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Family Law - The Oncale Firm

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Basic information about The Oncale Firm and about divorce and family law in Alabama.

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Divorce Lawyer for Alabama

Birmingham Divorce Lawyer Protecting Your Interests

If you are going through a divorce or for that matter any family law matter with court involvement you need a lawyer on your side with whom you can freely and openly communicate with and get solid, reliable and experienced advice. The job of a lawyer is not to take over your case or control your life but to help you efficiently navigate through the legal system and to present a cohesive and well thought out case, with theme and theory, that put you in the best position for a positive outcome. Your attorney should not just protect your rights but use the court system, including discovery and other pretrial tactics to develop the facts needed to present your best case. Attorney Shane M. Oncale and the attorneys at The Oncale Firm have provided residents of Shelby County, Jefferson County, St. Clair County, Madison County, Morgan County, Birmingham, Hoover, Homewood, Pelham, Chelsea, Calera, Mountain Brook, Pell City, Madison, Huntsville, Decatur and many other counties and cities throughout the state of Alabama with comprehensive representation in divorce and family law matters for over two decades. The Oncale Firm is mindful of the sensitive nature and subject matter often involved in divorce and family law cases and treats all people and subject matter with respect, confidentiality and compassion. Many of the matters that the divorce lawyers at our Birmingham firm handle on a daily basis involve the division of complex property, high asset, net worth or clients with significant earning or retirement including military retirement, difficult personalities, child custody, child support, difficult or unique family dynamics, alimony, spousal support, child support modifications, custody modifications, alimony and spousal support modifications and even domestic violence, spousal abuse, physical and emotional abuse.

Family Law

In Alabama cases involving children born out of wedlock or that arise from situations other than divorce are handled in the Family Court. Almost all family law issues can have a significant impact on your future and the future of your loved ones. The rights and obligations of parties in many family law matters are delineated by provisions in the Code of Alabama. However, the laws are often complicated and can be challenging to understand without the assistance of an experience and skilled family law attorney. Unlike in divorce court, most family court cases require leave of court to conduct discovery. Discovery is the process through which the facts of your case are developed, and critical documents needed for your case obtained. These facts and documents will often make or break your case as they form the basis on which your case will ultimately be decided by the judge assigned to your case. When in Family Court you need a lawyer skilled in the art of discovery and capable of putting together the facts and documents necessary to present your case in a cohesive and persuasive manner. The Birmingham divorce attorney at The Oncale Firm has more than two decades of experience preparing and trying cases and has attorney skilled at gathering evidence and presenting evidence in a cohesive and persuasive fashion in Family and Divorce Court.

Divorce

Under Alabama law, a party can choose whether to pursue a “fault” or “no fault” divorce. Examples of grounds for seeking a fault-based divorce include physical incapacitation at the time of the marriage, adultery, voluntary abandonment for one year prior to the filing of the divorce complaint, drug or alcohol addiction. In contrast, a no-fault divorce merely alleges that there has been an irretrievable breakdown of the marriage, for which neither spouse is specifically responsible. A divorce may be uncontested or contested. In order for a divorce to be uncontested, the parties must reach an agreement on all of issues involved, the division of assets and debts, child custody, child visitation and child support, the division of retirement, alimony and spousal support and both be willing to sign documents submitting that agreement to the court for approval. The Oncale Firm has also worked with couples within applicable ethical guidelines which provide that a divorce attorney in Birmingham or elsewhere in Alabama can only work with one party and must disclose that fact and identify of whom they represent to the other party to reduce the number of contested issues ultimately resulting in a less expensive and contentious divorce.

In a divorce which is contested the parties have, for whatever reason been unable to reach an agreement on all issues and need the intervention of the court system. Contested divorces are subject to the Alabama Rules of Civil Procedure and proceed through the court system just like any other civil case. Divorce cases are decided by a Judge after a full trial on the merits. Except for very limited issues, divorce cases cannot and are not heard by a jury. After the case is commenced by the filing of a summons and complaint the case proceeds into a phase known as discovery. During the discovery process the parties can issue written questions to each other that have to be answered under oath and request documents from each other that must be produced. The parties can also issue subpoenas to third parties for the production of documents and obtain sworn testimony under oath from the opposing party and any witnesses. This process is critical as it is through this process that the facts and evidence ultimately presented to the court for its decision is developed. The Oncale Firm and the attorneys that form its backbone have decades of experience gathering evidence, taking depositions and trying contested divorce cases to a conclusion. The firm has tried cases in Jefferson County, Shelby County, Blount County, St. Clair County, Cullman County, Autauga County, Elmore County, Madison County, Morgan County, Lauderdale County, Coffee County, Russell County, Bibb County, Tallapoosa County, Talladega County, Calhoun County, Mobile County, Baldwin County, Dallas County, Pike County, Lee County, Tuscaloosa County, Houston County, Colbert County, Covington County, Jackson County and Walker County.

Child Custody

In any Alabama child custody case, the court makes its decision based upon what it determines to be in the best interest of the child. The factors to be weighed and considered are lengthy and diverse but those given perhaps the most weight include the fitness of the parents and their respective environments and the child’s own history as related to the roles played by each of the parents during the relationship. Custody, as that terms applies in Alabama actually encompasses two different concepts, legal custody and physical custody. By Alabama Statue all fit parents are preferred for joint legal custody. The battle ground so to speak in most cases is over physical custody. Physical custody addresses which parent the child primarily lives with on a regular and ongoing basis. Since the parent with whom the child resides is presumed to have the greatest influence on the child and have the right to receive financial support from the other parent in many cases it is a highly contested issue. Although the trend is towards a 50/50 split of physical custody such is still not the norm in most Alabama jurisdictions. There is no bias under the law against a father and in most jurisdictions in Alabama and as a practice more and more jurisdictions are willing to award primary physical custody to a father, consider a true joint 50/50 arrangement or at the very least some hybrid that gives the noncustodial parent additional parenting time and influence over the child. The attorneys of The Oncale Firm have tried countless child custody cases and are skilled in the preparation and presentation of such cases to the court for determination. Child custody cases in particular require an eye for detail, planning and preparation to be properly presented. Often times experts in the mental health field as well as investigators are involved in such cases and the Birmingham divorce lawyer at The Oncale Firm has a long history of working with such professionals in the preparation and presentation of child custody cases.

Child Support

Under Alabama law, parents have a legal obligation to financially support their children. The obligation to support a child remains true regardless of whether the parents were married when the child was born. If the parents were married at the time the child is born there is a presumption under Alabama law that the child is the product of the marriage. Historically on the husband could challenge this presumption but new laws currently making their way through the Alabama legislature are seeking to change this older position. If the child was born to parents who were not married to one another paternity must first be established before a child support order can be entered. Paternity can be stipulated between the parties in some jurisdictions but in others the court will require actual DNA testing of the father and the child. It is always the father’s right to demand a DNA test if paternity is at all in question. In general terms the monthly amount due in child support is a mathematical calculation based upon the guidelines outlined in Rule 32 of the Alabama Rules of Judicial Administration. Although there are many online calculators available few are current, and most do not properly apply the caps related to child care and the rules applied to healthcare coverage for the children. Special rules also apply when a parent is intentionally under employed, when the parents combined income exceeds the published child support chart and when a child who has reached the age of 19 still requires support due to disability. It is also common over the term of a child’s minority for there to be several trips back to court to evaluate child support due to changes in circumstances, including a change in the needs, wants and desires of the child or a change in the earnings or earning ability of one or more of the parents. When faced with the prospect of child support, whether as part of a failed marriage or as the result of a child born out of wedlock it is wise to consult an attorney with skill and experience in the area of child support. The Oncale Firm has represented hundreds of parents involved in child support disputes.

Alimony

A court can award alimony (also often referred to as spousal support) while a divorce is pending (temporary alimony or alimony pendente lite) or as part of a final judgment of divorce. Under the right circumstances the court may also award attorney fees on the same basis. Factors that the court considers in determining whether alimony is appropriate are too numerous to list here but include how the marital assets will be divided, each party’s earning capacity, the health and ages of the parties, and the length of the marriage. A court can also grant or deny a request for alimony based on a finding of marital misconduct. The inclusion of this last factor, particularly, often leads to protracted and sometimes quite ugly litigation and as there is no longer a tax deduction associated with the payment of alimony the results are significant. Most pending legislation seeks to reduce the amount or at least the length of time for which alimony can be awarded. Like child support alimony can also be revaluated, increased or reduced based on a substantial change in circumstances involving the payee’s ability to pay or the payors need or both. Alimony also terminates upon the remarriage or cohabitation of the receiving spouse. In any marriage where alimony is on the table it is well worth the investment to seek out and retain skilled and experienced counsel as the terms used are not always defined in a natural or normal manner by the case law and each court and jurisdiction may apply and evaluate the concept of alimony a little different. In such cases it is important to retain a divorce attorney in Birmingham who is familiar with the judge who will hear the case in your particular jurisdiction. The Oncale Firm has extensive experience handling such cases particularly in Jefferson County, Shelby County and St. Clair County.

Property Division

In an Alabama divorce, all marital property is subject to division by the court. Marital property is typically defined as any income, assets, or property that either party acquires during the marriage, with some exceptions. In distributing property in a divorce, the court will not necessarily divide the marital property equally. Instead, Alabama law requires courts to distribute property in an equitable manner. Thus, it is within the judge’s discretion to dictate how property should be divided. Often times disputes develop over whether certain property is marital or individual. There is also often great dispute over the value of certain property involved in a divorce. Things get more complicated when business interests are involved, where one or more parties are involved in a family business or in a partnership and when the property or interests involved have sentimental value beyond their book value. The Oncale Firm has been involved in countless cases involving unique and complex assets and the divorce attorneys at our Birmingham firm are skilled in the areas of gathering evidence and effectively using experts to do valuations and projections for presentation to the court. If you are involved in a case where complex assets or business/partnership interests are involved give us a call so we can discuss your options.

Paternity

In Alabama, before child custody, child support or child visitation can be set paternity of a child must first be established. If the child is born during the marriage, then the husband is presumed to be the father of the child. This presumption remains in place unless changed by a court order. The law provides that only the husband can challenge his paternity, third party who believes himself to be the actual father and even the mother herself cannot make such a challenge. This issue is a hotly contested one and one in which each session of the Alabama legislature seems to have a bill seeking to make changes. If you are in a situation where paternity is at issue it is important to seek legal advice as the laws are ripe for change. If a child is born out of wedlock a case must be filed with the court to establish paternity. Many people mistake being listed on the birth certificate or completing the affidavit of paternity at the hospital as establishing legal custody in Alabama. While such actions created a presumption, it is merely a presumption and legal rights do not attach until there is a court Order. If you are a father and have not been to court to establish paternity, you will find that your rights are very limited and that you are virtually at the mercy of the mother. If you are a mother, you cannot get court ordered child support and will always have questions regarding your rights legally as the custodian of the child until you go to court and obtain a court order. In these areas it is best to have certainty. The Oncale Firm can help. Give us a call today.

Contact an Experienced Divorce Lawyer in the Birmingham Area

If you find yourself in a need of legal advice concerning divorce or in the area of family law it is important that you seek out an experienced and approachable lawyer who will take the time to hear you out and discuss how Alabama law applies to your situation. The attorneys at The Oncale Firm have more than two decades of experience working hand in hand with clients to navigate the treacherous waters of divorce and family court. We pride ourselves in being good people first and good lawyers second. We are approachable and willing to go the extra mile to make you comfortable and to work with you to establish obtainable goals and adopt a strategy to accomplish those goals. We work throughout the state of Alabama but focus the majority of our practice in Jefferson, Shelby, St. Clair, Blount and Madison County. Please, if you find yourself in need of advice and guidance, do not hesitate to reach out to us by phone at 205) 458-9805 or through our online portal to schedule a confidential and complimentary consultation to discuss your situation with a divorce lawyer in Birmingham or surrounding areas.

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