When someone's future or family is at stake, it is imperative to work with skilled professionals who will provide comprehensive, personal and diligent legal representation. At the Law Office of Mitchell J. Howie, our family law attorneys ensure all our clients receive personalized and unique legal representation. Our attorneys understand this as essential because we know that your family and your concerns are unique. As your family law attorney, we will identify your goals, with your assistance, and then we will develop sound legal strategies to reach those goals. Frequently, divorce and family law issues can be effectively resolved through mediation without resorting to litigation at the court house. However, as trial lawyers, we are always prepared to go to trial when necessary to protect our clients' interests.
You can contact the Law Office of Mitchell J. Howie to schedule a confidential consultation about any family law matter you may have at (256) 533-8074. A consultation fee applies.
Our family law services include:
Divorce: Our family law attorneys will address all legal issues related to divorce, from simple questions about alimony to extremely complicated cases involving complex property division.
Military Divorce: As a former JAG Attorney, Mr. Howie has extensive experience handling divorce matters for military families. The military life involves extraordinary sacrifices and at our law office, military families receive the special legal representation that is required in military divorces which can involve intricate questions about jurisdiction, child custody, visitation and property division. Mr. Howie has authored a book on military divorce which can be downloaded for free here.
Modification and Enforcement: After a divorce decree or family court order has been finalized, we help clients make necessary changes and meet challenges through modification and enforcement of those orders.
Child Custody and Child Support: Our family law attorneys help separating parents develop child custody and visitation arrangements and establish child support levels.
Adoption: Our family law attorneys guide people seeking to build their families through the often complex and potentially overwhelming adoption process.
Paternity: For parents who were not married at the time of a child's birth, we address paternity issues to ensure that fathers have all the rights and responsibilities of parenthood.
Interstate Relocation: Our family law attorneys represent parents opposing or seeking international or interstate relocation.
Domestic Violence: Our family law attorneys represent both victims of domestic violence who are seeking protective orders and people who have been accused.
Prenuptial and Postnuptial Agreements: Our family law attorneys negotiate and review prenuptial and postnuptial agreements. These agreements can protect familial assets in the event of divorce. We also handle litigation involving these agreements following divorce.
Below are family law issues often encountered with Family Law legal representation for your review.
Private Adoptions
Adoption laws are different in every state and there are a lot of bases that need to be covered in an adoption. Will you have an on-going relationship with the birth parents? What if one of the birth parents changes their mind and wants the child back? These are just two of the reasons why it's important to have an attorney who is familiar with adoption law handle your adoption. An attorney who specializes in adoptions may be in contact with physicians who are aware of women who want to give up a child for adoptions. These are known as private adoptions because they bypass the use of agencies and can even help bypass the long waiting lists found at agencies. You should be aware that with private adoptions, the biological parents still have the right to reject prospective parents and they still have the right to revoke their consent to adopt. A family law attorney can help you maneuver the treacherous waters of adoption.
Should I adopt?
Before you begin the process of adoption, you'll need to decide whether you want to adopt an infant or older child, whether the child's race is important to you and whether you want to adopt an individual child or a family. Then you'll want to decide whether to go through an adoption agency or a family law attorney. There are numerous adoptive parent groups and you'll want to visit some of their meetings and talk to adoptive parents for their input. Once you've committed to adopting, a background check will be performed which is also known as a home study report. This usually entails meeting with a social worker, getting medical clearance and checks on any criminal record. You'll also need to provide letters of reference and a financial statement. Prior to an infant or child being placed in the home, the birth parents will sign a consent form. Each state has an amount of time that a birth parent can use to be sure they want to surrender custody of the child. After the child is placed in the home a petition of adoption is filed in the court.
Adoption Laws
Adoption laws vary from state to state so each state has state specific laws that govern adoption. In legal terms, adoption is the process by which a legal parent-child relationship is created between people who are not biologically parent and child. This means that a family is created by a court of law. Parental rights and responsibilities are based on a legal shifting of the relationship. Because of this, it's important to follow the legal requirements exactly. Prior to the 1970s, most adoption records were strictly closed. Neither the biological nor adoptive parents knew much about each other. And the children adopted didn't know much about their birth parents. This was not ideal because the child grew up with little knowledge of their genetic, medical and social background. Now the birth and adoptive parents can determine the relationship and knowledge they have about each other. Numerous adoptions can also occur when the adoptive parents travel to foreign countries.
Adoption Guidelines
Every state requires parents meet certain guidelines, but those guidelines vary from state to state. Some states have age requirements. Some states require that the adoptive parents be married at least 10 years. There may be financial requirements, but these are not usually too strict. It is usually sufficient if you can prove that you can support the adoptive family. Federal laws are also allowing adoptive parents to get money from the government to help with the adopted child. Of course, you have to meet certain criteria. Usually you are required to attend classes to explain the process and the problems you may encounter. Your house will also be inspected for safety. You'll also probably be required to pay fees. These fees vary from state to state and depend on whether you're adopting an infant or an older child. When you adopt an infant with special needs, some agencies lower or waive their fees. Because the guidelines are different in each state, contact your family law attorney to find out the requirements in your state.
Incapacitation and Guardianship
Sometimes health or safety issues may require you to become the primary caretaker of an adult. Perhaps this adult is incapacitated by illness and had not signed a power of attorney form. Or the adult could have mental or physical difficulties that make their self-care impossible. When this occurs, the courts appoint a guardian to make personal or financial decisions. In other words, the court appoints a substitute decision maker. Guardianship is a serious decision and should be made only if the person has a serious inability to make or understand the consequences of their decisions. Remember, there's no law against making foolish decisions, so if grandpa wants to send a donation to the Followers of German Shepherds, that is his right. But if he doesn't understand the consequences of signing over his social security to the group, then someone else may need to take over. Guardians are required to stay within strict financial limits and must report periodically to the court. If you think you know someone who needs a guardian, contact your family law attorney.
What is the Divorce Process?
Divorce is a legal decree that a marriage no longer exists. The process of divorce involves the division of property, the needs of the children and increasingly, the needs of the grandparents. The high rate of divorce is often cited as a reason to toughen the laws concerning divorce. In some states, couples may opt for a different type of marriage called a covenant marriage in which it is more difficult to divorce. Many states offer only a no fault divorce. This simply means that no one is assigned blame. Therefore the division of property is not influenced by one party's perceived guilt. Ninety-five percent of the property issues in divorces are not decided in a court. Usually both parties and their respective family lawyers work things out. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Contested Divorces
The contested divorce usually occurs when there is substantial property or assets and a feeling by a spouse that they deserve more. How these marital properties are divided depends upon the state in which you live. In California, for example, the state holds that all property is to be divided equally, because each party contributes equally but differently. But any property that is excluded in a prenuptial agreement will escape that equal division. In other states, the court will divide property according to equitable distribution - a fancy way of saying according to who deserves it. Factors considered include each spouse's earning power, non-marital property, services as the homemaker, duration of the marriage and the age and health of both parties. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
When is a divorce final?
A divorce can take anywhere from a few days to many months. It all depends upon your state's laws. Unless there is reason to pursue an emergency divorce, anyone obtaining a divorce faces many issues that must be resolved before a divorce can be granted. This includes who gets what, the house, the money, stocks and bonds and retirement funds. Alimony and spousal support must be agreed upon. And child custody must be settled. Who will be the primary caregiver, who will receive the tax deduction and visitation rights? All of these issues must be decided. A hasty divorce will probably cause many regrets. Once the divorce is final, it will be difficult to change the agreement. So, no matter your state's waiting period, be sure to take your time and consult with your family attorney carefully. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Marital Property Rights
In the event of a divorce, there will be some question as to who is entitled to what property and assets as well as who is responsible for the liabilities. In California, a community property state, the state holds that marital property is owned jointly and that the marriage partners were equals. The property is divided down the middle, with each getting half. Unless, of course, there is a prenuptial agreement which holds certain assets obtained before the marriage to be outside of the marriage contract. In other states where equitable distribution is the law of the land, the court recognizes that marriage partners may have contributed unequally to the marriage. The court has much more flexibility in the distribution of the property, but it also can lead to unexpected results. The best way to handle the division of property is to negotiate in good faith with help of your legal representative and/or family law attorney. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Dividing Debts and Assets
The division of property after a divorce involves a great deal of negotiation, unless you live in a community property state where the assets are considered to have been gained equally no matter the actual contribution of either spouse. The property is split down the middle unless, of course, you signed a prenuptial agreement which expressly held certain assets outside of the marriage contract. If you live in a state with equitable distribution, the court believes that both partners did not necessarily participate equally in the accumulation of marital wealth and the property may be distributed unevenly. This means a high degree of flexibility, but also can mean a capricious division of property. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Alimony/Maintenance/Support
The term alimony means the same thing as spousal support and maintenance. Many states have a temporary alimony provision which determines who gets support and how much until the divorce is final. After the divorce, the courts often use guidelines established by the state to determine how much spousal support will be paid. In most cases, the spousal support lasts for a certain period in order to give the spouse a chance to get back on their feet. In the case of a long term marriage, or where one spouse is ill, most states can establish a permanent spousal support arrangement, especially if it is created in conjunction with a divorce agreement. It is in the interest of any spouse who has been out of the workforce for a number of years, to get spousal support while they get retrained. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Divorce and Bankruptcy
As with assets, liabilities are considered to be shared by divorcing partners in states with community property laws. If one partner files for bankruptcy after the divorce, the other will become the focus of the creditors. Recent changes in the law are designed to prevent one spouse from leaving the other with marital debts by filing for bankruptcy. The new law does not allow the discharge of debts that one partner agrees to pay in a divorce settlement. The exception to the rule would be if payment of the debt would cause the ex-spouse to suffer hardships. Bankruptcy does not affect the payment of child support or alimony. These payments must continue. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Social Security Benefits
Social security benefits are not considered to be property in a divorce settlement. But, if you are 62 years old and are divorcing after more than ten years of marriage, you are automatically entitled to part of your spouse's benefits. Even if he or she has not begun collection, but is eligible due to age or disability, you can collect. You must be divorced for at least two years. You do not have to rely upon your spouse to send you the money, the government will, upon receipt of an application, send a check directly to you. The age requirement may be lower if you are disabled or if you have minor children under your care. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Common Law Marriage Issues
In some states, certain conditions must be fulfilled, chief of which is that the couple must hold themselves out to be married. The origin of the common law marriage is the frontier where the state's blessing may have been many days ride from the couple. The law held that anyone who lived together for a certain time, had sexual intercourse and held themselves out to be married were in fact married. If a couple holds themselves out to be married in a common law state, and then moves to a non-common law state, most states will recognize the common law marriage as legal. The couple in a common law marriage is held to the same standards as other married couples and must go through the same divorce proceedings to dissolve a marriage. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Name Changes
There are many legal reasons to change your name. You may have a name that embarrasses you, you may want to honor someone, or maybe you just want to create the right image for business. You don't need any official document to change your name, as long as you do not do it to defraud, or to avoid bills. But, many government institutions and private companies will find it difficult and even confusing when you change your name and may not want to do business with you. If you plan to apply for permits or a marriage license in your new name, you will need to apply for a legal name change. The procedure is routine and requires little time and a filing fee. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Child Support: State and Federal Law
Child support was at one time determined by a hodgepodge of laws which created wide disparities in child support amounts and charges that support levels were too low. Federal law now requires that all states create guidelines which the courts must use to determine the amount to be paid in child support. These formulas are based upon the income level of each parent, the number of children and perhaps a few other factors. If one parent makes markedly less than the other then the ratio may change. But the level of support never declines below a certain level. If there are special circumstances, the court will listen and perhaps make adjustments to the amounts. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
How to Collect Child Support
Enforcing child support is largely a matter of tracking down a delinquent parent and asking the court to deduct child support directly from their wages. The employer sends a portion of the parent's wages to a state agency, which then distributes the funds. Other ways to enforce child support include seizing property and placing liens on homes and businesses. The parent who avoids paying child support can be found in contempt of court which could lead to a fine or a stay in jail. The Child Support Recovery Act of 1992 has made it a federal crime for a parent who lives in a different state than their children to not pay child support for one year or to fall 5,000 dollars behind in payments. Punishment can include fines and imprisonment. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Child/Parent Search/Child's Change In Residence
The main concern of the judicial system, when it comes to child custody, is the welfare of the child. Changing residences is generally considered stressful for a child. If the move takes them from their friends, family and community ties, it may trigger a custody battle. If the parent remaining in the community wishes the child to stay and that parent is a fit parent, they may be able to change the custody arrangements. A move across town will probably not be enough to challenge custody, unless some form of detriment can be shown. If the child wishes to stay with the other parent instead of moving, the court may examine the child's request. All aspects of each environment will be examined. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Child Custody Arrangements
Joint custody is an arrangement made between divorcing parents as to who has custody of the minor children. This type of custody provides for both parents to continue supporting and caring for their children. Visitation rights are usually worked out with an eye towards giving the children equal time with each parent. Joint custody can mean legal custody, physical custody or both. It will also be necessary to decide what arrangement is best concerning holidays. Should they alternate? School vacations may also be an issue. A well thought out joint custody agreement can make the best of a bad situation by limiting the amount of disruption the children must suffer in the divorce. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Parental Visitation
Parental visitation is often a tough element to negotiate in a divorce. Sometimes, both parents feel they are the better parent and deserve to be with their children more than the other. Even though these feelings may or may not be true, the key thing each parent must keep in mind is that the children usually expect to see both parents. But if there is disagreement, the court may decide the fate of the child. The judge will take into account the age and sex of the child, the child's preference, the continuity of the environment, the ability of each parent to provide for the physical and emotional needs of the child and the physical and mental condition of the parent. As circumstances change, the visitation agreement may be changed. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Visitation Rights For Grandparents
Grandparents are increasingly worried about the welfare of their grandchildren. They may see their own children as lacking in parenting skills and find it impossible to watch their grandchildren suffer abuse and neglect. Grandparents are demanding the right to see their grandchildren after a divorce and in most courts, they are being given visitation rights. The scope of these rights depends upon the laws of each state. Some states provide for visitation as long as it is seen as in the best interest of the child and does not interfere with the parent-child relationship. The rules for gaining visitation rights vary in each state and therefore make it important that the grandparent find out what must and must not be done to ensure visitation. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
What Is Paternity?
Paternity means fatherhood. Both parents of a child are responsible for the upbringing of their children. While it is generally fairly easy to determine the mother of a child, the identity of the father may require proof. If a man admits paternity then he is automatically taking on the rights and responsibilities of raising a child. If a man shirks this responsibility, the woman may file a paternity suit. If she proves that he is the father, he may be required not only to provide future support, but pay for the cost of pregnancy and childbirth expenses. In the recent past, determining paternity through scientific testing could only tell you a man was not the father. Modern DNA testing can produce nearly conclusive proof of paternity. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Establishing Paternity
Establishing paternity is the process of determining who is the biological father of a child. At one time, the medical establishment could only determine, in only some cases with certainty, that a particular man was not the father of a child. The mother of the child needed to use other evidence to prove circumstantially that he was the father. Today, through DNA testing, it is possible to determine with almost one hundred percent accuracy whether a man is the father. It can also determine with nearly one hundred percent accuracy that a specific man is not the father. Once paternity is established, the father must pay support for the child and, in some states, may have to pay part or all of the pregnancy and childbirth expenses. If the man refuses to pay, the court may garnish his wages, seize his property and bank accounts or even send him to jail. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Legitimization and Paternity
A child is considered legitimate by the courts if he was born from the union of a married man and woman. If the parents were not married to each other at the time a child was conceived, it may become necessary to establish paternity through one or more of the tests available. Paternity concerns the financial responsibilities of the father and usually takes the form of child support. It is also important to establish paternity in custody cases where the parents vie for custody and obligations to the child. In some cases, a man might choose to question the paternity of a child to prove that he is not the father in an attempt to deny paternal obligations. A legal judgment of paternity will entitle the child to receive a portion of the father's estate, titles or inheritance. The child of a deceased father has the rights to survivor's benefits and Social Security benefits paid by the federal and state governments. This information is not intended as a substitute for professional legal counsel. Contact an attorney if you have questions about legitimization and paternity.
Blood Tests
The blood test is an old fashioned way of determining if a man could be the father of a child. It used the basic fact of science that everyone had one of several blood types and that a man and a woman's respective blood types could only produce a child with a certain blood type. A blood test could indicate that a child could be a certain man's child, but this was not conclusive. There would certainly be thousands of men with the necessary blood type to be the father. The blood test was much more accurate in determining if a man was not the father. Today, modern DNA testing, which may use the blood as its DNA source, is a nearly one hundred percent accurate test. It is increasingly being allowed in court and may soon be universally accepted. However, the test may be incorrectly administered or interpreted which may cast doubt on its results, but that is unlikely. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Children's Rights
The child's welfare is a primary concern of the courts. The law holds that both parents of a child are required to provide support. One of the parents will become the primary custodian of the child. The other will pay child support payments. Child support payments are usually determined by a court formula. If the parent refuses to pay child support, they may have their wages garnished, assets seized or face jail time. The child's rights are limited at this age. They cannot vote, hold jobs or make decisions concerning contracts. The parents essentially govern their lives. The older the child becomes, the more a court will listen to their needs when it comes to determining custody. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Father's Rights
If a single man impregnates a woman, he has few rights concerning the welfare of the fetus or the child. He does not have the right to stop a woman from getting an abortion. She does not need his consent. She doesn't even need to notify him that she plans to terminate the pregnancy. If the woman decides to carry the child to term, the father may be required to pay child support. If he refuses, the courts can garnish his wages and seize his property and bank accounts. Depending upon the state, the father may also be required to pay for the costs of pregnancy and childbirth. But he also has the right to visitation and to seek custody of the child. If there is any doubt that the child is the man's, a modern paternity test can determine with near one hundred percent accuracy the paternity of the child. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Mother's Rights
A mother-to-be has many rights considering her pregnancy and the welfare of the child once born. She can terminate the pregnancy without notifying the father of the child and without his permission. She can file a paternity suit if he claims that he is not the father of the child. Modern paternity testing can determine with nearly one hundred percent accuracy the paternity of the child. Once paternity is established, the father must pay child support. In some states, the father may have to pay the costs of the pregnancy and childbirth. If the father refuses, the courts can garnish his wages, seize his properties and take his bank accounts. While the courts tend to give mother's custody, this is not a certainty. The father may file for custody and will probably get at least visitation rights. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Visitation / Custody / Support Rights
In many cases, the mother and father will agree on their rights to custody and visitation. If they can't make mutually agreeable arrangements, then the court will make the decisions for them. On occasion, the courts will request a case worker or probation officer to prepare a report that will assist in determining the issues of visitation and custody. The court always makes decisions based upon the best interest of the child. Visitation rights are decided upon according to the needs of the child and the desires of the parents. It must be determined if the visits are to be supervised or restricted in any way. If there are no restrictions necessary, then a visitation schedule needs to be established. Either the parents or the court must decide on a schedule that is fair and reasonable for both the parents and the child, including outlines for phone calls, weekend visits, and holidays. Transportation arrangements and travel notices are further issues that must be discussed. The visitation rights of grandparents and step-parents must also be addressed. This information is not intended to take the place of professional legal counsel. Contact an attorney for more information about custody and visitation rights.
Domestic Violence
Domestic violence claims the lives of hundreds of women each year. It is important that anyone, male or female, report abuse to the police immediately. They may be able to find a shelter for you and your children. If a shelter is unavailable, look for housing with a friend or a relative. It is important to get out of a violent relationship before it reaches the fatal stage. Many states have passed laws which require the police to arrest one or both spouses if either seems to have hurt the other. There may be a mandatory cool down period. You may seek an injunction or court order to have your spouse removed from the home and which requires them to keep a certain physical distance. You may also want to use the anti-stalking law, if your state has one. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Injunctions
In most states, a person who is a victim of domestic violence can file for a legal injunction. Such an injunction is often ordered in an emergency situation and offers immediate protection for the victim against the abuser. Injunctions are usually in the form of a temporary restraining order, which bars the abuser from entering the family home. In most areas, a temporary restraining order is registered with the local police so that immediate action can be taken if the abuser violates the order. Violation of such an injunction often results in criminal prosecution. Restraining orders are temporary and therefore, only effective for a certain period of time. After that, a full court hearing will be held. This information is not intended as a substitute for professional legal counsel. Contact an attorney if you have questions about injunctions as a means of protection against domestic violence.
Protection Against Abuse
Protection against abuse starts by recognizing that abuse is rarely a one time incident. Many women and men make that mistake and end up in an escalating cycle of abuse which almost always ends in serious injury or death. To protect yourself from abuse, the safest method is to end the relationship after the first violence. If that is impossible, it is important that the abuser and the abused attend classes and therapy to help them deal with anger without resorting to physical violence. If the abuse continues, you may need to obtain a restraining order. In some jurisdictions a protective order is issued which, if violated, can result in jail time and fees. If these legal remedies do not work, there are volunteer organizations which can help a battered spouse. Take your life seriously and get away from abusers! Otherwise, the results may be final. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Protective Orders
A protective order is any order issued by a court in order to protect someone from harassment or from injury. Most orders are issued by a court at the request of one of the parties. The other party may then appear before the judge to make their case at a later time. Many protective orders are emergency orders issued by the police when courts are out of session. This type of protective order lasts only a brief time, the weekend or the holiday, until the courts are in session. Once the court reviews the case, a new restraining order may be issued, with a longer duration. A protective order may even be made permanent, if conditions warrant. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Restraining Orders
The restraining order is a court order that prevents certain actions on the part of an individual or group. Usually they are ordered to avoid contact with another specific person, or persons, or to stay away from a specific property. The restraining order is often used in cases of domestic violence to prevent further injury. In some states the restraining order is registered with the police in order that they can respond immediately. This order can also be used by an abused child or the victim of a stalker. Most restraining orders are temporary, though the orders can be made into a permanent injunction. If the restraining order is violated, it could result in criminal prosecution. A restraining order usually expires on its own and must be renewed to remain effective. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.
Power Of Attorney
The power of attorney is a useful legal tool that anyone can use. It is essentially the granting of authority to another person. This person can be your attorney or even a friend or a family member. The extent of the power is limited entirely by the terms you set. For most people a limited power of attorney makes the most sense. If you give someone total power of attorney, you are giving that person incredible power over your life. A limited power of attorney lets you control their control. For instance, you may assign power of attorney only authorizing someone to sell a car, a boat or a home. The most common use of power of attorney is to manage financial affairs. Today, a durable power of attorney may be used to control affairs after you become disabled. The information contained in this message is general and should not substitute for the advice and counsel of a licensed attorney.