How do I Contest a Will?

Unlike a trust, a will cannot control your assets after you die. Instead, a will just determines where they go when you die. In other words, a will disburses your possessions and assets on death, while a trust continues to control assets well after you die.

For this reason, Alabama wills are overseen by probate courts, while trusts generally are not. Many times, after a loved one dies, the potential and expected heirs discover that a will either disinherited them or greatly reduced their share of an estate. Normally, this is perfectly legal. A living person may choose to leave their assets to whomever they choose. There are, of course, situations in which disinherited heirs may have a right to dispute a will.

For help with estate planning or breaking an invalid or fraudulent will, contact Five Points Law Group today.

What is an Alabama Will?

Under Title 43 of the Alabama Revised Statutes, the law provides for the creation and administration of wills. A will is generally defined as a legal instrument that dictates who shall receive what from your estate after your death. Things you can typically do with a will are as follows:

• Designate your executor
• Leave real estate
• Leave cash and investments
• Leave tangible property and heirlooms
• Direct the handling of a probate estate
• Waive your executor’s bond requirements

The law presumes that a decedent created the will as his or her final statement of wishes and intent. You will need to make a strong showing that the will is invalid in order to succeed in disputing it.

Grounds for Disputing a Will

Alabama law allows those who are “interested parties” to contest a will. A will contest must be filed in probate court where the will is filed. The following grounds may allow you to contest a will:

• Disinherited spouse: In most cases Alabama law allows spouses to assert their right to an elective share of the estate, even if the deceased spouse tried to disinherit them.
• Mental incapacity: A person must be of sound mind to make a will. Otherwise, the will may be held invalid.
• Fraud: If you can prove the will was created through fraud, you may be able to get a court to invalidate it.
• Duress and undue influence: A will should reflect the will of the person making it. If created under duress or through force, coercion or improper undue influence, it is not valid.
• Technical requirements: A will must adhere to minimum statutory requirements. A lawyer can help you determine if the will meets all requirements.

 

Time Limit on Contesting a Will

In general, you have just six months from when the will was presented to the court to dispute it. A person who is under a legal disability (mental impairment) or a minor has up to 12 months from the date when the legal disability is removed to contest a will. This can be complicated, so if a minor or someone with a mental impairment is negatively affected by a potentially invalid will, a guardian may need to be appointed to enforce the person’s rights. Do not rely solely on information found online, as there are complex nuances that can shorten or extend the time you have to dispute a will, and each case is unique.

Contesting an Alabama Will

Will contests can be complicated and sensitive situations. If you have been disinherited or believe that a loved one was taken advantage of, contact Five Points Law Group today to discuss your rights and find out what options you may have for fighting back.

How do I Break a Trust?

A trust is a unique method of preparing your estate. Many people use trusts to hold ownership of property, while maintaining long-term control over their estate plan. What happens when there are disputes between heirs, or someone becomes concerned that a trust was improperly created?  Many surviving family members want to know how to break a trust in order to allow an estate to pass the way it normally would, if not for certain problems. With this in mind, consider a few basic points about how one can actually undo a trust in Alabama. For help with estate planning or breaking an invalid trust, contact Five Points Law Group today.

What is an Alabama Trust?

Under Title 19 of the Alabama Revised Statutes, the law provides for the creation and administration of fiduciary agreements and trusts. A trust is generally defined as a separate legal entity that controls the use and ownership of property. You can put just about anything into a trust, from real estate to cash or investments. A trust is a contractual agreement that a person creates, which names someone to manage the assets within it, during and after the life of the person who creates it. Much like a corporation’s operating agreement, the trust must follow certain formalities to accomplish its intended goals. Some trusts are created to minimize taxes, others are created to preserve wealth, while others still are created to preserve the right to certain government benefits for disabled persons.

Grounds for Breaking a Trust

There are many reasons why someone might wish to break a trust. A trustor (the person creating a trust) can almost always revise, edit, or void a trust, unless the trust was made irrevocable for some reason. However, once that person passes away, it can be difficult for heirs to argue there are grounds for not following the expressed intent of the trustor. Here are just a few reasons why heirs may wish to do so:

Undue Influence, Coercion, or Duress

If you discover that your deceased loved one was the victim of strong coercion or acting under duress at the time he or she made the trust, then you may be able to petition an Alabama court to revoke the trust, allowing assets to pass to heirs through the state’s default rules. This is not an easy process, as the courts generally will require strong proof.

Mental Incapacity When Created or Revised

Sadly, unscrupulous heirs and caregivers often convince people to make deathbed changes to their estate plans, leaving everything to someone other than whom they normally would. If you suspect your loved one was incapable of making a voluntary change to a trust, you may have grounds to revoke the trust. Expect a long battle, and you will likely need the help of medical experts to show that mental capacity was lacking.

Invalid / Did Not Meet Legal Requirements

Perhaps the most straightforward option for breaking a trust is showing that necessary legal formalities were not followed. Improper witnesses, lack of witnesses, or inadequate or incorrect language may all be grounds to dispute the authenticity or validity of a trust.

Disputing a Trust in Alabama

If you have been disinherited or believe that a loved one was taken advantage of, contact Five Points Law Group today to discuss your rights and find out what options you may have for fighting back.

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Improving Communications With an Ex

When you are going through a painful divorce or custody fight with an ex, it can seem like even the smallest issues become major complications. Heated arguments can develop in a moment and over things that ought to be very simple. Even otherwise amicable relationships can begin to deteriorate, leading to a lot of unnecessary calls to the lawyer or trips to the courthouse. There is a way to avoid a lot of these contentious disputes and save time, money, and headaches. The trick is planning your communications in advance.

 

Why Communication is So Challenging in a Family Law Case

 

The Gottman Institute has long been a leading center for research on human interaction and communication, especially for families going through divorces. Dr. Gottman suggests that there are so-called “Four Horsemen of the Apocalypse” that can predict the end of a relationship. According to Gottman’s theory, these four characteristics or behaviors are:

 

• Criticism
• Contempt
• Defensiveness
• Stonewalling

 

When you and your ex are going through a divorce or you are fighting over custody of a child, these four communication problems are almost inevitable. Simple tasks such as meeting to drop off a child after visitation can become highly emotional moments that can feel almost akin to a battle. When you see your ex as an opponent, battling over a prize (e.g. your child), conflict and fighting is inevitable. So, what can you do?

 

Three Useful Methods of Improving Communications

 

Here are just three possible ways to improve the quality and type of communications with your ex:

 

Alternative Mediums of Communication

 

Sometimes the problem is not communication; it is verbal communication. If you find that it is difficult to keep the conversation civil, or you wish there was a record of the awful things your ex is doing, then you may just want to consider using technology to bridge the communication divide. Apps like Our Family Wizard allow divorced couples to communicate, plan visitation, reschedule school events, and more. In addition to reducing everything to writing, it also creates a record so it keeps people honest and can be a powerful tool in court if one party is violating arrangements.

 

Huffington Post also provides an excellent list of joint-parenting apps that may be helpful, depending on your situation.

 

Deliberate Communications

 

Being deliberate just means thinking about what you wish to accomplish. While you are on your way to pick up a child after a long weekend of visitation with an ex, you should take the time to think about what you want to achieve during your interaction. Remind yourself that the goal is for your child to enjoy time with both parents, to grow up healthy and well-adjusted, and to feel loved. If you center your emotions and focus on those goals, you may find it easier to ignore minor frustrations like when your ex shows up 15 minutes late. If you have planned your communications in advance, then you are less likely to react in the moment.

 

Using an Intermediary

 

If your communications have truly broken down to the point at which every interaction leads to aggressive and erratic arguments, then it may be worth discussing your situation with an attorney. Sometimes an intermediary such as a trained Parenting Coordinator can be used in order to mediate disputes and create a smoother exchange. An intermediary can schedule visitation meetings, school events, and other difficult conversations. While obviously this should not be a permanent or long-term solution, it may be helpful for getting through a particularly rough patch.  Experienced divorce attorneys tend to work often with secondary resources such as these and can make recommendations for your particular circumstances.

 

Talk to a Birmingham Divorce Attorney

 

If you are going through a bitter and challenging divorce or custody dispute, do not let harsh words and difficult communications steal your happiness. Speak with an attorney who understands both the legal and the human aspects of family law. The more you understand about the process, the better you can cope with the challenges to come. Call Five Points Law Group to speak with an attorney today.

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Five Signs That You May be a Victim of Age Discrimination

The law says that you have a right to compete in the workforce without regard to your age. However, as you can probably guess, employers discriminate all the time. The question is how to recognize the subtle signs of discrimination. At Five Points Law Group, we can help you review the situation from an objective point of view and help you get to the bottom of things. You deserve to be treated equally, regardless of your age. With this in mind, here are just five quick signs that you may be a victim of age discrimination.

Sea of Youth

This is often more a concern in younger companies, like tech startups and businesses that cater to a younger target demographic. Of course, it can happen anywhere. What we are talking about is a tendency to hire younger workers. If you begin to notice that almost all employees are young or very young, or if you begin to notice that older workers who retire are all being replaced with very young workers, then you may have a problem. Keep in mind, this is not an absolute. If older workers with experience are applying for jobs and being passed over in favor of less experienced younger workers, there may be a problem.

Inappropriate Questions

If you are interviewing for a job and the interviewer is asking questions that sort of require you to disclose your age, then you may be facing age discrimination. For instance, you may hear questions like “well, you will be old enough to appreciate this” or “do you have grandchildren near here?” While these may not necessarily be anything serious, if used to gauge your age or ascertain your suitability, they are inappropriate.

Suggesting You do Not Have Enough Time Left

As morbid as it may sound, older workers with years of experience and expertise in their fields may not want to retire. Frankly, the law does not say you have to quit doing what you love. Some employers may worry that an older worker has too little time left before retirement to be useful to the company. Such questions or insinuations are strong warning signs of age discrimination.

Sudden Changes in Duties or Responsibilities

If you have worked for a business for years and enjoyed a lot of responsibility, you may find it unsettling when, upon turning 50 or 60, you are asked if you need to take a break or whether you can “handle” the workload. While subtle, you may even notice that people begin to treat you as though you are mentally or physically unfit, even without any cause. This can be another warning sign.

Unusual New Discipline

If, after years without any problems, you are facing constant pressure and being disciplined or reprimanded for seemingly arbitrary things all of the sudden, this could signal that superiors are trying to build a case to fire you under some other pretext.

Get Help Now

Do not wait until you have been terminated; call an experienced attorney today. You may have options for fighting to keep your job. If you have already been terminated, downsized, demoted, or suffered any type of adverse employment actions and you believe your age is involved, contact Five Points Law Group today.

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Why You Should Not Have an Investment Broker or Insurance Agent do Your Estate Plan

Perhaps you have got a local insurance broker or investment advisor who has long been your most trusted source of investment and retirement planning advice. This person has helped you build successful investment products, told you just when to buy and sell stocks, and maybe even led you to substantial wealth throughout your working years. Now, as you approach retirement and your golden years, you are considering how you want to establish your final estate plan to best preserve your assets for your heirs and leave a sizeable legacy for those you love.

 

Do you go back to your insurance agent or investment advisor? Do you hire a lawyer?  Ultimately, it is entirely your decision. Before you make your choice, here are a couple strong reasons to consider hiring an experienced estate planning attorney instead of a commissioned sales person.

 

What Duties Does Your Insurance Agent or Broker Owe You?

 

As the old adage goes, ‘follow the money.’ If you want to know who is really looking out for your best interests, just ask yourself how your trusted advisor gets paid. Insurance agents and investment brokers are generally paid a commission, meaning the more they sell you, the more money they make. Therefore, a lot of insurance agents are keen to lobby for you to purchase annuities and whole life insurance products. Perhaps a reverse mortgage or bond product would be a good fit. Ultimately, many of these so-called ‘investment products’ are nothing more than poor investments that mostly benefit the salesperson who is pushing them.

 

Should Your Agent or Broker Even be Handling Estate Plans at All?

 

The Alabama State Bar Association takes a strict view of the unauthorized practice of law. While many investment advisors may be wonderful individuals with good intentions, they should not be advising clients on complex legal rights, such as trusts, estate planning, and the drafting of wills. Many investment advisors will claim that they have the documents reviewed by an attorney, who in turn advises you, the client. These types of loophole options do not serve the consumer well. After all, where do that lawyer’s loyalties truly rest? With you or the advisor?

 

Advisors are Not Necessarily Fiduciaries

 

There is still talk of a full repeal of the fiduciary rule, a Department of Labor (DOL) rule that would require financial planners, investment brokers, and other industry “advisors” to act in a fiduciary capacity.

 

A fiduciary is someone who is legally bound to act in their client’s best interests. Attorneys are bound by law to act in their clients’ best interests. This is one of the touchstones of the attorney-client relationship, and it is one of the key reasons why the legal profession self-regulates itself by harshly punishing those attorneys who violate this rule.

 

However, historically financial advisors had no such requirement. To date, there are continuing appeals and delays to the start of the rule. In fact, many suspect that the rule will never fully be enforced or implemented. Currently, brokers can sell products that make them a profit, even if totally adverse to their clients’ interests. Under the so-called fiduciary rule, advisors would be required to provide more transparency and notify their clients when they have a conflicting financial interest in selling products.

 

Since 2016, the rule has seen court battles and a litany of political discourse. Financial Times did a great job of explaining how the rule has certain pros and cons for consumers, but for now, the fact remains that many advisors are not required to act in their clients’ best interests.

 

Get Ethical and Personalized Estate Planning Advice Today

 

Throughout the Birmingham area, the lawyers of Five Points Law Group are available to consult with clients to help families get the competent, compassionate, and accurate estate planning advice they need in order to preserve their legacies for generations to come. Call to schedule an appointment today.

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Can I Get a No-Fault Divorce in Birmingham?

The term “no-fault” divorce is often overused and misused. For those who are considering getting divorced in Birmingham, AL, it is important to speak with an experienced divorce lawyer who can offer realistic and accurate advice on the options available. Remember, just because something is available does not always mean it is your best choice. Contact Five Points Law Group to get help with your divorce today.

Alabama Grounds for Divorce

Traditionally, one party to a marriage had to bring ‘allegations’ against the other party, claiming that they did something to violate the marriage in order to get a divorce. These were called “grounds” for dissolution of the marriage. Many feel these are antiquated concepts that no longer have a purpose in our society, yet most states still maintain some variation of grounds in their statutes.

In Alabama, the basic grounds for divorcing are:

• Adultery
• Incapacity of one spouse (mental or physical)
• Wife was pregnant at the time of marriage and did not tell the husband
• One person gets sentenced to jail for seven or more years. (grounds after two years in prison)
• Crimes against nature
• Alcohol or drug abuse
• Insanity (mental disability for more than five years)
• Domestic Abuse

Divorce Without Grounds

If none of the above grounds exist or you do not wish to bring public allegations against your spouse, you can also plead either of the following:

• Irretrievable breakdown
• Abandonment

In general, Alabama courts have a mandatory 30-day waiting period before any order can be granted. Assuming there is no dispute as to the allegations in the petition for dissolution of marriage, you might be able to get divorced in just a little over a month. Of course, in reality, there are generally a number of factors that keep that from happening. For instance, here are a few things that can delay getting your divorce granted:

• Your spouse needs time to consult with an attorney
• There are contested issues, like custody of children or property division
• You require time to resolve debts or sell assets in order to determine the marital estate
• You have difficulty finding or ‘serving’ your spouse with the petition

Making Divorce Simpler

Many people think hiring a lawyer will drag things out and make a divorce more complicated, but this is not true. In fact, people who have been struggling to handle their own divorce for months are often quite surprised at how efficiently and quickly a divorce can be handled once an experienced attorney gets involved. Sometimes simple misunderstandings of a court procedure or a failure to put things into the correct format for a judge can result in documents not being reviewed in a timely fashion or a judge not understanding what you are trying to communicate.

Attorneys who regularly deal with divorce cases can generally navigate the system better to get results. Whatever you do, never try to handle a highly contested divorce involving child custody without consulting an attorney. Even a small mistake could cost you dearly. For a help with all of your divorce and custody questions, call Five Points Law Group today.

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FAQ for Long Distance Divorces

A lot of couples are already separated by distance before they file for divorce. Here are some of the more common frequently asked questions that Birmingham family law attorneys receive when helping families through long distance divorces.

 

If we live in different counties, where do we file for divorce?

 

According to Section 30-2-4 of the Alabama Code, there are specific rules about where you can file for divorce. In general, you can file for divorce in:

 

• the county where the defendant lives
• the county where you both lived together at the time when you separated
• if your spouse moves out of Alabama, then in the county where you reside

 

If my spouse moved away, can I still file for divorce in my own county?

 

Yes. In most cases, you should file for divorce in the county where you both lived together. There are going to be cases in which things get complicated. Perhaps you and your spouse have gotten separated several times, or your spouse moved away, then you left the county, then you came back. Having an experienced divorce attorney review your situation is the best way to ensure that you are filing your divorce in the right place.

 

Which school will the children have to attend?

 

The court is going to focus on making sure that all decisions are in the best interests of the children. If your children are already attending school and well settled into a routine, the court will generally prefer to make sure your children are not uprooted and moved to another school, especially in the middle of a school year. There are, of course, exceptions. The court will also look at which location offers the best support system (e.g. existing friends, extended family, etc.).

 

If I had to move away for work, will I have to travel back to my original residence for the trial?

 

Perhaps. In many cases, if you move away from the county of domicile, and the divorce is initiated in that county, you probably will have to litigate the matter in that county, even if you had to leave. In other words, you do not get to move the case just because life took you elsewhere, but you do not have to be at every court appearance. A good divorce lawyer can handle most of the routine appearances for you. Naturally, you would almost always have to be at trial.

 

Can my spouse move away and take my children to another state without my consent?

 

Usually not. In most cases, the court is going to be strict about not letting either party remove the children to a faraway location without very good reasons. Just getting a good job in another state is not usually a good enough reason to take children so far away that they would not be able to see the other parent. As with everything, though, there are exceptions you should discuss with your attorney.

 

What if I have to move to another state for a job?  Can I file for divorce there?

 

Usually not. The law requires a court to have jurisdiction over both the subject matter and the people. Just because a foreign or out of state court might have jurisdiction to hear a case involving you, does not mean that court has any jurisdiction to decide a case involving your spouse. For instance, if you move to Wyoming, it would be unfair to expect your Alabama spouse to defend a divorce in a distant state in which he or she has never lived.

 

Getting Help With a Birmingham Divorce

 

If you are dealing with a complicated long distance divorce, call Five Points Law Group to get help with your Birmingham divorce now.

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Five-Step Guide for Military Members Planning Divorce While Stationed Overseas

It is no secret that military service can be hard on marriage. For those serving in overseas duty stations or on deployment, this can be even worse due to long gaps between communication and the potential for infidelity and other obstacles to a successful marriage. It is sad to see a marriage end, especially when one spouse is thousands of miles away serving in the military. If you have made the decision to get divorced while still stationed abroad or while on a deployment, there are some things you should be doing right now to prepare for your divorce when you get home.

At Five Points Law Group, we are committed to serving those who serve our country. We know that our fighting men and women put their lives on the line every day, so when it is time for you to take the next step in your divorce, we are here to help make things as smooth and painless as possible. Nothing will make it easy, but the help of an experienced Birmingham divorce lawyer can often speed things up and help you avoid costly mistakes.

Step 1: Prepare Mentally

This is going to be tough. Build a support group, talk to a Chaplain or other trusted individual who can help you build up your emotional and psychological reserves for what lies ahead. You need to be focused 100% on your military objectives, so if you are unfocused or in emotional turmoil, you only put yourself and others at risk.

Step 2: Talk to a Lawyer Immediately

This may be tougher for some than others, but in today’s high-tech world, most service members have fairly frequent access to the Internet or telephone communications. Contact an experienced divorce lawyer near your home in the U.S. There are several reasons you want to do this early:

• Jurisdiction: You need to make sure you know exactly what jurisdiction applies. Do not assume that you can file for divorce in the state where you are stationed.
• Cost: By speaking to a lawyer early, you can begin to put together a plan for paying for your divorce. This may require you to budget your funds carefully while overseas.
• Information: An attorney can help you develop a plan for gathering the necessary paperwork and information you will need in order to file for divorce.

Step 3: Paperwork

Perhaps the single most difficult part of preparing a divorce while stationed overseas is that you do not have access to everything you need. For instance, you may be depending on your spouse back home to handle the budget, pay the bills, and make financial decisions while you are away. You may have limited access to banking information, investments, retirement plan documents, and other important items that will be necessary while filing for divorce. Now is the time to begin making a list of the important documents you will need, and maybe even have your attorney or a trusted friend back home gather these on your behalf.

Step 4: Privacy

Depending on your situation, it may be wise to get off of social media for a while. Or, at a minimum, enhance privacy settings. Also, make sure that you change any and all passwords on the following:

• E-mail addresses
• Social media accounts
• Online banking or retirement plan accounts
• Any other online accounts or logins that you want to be private

Never communicate with an attorney via e-mail unless you are 100% sure that your spouse cannot access that email account. Assume your spouse knows your login and change it immediately.

Step 5: File Your Petition

Once you have got everything in place, you can often use a power of attorney to handle much of the legwork back home. An experienced attorney can often help you file for divorce even while you are still stationed overseas. In some cases, such as when a trial may be necessary, you will have to wait in order to complete the divorce when you get back.

If your permanent duty station is located in Alabama or you and your spouse are from the Birmingham area, contact a local divorce lawyer from Five Points Law Group to discuss your options today.

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Conservator vs Guardian: Protecting Minors and Disabled Adults

You may have heard the terms “conservatorship” and “guardianship” used somewhat interchangeably. While similar, there are important differences between these ideas. A court sometimes has to get involved to protect a minor child or an adult who has mental and cognitive deficiencies that limit his or her ability to carry on affairs without assistance.

 

Whether it is a child or a disabled adult, Alabama courts require the matter be resolved through a probate court. In some situations, the person merely needs someone to make healthcare decisions on his or her behalf. This is generally done through a power of attorney. Absent a valid power of attorney, a court may appoint a guardian. If the person’s financial assets and estate are in need of protection, the court may also appoint a conservator. The guardian and conservator can be the same person.

 

What Does a Guardian Do?

 

Under the Alabama Code 26-2A-108, a guardian is “responsible for health, support, education, or maintenance of the ward.” A “ward” is the individual that requires a guardian (can be a child or disabled and incapacitated adult). These are broad responsibilities and powers. However, the guardian is “not liable to third persons by reason of that responsibility for acts of the ward.” In other words, the guardian does not automatically become personally responsible for the ward’s debts or actions.

 

A guardian can (not an exhaustive list):

 

• Make healthcare decisions
• Select medical providers
• Discuss medical care and obtain records
• Handle health insurance matters

 

What Does a Conservator do?

 

A conservator, on the other hand, is in charge of the person’s estate. This means money, investments, bank accounts, and so forth. Not everyone will have an estate; therefore, the majority of disabled adults and young children will only require a guardianship. However, when there is money (or the potential receipt of money, such as through a lawsuit), then a court can appoint a person or corporation to manage the finances for a ward. This is called “conservatorship.”

 

According to Alabama Code 26-2A-152, a conservator has the power to do the following things on behalf of a ward. This list is not exhaustive:

 

• Invest and reinvest funds on behalf of the ward
• Act as fiduciary
• Collect, hold, sell, and rent real property
• Make reasonable repairs to real property
• Manage bank accounts
• Borrow money for limited purposes
• Invest in stocks, bonds, and mutual funds
• Access safe deposit boxes
• Hire attorneys, accountants, and other helpful professionals
• Pay bills

 

Who Should be a Guardian or Conservator?

 

Really anyone who meets the minimum requirements can act as a conservator under the law. Of course, Alabama provides a priority list of people who are presumed to be best suited for the role. First, there are those already appointed by the court (existing guardian would likely be given preference for conservatorship, unless there is a reason not to do so). Second, the law prefers anyone the protected person has self-chosen. For instance, a person may have designated a person or corporation to handle his or her affairs. Third, there are people with existing fiduciary duties under a power of attorney.

 

If none of the above exist, the court will begin looking at relatives in the following order:

 

• Spouse
• An adult child
• Parent or someone nominated in the ward’s will
• Any relative who has resided with the ward for at least six months
• Someone who is caring for the general needs of the ward
• A general guardian or Sheriff of the county where the ward resides

 

How to Become a Guardian or Conservator in Alabama

 

If you have a loved one in need of a guardian or conservator, you will likely need to petition a court for appointment. There are a lot of protective rules and restrictions in place, and the court’s primary goal will be to look upon the entire process skeptically in order to protect the disabled adult or child. It is absolutely imperative that you have competent and experienced legal representation throughout the process.

 

To discuss your case with an experienced attorney who understands Alabama probate law, contact Five Points Law Group in Birmingham.

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When Should You Update Your Power of Attorney?

Most people by now realize that it is important to have certain legal documents in place in the event of an emergency or life event. Powers of attorney (POAs) are generally considered fundamentally necessary planning documents because they control what happens if you can not make decisions for yourself. There are different types of POAs, and rules change from time to time, so planning is not a one-time event.

 

It is generally recommended that you revisit your estate plan at least once every five years, just to make sure that everything is still relevant and no changes are needed. If it has been a while since you looked at your power of attorney, here are some questions to consider when deciding whether you should update it.

 

Have You Gotten Married or Divorced?

 

People sometimes forget that they have created a power of attorney, only to discover years later that an ex-spouse is still listed as the agent. If you suspect you may still have estate planning documents like wills or POAs that still name an ex, it is probably a good time to look at changing those documents.

 

Have You Been Diagnosed With a Medical Condition?

 

Some medical conditions may require you to carefully rethink your plans. If you have a diagnosis that may require long-term care in a nursing home, there are specific provisions you may want to add in order protect loved ones and protect your assets. Likewise, if your new medical diagnosis gives you concerns about end of life planning, you will want to meet with an experienced attorney to review your options.

 

Have You Made Changes to Other Estate Planning Documents?

 

If you have recently changed a trust or will or have created or changed other estate planning documents, it is a good idea to again look at your POA to make sure it still accomplishes what you want it to.

 

For instance, your old POA may authorize your agent to make changes to your trust, in the event that you are unable and it is in your best interests. However, let’s say you made your trustee someone different than your agent under the POA. This could create confusion as to who is authorized to act with respect to the trust. Simple issues like this can become big problems later if there is a dispute between your agent and trustee. A careful review of the language of both documents may be necessary to ensure there is no ambiguity and you can avoid problems later on.

 

Was Your POA Written Before January 1, 2012?

 

The standard format for an Alabama Power of Attorney changed in 2012. All POAs drafted prior to January 1, 2012 are subject to old requirements. If your POA was written prior to that date, it may be a good idea to consult an Alabama estate planning lawyer to make sure the provisions are all still valid and up-to-date.

 

Experience Counts When Creating an Estate Plan

 

With years of experience helping people throughout Birmingham and the surrounding areas, the attorneys of Five Points Law Group are devoted to making sure our clients know their options and have the tools and information necessary to make the best decisions about their future. Come see us today, and set up your own confidential review of your estate plan.

 

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Three Common Scenarios That Lead to Estate Disputes

When a person dies leaving a large estate, it can be a bittersweet time for heirs. On one hand, there is the sadness of losing a loved one. On the other hand, there may be a large windfall that can forever change an heir’s financial picture. For these reasons, it can be an emotionally challenging rollercoaster for the survivors. Sadly, it is a volatile time for families, and in some cases, siblings and other family members turn on each other and otherwise peaceful discussions can deteriorate into chaos, bitterness, and turmoil.

Alabama will and trust contests are often filled with animosity and discord between relatives. Among the many reasons for this, there are three specific situations that lead to these disputes more often than others. If you are building your estate plan and foresee any of these situations being possible, then you should schedule an appointment to review your estate plan with an experienced Alabama estate planning attorney as soon as possible.

Scenario #1: Disinheritance

Perhaps the most straightforward and common scenario that leads to will and trust contests is a pure disinheritance of an heir. When omitting an adult child, spouse, or other presumptive heir, there are careful precautions that must be used in order to make sure the estate will not be forced to spend tens of thousands of dollars defending a challenge. Alabama law permits any person who is “interested in the estate” to bring an action to contest the will. Trusts are handled differently, but there is a similar procedure.

If you are the executor, you could easily spend a large share of the estate just defending the will. Careful planning can minimize these risks, as can open and frank communication with anyone you have chosen to exclude.

Scenario #2: The Late Life Marriage

Another common scenario is when a person remarries later in life. Adult children may be dismayed when a spouse who has only been a member of the family for a few brief years inherits a large share of the estate, leaving children largely without. The easiest way to prevent disputes is to make sure everyone knows your intentions and create legally valid documents long before you pass away.

Scenario #3: The Incompetent Change of Plans

This is becoming an increasingly more common problem. A person with a severe cognitive impairment, such as Alzheimer’s disease, dementia, and so forth, is generally not legally considered competent to make or revise a will or trust. Keep in mind, however, that mental capacity can fluctuate and be a challenging thing to prove, especially after someone is gone. Disputes often arise when a loved one changes an estate plan after being diagnosed with a mental impairment. Allegations can arise, charging other members of the family with taking advantage of the situation.

Help Before and After

If you need help planning or revising an estate document, such as a will or trust, the lawyers of Five Points Law Group want to help. If a loved one has died, and you foresee a dispute in the near future, we may still be able to help minimize the damage. Call us to schedule a consultation today.

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New Law Limits Alimony in Alabama

Earlier last year, the Alabama legislature changed the rules for alimony. Before the changes, Alabama family court judges would routinely review petitions for alimony and award something called “periodic alimony.” Periodic alimony is designed as an ongoing and continual support for a spouse. Many have criticized this type of alimony, calling it ‘forever alimony’ or ‘permanent welfare’ for the recipient. Permanent or periodic alimony creates an everlasting connection between two people who have worked very hard to separate their connection through marriage.

The underlying problem for Alabama divorce lawyers has always been the uncertainty of what to expect when helping a client with a divorce. It can be challenging to anticipate what a judge will do when it comes to alimony awards. The new law gives more certainty.

Alabama HB 257

On April 13, 2017, the Governor signed a new bill into law, creating some big changes to how Alabama courts will decide alimony. Under the new law, periodic alimony is still possible but, unlike in the past, there are specific limitations on when it may be awarded. Just take a look at three of the ways that the law has changed Alabama alimony.

Interim Alimony

Under the new law, either party may request interim alimony, meaning support during separation or pendency of the divorce action. To get this sort of temporary support, the requesting person must show a need, the person who would pay the support must be capable of doing so, and it must be shown that the marriage is valid. Interim support ends with the final divorce decree.

Periodic Alimony is Only for Limited Circumstances

Unlike before, now periodic alimony is only to be awarded in limited circumstances. For instance, the new law states that rehabilitative maintenance should be limited to just five years.  If a person can show good cause for deviating from this rule, then a court may award support up to the same length of time as the marriage. So, a person who was married for 10 years would be limited to no more than 10 years of alimony, even if he or she could prove that periodic alimony is warranted.

This basically means that in most cases, a person will be limited to just five years of support after the marriage unless they can show a significant need to deviate from the rule. Even in those circumstances, the length of the marriage creates a maximum cap on how long periodic alimony can be awarded.

20-Year Exception for Periodic Alimony

Despite the fact that periodic alimony cannot be awarded for longer than the length of the marriage, the new law still carves out an exception for those married longer than 20 years. In those situations, a person may still be awarded ongoing and permanent alimony. Nevertheless, the new law definitely creates a strong barrier to such continuing and endless support orders.

Policy Behind the New Law

Alabama now joins a growing number of states that are attempting to eliminate permanent alimony. While there are certainly circumstances in which it may be appropriate, in most situations it is best to sever a relationship and create some form of certainty for both parties. On one side, the recipient needs to have a definite time period to rebuild his or her life. For the individual paying alimony, there needs to be a definite term after which he or she can expect to stop paying. The new law, while imperfect, does appear to create a degree of certainty that will help divorcing couples and their attorneys better plan for the future.

Getting Real Help with Your Divorce in Alabama

If you are facing a divorce and have questions about alimony, child support, property distribution, or any other issues that could seriously affect your future, call (205) 263-0743 or visit 5 Points Law Group online to set up a confidential meeting with an attorney today.

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Three Common Sense Reasons You Should Consider a Trust

When people hear the term “trust fund,” they usually think of the super-wealthy, but trusts are not just for those with incredibly high-asset estates. Many middle-class to upper middle-class families would benefit from a trust. Anyone who is contemplating their estate plan in the near future should at least consider some of the ways that a trust might help your family. With this in mind, here are just three simple common sense reasons why you should consider creating a trust for your estate plan.

Reason #1: Tax Benefits

Alabama does not have an estate or inheritance tax, meaning that you and your heirs are not taxed by the state on the value of an estate. Likewise, the federal estate tax has been doubled as of 2018. Therefore, unless you have an estate valued at more than $11.2 million per person or $22.4 million per married couple, you should not face an estate tax. Although this eliminates some of the tax benefits of creating certain kinds of trusts, one should keep in mind that the new tax law has a sunset provision. These increased thresholds are only good until 2025. So, the limits could quite possible revert back to their prior limits of approximately $5.5 million per person and $11 million per couple. A trust can be established to protect assets, if this is a concern.

Reason #2: Life Insurance Trusts

Some states make you name individuals as beneficiaries for life insurance. Fortunately, Alabama allows you to also name a trust as a beneficiary. By doing this, you can protect future life insurance proceeds. For a young middle-class worker with a $1 million term life insurance policy, consider the benefits. If you are the sole earner for the family and you die, leaving a large amount of insurance money to your spouse and children, you have little control over how the money is used. If your spouse were to remarry and later die, all of the money intended to take care of children might go to the new spouse or that person’s children. When you die, you lose control over how money is used. A trust can help protect against that.

Reason #3: More Options

Simply put, Alabama trusts have more options than wills. Although they do require a little more planning and work to prepare, a trust gives you many options that a basic will cannot offer. For instance:

• Spendthrift provisions. Protect against wasteful heirs or those with drug or criminal issues.
• Incentives for heirs. Create financial incentives for heirs to be successful.
• Privacy. Keep your family’s affairs out of public court records.
• Probate avoidance. Avoid costly court administration.
• Much more

Get Help Planning Your Estate

In Birmingham and the surrounding areas, the attorneys of Five Points Law Group want to help you protect your estate from unnecessary taxes and ensure that you understand all of your options. Trusts are not just for the super wealthy anymore. Anyone who wants privacy and wishes to avoid probate should consider a trust. Likewise, if you want more control over your assets and wish to protect your legacy, then there is probably a trust that is right for you. Call or visit us online to schedule an appointment to review your options today.

 

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Alabama Opens Door for More Retirement Distributions in Divorces

Until recently, Alabama courts were unable to force parties to divide retirement benefits in a divorce unless the parties had been married for at least 10 years. However, under a new Alabama law, courts will now be allowed to use discretion in awarding the division of retirement accounts in all divorces.

Why Limit to 10-Year Marriages?

There is good reason for the old restriction. Under the old theory, a person who is working to earn retirement benefits, such as pensions and 401(k) plans, is doing all the work to earn the money. Since forcing a withdrawal can trigger steep penalties and unintended taxes that could eliminate much of the benefit and value of such plans, the old law allowed the parties to postpone actual payment until the person began receiving the retirement checks. So, if a husband had a 401(k), the court can award up to 50% of that retirement account to his ex-spouse. But he would not be required to start distributing his ex’s share until he actually retired and began drawing on the account.

The problem, of course, is that this manner of property division keeps a divorced couple potentially connected for decades, even until death. This does not favor finality or swift resolution and separation of marital bonds. Although the old law did allow the parties to agree upon a lump sum, this essentially forced the difficult compromise of losing money to penalties and taxes in exchange for finality. By limiting these types of divisions to longer marriages, courts generally would offset the difference by requiring larger awards from other sources, thereby protecting the benefits of retirement accounts.

How Does the New Law Change Things?

Under HB 208, Alabama lawmakers decided it made more sense to allow judges the discretion to award retirement divisions in all marriages. This does not mean judges will be required to divide retirement accounts in short marriages. It simply means that it is open to debate in divorce cases. This is long overdue, because income has changed significantly since the original law was enacted decades ago.

Intuit suggests that about 34% of Americans currently are employed by the ‘gig economy,’ meaning they are freelancing or working at jobs that are temporary and usually carry no retirement or benefits, according to CNN Money. Furthermore, with income equality steadily rising, and women making more than at any time in the past, it makes sense to start looking at retirement distributions differently and with a more modern view that allows for a case-by-case analysis. Divorce lawyers have been negotiating retirement distributions for years, as part of settlements; this law just gives judges the ability to do the same.

Hiring a Birmingham Divorce Lawyer

Family courts are among those with the greatest number of pro se (self-represented) individuals. Unfortunately, this often results in a lot of long-term problems, such as endless disputes, unresolved tax and financial complications, and repeated, unnecessary court appearances. The Birmingham family law attorneys of 5 Points Law Group can help you efficiently resolve your divorce without as many surprises. Laws change frequently, so what works today may not work tomorrow. Call (205) 263-0743 or visit us online today to get timely advice to your divorce questions.

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Divorce Courts Now Deal With Disputes Over High School Athletics

There are plenty of things to disagree about in a divorce case. Who gets the kids on major holidays? Where are we meeting to make the swap this weekend? In recent years, courts have been mediating a new type of dispute between divorcing spouses – should the children play high school sports?  Just as is the case with determining the custody of a minor child, Alabama courts will generally look to what they deem is in the best interests of the child. Of course, this is often subject to much debate.

Birmingham divorce attorneys often advise clients on Alabama law, but it is a moving target when it comes to certain high school athletic programs. In particular, recent studies on head injuries associated with high school and college football have led some to rethink the wisdom of letting children play.

Recent Disputes Over High School Football in Family Courts

One father in Pittsburgh is fighting to keep his son from being able to continue playing high school football. That father, according to the New York Times, believes that the risks are simply too great and therefore the teen should not be allowed to continue. On the other hand, the man’s ex-wife strongly supports their son continuing to play, despite the fact that the young man has had multiple concussions. It is a power struggle, in which both parents definitely have valid and understandable arguments.

As The Times explains, the mother feels like her son has a lot to gain from athletics. Meanwhile, the father feels that his son is jeopardizing long-term potential and well-being by continuing to risk his health. So, how can a court resolve this dispute?

Family Court Involvement in High School Sports

It is important for anyone going through this type of dispute to understand that no matter how much a teenager may express his or her wishes, ultimately the courts will presume that both parents are legally permitted to make these decisions on behalf of their minor children. So long as both parents can come to an agreement on these matters, a court is probably not going to be involved. Courts generally get involved when the parents cannot agree.

Risks Associated With High School Football

The links between high school football and head injuries have only begun to be explored through research, but one study suggests that high school football players are nearly twice as likely to suffer a concussion as their college counterparts. The study, according to Frontline, also suggests a potential link between repeated head injuries and a number of conditions. For instance, retired NFL players tend to have a far higher average rate of conditions, such as clinical depression, suicidal ideation, Alzheimer’s disease, and traumatic encephalopathy. Frontline is careful to point out that there has been no clear or definitive link proven to date, but the research certainly does reveal a burgeoning crisis, especially among younger athletes – namely high school football players.

What to do if You And Your Ex can Not Agree About High School Sports for Your Child?

In almost all cases, you are better off if you can reach an agreement about what is best for your children. The last thing you want to do is give teenagers a reason to drive an emotional wedge between you and your ex. Instead, you should work closely with your attorney to reach an agreement. Ultimately, you should discuss your concerns with an experienced Birmingham family law attorney. Five Points Law Group can help with even the most difficult family law disputes. Call (205) 263-0743 to speak with an attorney about your case today.

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Trusts for People with Disabilities

One of the primary concerns people have as they age is protecting their children, grandchildren, and other people they love. This can be complicated when an adult child is living with a disability.

Current estimates suggest that as many as 48.9 million Americans living outside of institutions are living with disabilities. As many as 24.1 million have severe disabilities, according to the National Service Inclusion Project (NSIP). This means that a lot of Americans may die each year, leaving a surviving disabled adult child or other close relative. When planning, here are a few questions people might want to ask:

• Who will take care of this person when I am gone?
• How will this person obtain medical care without my help?
• If I leave this person all my money, who will manage the funds?
• If I leave this person money, will he or she lose Medicaid and Medicare eligibility?

These are just a few of the big questions families must ask when they are providing for a disabled adult child or other close relative. Fortunately, there are things people can do right now to protect their loved ones for years to come.

Types of Trusts

A trust is just a document that establishes a set of rules and procedures for managing and distributing assets that are owned and controlled by that document. There are many kinds of trusts. For instance, most trusts are established as revocable, meaning they can be revoked or changed during a person’s life. There are also irrevocable trusts. One people put assets into that type of trust, they cannot change their mind and take things back out of the trust. There are also special needs trusts, which are set up to protect people with disabilities.

Funding a Trust

There are two basic ways to fund a trust – self-settled and third-party settled. A self-settled trust is one that is funded by the person who is intended to receive its benefits. In other words, you put money in a trust that is set up to provide for your own care and upkeep. On the other hand, a third-party settled trust is one that is funded by someone other than the individual who will receive its benefit.

Special Needs Trusts (SNT)

A special needs trust is often set up to maintain eligibility for public aid and other needs-based benefits, like Medicaid, Medicare, Social Security, and so forth. These trusts are often quite complicated and require the careful review and assistance of an experienced attorney.

Rules for SNTs

In August of 2017, the Centers for Medicare and Medicaid Services (CMS) released guidelines entitled, “Implications of the Cures Act for Special Needs Trusts. In this release, CMS provided clarification on the requirements for establishing a workable SNT.

A properly drafted SNT must meet the following:

• Disabled adult is under 65
• Person must have a qualifying disability
• Trust must be set up solely for that person’s benefit
• Trust reimburses the state for all money left over after death (up to the amount of free care paid by the state while alive)
• Can be established using the money of a loved one or the disabled person created on or after December 13, 2016)

Estate Planning for Disabilities

If you have loved ones with disabilities, there can be a lot of public benefits to preserve, as well as potential tax consequences. In Birmingham, the experienced estate planning lawyers of Five Points Law Group can carefully review the facts of your unique situation and look for the best option to protect those you love. No single solution is good for everyone. Get caring and knowledgeable advice. Call (205) 352-4455 to schedule an appointment today.

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Preparing for the High Cost of a Nursing Home Stay

Not all estate planning is about wealth building. In fact, these days most Americans are less concerned about what happens if they die, but rather, they are more worried about what will happen if they live too long. According to the Social Security Administration’s (SSA) life expectancy tables, the average American male who is currently 65 can expect to live 84.3 years of age. A woman aged 65 can expect to live to 86.6.

The SSA reports that 25% of those living past 65 will also live to be over 90, and about 10% of them will live past 95. With longer life and better medical care, people may be living longer, but longer life also means higher medical costs.

Think Your Savings are Safe?

A married couple that has saved $1 million for retirement has done pretty well. By all measures of success, such a couple should feel reasonably proud of their savings and confident that it will last through 20 years of retirement (65 to 85), assuming they have a modest annual budget, they own their home, and healthcare costs can be handled through Medicare.

Average Cost of American Nursing Home Care

A 2015 Cost of Care Survey by Genworth suggests that the national U.S. average cost of long-term skilled nursing home care is about $80,000 per year.  For Alabama, it is around $69,000, and for the Birmingham area, it runs $73,825. According to Lifehappens.org, studies show that the average length of a nursing home stay is about 835 days, costing a total of $200,000. Of course, some people with chronic or severe conditions may require lifelong nursing home care at the end of life. Imagine a five-year nursing home stay: It could easily cost $400,000.

Paying for Care

Fortunately, there is Medicare, right?  Well, not exactly. Medicare only pays for up to the first 100 days of long-term care. Technically, Medicare is only designed to pay for short-term rehabilitation. So, if you need rehab after an injury, Medicare will pay for it, so long as you are making progress and your physicians believe you will recover and be able to return home. If, however, you require long-term care, Medicare will stop, and you will have to pay out of pocket for the care. That is unless you have planned ahead.

Long-Term Care Insurance

Many seniors over the age of 60 are smart to invest in a long-term care insurance policy, but these policies are not cheap. If you have saved a million dollars, you should have to start putting your budget toward high premiums, not to mention the fact that these policies are often quite limited and only cover a year or two of care.

Medicaid as the Primary Payer of Nursing Home Care

For the majority of Americans in nursing homes, Medicaid will pay the bill. For those with a lot of assets, it can be a challenge to understand that there are options for becoming eligible for Medicaid in order to preserve hard-earned wealth. There are often creative estate planning solutions that can shift assets to a spouse living outside of the nursing home in order to avoid having to use your entire retirement income on the nursing home bill. By setting up a qualifying trust or simply changing the ownership of certain assets, many seniors are able to preserve their savings, while ensuring that they are well-positioned to use Medicaid if they ever require nursing home care.

Birmingham Estate Planning Attorneys

If you are approaching retirement or are already in retirement, you should consider the likelihood that you may need to stretch your retirement savings for 30 or more years. Will your savings last that long if you or your spouse require nursing home care? The attorneys of 5 Points Law Group are dedicated to helping you preserve wealth and protect your savings. Call (205) 352-4455 to schedule a private consultation to review your unique retirement and estate plans today.

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Understanding How the New GOP Tax Law Affects Alimony

If you have been paying attention, you already know the new sweeping changes made by the GOP’s tax law will have long-range effects throughout the economy for decades. One big change has divorce lawyers across the country on edge – the elimination of the alimony deduction. For over 75 years, the alimony deduction has been a strategic aspect of negotiations between divorcing couples. Going forward, however, this is now off the table.

What was the Alimony Deduction?

Under existing IRS rules (See Publication 504), alimony was generally treated as a deduction for the paying spouse. The recipient then paid tax on the money, just like all other income. This somewhat softened the impact of being forced to continue paying money to an ex-spouse.

Theories Behind an Alimony Deduction

The logic is pretty clear. A person is ordered to pay an ex-spouse a portion of his or her money, most often because the ex-spouse earns less money. The paying spouse is usually the one who makes more (aka “the breadwinner”). It can be a hard thing to accept that you have to continue paying an ex, long after you are divorced. The paying spouse is getting nothing out of the continued relationship, while the recipient is getting income. The tax deduction acknowledged the fact that the alimony payments are a total loss for the payer, as he or she is not receiving goods or services for the money paid. Here is what the new law means for married couples looking to get divorced after 2018.

Changes Took Effect on January 1, 2019

The new law does not take effect immediately. Instead, it will only apply to those who get divorced after December 31, 2018. So, those who are considering divorce in 2018 may want to consider doing so quickly, as the law will not apply to those already paying alimony.

Settlement Negotiations Will Change

Previously, tax benefits of alimony were a strong consideration for higher income spouses. Now, without the benefit of any deduction, other items may be used to offset the implications of this law. In other words, we will likely see higher property distributions, lump sum payments, retirement divisions, and so forth being offered in lieu of alimony payments.

Consider a Prenuptial Rewrite

For those who have signed prenuptial agreements in the past, it may be wise to see an attorney to do a quick rewrite before 2019. After all, one common provision in many prenup agreements is a higher alimony payment (which includes tax benefits for the paying spouse) in exchange for less property distribution and less division of other assets, like retirement accounts, pensions, annuities, investments, and business interests. Given the lack of a tax benefit for alimony payments, those with prenups may want to strongly consider paying a little money to have an experienced divorce lawyer go through the old prenup to make sure it remains a viable and beneficial agreement going forward.

Getting Advice from an Alabama Divorce Lawyer

Whether you are considering a divorce, facing one right now, or just looking to take proactive steps to update your prenuptial agreement, the attorneys of 5 Points law Group are available to answer your questions and help you stay up-to-date with the most recent changes in the law. Call (205) 352-4455 or visit online to speak with an attorney today.

 

 

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What are Grandparents’ Rights in Alabama?

Divorce is painful enough on parents, but sometimes divorces also have a devastating impact on grandparents and other relatives. The death of an adult child is always a terrible blow, and a subsequent separation from the children of that child can be devastating.  For a grandparent, losing the right to see grandchildren can be overwhelming and quite simply unfair. If you are struggling to see grandchildren in cases such as these, a Birmingham divorce lawyer may be able to help.

Alabama has chosen to create a specific statute that protects grandparents’ rights. However, the law has some particular requirements. Let’s take a look at the new law, and three common examples of how it might apply.

Grandparents Visitation Statute

As a preliminary matter, the law is not implicated unless there is a dispute, meaning the law comes into play when a grandparent must actually petition a court for the right to see a grandchild. In such a situation, Section 30-3-4.2 of the Alabama Code provides that a grandparent is entitled to reasonable visitation with a grandchild, if the grandparent can prove that not allowing that visitation would be detrimental to the grandchild. This is called the “harm standard,” and is a tough standard to meet. There are four situations where the law actually applies:

• Marriage of the parents ended by divorce, or one of the parents has died
• Maternal grandparents of a child born out of wedlock
• Paternal grandparents of a child born out of wedlock (and paternity is proven)
• There is a pending action to terminate parental rights

Parents Refuse Visitation

Alabama generally follows the Supreme Court decision in Troxel v. Granville, where the court held that a parent has a constitutional right to decide whether to permit or restrict visitation. So, if two married parents do not wish for a grandparent to see the children, there is not a lot a court can do about it, except perhaps in extreme examples.

Divorced Parents

The law allows grandparents to petition for visitation when there is a divorce. This, of course, assumes that the parents disagree. Often, at least one parent agrees that the grandparents should have visitation, though petitions are more generally necessary when that parent is unable to facilitate visitation with the grandparents himself or herself.

One Deceased Parent

Another common example is similar to what happened in Troxel v. Granville. When one spouse dies, the surviving spouse might choose to limit or even prohibit the parents of the deceased spouse to visit the children. This situation is complicated, and if there was a sufficient relationship between these grandparents and the child, a court will entertain a petition for visitation.

Loss of Parental Rights

While it may not seem fair, a parent’s own termination of parental rights will be imputed to his or her own parents. Under the statute, the parent of a parent who lost parental rights through a court termination process will also not be able to petition for visitation. Therefore, a person who loses parental rights also loses visitation rights for his or her own parent.

Adoption Severs Grandparents’ Rights

Finally, when a child is adopted to someone outside of the family, grandparents will have their visitation rights terminated.

Questions About Grandparents’ Rights in an Alabama Divorce

If you are a grandparent, you may worry about how your own child’s divorce will affect your ability to maintain a strong and lasting relationship with the grandkids. Contact 5 Points Law Group to discuss your situation and find out if you may have options for protecting that relationship. We believe in caring, compassionate, and thorough representation. Do not keep worrying; find out your rights today.

When a Child Gets to Decide Where to Live After Divorce

Divorce is hard. A custody battle can be worse. Nothing can prepare a parent for watching his or her child have to make a painful decision like where to live after a divorce. Fortunately, this is partly why Alabama law does not put that sort of weight on a small child. In fact, children are never forced to make such statements. A child is rarely forced to comment on his or her preference if the child does not want to.

Furthermore, if requested, most judges will appoint a guardian ad litem to represent the child. This attorney’s role is different than most in that he or she is bound to advocate for the best interests of the child rather than simply to pursue the child’s preferences.  Those preferences and concerns can be articulated them to the court through the attorney, though a duty of confidentiality applies as with all clients.

Alabama’s Best Interests of the Child Standard as Applied to Joint Custody Requests

Under Section 30-3-152 of the Alabama Family Law Code, the court must consider a set of statutory factors when reaching a decision about joint custody. These factors include:

• How easily the parties get along and agree on things
• How well the parties are able to cooperate and make joint decisions
• Whether and to what extent each parent works to encourage the child to maintain a healthy and loving relationship with the other parent
• Evidence of past or present child abuse, neglect, domestic violence, or other harmful behavior by either parent (toward the child or each other)
• Where the parties actually reside in relation to how easy it would be to maintain joint custody arrangements

Age at Which Child’s Preference is Considered

In some states, like neighboring Georgia, the law sets a designated age at which a minor child’s consent or preference creates a presumption which results in children’s preferences being given great weight. Alabama, however, sets no specific statutory rule. Instead, the family court judge has wide discretion and must consider a child’s wishes, but is never bound by them. A few things that typically are considered in this decision are:

• Is the child mature enough to understand the consequences of his or her statements?
• Are the child’s wishes based on reasonable expectations and intentions?
• Has the child been promised anything or bribed to make statements?
• Are the child’s wishes clearly against his or her best interests?

While these can be tough to ascertain, experienced judges and guardians ad litem are usually quite effective at determining whether the child has legitimate reasons for his or her wishes. If reasonable and valid, those preferences will be considered along with all of the other factors.

How an Experienced Custody and Divorce Lawyer Can Make a Difference

It can be tempting to encourage a small child to state his or her preferences in order to “win” a custody dispute. Many people make the tragic mistake of pitting children against their spouses in a divorce. This type of intentional alienation is not good for the children, no matter how much parents may dislike each other.

Having a skilled and experienced family law attorney by your side can give you the confidence to make better choices. Sometimes it just helps to know you have someone to turn to for those everyday questions challenges and disputes that will invariably arise during a divorce. For help with your custody dispute or divorce, call 5 Points Law Group today.

 

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Your Rights as a Pregnant Woman in the Workforce

According to reports by The Guardian, roughly 54,000 women lose their jobs each year due to maternity leave or pregnancy discrimination. Discrimination may include harassment, pressure to resign, reductions in pay or benefits, or outright termination. Sadly, a 2016 report by the Partnership for Women and Families explains that Alabama ranks fifth in the nation for the most charges of pregnancy-related discrimination per capita. It seems the most affected industries are healthcare, retail, and hospitality.

Alabama Protections

Unfortunately, Alabama remains one of just four states (Alabama, Indiana, South Dakota, and North Carolina) that have no state legislation offering clear protections against pregnancy discrimination. However, Alabama does protect certain other related rights of women in the workforce.

Breastfeeding Rules

Under Section 207(r) of the Fair Labor Standards Act (the law that governs minimum wage and  overtime laws), an employer with 50 or more employees shall provide a reasonable break time to express breast milk, and a place to do so within the workplace, until the child turns one year of age.  Caveat – if an employer violates this statute, Congress did not allow the employee to bring suit under the Act.  Under Alabama Code Sect. 22-1-13, a woman may breastfeed her children in any place (public or private) where she is lawfully permitted to be. Although the law is silent as to whether employers are required to allow breastfeeding at work, the law is written broadly and could arguably cover this.

State Employees

Likewise, under Alabama regulations at Sect. 670-X-14, state employees must be allowed to use their sick time for pregnancy-related disability. This means they may use accrued sick time as soon as their doctor determines they can no longer work, due to the pregnancy. The, upon being cleared to return, they must do so in order to preserve protections.

Federal Protections

Even though Alabama offers no statutory protections to clearly outlaw discrimination against pregnant women in the workforce, the federal Pregnancy Discrimination Act (PDA) applies to many women in Alabama. The law, when it applies, requires employers to comply with federal law and not discriminate against women based on pregnancy.

The federal law only applies to employers with 15 or more employees. The law treats pregnancy just like any other disability, requiring that “women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.” See Equal Employment Opportunity Commission (EEOC).

What Does Federal Law Prohibit?

While not exhaustive, here are a few of the basic protections and prohibitions provided in the federal law:

• Employer cannot “single-out” pregnancy-related conditions in order to prohibit pregnancy employees from working
• Employer must allow a pregnant employee to continue working so long as she can do so with reasonable accommodations but only if the employer grants reasonable accommodations to other employees for non-pregnancy related issues.
• Must hold a job just as long as the employer would for any other disabled worker
• Must have a leave procedure that is the same for pregnant and disabled employees

Other Options for Pregnancy Leave

If you become pregnant and cannot take advantage of the Pregnancy Discrimination Act, you may still be eligible for protections under the Family and Medical Leave Act, which, if applicable, can allow a new mother to take up to 12 weeks of unpaid leave. However, FMLA only applies to large employers with 50 or more employees, and you must generally have been employed for at least a year for the law to apply.

If you believe you are the victim of employment discrimination based on your gender or because you are pregnant, contact Five Points Law Group to discuss your situation and learn more about protecting your rights. As illustrated above, Alabama employers routinely violate federal equal employment laws, making Alabama one the least compliant states in the country. An experienced Birmingham employment discrimination attorney can work to protect your rights and your career.

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When Employers Use Wage Violations to Save Money

Some businesses believe that providing a safe and comfortable workplace is too expensive or will hurt the bottom line. This can lead them to cut corners on safety, turn a blind eye to rampant discrimination, and even perpetuate a system of wage violations. Sadly, employers often make the critical mistake of thinking that cutting corners and violating employee rights will save them money. In most cases, the opposite is true. Here are just a couple common ways that employers try to save money by cheating workers out of their pay.

Overtime Violations

While clearly designed to save money, when an employer fails to pay an employee his or her rightfully earned overtime pay, this hurts everyone. The employee makes less, his or her family has less to contribute to the economy, and the employer now has a worker who feels cheated. A lot of employers will tell a worker that he or she is ‘exempt’ from overtime laws. In some cases this is true, but often the employer is just using an excuse to avoid paying a fair wage.

You Can Not Discuss Money

An alarming number of employers tell their employees that they cannot discuss their salaries or wages with each other. In fact, according to the National Labor Relations Act, about half of all workers are subject to so-called ‘pay secrecy’ policies. These policies have a couple purposes. First, they prevent employees from gathering and collectively bargaining (unionizing). Second, they help to perpetuate income inequality between genders, races, and other protected classes.

The Department of Labor offers a helpful fact sheet on pay secrecy that explains some of the finer points of this improper type of policy. Many states outlaw pay secrecy entirely, while others (such as Alabama) have no such state-level restrictions. Nevertheless, it is generally impermissible to restrict employees from discussing pay.

Poor Conditions Cost Businesses Money

While employers sometimes get creative about violating employees’ rights to save money, the fact remains that doing so is bad for workers and bad for business. According to research reported by the Harvard Business Review, when an employee has poor working conditions or is paid less than a living wage, that worker can easily become ‘disengaged.’ This means the employee no longer takes an active interest in the success and overall mission of the business. According to the research, disengaged employees are absent from work 37% more frequently than engaged workers. This costs businesses a lot of money each year.

Get Help with Your Employment Case Now

Employers usually have the resources to let their powerful attorneys and risk managers threaten you and convince you that you have no options. The fear of unemployment or financial destitution often causes people to simply live with a horrible work environment. While not every situation can be resolved, the hardest part can be figuring out your rights and knowing how to take action.

If you are the victim of a hostile work environment, or you have experienced wage or overtime violations, you deserve better. Do not try to deal with your employer alone. Let the skilled attorneys of 5 Points Law Group fight for your rights. You work hard for your money; let us work hard for you.

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