Part of Real World Divorce: web edition | Kindle edition
We learned about Alabama law and customs from the father-son team of Gerard ("Gerry") and G. John Durward. Gerry has been practicing since 1966 and John since 1997. Both have attained numerous honors within such professional societies as the American Academy of Matrimonial Lawyers. Gerry has worked as a municipal judge and a "special trial judge" within the domestic division of the Jefferson City Circuit Court and has been President of the Birmingham Bar Association. See http://www.aaml.org/divorce-lawyer-birmingham-alabama-gerard-durward for more information.
The Durwards handle a 50/50 mix of male and female clients, though the majority of cases are ones in which a woman is the plaintiff or "petitioner" if a paternity (unmarried) case. Gerry estimates that roughly 20 percent of his cases go to trial: "We try a lot more here than they do up north." Cases can go from being filed to trial in 12-18 months.
Unlike in some Northeastern states, a divorce lawsuit cannot be effectively won via attorney representation resulting in a temporary order granting one party the children, the house, and a stream of funds to keep the marital lifestyle going. An Alabama plaintiff, however, can get temporary support and a protective order providing exclusive use of the house after a half-day or one-day hearing in front of a special master. This is an evidentiary hearing in which witnesses may be cross-examined. Gerry notes that there is a separate process via which a divorce litigant can get a "PFA" [Protection From Abuse order]. This also would allow obtaining temporary custody of children and the exclusion of the other party from the house, but there has to be a confirmatory hearing in "a reasonable amount of time." Do people make false or exaggerated abuse claims in order to get a leg up in litigation? Gerry: "Although not every divorce involves a PFA, about 90 percent of the time in the cases that do have one the claims are false and there are no repercussions for false claims." John: "If you do get a temporary arrangement where the wife gets the house and kids while the husband has to pay mortgage and child support, she'll come out better than after a trial so she'll have an incentive to delay the case."
As in Texas, the Durwards report that there is a wide variation in how cases are handled depending on whether it is an urban versus rural district. "Rural judges are much more conservative," they note, which makes it more likely that a mother will win custody, the children will visit with their father on a limited every-other-weekend basis, and that financial support will be provided by the father for a stay-at-home lifestyle.
A child support plaintiff in Alabama can collect money every month until the child turns 19. Until October 2013 it was possible for a court to order a parent to pay for an adult child's college expenses, but the Ex parte Christopher case (http://caselaw.findlaw.com/al-supreme-court/1646353.html ) held that children of divorce and/or unmarried parents do not have superior rights to children of intact marriages.
Child support up to a combined income of $240,000 per year is calculated using a table published on the alacourt.gov Web site. The guidelines top out at $1,520 per month or $18,240 tax-free dollars per year for a single child ($2,741 per month or $32,892 per year for four children). According to the Durwards, above this judges are supposed to revert to the old system of considering the child's needs and the parents' ability to pay. However, they often simply extrapolate from the guidelines. If, for example, a parent earns 10 percent more than $240,000 per year, that parent is tapped for 10 percent more than $18,240. The old system took a straight 15 percent of a parent's gross income. The Durwards say that it would not be uncommon for a higher-income defendant, e.g., earning $500,000 per year, to pay $60,000 per year in child support for a single child. John recounted a case where $10,000 per month had been assessed for four children but that was reduced to $7,500 per month ($90,000 per year) after a motion for reconsideration.
Alabama operates on an income-sharing system in which the combined parental income is used to establish the total amount of child expenses to be expected and then those expenses are divided according to the parties' respective incomes. There is no automatic formulaic reduction, as in some other states, when a child spends a larger-than-standard amount of time visiting with the non-custodial parent. Any such adjustment, including for 50/50 custody (very rarely awarded), is at a judge's discretion.
Will a court order a defendant to pay for day care on top of child support? "Day care that is job-related or job-search-related will be paid by a defendant," notes Gerry. "Also the actual cost of health insurance and out-of-pocket medical expenses."
Is there an age at which a child's preferences regarding where to live will be taken into account by a court? Gerry: "A bill went into the Legislature a few years trying to establish an age of 14 but it was defeated. A child's preference doesn't go to best interest of the child. The standard for changing custody exceeds the 'best interest' standard used to establish custody. It is very difficult to get custody changed."
A "walk-away" prenuptial agreement, in which neither party can profit from property division and alimony via a marriage, is valid in Alabama: "Alabama will upheld a prenup if each party has his or her own attorney, there is full disclosure, and it is timely," says Gerry. What does "timely" mean? "It can't be brought up for the first time on the day of the marriage," Gerry responded, "though it could be signed day of the wedding if that was preceded by several months of negotiation." The Durwards note that a prenup can be upheld either if there was full disclosure or the agreement is fair, just, and equitable.
The average hourly wage in Alabama is $19.01 per hour. A person who goes to college at University of Alabama, Huntsville will spend approximately $85,196 over four years to earn a bachelor's degree. Census 2014 data show that median income for a 22-36-year-old college-educated woman who works full time is $40,000 per year or $30,791 after taxes. For a 22-36-year-old college-educated man it is $47,000 per year or $35,599 after taxes. Alabama is one of the more efficient states in the U.S., collecting about 8.7 percent of state residents' income to run state and local government (compare to over 12 percent in New York, New Jersey, and Connecticut; source: Tax Foundation). Alabama's taxation system includes a personal income tax with a top rate of 5 percent.
The average annual cost of child care is $8,323 for an infant and $6,414 for a four-year-old. The total cost of child care from age 0 through 12 is about $53,366 in commercial settings or $41,263 in a family care setting.
For a man who goes to college and then works for 15 years, his total after-tax spending power would be approximately $448,789 (15 years of average earnings minus college outlays). For a woman who goes to college and then works for 15 years, the comparable number is $376,669.
The USDA-estimated actual cost of providing for a child in a single-parent household is between $8,000 and $10,000 per year (average of $9,000 times 18 years of childhood = $162,000). Thus for a man collecting child support for a single child is more profitable than working when child support payments over 18 years exceed $32,620 per year ($2,718 per month) and for a woman it would be $28,825 ($2,402). Thus it is not possible to earn more from collecting child support on a single child than from going to college and working if the parents' combined income is within the $240,000 per year guidelines limit. However, a lawsuit against a higher income defendant could result in superior profits from child support compared to college/work. A male child support plaintiff collecting child support on two children from two different co-parents, after subtracting the USDA-estimated costs of the second child, will have a break-even after-tax spending power than the single working college graduate if the defendant-mothers both have incomes sufficient to yield $1,700 per month, i.e., when the defendants earn at least slightly over the $240,000 per year guideline top. A female child support plaintiff collecting from two defendant-fathers will have a greater after-tax spending power than if she had gone to college and worked when she can get $1,575 per month from each father, which requires suing men earning just slightly more than $240,000 per year.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
How often do the Durwards see a case like this where the woman may have a support obligation to the man? "It does happen," says Gerry, "Usually the wife pays alimony in cases where the husband is disabled or the wife is a medical doctor or CEO. Our statute that said the 'man will pay alimony to the wife' was overturned as unconstitutional by the U.S. Supreme Court in Orr v. Orr in 1979.
The Durwards explain that a typical Alabama outcome, as in many other states, is joint legal custody with primary physical custody to one parent. In this case, the Durwards agree that the mother would most likely win physical custody with visitation to the father. Gerry: "They say that they don't favor one side or the other, but there is still a bias towards mothers."
[John notes that the joint legal custody may be more "on paper" than in reality. "In practice it is difficult to police because mothers make decisions without consulting the father, e.g., the father won't find out about braces for a child until he sees them on the kid's teeth and gets the bill."]
Unlike in some other states, a simple demand by one parent for sole custody or the generation of conflict will not guarantee a sole custody award. However, the Durwards say that it is very rare for a judge to award 50/50 custody. Gerry explains his agreement with the Alabama custom: "Our system looks at the best interest of the child. The child has to have some stability where he is going to be in the same home every night. There could have extended visitation every other weekend from Thursday to Sunday." Gerry was skeptical regarding shared parenting except where parents live in the same school district and a child does not have to get up extremely early to get to school from one parent's house. He thought that courts were trending toward more equal time in the summer, however. What about the Alaska system of strict 50/50 unless a parent is unfit or unavailable or the parents come to a voluntary agreement? "That's wrong," says Gerry, "because they are looking at the parents and their rights instead of the effect on the child."
The Durwards note that custody litigation in Alabama has become more uncertain in recent years. Judges formerly awarded a standard visitation schedule of every-other-weekend Friday to Sunday, alternating holidays, and 30 days in the summer. Today, however, the schedule depends on attorney arguments, presentations by GALs and psychologists, and the discretion (whim) of the judge.
With the plaintiff-mother getting sole physical custody of the child, the defendant-father will be ordered to pay child support. Gerry: "Income will be imputed to him and child support calculated from that." John: "Judges take the position that if he is having to pay child support he will be more likely to visit the child. The payments will be modifiable upward if he does get a higher paying job."
What if the parents divided the child's time on a 50-50 basis? Would the mother owe child support to the father? Gerry: "Yes, but not as much as if he had full custody. You go back to discretion regarding the child's needs and the parents' ability to contribute." Would the mother try to avoid 50/50 custody so as to avoid paying the defendant? "Yes," says Gerry.
Gerry charges $350-400 per hour and John $250 per hour. They estimate that handling a case through trial could cost $100,000 in legal fees on each side. Can the father, given that he has no income currently, get the mother to pay his fees? Gerry: "Not in advance. And only sometimes. It depends on the county and the judge's discretion."
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
"If there is truly no evidence that one parent is better or more involved than the other," says Gerry, "I predict that the mother would win sole custody. However, there would be no alimony [due to the equal incomes]." Child support payments to the mother would be computed by adding up the two $65,000 per year incomes and looking at the child support for a combined income of $130,000. The guidelines chart yields $2,081 in monthly child support. Due to the equal incomes the father would pay $1,040 to the mother ($12,480 per year), plus half of day care, health insurance, and medical expenses.
Note that this compares to $17,616 per year in Texas, $20,384 in Massachusetts, and $20,150 in New York. Thus if the children do spend a significant amount of time visiting with their father it will not be in a household with grossly disparate after-tax spending power.
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
Gerry predicted a slam-dunk custody win for the mother. "This is a perfect case for rehabilitative alimony," he noted, predicted that the mother would get roughly five years of alimony to carry her until the youngest child entered full-time school. How much alimony would it be? "Both the alimony amount and duration are discretionary with the judge," Gerry noted. "You have to look at what her expenses are. They're not going to take more than half of his salary, which means that her standard of living will likely fall. She may get the house if she can afford the mortgage payments."
Note that with $275,000 in annual income, a judge extrapolating from the guidelines might add 15 percent to the $2,140 per month guideline top to get $2,450 per month in child support ($29,403 or $558,668 over a 19-year period).
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
The Durwards both predicted a custody win for the mother with associated child support somewhere between the $20,976 extrapolated from the top of the guidelines to the doctor's $275,000 per year income and the $41,250 per year number that comes from taking 15 percent of the doctor's income under the old rules.
How about alimony? Gerry: "She can get alimony only as rehabilitative. Three years tops." John thought that perhaps alimony might be extended through the 8-month-old baby entering full-time school: "Otherwise she will be coming back to modify child support once the alimony runs out."
On what kind of schedule will this breastfeeding infant see the father? "Overnights are discretionary with the judge," explains Gerry. "The old fixed guidelines called for no overnights until age 2. For a child this age it was a couple of hours at the custodial parent's residence a few times per week. After a child turned one, the visiting parent could take the child wherever he wants to but has to have the kid back at 6 pm." [Note that Gerry's assumption was that a "visiting parent" would be the father.]
How about tapping into the $2 million in pre-marital savings? Gerry: "If the money were kept entirely separately and not used for their lifestyle then it would not be subject to division by the court." John: "If some of the $2 million were used to buy a house, for example, then that would be subject to division but the trial judge would not be required to divide it."
[Note that the father's income from the $2 million, however invested, would be added to his $275,000 per year salary and used to compute a potentially larger child support number.]
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
John: "We do a fair amount of these where the parents are only slightly acquainted. They are handled in family court with the same child support guidelines are used." What about the fact that the doctor earns over the $240,000 guideline limit? "In theory the judge will look at the child's needs but in practice the judge will use the guidelines as a reference instead of inventing something."
John recounted a recent case where a married medical doctor was being sued by a nurse who worked in the same hospital. "He paid her $3,000 per month by agreement. That's more than the guidelines but it was her best interest to get as much money as she could and as fast as she could." What did the wife think of the doctor's extraprofessional activities at the hospital? "She may never have found out," John noted.
What if the mother who has custody and is collecting child support marries a high-income partner? "She still gets paid the same," says John, "but now that she is part of a wealthy household she can't quit her job and then sue the first father for more money on that basis."
Because Alabama deducts previous court-ordered child support obligations from gross income on which subsequent child support orders are figured, different children from the same parent will have different cash values. And as in other states, the child of an extramarital affair has a greater entitlement to a parent's income than the child of a marriage.
Alabama establishes financial rewards for having children with multiple co-parents. A plaintiff with custody of three children by the same $120,000 per year parent can collect $1,776 per month in child support. If the children were by three different co-parents, each earning the same $120,000 per year, the child support revenue would be $3,224 per month, a difference of $17,376 per year ($330,144 over 19 years).
How easy is it for a parent to move out of state with a child? "It is called relocation here and is difficult to obtain," says Gerry. "Courts encourage visitation. What happens many times is that she remarries and her husband transfers to another state." [Note once again the assumption that the custodial parent is generally the mother.] Gerry says that "A lot of times a judge will say 'If you move to California you will have to pay for transportation back and forth for child to visit.'" Section 30-3-169.4 of the Alabama Code establishes that "there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party." In other words, the parent who wants to move has to explain why the move will be in the best interest of the child, overcoming a presumption that it will not be. Then the parent who is remaining in Alabama has the burden of proof to explain why the moving parent's argument is wrong.
What if a custodial parent moves into Alabama from a state with richer child support rewards? E.g., a mother comes into Alabama from Massachusetts with a $100,000 per year child support order good until the child turns 23. The father also moves to Alabama so as to be closer to the child and, now that neither parent lives in Massachusetts, asks the Alabama courts to take over and modify child support and custody in accordance with Alabama law. John: "That's going to be a Uniform Interstate Family Support Act case. Alabama would have jurisdiction to modify child support, but only after finding that there has been a change of circumstances? Does the father still have the ability to earn what he used to earn? Is he voluntarily underemployed? Child support would still be paid until age 23."
The Durwards echoed some of the other attorneys we've interviewed in calling into question the practice of involving psychology professionals in divorce lawsuits. Gerry: "They are overused. A psychologist would be very rarely needed. There was a large case recent here where the mother's attorney brought in a psychologist from Chicago who recommended sole custody to the mother. It turned out that the psychologist never interviewed the father."
John Durward suggested that it should be easier for the lower income parent to obtain attorney's fees from the higher-income parent.
Gerry noted a trend award from considering fault. "When I started if you had an affair it was devastating to your case." He also noted that "Attorneys now getting involved in this field are more hostile and more aggressive about pushing litigation [rather than mediation or settlement]."
Alabama is moving away from easily predicted outcomes in divorce lawsuits, e.g., with customized visitation schedules today compared to the standard schedule that prevailed several decades ago. It may be the case that the trend the Durwards noted toward increased litigation is simply a result of increased uncertainty and increased application of judicial discretion.
This chapter is current as of the 2016 child support guidelines.