Family Law

What is Common Law Marriage?

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It is possible under Alabama law for a relationship to be recognized as a “common law marriage” without the issuance of an official marriage license by the State of Alabama and without the parties having celebrated a “ceremonial marriage”.   Speaking in general terms, there are several conditions which must be met in order for a court in the State of Alabama to recognize a cohabitation relationship as a “common law marriage”.  They are:

  • Both partners must be mentally capable of entering into a formal relationship. This means that common law marriages in Alabama cannot be entered into by two spouses who do not understand the nature of this kind of relationship or the responsibilities it involves.
  • Both partners must make the nature of their relationship clear to others. In order for a common law marriage to be recognized by the Alabama courts, both spouses must inform other people of the relationship. At all times, both partners must be open and straightforward in making sure others are aware of their marital status.
  • A couple must agree to enter into a permanent relationship in order to enter into common law marriages in Alabama. Sometimes two spouses may be thinking of obtaining a marriage license from the state at a later date. This places the status of their common law marriage in Alabama in question.
  • The spouses must have had intercourse. Without this kind of consummation, common law marriages in Alabama will not be legally recognized.
  • The Alabama courts will often consider the filing of joint income tax returns by the parties, the maintenance of joint checking and/or financial accounts, the use of the man’s surname by the woman and the representation to members of the public by the parties that they are”married” as evidence of a “common law marriage” relationship.

The reasons for entering into this kind of relationship are up to the two “spouses”. However, it is important to be aware that while the Alabama courts will, under certain circumstances, recognize a common law marriage, such an arrangement may lead to many complications. This is especially true if a relationship does not succeed.

Spouses who are involved in this kind of relationship should make sure to create a will documenting how they wish for their assets and resources to be divided after their death. Failure to do so will make it difficult for a partner in a common law marriage in Alabama to collect any part of an estate. Under such instances, the common law “spouse” who is undertaking the probate process will have to ask a judge to accept the relationship as valid despite the lack of state recognition. This will mean proving that the deceased common law “spouse” intended for their partner to inherit their estate.  Needless to say, this can be difficult and messy in situations where other family members enter into the proceedings in order to contest the validity of the alleged common law marriage.

Common law marriage relationships are only recognized by ten states and the District of Columbia.  This means that if you relocate to another state, that state may not necessarily recognize the validity of your common law marriage. In order to have your relationship legally recognized for tax and/or inheritance purposes, you will be required to obtain a marriage license from the state you have relocated to.

Furthermore, the long term cohabitation with a partner may open you up to divorce proceedings brought by that spouse in the event of a breakup of the relationship.  In the event that spouse is able to convince a court that the relationship should be recognized as a “common law marriage”, you may be subject to alimony awards, property division orders and other court orders such as those entered in any valid divorce proceeding.

All About Alimony

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A spouse who requires assistance after a divorce may, under certain circumstances, receive alimony from the other spouse provided that the other spouse has the ability to pay.  Alimony is intended to preserve the economic status for both parties as it existed during the marriage.  Payments might be made in a lump sum amount (“alimony in gross”) or in periodic payments for a specified number of years (“periodic alimony”).   “Rehabilitative alimony” is sometimes awarded for a short period  and is designed to help a spouse transition back into the job market.

Alimony may be broadly defined as the money paid by one ex-spouse to the other for support under the terms of a court order or settlement agreement following a divorce. Except in marriages of long duration (ten years or more) or in the case of an ailing spouse, alimony usually lasts for a set period of time.  There is also generally the expectation that the recipient spouse will, at some point, become self-supporting. Alimony is sometimes also referred to as “spousal support” or “maintenance.”

It is particularly important that you be represented by Counsel who has substantial experience in the area of family and divorce law when there are contested issues of alimony in your case. Because the decision regarding your entitlement to (or obligation to pay) alimony falls solely within the discretion of the court, it is crucial that negotiations with opposing Counsel and/or the presentation of evidence to the court be undertaken on your behalf  by skilled legal Counsel. Contrary to popular belief, it is not always the husband who is ordered to pay alimony by the court.  

Three Basic Types of  Alimony

  • Alimony In Gross attempts to assign a present value to the spouse’s interest in marital property. Alimony in gross generally cannot be modified after the time for appeal from the original divorce decree has run.  Furthermore, remarriage of the receiving party does not entitle the paying party to reimbursement.  Additionally, the court does not have to consider the receiving party’s separate estate in determining the amount of alimony in gross to be awarded.  It is also important to note that there are generally no tax consequences to either party deriving from an award of alimony in gross.
  • Periodic Alimony is paid over time and is distinguished from alimony in gross as follows:  First, the stated amount of periodic alimony can be modified upon a showing of a “material change in circumstances” for either party after the divorce.  Second, periodic alimony may terminate upon remarriage or cohabitation of the receiving party or upon death of either party.  Finally, periodic alimony is tax deductible for the paying spouse and must be included as income for the receiving spouse.
  • Rehabilitative Alimony is financial support that is provided for a short period of time in order to allow the receiving spouse time to establish him/herself financially. This type of alimony will allow the receiving spouse the means to “rehabilitate” him or herself and become completely self-supporting.  In some cases, payment of rehabilitative alimony involves payment for educational or vocational training.

Factors Considered by the Court in Awarding Alimony

An award of alimony in Alabama is solely within the discretion of the trial court.  Alimony is generally awarded only upon a showing of need by one spouse together with a showing of ability to pay by the other spouse.  There is no statutory formula to be followed in order to determine the amount of alimony to be awarded (if any).  In making its determination, the court will consider the following:

  • The length of the marriage (rarely awarded in marriages of less than 10 years);
  • Dependency of one spouse upon the other for financial support during the marriage;
  • Each party’s respective earning ability and future earning prospects;
  • The ages and health of each party;
  • The value and type of property owned by the parties;
  • Conduct of the parties during the marriage (i.e., abuse, adultery);
  • Other factors the court deems relevant.

Termination of Alimony Upon Proof of Cohabitation

In Alabama, periodic alimony is subject to termination upon proof that “the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”  Code of Alabama (1975) § 30-2-55  The issue of whether a former spouse is “living openly or cohabiting with a member of the opposite sex” is a factual determination.   Accordingly,  factual evidence must be presented to the court in order to establish this fact. Factors to consider when determining whether or not a former spouse is cohabiting with a member of the opposite sex include, but are not limited to, the following:

  • Permanency of relationship (occasional sexual activity is generally not sufficient);
  • Payment of debts by former spouse’s cohabitant;
  • Purchase of gifts for former spouse by cohabitant;
  • Whether the alleged cohabitant maintains the former spouse’s household;
  • Receipt of mail by alleged cohabitant at former spouse’s residence;
  • Keeping clothes and other personal items at former spouse’s residence; and
  • Use of the former spouse’s address for identification purposes.

Termination of Alimony Upon Former Spouse Becoming Self-Supporting

Should the former spouse subsequently become self-supporting with income (and/or assets) equal to or greater than the income/assets of the paying spouse, alimony may be terminated in the discretion of the court.  However, such proof does not automatically result in termination in all cases.  Again, the discretion of the court (and the skill of your Counsel) are the determinative factors.

 Modification of Alimony Upon Proof of “Material Change in  Circumstances”

Upon the happening of a material change in circumstances of one or both parties after the divorce, periodic alimony may be modified.  The burden of proving the material change is on the Petitioner and factors to be considered include, but are not limited to, the following:

  • The remarriage of the paying spouse;
  • The receiving spouse’s employment since the divorce;
  • The financial status and needs of the receiving spouse;
  • Whether the receiving spouse is presently capable of self-support;
  • The ability of the paying spouse to respond to the former spouse’s financial needs;
  • Whether there are dependent children;
  • Whether alimony was originally agreed upon;
  • Whether there has been a material change in the financial situation of either party;
  • The health, age, and education of the parties;
  • The earning ability of the parties and their probable future prospects;
  • The duration of the marriage;
  • The conduct of the parties;
  • The length of time separating the initial alimony award and the modification hearing; and,
  • Any other material and relevant circumstances as disclosed by the evidence in a particular case.

Not every one of the above factors are of equal importance and each case is decided on its own facts.  It is important to note that, in a situation where the payor of periodic alimony files a petition to modify or terminate alimony and the recipient makes no request for an increase, the fact that the recipient is unemployed or underemployed is irrelevant.

Effect of Bankruptcy Filing by Paying Spouse

Alimony obligations are non-dischargeable by the paying spouse pursuant to the United States Bankruptcy Code.

High Asset Divorce Cases Present Special Issues

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The divorce process is rarely pleasant. Child custody/visitation disputes, financial issues, property rights, title to vehicles and countless other disagreements often result in depression, elevated tempers and great uncertainty.  This emotional distress is often multiplied in high-asset divorce cases involving businesses, multiple real estate properties, financial assets, pensions and retirement accounts. As difficult as they can be, these financial stress points pale in comparison to facing the possibility of losing custody of one’s child(ren).

It is no secret that spouses often go to great lengths to hide assets in divorce proceedings. One spouse may have transferred money to an off-shore bank account, or to a person to hold pending the finalization of the divorce. A spouse who owns a business might commingle personal funds into a corporate account. Sometimes a spouse who is eligible for a raise requests that the employer postpone the promotion until after the divorce. Other times, a spouse might simply keep quiet about pensions, retirement accounts, investment assets or real estate properties owned in different states.

In a typical high-asset divorce case, one spouse earns significantly less than the other spouse. When there is a large difference in income, the spouse who earns less is often entitled to an award of alimony. In such cases, the only way to obtain a fair share of the marital property (and to obtain an equitable amount of spousal support) is to bring the opposing spouse’s assets to the court’s attention.

At Mark Sterling Gober, LLC, we know how to discover hidden assets. We often work with business financial analysts and forensic accounting experts in order to valuate marital business assets and examine an opposing spouse’s lifestyle and financial resources (including assets held offshore or abroad). We will thoroughly investigate your estranged spouse’s financial affairs and will obtain for you a fair and equitable settlement. After having practiced family law for some two and a half decades and represented countless clients on all sides of every financial issue imaginable, we are well acquainted with the “ins and outs” of helping you through the difficulties of a high asset divorce.