Mark Sterling Gober

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.

When You or a Loved One is Injured…

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We at Mark Sterling Gober, LLC represent people who have suffered severe injury as the result of automobile, motorcycle, ATV/boating/recreational vehicle, 18-wheeler/tractor-trailer/truck, common carrier and public transportation accidents, pedestrian “hit and run” accidents, defective and unsafe products, medical malpractice/negligence, nursing home neglect/abuse, dog-bites/animal attacks, toxic chemical/substance exposure and serious slip-and-fall accidents. In cases where the death of a loved one has occurred as the result of such an accident, we represent the family members and/or estate of the victim.

Catastrophic Injuries

It is always difficult and tragic when a loved one is seriously injured or a life is lost. Whenever someone is severely injured or lost due to the fault of another person or entity, the victim (or his/her surviving family members) may be entitled to compensation. Wrongful death and catastrophic injury cases arise in a wide range of contexts. Death or injury may occur as the result of an automobile, tractor-trailer or motorcycle accident; the use of a defective or malfunctioning product, drug or medication; an airplane/common carrier accident; toxic exposure; an animal attack; or the hazardous condition of property. It is important that an attorney be consulted as quickly as practicable in order to determine the rights of the victim and his/her family.

Defective and Unsafe Products

Accidents occur every day as the result of normal use of common products. If you are severely injured while using a product that is defective or unsafe, you may be entitled to appropriate compensation under the law. We at Mark Sterling Gober, LLC can help.

Automobile Accidents

There are countless causes of car accidents, from texting behind the wheel to intoxicated driving. Mark Sterling Gober, LLC can help you obtain car accident compensation and will answer all of your car accident questions.

ATV Accidents, Boating Accidents and Recreational Vehicle Accidents

Thousands of people are injured each year as the result of  accidents involving and/or caused by “all terrain vehicles”, boats, jet skis or other recreational vehicles.  Some of these cases may involve product liability issues while others may involve the negligence of other parties.  We are prepared to evaluate  all such cases and to provide effective representation to the injured party and/or his/her family in order to recover all damages recoverable at law.

Bicycle Accidents

Although bicyclists share the same right of way as other vehicles on the road, thousands of individuals are still injured each year in accidents resulting from driver negligence. One so injured can recover damages by filing a claim with the assistance of a skilled attorney.

BP “Deep Water Horizon” Oil Spill Claims

If you or your business has been physically or financially affected by the Deepwater Horizon oil spill of 2010, Mark Sterling Gober, LLC can help you file a claim for compensation.  It should be noted that the entire state of Alabama has been declared a disaster area for purposes of filing these claims.  Any Alabama business is eligible for a no cost claim evaluation.  We can help.

Motorcycle Accidents

Motorcycle accidents often result in catastrophic injuries such as brain/traumatic head injury, broken bones, “road rash” and other serious injuries. If you were hit by a negligent or reckless driver, you should not hesitate to file a claim and fight for fair compensation. We at Mark Sterling Gober, LLC will evaluate your case and will work to achieve for you the compensation that you deserve.

Nursing Home Abuse and Neglect

With the gradual aging of our population comes an increased incidence of nursing home neglect and abuse cases.  There is nothing that we take more passionately at Mark Sterling Gober, LLC than the representation of a family whose loved one has been mistreated and/or neglected while in the care of an assisted living or nursing facility.  Common problems which we have been confronted with involve the onset of decubitus ulcers (commonly known as “pressure sores”). Individuals who are unable to avoid long periods of uninterrupted pressure over bony prominences—a group of patients that typically includes elderly individuals, persons who are neurologically impaired, and patients who are paralyzed or otherwise immobilized—are at increased risk for the development of ulceration and necrosis. These individuals cannot protect themselves from the pressure exerted on their body unless they consciously change position or have assistance in doing so.  Among the failures that we have observed on the part of nursing staff resulting in severe decubitus ulcers are:

  • Failure to insure sufficient nutrition and hydration: An adequate amount of fluids, calories, protein, vitamins and minerals in the daily diet are important for maintaining healthy skin and preventing the breakdown of tissues.
  • Failure to attend to  hygienic needs resulting in excess moisture or dryness: Skin that is moist from sweat or excessively dry is more likely to be injured in general and increases the friction between the skin and clothing or bedding.
  • Failure to manage hygienic issues caused by urinary/fecal incontinence: Problems with bladder control can greatly increase the risk of pressure sores because the skin may frequently be moist, making it more likely to break down. Bacteria from fecal matter can cause serious local infections and lead to life-threatening infections affecting the body in general.

If your loved one has been neglected or mistreated in an adult care facility, we have the resources and expertise to provide you with the legal representation that is necessary to seek justice on their behalf.

Pedestrian Accidents

Anyone hit by a motorist or bicyclist while walking on the sidewalk or legally crossing the street deserves full compensation for their damages. These damages may include medical bills, lost wages, pain and suffering and other damages.

Premises Liability

Slip and fall accidents, negligent security, drownings and dog bites are all considered “premises liability” cases. By filing a claim, you can hold the property owner responsible for any damages you or a loved one may have sustained as the result of an accident caused by the property owner’s negligence.

Tractor-Trailer, 18-Wheeler, and Truck Accidents

Truck drivers must comply with strict federal regulations regarding the loading and maintenance of their vehicles, the amount of time they may safely spend behind the wheel and how long they must rest between shifts. Violation of these regulations can cause fatigue and/or mechanical malfunction resulting in a serious accident. If you have been injured or lost a loved one due to the negligence of a tractor-trailer operator, you have the right to seek damages available to you by law. We at Mark Sterling Gober, LLC will fight to obtain all of the compensation to which you are entitled.

Types of Injuries

Some accident injuries are minor, while others are catastrophic. Common injuries include traumatic brain injuries, neck and back injuries, severed limbs and spinal cord injuries. We have at our disposal the proper medical experts and the experience to evaluate your claim and to pursue damages on your behalf no matter what type of injury you may have suffered.

Wrongful Death

When an innocent individual loses his/her life as the result of an accident caused by another person’s negligence, the immediate family of the Deceased can file a wrongful death claim seeking compensation for their loss.  These cases are complex. We at Mark Sterling Gober, LLC have the skills, experience and resources to provide top notch representation for you and/or your family members in such cases.

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.