of these issues when the decision is reached, if the court deals with the case on the merits.

How could this case affect Alabama?

Alabama does not recognize same-sex marriage or even civil unions. In fact, the Alabama Constitution was amended in 2006 by the Sanctity of Marriage Amendment (Amendment 774) so that it would be unconstitutional for the state to perform a same-sex marriage or civil union or recognize one entered into in another state. This amendment was passed through the referendum process and was overwhelmingly adopted by the people. Like California’s Prop 8, the Sanctity of Marriage Amendment defines marriage as between a man and a woman. If the Supreme Court strikes down Proposition 8 as unconstitutional, it could at the same time declare any such measures in other states unconstitutional as well.

Experienced Family Law and Estate Planning Attorneys for Alabamans

Regardless of the outcome of Hollingsworth v. Perry, or the federal Defense of Marriage Act case also before the Supreme Court this term, gay individuals and couples in Alabama will continue to face legal issues in the family law and estate planning arena, from cohabitation agreements to adoptions issues and more. For sound legal and practical advice in the Huntsville-Decatur region, contact the Hawkins Law Firm in Arab, Alabama.

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Mar
01
Posted on 01-03-2013
Filed Under (family-law) by admin

If you are recently divorced, or going through a divorce, here are some tips for filing your income tax return. For more information, see these articles from Forbes.com and Time.com.

  1. When it comes to property distribution, asset transfers between spouses are generally income tax-free as long as the transaction is “incident to a divorce,” takes place within a year, and the recipient of the property is not a “nonresident alien.” However, if you receive the house, you may have to pay some capital gains taxes if your home is over a certain value.
  2. Alimony is fully taxable as income to the recipient and provides an above-the-line deduction for the payer. To qualify as alimony for tax purposes, the payments must be made in cash to a spouse (or ex-spouse); be pursuant to a written separation or divorce agreement; not be labeled as non-alimony; made in a year that the spouses do not file jointly and do not live together; terminate upon the death of the recipient spouse; and cannot be considered child support.
  3. Child support is always tax-neutral, meaning it is never taxable to the recipient spouse or deductible by the paying spouse. Do not classify child support payments as alimony―the IRS will go back and recalculate the amount you paid as nondeductible child support and you will be taxed on that previously deducted income. You will also likely face interest and penalties.
  4. In most cases, you may only claim children as dependents if you are a child’s designated custodian by court order. If you share custody 50-50, you may switch who claims the child from year to year in order to share the tax benefit. If you have more than one child, you may split the dependency of the children so each parent receives an income tax benefit each year.
  5. In some cases you may claim some of your divorce attorney’s fees as a deduction, but only if you itemize and can prove that your lawyer helped you receive, increase or collect alimony payments. The payments must also exceed 2% of your adjusted gross income.

Seek Supportive, Experienced Divorce Representation in Northern Alabama

If you are facing divorce and all of the potentially complex legal and financial issues that come with it, please contact Lana Hawkins, Attorney at Law, at Hawkins Law LLC for advice and counsel from an experienced Alabama divorce attorney. With offices in Arab and Albertville, we represent clients throughout northern and central Alabama, including the Huntsville-Decatur metro area.

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Feb
01
Posted on 01-02-2013
Filed Under (family-law) by admin

When people are hesitant about the divorce process, or either spouse is not wholly committed to the idea of divorce, they may explore the option of legal separation to define their rights and obligations while they are experiencing marital difficulties. Alabama law recognizes and allows legal separation when a married couple enters into a separation agreement, and it is approved by a family court.

A separation agreement may cover just about anything that a divorce agreement would cover, including child custody, child support, spousal support, control of the home, obligations to pay bills or debts, and insurance payments. These terms will carry over into any subsequent divorce, with two exceptions―child and spousal support and issues involving child custody remain within the jurisdiction of the court and can be changed later (even after divorce) if the court determines that there has been a material change in the parties’ circumstances.

A legal separation can be dissolved at any time by the simple filing of a joint motion to dismiss on the grounds that the spouses have reconciled. Likewise, either party can file for divorce at any time while legally separated.

Reasons for Legal Separation instead of Divorce

There are several reasons for proceeding with a legal separation rather than a divorce, including:

  • Health Insurance Concerns – In many marriages, one spouse provides health insurance coverage for the other spouse through his or her employment. A legal separation allows both parties to remain insured even though their marriage is no longer functional.
  • Religions Concerns – Couples with religious objections to divorce may circumvent these concerns by getting a legal separation instead.
  • Social Security & Pension Benefits – Married couples may delay formal divorce until they have been married long enough to qualify for certain Social Security and pension benefits.
  • Trial Separation – Some couples hope to eventually reconcile their differences, but recognize that they currently need to spend time apart. In such cases, a legal separation is helpful for addressing issues such as child custody and support.

Whatever the reasons for legal separation, having a clear set of agreed terms is an important tactic for reducing the possibility of disputes later on. Reaching common ground on such terms, however, can be difficult when a couple is having marital issues. An experienced family law attorney can provide clear guidance through the legal separation process, while ensuring that your rights and interests are protected.

Contact an Experienced Alabama Family Law Attorney

Alabama family law attorney Lana Hawkins helps clients consider all of their options when it comes to resolving marital issues, including guiding clients through legal separation. If you live in the Huntsville-Decatur area and are considering divorce or separation, contact Hawkins Law LLC in Arab to discuss your unique situation.

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Jan
01
Posted on 01-01-2013
Filed Under (family-law) by admin

In Alabama, the Department of Human Resources recruits and prepares families willing to open their hearts and homes to children in foster care who are waiting to be adopted. Many of these children are designated as having special needs. Some may require extra guidance to help them realize their full potential, while others may require more dedicated care and attention because of physical, mental or emotional issues. Special needs children include:

  • Generally healthy, average children who are over the age of eight
  • Children with a background of parental substance abuse, mental illness or mental retardation that places them at risk
  • Children with various degrees of mental, physical or emotional problems
  • Sibling groups of three or more to be placed together

As you can see, the phrase “special needs” can apply to many children adopted from foster care, and not just those with a disability or defined syndrome. In fact, the U.S. Department of Health & Human Services states that “the term ‘special needs’ is almost universally disliked by adoption professionals and youth in foster care because of its potential to be misunderstood and its negative connotations.”

When you adopt from the Department of Human Resources, the Department charges no fees for the adoption home study, which includes 30 hours of training, or for the placement of children. Expenses are generally limited to the costs of criminal history record checks and obtaining medical records and/or evaluations on all household family members. Children with special needs may qualify for financial assistance, called adoption subsidy, and Medicaid.

When You May Consider Adopting a Child with Special Needs

If you are having difficulty adopting a child, expanding your search to children designated as having special needs can greatly increase your options. Many of these children simply need a parent’s love, patience and commitment to thrive. However, in some cases, successfully parenting a child with special needs may require extra time to meet the child’s needs, the ability to advocate for the child, and access to medical care, early intervention and other services.

A family law attorney with experience handling adoptions in Alabama is a valuable resource if you are considering your options for adoption or if you have already started the process or received notice that you may be eligible to adopt a foster child.

Contact an Experienced Family Law Attorney in North Alabama

As you move through the adoption process, there may be obstacles and disappointments; however, with some perseverance, you can make an extraordinary difference in a child’s life. If you live in the Huntsville area and need help with adoption, contact Alabama family law attorney Lana Hawkins of Hawkins Law LLC in Arab for knowledgeable, supportive advice and representation.

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Dec
07
Posted on 07-12-2012
Filed Under (family-law) by admin

In Alabama and around the country, family court judges often turn to mental health professionals (usually psychologists or social workers) to assist them when making child custody determinations. The use of a mental health professional hired by one attorney to review the work of a court-ordered evaluator has also been used in custody cases for a number of years.

What is relatively new in the child custody field is the increased use of mental health consultants that assist parents directly (see “Mental Health Consultation in Child Custody Cases,” Innovations in Interventions with High Conflict Families by E. Hobbs-Minor, M.A. and Matthew J. Sullivan, Ph.D.). In most situations, the consultant becomes involved with one parent at the beginning of a case to help support the parent through the divorce transition or any child custody proceedings, and prepare him or her for any dispute resolution processes they may face.

The Changing Role of Mental Health Professionals in Custody Matters

Custody determinations did not always involve doctors. First men, and then women, were favored as parents, and these legal doctrines (despite blatant gender bias) were applied by judges without much consideration of case-by-case details (Psychology Today). A doctor’s role was limited to the diagnosis of serious illnesses disabling enough to upset the presumption of paternal or maternal custody.

By the 1960s and 70s, courts started rejecting presumptions in child custody cases, preferring legal standards that focus on the best interests of the child and gender equality. While this emphasis generally leads to fairer results in child custody matters, it also gives rise to more questions about parental fitness, children’s needs and other issues. Mental health professionals are called upon with increasing frequency to answer these questions.

Some people facing divorce and/or a child custody dispute may benefit from the support of a private mental health consultant as well. Consultants often help with preventing disputes form unnecessarily escalating, developing communication skills, and other objectives related to managing conflict. These services are provided confidentially, which means the use of a consultant is not disclosed to anyone other than the parent and his or her attorney (unless mandatory disclosure is applicable, as in cases of child abuse).

Contact an Experienced Child Custody Lawyer in North Alabama

When you are facing divorce and have children, custody and visitation arrangements may be some of the most difficult matters to work through during the divorce process. If you live in the Huntsville area, contact Lana Hawkins, Attorney at Law, at Hawkins Law LLC in Arab for advice and representation from an experienced Alabama family law attorney.

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Nov
30
Posted on 30-11-2012
Filed Under (family-law) by admin

At the beginning of 2012, the Alabama legislature passed Act 2012-266, which authorizes the appointment of former or retired judges to serve as private judges in certain non-jury district and circuit court cases, including domestic relations cases. The law went into effect July 1, allowing both sides in a divorce and custody proceeding to agree on a private judge to preside and rule on their case.

Under the new law, a private judge list is maintained by the Alabama Center for Dispute Resolution. Judges on the list must have at least six years of experience on the bench and in the area of law for which they are being hired. There are currently 22 judges from around Alabama on the list.

Like any other divorce case, once a private judge is hired, both sides continue to file motions through the Alabama state court system and the private judge’s rulings are entered into the state court system. At the end of the case, if one party doesn’t agree with the ruling, he or she can appeal to the state appeals courts.

As reported by AL.com (online home of the The Huntsville Times), the private judge law hasn’t gotten much attention in Alabama, with only two divorce cases being handled by private judges thus far — one in August and one in November. However, once more attorneys and parties become aware of the new law, and the benefits of hiring a private judge, it is likely to become more popular.

What are the benefits of hiring a private judge in a divorce case?

According to former Jefferson County Circuit Court Judge R. A. “Sonny” Ferguson, who pushed to get the bill drafted, there are several advantages to hiring private judges in certain civil and domestic trials. Perhaps most importantly, it can cut down on the backlog of cases and relieve overcrowded court dockets.

For parties involved in a case, this can save substantial time and money. There’s no risk of preparing a case for trial only to find out that the trial must be delayed. With a private judge, a case can generally be heard — and resolved — much more quickly.

Another benefit is that a private judge, unlike an elected official, is devoted to only one case at a time. As Ferguson told AL.com, the judge is “able to render a decision in a timely fashion without having to juggle 10 to 15 other orders…at the same time.”

Contact an Experienced Alabama Divorce Lawyer

If you live in the Huntsville-Decatur area and are considering divorce, contact Lana Hawkins, Attorney at Law at Hawkins Law LLC in Arab for legal guidance from an experienced Alabama family law attorney. Now and in the days ahead, you need to explore your options and protect your rights.

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Oct
31

The majority of psychologists and child advocacy groups agree that the most important factor for children’s well being during and after divorce is limiting the amount and intensity of conflict between parents. It follows that agreement between parents on discipline and child rearing, as well as love and approval from both parents, contributes to a child’s sense of security and self-worth.

The fact that children need the support and presence of both parents in their lives has led family courts in Alabama and throughout the country to encourage and order joint custody arrangements unless there is a clear indication that joint custody would not be in a child’s best interests. But while joint custody does have many benefits, recent research suggests there may be times when there are drawbacks to this arrangement.

Is joint custody best for children?

In the words of one psychologist, “Joint physical custody is the best and the worst arrangement for children” (Psychology Today). At its best, joint physical custody represents the parents’ attempt to make the best of a bad situation. At its worst, it can intensify a child’s feeling of being torn in two.

According to some research, younger children may think they are being punished when they are moved from one household to another, while older children may dislike a joint custody arrangement if it intrudes on their daily lives. Some parents in joint custody arrangements fight with each other because they are in constant contact. Their children suffer as a result.

When considering a joint custody arrangement, it is important to understand that successful joint parenting requires regular communication and cooperation that may be difficult for parents who do not get along. If there is a very high level of conflict between parents, then a joint living arrangement may not be in the best interest of children.

A psychologist who works with divorcing families observed, “A lot of the success of [joint physical custody] arrangements depends on the level of communication the parents are able to have with each other. There needs to be a willingness to focus in a businesslike manner on the needs of the child, or the child could have a less favorable prognosis for coping with the divorce” (FamilyEducation).

Talk to an Experienced Divorce & Custody Attorney about Your Concerns

When you are facing divorce and have children, custody and visitation arrangements may be some of the most difficult matters to work through during the divorce process. If you live in the Huntsville area, contact Lana Hawkins, Attorney at Law, at Hawkins Law LLC in Arab for advice and representation from an experienced Alabama family law attorney.

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Sep
28
Posted on 28-09-2012
Filed Under (family-law) by admin

For many married couples in Alabama it is clear love is lost and that it is time to go separate ways. What is less clear is the appropriate way in which to end the relationship. Most couples that want to end their marriage simply opt for a divorce. But for some, saying “I do” means keeping the marriage together—at least officially.

Legal separation is a common alternative to divorce in Alabama. It allows couples to end their relationship, but not terminate their marriage. Besides the marital union remaining intact, legal separation operates much like divorce—that is, most legal connections between the parties are severed. For instance, the earnings and income of parties after entry of a separation decree are no longer considered marital property. This separate property will not be subject to division if the parties later choose to divorce.

Why Do Some Couples Choose Separation Over Divorce?

Couples in Alabama that elect for legal separation over divorce do so for any number of reasons. In many cases, it is a combination of two or more. The following is a list of some of the more common reasons parties choose legal separation in Alabama:

  • Religious beliefs – Alabama is a deeply religious state positioned in the heart of the Bible Belt. Some couples here choose legal separation over divorce because their church heavily discourages the latter. Legal separation, then, is a means of ending the relationship but maintaining religious acceptance.
  • Health insurance - For many couples, health insurance benefits are tied to a spouse’s employment. Coverage is extended to the other spouse by virtue of marriage. When the marriage terminates, so too does the spousal coverage. Some parties choose legal separation so health insurance benefits are not cut off for their spouse.
  • Social security – Among other requirements, spouses can receive social security benefits from the other’s work record so long as their marriage lasted at least 10 years. Couples who legally separate before 10 years of marriage are still considered married for social security purposes, and therefore do not run afoul of the 10 year rule.
  • Possible reconciliation – Some couples who are unsure whether divorce is the answer try legal separation first. It provides the parties with a chance to consider their feelings and later decide whether their marriage can be saved.

If you are concerned whether divorce or legal separation is right for you, contact Lana Hawkins at Hawkins Law LLC to learn more. Ms. Hawkins is a trusted family law attorney located in Arab, Alabama.

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Aug
31

On August 22, news sources reported that the United States Supreme Court will hear an international custody dispute that originated in Alabama (see Al.com, online home of The Huntsville times). The outcome of the case could affect when U.S. courts have jurisdiction in international custody cases.

Supreme Court review in this matter arises out of a 2011 Alabama federal court decision involving the custody of a then-four-year-old girl. In a divorce case that is still pending, an Alabama judge allowed the girl’s mother to relocate with the child to Scotland U.K. after living for a time in Huntsville. The mother and daughter had lived in Scotland prior to moving to Huntsville to be with the girl’s father, a U.S. Army sergeant.

The father sought to appeal the federal court’s decision; however, the U.S. Court of Appeals for the Eleventh Circuit turned down the appeal, finding the issue was no longer in its jurisdiction because the girl had already moved to Scotland with her mother. When the Supreme Court hears the case, the justices will consider whether such appeals should be considered moot after a child leaves the United States.

The father’s attorney asserts that the majority of lower courts in the United States disagree with the Eleventh Circuit, holding instead that American courts do not automatically lose jurisdiction over custody matters because a child no longer lives in the United States. The mother’s attorneys agree that there are conflicting lower court opinions regarding jurisdiction, and do not oppose the father’s petition to hear the jurisdictional issue. They do argue, however, that the ultimate outcome of the Alabama proceedings was correct, and that the father had been wrongfully keeping the daughter in the United States.

If the Supreme Court holds that U.S. courts continue to have jurisdiction over custody matters after a child has moved to another country, the Eleventh Circuit will be required to reconsider the father’s appeal, but not necessarily to modify the custody arrangement.

Talk to an Experienced Child Custody Lawyer in Alabama

If you are facing divorce and have children, or if you have already been through divorce and have a child custody concern, the advice and representation of an experienced custody attorney is necessary to protect your rights and the wellbeing of your children. In Alabama, contact Lana Hawkins at Hawkins Law, LLC. With offices in Arab and Albertville, we represent clients throughout northern and central Alabama, including the Huntsville-Decatur metro area.

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