Alabama Family Law Blog

I am frequently asked by prospective divorce clients if I will be aggressive... or a pit bull... or a shark.  They phrase it differently.  But, many folks facing divorce think that what they need is the most aggressive divorce lawyer in Alabama (or whatever jurisdiction they happen to be in).

In my years of divorce practice I have seen lots of lawyers handle divorce cases.  There are as many different styles as there are different lawyers.  But, I have also noticed three recurring styles of lawyer in particular.  I call them the lamb, the pit bull and the fox.

The lamb is the lawyer that just sort of goes with the flow.  They are reactive, not proactive.  They want to avoid confrontation at all costs and that means they also want to avoid going to court at all costs, even if it means convincing their clients to settle for significantly worse terms than they should.  The lamb may even be afraid to try the divorce case. He will rarely, if ever, tell his client that he should not sign a settlement offer that is being extended from the other side even if that offer is clearly inequitable.  Thankfully, there are not a lot of lambs that last very long as divorce lawyers.

Much more prevalent is the pit bull, who is exactly the opposite.  They hate to settle cases.  In fact, some of them won’t do anything proactive to try to settle their divorce cases.  It is almost as if they take some type of perverse joy in seeing the “blood running in the streets.”   The truth is that often they do this simply to develop and maintain a reputation as “Bad Leroy Brown…baddest man in the whole damn town.”  When a spouse is angry and in the emotional stage of wanting to exact revenge, they want to be the name on everyone’s lips when that aggrieved spouse asks their neighbor who is the meanest SOB in town.  And, so they work hard to maintain that reputation because it makes them a lot of money.  

The sad part is that acting like a pit bull is rarely, if ever, in their own client’s best interests.  Of course, the pit bull’s main concern is not their client. If you know anything about pit bulls, you will know that they are very aggressive and vicious. But, they are not thinking animals.  They act only on instinct.  When they fight, they not only destroy the dog they are fighting, but by their own actions hurt themselves and anything else around them (which often includes their own client’s and their client’s children).

The pit bull is aggressive for the sake of being aggressive, not for any long-term benefit it brings their client.  Often people going through divorce will think they need an aggressive lawyer to represent them in their divorce.  They are wrong.  What they need is a lawyer who is assertive.  There is a difference.  It is the difference between the pit bull and the fox.

The fox is wise and cunning.  He sees the big picture.  The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients.  He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests.  He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge.  Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.

When choosing a divorce lawyer, you should avoid the lamb and the pit bull at all costs.  Instead, find yourself a fox.

Mediation is a process where a neutral third person (in Alabama it is usually a lawyer trained in mediation) assists the parties in resolving the issues in their divorce case.  Mediation is not binding, which means that the mediator does not make decisions about the case.  The mediator's role is to try to facilitate an agreement between the parties.  So, unlike a trial, the final decision making authority lies with the parties (with counsel from their lawyers).

Mediation can be very effective and has successfully led to the resolution of many cases.  There are some financial costs involved.  So, if you think it may be appropriate for your case, I would get your lawyer's opinion about whether they agree that your case is a good candidate for mediation or not.

Yes, ultimately it is your decision to work with the lawyer you choose.  But, you should understand that switching lawyers in the middle of the case can (and likely will) costs you more money and may lead to delays in getting the case to trial as the new lawyer has to get up to speed.

You will want to make sure you do not change lawyers right before your court date unless you are certain that the case can be continued (or the new lawyer can be ready to try the case on short notice).  You do not want to be forced to go to trial without a lawyer because you fired your original lawyer and the judge would not grant a continuance to allow the new lawyer to be prepared.  It does happen.

Finally, you should expect that your original lawyer will have to be paid any monies you owe him before he will turn over your file to any subsequent lawyer you hire.

Only those fees paid to your divorce lawyer that are directly attributable to tax advice and/or related to the production of taxable income (such as alimony) can be deducted. 

You may want to ask your lawyer at the conclusion of the case if she can give you a breakdown of what portion of the fee you paid her, if any, was related to tax advice or the production of taxable income.  If the case does not involve alimony or other tax issues (for example, the sale of a house or stocks or the division of a retirement account), you may not be able to deduct any of the fee.

If you have specific quesitons related to this issue in your case, talk to your lawyer or tax advisor.

If one spouse in a divorce case wants to have the other spouse tested for drugs, they can file a motion and the Judge will decide whether to grant the request. Generally speaking, if custody or visitation is an issue, and there is some reason for suspecting abuse, the Judge will grant the request and require the drug test.

One warning that I give all my clients is that if they request a drug test, assume that the other side will also request one of them and that the Judge will order both parties to be tested. Too frequently I have had my own clients tell me they wanted their spouse tested and that they didn't mind taking a drug test themselves because there was no way the wouldn't pass it. Then inexplicably (the client is always shocked) their spouse passes and they fail.

Do not put yourself (and your lawyer) in that position. In our jurisdiction the Courts are requiring hair follicle tests which purportedly are more accurate and test back farther in time. Whether that is true or not, you don't want to test positive for drugs on the drug screen that you demanded be taken! Of course, the best advice here (particularly if custody of children is at issue) is that if you are using drugs, you don't need to have custody of your children. Or, the converse, if you want custody of your children, do not be using drugs.

There are two things that I recommend for the person contemplating divorce under these circumstances. One is obvious, the other may not be.

First, you need to seriously consider getting a private investigator. In Alabama "fault grounds" is relavent in a divorce case and can affect the property settlement and alimony awards. Depending on whether the children are being affected by the conduct, it may also influence the custody determination.

But, do not pull out the yellow pages and pick the cheapest p.i. you can find. You should talk to your divorce lawyer about arranging a p.i. who he knows is competent and can be an effective witness in court if that becomes necessary. (The same advice about not using the yellow pages and hiring the cheapest divorce lawyer you can find also applies!)

The second piece of advice is to immediately get tested for sexually transmitted diseases. Obviously you don't know the sexual history of the person with whom your spouse is having an affair. Yes, I know it is an awful thought. But, I can promise you it happens. And, God forbid it happens to you, the sooner you find out about it, the sooner you can be treated. Additionally, if that were to happen, it can dramatically change the posture of your case as there may be additional legal claims that need to be brought. And, if those claims need to be brought your lawyer needs to know about it immediately.

This is a question you should ask your lawyer at the initial consultation. If you are working for a lawyer that charges fixed fees like our firm does (also known as flat fees), then they can tell you exactly what the fee will be. But, even if you are working with a lawyer that charges by the hour they should be able to give you the amount of their hourly rate, the amount of the retainer and a reasonable estimate of the total fees that will be incurred. If they can't or won't then go somewhere else.

In fact, I would not hire a lawyer that is not willing to represent you in a divorce on a fixed fee. I have a strong opinion about fixed fees vs. hourly billing. I am currently putting an article together that will go into this in much more detail, but I will speak very briefly to the issue here.

Why would you hire someone to handle your divorce case that can't quote you a specific, total fee? Many lawyers will say they can't quote a flat fee on a divorce because there are too many variables to accurately estimate a fair fee. That is nonsense. There are many variables involved in building a house, but when you contract to build one, there is a set price established on the front end and agreed to by both parties. If there is unforeseen work needed, a change order is prepared. Simple, effective, fair.

The bottom line is that hourly billing (coupled with the high pressure put on lawyers to bill more hours) places an incentive on a lawyer to engage in protracted litigation. That is not in the client's best interests (particularly in the emotional turmoil of a divorce). Additionally, the client must feel like they are writing a blank check to the lawyer (because they are). Not to mention the fact that with hourly billing you are charged (usually in 6-15 minute increments depending on the lawyer) for every phone call, every e-mail, every meeting, etc. Is that any way to encourage open communication (which is absolutely necessary for effective representation)? Of course not.

I guess you get the point. My advice is not to hire a lawyer that is not willing to work on a fixed fee basis. I realize that is a controversial statement. It is one with which many of my fellow lawyers would vigorously disagree. But, I have been working on a fixed fee basis for over 10 years. I have been doing it exclusivley for about 3 years. My clients love it because it takes away an unknown factor, it allows open, regular communication, and they never recieve a $150 bill for a 30 minute phone call. I love it because I can focus less on tracking my time and more on resolving my clients problems (not to mention there are no such things as accounts receivable in my office).

I suppose that you can, but my general advice is that you don't. Even though a divorce case is pending, you are still married. Having a sexual relationship while the case is pending is still adultery. Even in the abscence of any sexual contact, a dating relationship may be a strike against you in the divorce case depending upon the specific facts of your case.

If custody is pending, I certainly would be careful about your conduct with a "significant other." Many judges will not find such behavior proper, particularly if the person is being introduced to the children, spending the night while the children are there, or going out on social activities with the children.

The better course of action in this tpye of situation is to err on the side of caution. And, if you have a question about your specific situation and what would be appropriate, talk to your lawyer before taking action that could harm your case.

Choosing the right lawyer is vital to the satisfactory resolution of your divorce or family law case. In my opinion, there are three main things you should look for in making your decision:

(1) Expertise - You should hire a specialist, not someone who dabbles in divorce work. The area of family law has become increasingly complex. A lawyer that tries to do a number of different practice areas cannot develop the depth of knowledge necessary to represent you in such a critical and complex matter as a divorce. The analogy to medicine is apt - if you need brain surgery, you don't go to a general practitioner, you go to a specialist. In a divorce case, the stakes are high - you are determining what will happen to your children, your house, your retirement and your income for starters. That sounds more akin to brain surgery than to a chest cold to me.

Many of our clients ask whether or not they can bring a friend or a relative with them to the meeting with me. This is usually not a good idea.

The conversations that a lawyer and client have with one another are generally confidential. However, if another person is present during those conversations, it loses its confidentiality. That means you and/or the person that accompanied you to the meeting could be compelled to disclose what was discussed.

Additionally, it is better for only the lawyer and the client to talk so that the discussions can be more candid. The issues discussed in a divorce case will often involve some of the most intimate details of your life. You may not be comfortable discussing these in front of your friends or family members, but they are essential for the lawyer to be able to best represent you.

If you are about to go through a divorce and you and your spouse signed a nuptial agreement (either before your marriage or after), you need to inform your lawyer of that fact immediately. That seems like a rather obvious statement, but I have seen cases where the client's failed to mention to their lawyers that a prenuptial had been signed until well into the divorce litigation. It is critical for your lawyer to have a copy of the prenuptial and any amendments that may later have been made to it as early in the process as possible, in order for the lawyer to be able to properly advise you.

Prenups are generally valid in Alabama if certain requirements are met - these basically have to do with full disclosure of the assets and the availability of independent counsel, abscence of duress, etc.

If all of the conditions are met and the prenup is valid, then its terms will usually govern the dispostion of the assets and debts and terms of any property settlement and/or alimony.

Custody, child support, visitation, and other issues regarding the best interests of the children are generally not issues that can be addressed in the prenup and thus will have to be resolved through the divorce case (through negotiation, alternative dispute resolution or trial).

First of all, don't miss your Court date if you can help it. In most courts in Alabama, if you are properly served and fail to show up for Court, the Judge will enter a default judgment against you and in favor of your spouse (or in the case of a modification or contempt case, your ex-spouse). This essentially means that the judge will grant your spouse the relief they request without getting any input from you.

If you have a trial date that is approaching get to a lawyer immediately. Under certain circumstances, the lawyer may be able to get a continuance for you.

If you unavoidably missed a trial or hearing, talk to a lawyer to see if you can have the default judgment set aside. In the jurisdictions in which I practice, my experience has been that the judges would prefer not to enter deaults. So, they will often consider giving a litigant a second chance to present evidence, if there was a legitimate reason for missing the court date and/or the issues that were decided in the default judgment were critical (such as child custody, alimony, etc.) But, time is essential here. A motion to set aside a default needs to be filed as soon as possible, and in many instances, it must be filed prior to the expiration of 30 days from the date of the entry of default.

You should generally avoid making any major new purchases while your divorce is pending. If you purchase a major asset like a house before your divorce is final, it will have to be addressed in the Divorce Decree. This could affect the rest of the property settlement. Also, your lawyer can help you plan to make a purchase such as this by structuring the settlement to put you in the best financial position possible for you to buy a house once the divorce is final.

You may also want to review the following two posts:
Can I change the locks? and
Should I move out of the house?

There are three reasons people generally consider utilizing the services of a detective in their divorce case: to discover assets, to do a background check and to conduct surveillance. The first two reasons listed can now often be done utilizing online databases instead of the services of a P.I. which can potentially save money. With regard to surveillance, a good private investigator can be invaluable in the case, particularly if fault (e.g. adultery, addition to drugs or alcohol, etc.) is an issue.

I won't get into the distinction of fault grounds vs. no fault grounds in this post (that's a subject I'll deal with more extensively in a post of its own), but Alabama does consider fault in making determinations related to the property settlement and to alimony. Of course, in a contested custody case, a parent's conduct is also important. So, there are reasons that this evidence can be extremely valuable. For example, having evidence of adultery from the p.i. can give you a great deal of leverage in negotiating a settlement.

This question is the converse of the one we asked last week (Should I Move Out?). The general answer is unless you have a Court Order granting you exclusive possession of the home, then you should not change the locks.

If you do change the locks without a Court Order giving you possession of the home, not only will the Judge not be happy about it, if your spouse were to "break in" he or she would not be in violation of the law. Changing the locks when you don't have Court ordered possession of the home is generally not a good idea and is a good way to escalate the case to a more adversarial (and therefore more expensive) posture. If you are thinking about doing so, you should talk to your lawyer about it first.

There is no blanket answer to this question. It depends on the particular circumstances of your case. For example, if custody is contested, it is generally a bad idea to move out without adequate arrangements to take your children with you.

Where custody is not disputed, it still may not be a good idea. Many people tell me they are afraid of being guilty of abandonment if they do move out. That is not really the issue. In Alabama for a court to grant the divorce on the grounds of abandonment, then the period of abandonment must be at least 12 months.

I'll give a good lawyer answer - it depends. In Alabama, we have a mandatory 30 day "cooling off period." So, if the case is uncontested from the outset, it will take at least that long from the time the Agreement is filed with the Court until the Divorce Decree is signed by the Judge.

On the other hand, if the case has to be litigated, the earliest one can expect to get to trial in the jurisdictions in which I primarily practice (Mobile and Baldwin counties) is 3-4 months. However, it is not unusual for a case to be reset from that initial trial setting for various reasons. I generally tell my clients they can reasonably expect it to be resolved in 6-12 months if a trial is necessary. Occassionally we can get it tried quicker than that and rarely does it take longer.

The length of time it takes to get to trial is just one of several reasons that I encourage my client to try to resolve their case by reaching a fair settlement, if that is possible (sometimes it is not -such as when the opposing party or lawyer is unwilling to work towards a fair settlement in good faith).

No, it is a conflict of interest for one lawyer to represent both sides in a divorce. It is not unusual for one lawyer to draft the divorce documents for an uncontested divorce and there not be a second lawyer involved, but understand that such a lawyer has an ethical obligation to protect the interests of his or her client in that agreement, i.e. the Plaintiff. In very simple divorces (short term marriages with no children, no joint real property and no joint debt) you may not need your own lawyer, but I highly recommend that you at least have a lawyer review the documents for you before you sign them.

My spouse wants a divorce but I do not want to give it to him/her. How do I stop the divorce?

Unfortunately, you cannot stop the divorce. As I tell my clients, it takes two people to decide to get married, it only takes one to decide to get a divorce. The party that does not want the divorce can make it take longer, and cost more, but they cannot force the other party to stay married to them. You can encourage them to reconcile, and invite them to attend marriage counseling with you, and sometimes this will result in a change of heart and a reconciliation. But, unless your spouse is willing to do this voluntarily, you cannot force them and the divorce will happen - at that point is becomes a question of when and under what terms.

Today I will begin posting a series on frequently asked questions. I will cover all aspects of family law from the beginning of the divorce case to the end, and beyond.

I have often heard it said that divorce is the second most difficult event in a person's life (surpassed only by the death of a close loved one). The end of marriage always comes with many concerns, questions and often the fear of the unknown. One of my goals with this blog and the way I work with my clients in my practice is to try to educate them as much as possible - to take away the fear of the unknown in order to help reduce the pain of divorce.

It is with that goal in mind that I will begin this regular series of posts designed to answer common legal questions that I am often asked by those facing the possibility of divorce. If you have any questions you'd like me to consider including in the FAQ feature, feel free to e-mail them to me from the contact us page.