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Dying Without a Will in Alabama: What You Need to Know

Dying Without a Will in Alabama: What You Need to Know

When a resident of Alabama dies without leaving behind a Last Will and Testament, the Alabama intestate succession laws layout clearly who shall inherit the deceased estate.

Unlike many states, Alabama has a specific plan within its code of laws that explains precisely what should happen when a person dies without leaving instructions on their post-death wishes.

However, these laws may mean that the deceased person’s wishes won’t be met if not clearly laid out in their will beforehand. If you have been considering creating a will but haven’t yet, your estate and your wishes are potentially at risk. Keep reading to see the ways that Alabama intestacy laws handle your estate.

Dying Without A Will In Alabama

Before looking at how an estate would pass under the code of Alabama, one must first have a basic understanding of what typically happens when someone dies without leaving behind their Last Will and Testament. Most people will put together their Testament during their lives because they want to ensure that their wishes are met after death.

However, there are many cases where people may simply forget to compose one. In other cases, a person may think their death is far on the horizon and a will is not needed yet. This is a risky game, and potentially puts the future of one’s family and their estate in the state’s hands.

Another common situation is when someone is too uncomfortable discussing the topic of death. It can feel overwhelming to consider what happens when you pass away, and so many people choose to avoid the uncomfortable altogether. 

Regardless, the person in question must be the one to create the will. According to the Alabama code, if they don’t actively create a will while living, their property will be dispersed according to intestate law.

What Property Is Considered

When it comes to Alabama law, only assets that would have been handed down through a will are affected. In essence, this means only things you own in your name are considered when a will is not present when you pass. 

Here are some examples of assets that won’t be affected by the intestate succession laws. 

  • The property you’ve placed into a living trust
  • Life insurance proceeds
  • Funds in retirement accounts, IRA, or a 401(k) 
  • Securities held in a transfer-on-death account
  • Payable-on-death bank accounts
  • The property you own with someone else 

All of the above assets will pass to the outlined recipient(s), whether you have a will or not. 

How Property Is Split

According to Alabama Intestacy laws, property inheritance is decided upon based on what family members the person in question has.

Survived by a spouse and children, all of whom are children of the spouse: The surviving spouse will inherit the first $50,000 plus one-half of the balance of the probate estate, and the remainder will be split amongst the children.

Survived by a spouse and one or more children who are not descendants of the spouse: In this situation, consider that the deceased remarried, and his new wife had children from a previous marriage. If this were the case, the spouse would receive one-half of the probate, and the deceased person’s children would inherit the other one-half.

Survived by a spouse and no descendants or parents: The spouse will receive the entire estate.

Survived by descendants and no spouse: All descendants will share the estate.

Survived by a spouse and one or more parents and no descendants: The surviving spouse will inherit the first $100,000 of the estate, and the remainder will be distributed between the surviving parents and the spouse.

Survived only by parents: If this were the case, the parents would inherit the entire estate in equal shares, if both are living.

The Complication of Children

Alabama intestate law can be tricky to understand regarding adopted children or stepchildren. You need to understand how all family members will or could be affected by the lack of a Will. 

  • Foster children and stepchildren will not automatically inherit anything under Alabama law. 
  • Adopted children will receive a share equal to your biological children. 
  • Children placed up for adoption who were adopted legally by another family will not receive a share unless your spouse adopted them. 
  • Children born outside of marriage will inherit automatically if the mother or father can legally prove paternity before or after the decedent’s passing. 
  • Children born during your marriage will automatically be assumed to be your children. 
  • Posthumous children who are biologically yours yet born after your death will still share the intestate property. 
  • Grandchildren will only inherit a child’s property if their child is deceased before they die.  

What happens if there are no family members?

The Alabama intestacy laws specifically name parents, descendants, and spouses as the primary recipients of the estate when a person dies without a will. However, if none of these options are available, there are two possible outcomes.

Survived by a sibling or descendants of siblings: The deceased person’s siblings and the sibling’s children will inherit the entire estate.

Survived by no family: This event is improbable, but the entire probate estate will be surrendered to the State of Alabama if it does happen.

Things To Think About

If you’re even considering a will, it’s essential to meet with a lawyer to discuss your end-of-life plans. If you’re no longer close with a spouse yet are still legally married, and you die without a will, that spouse will inherit everything. Likewise, if you no longer have any family to leave your estate to, you may not wish to see your life’s work handed off to the state.

A will is an absolute must if you care about where your estate ends up when you pass away.

The experienced attorneys at Brackin & Johnson have been preparing estate planning documents of all kinds for decades. Whether your estate planning is simple or very complex, we will provide you with the estate planning solutions that you need to protect your family legacy.

Contact us today and let us assist you with all of your estate planning needs.

What is Uncontested Divorce in Alabama?

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In an uncontested divorce, both parties agree on all issues that need to be resolved during the divorce process, such as child support, alimony, and the division of marital property. Choosing this route can save time, money, and stress for everyone involved.

Choosing an uncontested divorce may sound easy enough, but there are things to consider when making this decision. So, before you make this important decision, let’s discuss some facts about uncontested divorce, things you should consider when deciding which route to take, and how the process works.

Things to Consider When Filing for Divorce

There are some factors that you should take into account when deciding if you should file for a contested or an uncontested divorce. It’s essential to consider the following aspects before making that decision.

One of the first things people look at when making this decision is the financial aspect. And while finances are something that can sway your decision one way or another, there are a couple of other things to consider.

Divorce is a very emotional time for people, so you must consider how well you can handle your emotions. If you are feeling resentment towards your soon-to-be ex, you may find that those emotions can take precedence over reason and patience, which can turn your simple uncontested divorce into a long, drawn-out court battle.

If children are involved, you should consider that as well. Remember, they also have to deal with the divorce, and they have no control over anything in this process. The more you and your spouse can agree on things, and the less fighting there is, the better it will be on your children.

Contested vs. Uncontested Divorce

As mentioned above, an uncontested divorce means that the couple agrees on all of the issues surrounding the divorce. That means a contested divorce is when the couple can’t agree on one or more important issues, and their divorce must go to court and be presented in front of a judge.

Often, a couple can begin the process of an uncontested divorce only to end up in a contested divorce because they can’t agree on things such as alimony or parenting time. Contested divorces take a considerable amount more time to settle than uncontested divorces, and are potentially far more expensive.

How Uncontested Divorces Work in Alabama

According to the Alabama Code § 30-2-1(a)(7), either spouse may file for divorce based on fault or no-fault grounds. While the couple must agree on issues, child support is not negotiable, and the court will make that determination according to child support guidelines.

To get an uncontested divorce in Alabama, you must take the following steps:

  • Prove Alabama Residency – At least one spouse must be an Alabama resident for at least six months before filing for divorce.
  • Have Your Documentation Prepared – Even if your divorce is uncontested, it’s essential to make sure you have as much documentation as you can together and organized so that it is readily available if needed.
  • Complete the Paperwork – Contact your local county clerk’s office to complete all of the necessary forms.
  • File the Forms – You must file your forms at the Circuit Court in the county where you reside or the county you lived in when you separated from your spouse.
  • Proof of Service – After filing your forms, you have to legally notify your spouse via certified mail, have a deputy or a process server serve them, or they can accept the paperwork from you and complete an “Answer and Waiver” form. If your spouse cannot be located, you can complete a proof of service by publication. When you do this, a notice of the divorce is published in the newspaper for four consecutive weeks. After that time, if your spouse has not responded, they will be considered served.
  • Submit Proof of Service to the Courts – After your spouse is served, submit proof to the courts.

After completing these steps, the courts will review the submitted documents. If everything is in order, after a three-day waiting period, they will sign off on your uncontested divorce.

Baldwin County Family Law—Representation Tailored To You and Your Family

At Brackin & Johnson, we get the results you deserve when you need them most. With more than 40 years of experience, we can provide comprehensive care and representation tailored to your needs and unique situation. 

We will focus on resolving conflicts peacefully through negotiation or mediation. However, if needed, we will fight for you if your case ends up going in front of a judge.

No one divorce or child custody case is the same as the next. We are ready to help you understand your legal options and create the best case for your interests. Contact us today for the best legal services in Baldwin County. 

What is a Qualified Terminable Interest Property (QTIP) Trust?

What Is A Qualified Terminable Interest Property Qtip Trust

As you are journeying through life, you may be starting to think about what will happen once you are gone. If you are worried about your spouse or your family’s financial security, then you may be wondering what your options are.

These issues can be complicated to think about and sort through. However, it is customary to make sure your family is taken care of once you aren’t able to anymore. This is why you should seriously consider creating a trust during your estate planning. You must begin to establish a plan that promotes flexibility when allocating your estate property and maximizes the tax advantages. That is why many spouses find a Qualified Terminable Interest Property (QTIP) Trust a viable option.

If providing the best outcome for your family is valuable to you, then the benefits of a QTIP Trust are plentiful. Let’s take a closer look.

What is a Qualified Terminable Interest Property (QTIP) Trust, and How Does it Work?

A QTIP trust allows you to provide for your spouse if they survive you, while also allowing you to control how your trust assets are issued once your spouse dies. Any income, or even the principle, that is produced from the trust will be given to any surviving spouse so that you can ensure that your loved one is taken care of.

A QTIP Trust is essentially an A/B arrangement considered more restrictive than a standard marital trust fund. In most A/B arrangements, the A is the marital portion of the trust that is fully accessible by your spouse. Contrarily, a QTIP will only allow limited access to the trust assets. Rest assured that your spouse may be able to receive an income. However, the spouse can’t decide on the disposition of the assets and cannot draw the principle from the trust. You can request that more significant than $5,000 or 5% of the trust’s assets can be given annually to your spouse.

Besides leaving your spouse some money, QTIP can be a good way of limiting applicable estate and gift taxes. Any property included with the QTIP that provides funds to the surviving spouse qualifies for marital deductions. This means that the funds won’t be taxable after the death of the first spouse.

What is the Difference Between a QTIP and a Marital Trust?

Both a marital trust and a QTIP help to achieve similar estate planning goals. However, a QTIP offers a considerable direction of trust funds. In contrast, a marital trust has more flexibility because it does not require the surviving spouse to take annual distributions. The surviving spouse will also be able to appoint a new beneficiary following the death of the original proprietor with a marital trust fund.

Advantages of a QTIP Trust

Tax Deductions

A QTIP trust allows you to take advantage of tax deductions. As stated, that means that if you have a large estate, you can push off paying taxes on it until your spouse passes away. Yet, unlike a marital trust, many nuances make a QTIP trust preferable in certain circumstances.

Power to Appoint 

With a QTIP trust, your spouse won’t have control over the principle of your trust, and you will have the power to appoint who you want your trustees to be and future beneficiaries. This means that your spouse can receive income from the trust without ever having ownership of the trust. This can be helpful if you are remarried and have kids from a previous marriage and want them to be the beneficiaries of your trust after your new spouse passes. If you only have a marital trust set up, then there isn’t a guarantee that your children or grandchildren will take over the trust in the future.

Power of Protection

Lastly, by having a QTIP, you will place limits on what your spouse can access with the trust. This way, you can provide them with some protection if they are prone to scams or incapacity. If you limit their ability of what they can access from the fund, you can choose to allow them to have it for health care or access be approved by a separate trustee.

Is a QTIP Trust Right For Me?

Whether it’s a straightforward trust for an individual or family that owns a single home, or a complex, high-net worth, estate plan involving multi-faceted structuring, lifetime gifting, valuations, and irrevocable trust strategies, Brackin & Johnson will provide you with the estate planning and trust solutions you need to protect your family legacy.

Contact Brackin & Johnson today to assist with all of your estate planning needs. 

What to Know When Making a Will in Alabama

What to Know When Making a Will in Alabama

When they pass, most people want to ensure that their assets will go to the people closest to them. To make sure this happens, it is imperative that you create a last will and testament that spells out exactly how you would like your assets divided.

Your last will and testament is the document used after your passing that tells the courts how you would like your property and assets distributed. A last will and testament differs from a living will, which is only in effect during your lifetime and gives instructions on what should happen regarding your health and medical care should you become incapacitated and unable to make your own decisions.

Whether you need to have a large amount of property and assets divided, or if you have only a few assets to protect, you can (and should) make a will. 

What You Could Use Your Will for in Alabama

Your last will and testament protects your property and your family after your passing. Your will can be used for:

  • Communicating who you want to leave your property to
  • Naming a guardian for any minor children
  • Naming a person to manage property and assets left to minor children
  • Naming an executor to carry out the terms of your will

What Happens When You Do Not Have a Will When You Pass Away

Without a valid will in place, if you pass away, your property passes on to your heirs under intestate succession. Intestate succession can be much more burdensome for your heirs, both procedurally and financially. For example, a typical will would relieve the personal representative from posting a bond, filing an accounting of the estate, or obtaining leave of court to liquidate assets of the estate. When proceeding intestate, these tasks, and many others, are much more cumbersome. Intestate succession dictates how the courts will distribute your wealth, which is typically in a way that represents how an average person would set up a will.

If you are married when you pass away, your surviving spouse inherits your entire estate. However, if you have children or surviving parents, your estate could be divided, and each would receive a share of your estate. If you do not have a spouse or children, the courts will pass your estate to your parents, siblings, then grandparents, and so on.

If you want control over the distribution of your assets, it is vital to have a valid will in place. That is the only way to avoid intestacy laws.

Making Your Own Will vs. Having an Attorney Make Your Will

You do not need to hire an attorney to make your will. There are will-making products that will provide you with the documents you need to create a legal will. You should remember, however, that it is in your best interest to consult a lawyer, as the decisions you make will be legally binding and will dictate the distribution of your estate to your loved ones.

Legal Requirements for Making a Will in Alabama

There are specific legal requirements for a will to be considered valid in Alabama. These requirements pertain to the person making the will, as well as the will itself.  

To make a will in Alabama, you must be 18 years old or older and of sound mind (Alabama Code § 43-8-130). Being “of sound mind” means that you understand your actions and what the consequences are of making a will.

You must have a hard copy of your will, meaning it must be on actual paper. At this time, Alabama does not allow electronic, digital, handwritten, or oral wills. It must be typed and printed from a computer or typed on a typewriter. Your will must also be witnessed and signed by two people. (Alabama Code § 43-8-131)

Having Your Will Notarized

Alabama does not require your will to be notarized. It does, however, allow you to make your will “self-proving,” which would require you to visit a notary. If your will is self-proving, this could speed up the probate process because the court can accept the will and will not have to contact the witnesses that signed it.   

How to Change or Revoke Your Will

You can change or revoke your will at any time. If you are making changes to your will, you can create an amendment to your existing will. However, the best way to handle it would be to revoke your current will and make a new one. You can revoke your will by:

  • Making a new will revoking your prior will.
  • Burning, canceling, tearing, or destroying it. You may also consent for someone else to destroy it for you. However, if you have someone else destroy it, you must have at least two witnesses. (Alabama Code § 43-8-136

What if you got divorced and never removed your former spouse from your will? If you have named them executor or gifted them anything in your will, that is all automatically revoked. Should you choose to leave them in their given position or ensure that they receive the stated property, you must mention that in your will. (Alabama Code § 43-8-137)

Let the Expert Attorneys at Brackin & Johnson Help You Make Sure Your Will Protects Your Property and Family

While you may not want to think about what will happen when you pass away, you also want to make sure that your family is protected and taken care of. Having a will in place can help ensure that your assets get distributed in the way you want.

The experienced attorneys at Brackin & Johnson have been preparing estate planning documents of all kinds for decades. Whether your estate planning is simple or very complex, we will provide you with the estate planning solutions that you need to protect your family legacy.

Contact us today and let us assist you with all of your estate planning needs.

What You Need to Know About Legal Separation in Alabama

What You Need To Know About Legal Separation In Alabama

When your marriage is on the rocks, but divorce isn’t an option, you may wonder what you can do. In the state of Alabama, you may also petition the courts to be legally separated from your spouse.

There are many reasons that a couple may choose to separate but not end their marriage immediately. Some of these reasons may include religious beliefs, financial reasons, to make future divorce proceedings move quicker, or even if the couple isn’t positive that they want to split permanently.

Below, we will discuss the differences between a legal separation and a divorce in the state of Alabama. Upon reading this article, you will be able to make an educated decision on the best path to take for you and your family.

Legal Separation vs. Divorce

You may be wondering what the difference is between a legal separation and a divorce. Let’s get into a little more detail.


Divorce is a process that legally ends a marriage. During the process, the courts will decide:

  • The division of marital property
  • Custody and child support
  • Spousal support (if applicable)  

At the end of the divorce proceedings, the courts will declare the marriage dissolved, and either party can remarry after a short waiting period.

Legal Separation

Although the courts will address the same legal issues as a divorce, the couple is still legally married at the end of the legal separation process. The couple may be living separately. However, if either party wants to remarry, they must request the courts to convert the separation case into a divorce.  

Why Couples Would Choose Legal Separation Over Divorce

Everyone knows that relationships can be tricky. And it’s not always apparent why a couple would choose to be legally separated instead of becoming divorced, but here are a few common reasons why they may make this decision:

  • They may want to work towards a reconciliation
  • To avoid the stigma of being divorced
  • Religious, social, or personal objections to being divorced
  • Monetary issues
  • The couple is going to live apart but wants a written agreement regarding custody and child support

What Does Legal Separation Mean?

To be legally separated in Alabama, you must have a court order. To qualify for a legal separation, one of the parties will need to file a request that the court intervene. The request will need to show that at least one spouse has been a state resident for at least six months and that at least one spouse wants to live apart from the other.

Although a legal separation isn’t ending the marriage, the court takes these cases very seriously. You will need to provide the court with a legal reason for your request.

You need to convince the court that your marriage has suffered a breakdown that it cannot recover from or that the couple is incompatible. And if you have children, you must also provide the court with how you plan on handling custody, visitation, and support.

If you are legally separated, you can live apart from each other, spend your money as you wish, and even get into a new relationship. However, if either party earns money or obtains property after the separation, that is considered separate property should you choose to proceed to a divorce. And, if you decide to remarry, you will need to ask the court to convert the separation into a divorce to terminate the marriage legally.

Make Sure to Have a Separation Agreement

If you are considering a separation without a trial, you need to be sure to have a separation agreement. While you and your spouse may verbally agree on terms, neither side can enforce that agreement with the Court’s contempt powers unless it is in writing, has been previously submitted to the Court, and incorporated in the Court’s Order.

Also, if there is no written agreement, a trial will be necessary in order to become legally separated. While you may feel uncomfortable asking your spouse for a written agreement, if you ask the court for a legal separation without a trial, you’ll need a written separation agreement.

Let the Expert Attorneys at Brackin & Johnson Help You Through the Legal Separation Process

Even if you have an amicable split from your spouse, having an attorney draft a separation agreement for you will benefit you. You should then allow your spouse to have the agreement reviewed by their attorney as well.

While you can draft the document yourself, it is a legal, binding contract after the judge signs the agreement. Therefore, if you inadvertently make a mistake, you will have to live with it or ask for a modification at a later date. You can avoid this by hiring an experienced family law attorney.

For over 40 years, the expert attorneys at Brackin & Johnson have helped clients achieve their goals by providing exceptional service tailored to each client’s needs. We value our role as your legal counsel, and we will take the time to make sure you understand what is going on with your case and how the law may affect your case.

Contact Brackin & Johnson today and let us help you through this time.

What You Need to Know About Probate in Alabama

What You Need to Know About Probate in Alabama

Losing a loved one is never easy. Beyond the grief of their passing, oftentimes there are legal matters to be handled as well. 

The probate process will manage the partition of the estate. However, it is very important that you comprehend how the process works. Every state has its own set of rules, timelines, and specifications, and Alabama is no different. For you to accomplish the process correctly, you must comply with these restrictions.

Probate is the procedure of disseminating what remains to inheritors under the supervision of the court, as well as gathering a deceased person’s assets, paying taxes and debts. In Alabama, an Executor or Personal Representative is appointed by the court, either as directed by statute (if the estate owner dies intestate without a Will) — or as nominated by the deceased in their Will.

In the vast majority of cases, you will have to deal with probate, which can be a difficult, expensive, and time-consuming process if you are not knowledgeable about it. Here we will go over some of the essential aspects of probate in Alabama to lay out how it works, when it is necessary, and what’s involved in the probate process.

The Alabama Probate Process

If a loved one passes away and designates you as a beneficiary in their last will and testament, you must go through the Alabama probate process to obtain your inheritance. 

The vast majority of heirs enter probate court unfamiliar with the length and complexity of the inheritance procedure. In Alabama, many delays can occur during the probate process, preventing you from moving forward at that time. Unfortunately, you will not have access to your portion of the estate until the estate is settled, which can take months or even years.

Is Probate Considered Necessary in Alabama?

In Alabama, probate is not mandatory unless the property is transferred directly to another individual. However, for smaller estates you can use summary distribution via Small Estate Probate, which is less time-consuming than the traditional probate process. If the estate is worth less than $25,000 and consists of no real estate, arrangements have been made, all expenditures have been paid, or maybe a notice of the estate was published for one week, the heir may receive the assets under the small estate statute.

Probate Proceeding in Alabama

The length of time it takes to administer an estate in Alabama varies depending upon the complexity of the estate and the personal representative’s diligence. However, because the estate must remain open for six months to enable creditors to file claims, closing the estate in fewer than six months is not possible.

Common Alabama Probate Court Fees

The cost of probate varies significantly based on the work that needs to be completed. Some estates might take years to settle and entail complex tax and family issues, while others can be settled in a matter of months. Because of this variability, it’s challenging to construct a cost estimate without at least having a basic understanding of the estate.

While there are some differences in probate costs across the state, there are some standard fees you should expect to pay as you go through the process. The following are examples of possible fees:

  • Executor/Administrator/Probate Bond 
  • Professional fees: accountants; appraisers; land surveyors
  • Executor’s fee
  • Filing fees
  • Attorney fees
  • Court costs

Is it Possible to Avoid Probate in Alabama?

While it may not be possible to avoid probate entirely, effective estate planning can help to reduce the amount of time and money spent on the process by excluding assets from the probate estate. One of the most popular tools for completing this process is a revocable living trust

Besides that, putting assets under joint ownership or into beneficiary-designated insurance policies, retirement funds, and other vehicles enables the assets to flow directly to the intended recipient without going through probate. Probate avoidance or minimization is a thoughtful strategy for increasing the value of your estate for the benefit of your loved ones and family.

Is a Notarized Will Necessary in Alabama?

When a Will is notarized and witnessed by two individuals, it becomes “self-proving,” and self-proving Wills are simple and easy to probate. State probate laws, in general, require probate courts to determine the legitimacy of Wills presented for probate. Anyone can submit a Will for probate when a person passes away, and the testator can select a legal executor to carry out his intentions. During the probate process, the legitimacy of the Will must also be established.

When an Alabama probate court acknowledges the executor’s request to probate the testator’s Will, the court will contact each witness who signed the Will on the testator’s behalf to determine the Will’s legal validity. The purpose of the court is to ensure that the Will was carried out correctly and without fraud, mental incompetence, or duress.

Work With an Expert Probate Law Attorney in Alabama

Whether it’s a straightforward trust for an individual or family that owns a single home, or a complex, high-net worth, estate plan involving multi-faceted structuring, lifetime gifting, valuations, and irrevocable trust strategies, Brackin & Johnson will provide you with the estate planning and trust solutions you need to protect your family legacy.Call or email us today to assist with all of your estate planning needs.

Eviction Process in Alabama Explained

Eviction Process In Alabama Explained

Now that the nationwide eviction moratorium enacted by the Centers For Disease Control is coming to an end, evictions are expected to increase. If you need to evict a tenant, it is critical that you follow the proper steps. If you fail to do so, your eviction will likely fail, causing more lost rental income and wasted court fees. In some cases, neglecting the proper procedures can result in statutory damages being assessed against the landlord. 

In this article, we will explore the rules and procedures that govern Alabama evictions. 

Notice For Termination

In the first step of the eviction process, the landlord must provide written notice of default and opportunity to cure that default.. According to Alabama law, the landlord can only terminate the lease if there is a legal cause, such as failure to pay rent, violating the lease terms, or engaging in illegal activity while on the property.

If there is a legal cause, the landlord has to provide a seven-day notice. Depending on the reason for the lease termination, the landlord might provide a lease termination that covers:

Seven-day notice for nonpayment of rent – This notice informs the tenant that they must pay all back rent and late fees within seven days if they don’t, or the lease will be terminated. If the tenant fails to pay as demanded or vacate the property, the landlord will then file an eviction lawsuit called an Unlawful Detainer action. If the tenant does pay the rent, the landlord cannot proceed with the eviction. 

Seven-day notice to remedy or fix the violation – If the tenant violated the lease or rental agreement, the landlord could give them a seven-day notice to remedy the issue or move out. If the tenant fails to fix the problem, the landlord can terminate the lease and file an eviction lawsuit. 

Seven-day quit notice – In cases where the violation is severe, the landlord is not required to give the tenant a grace period to remedy the issue. In this case, the seven-day notice lets the tenant know that they have seven days to leave the property, or they will file for eviction. This type of notice is typically given in situations where the tenant:

  • Assaulted someone or another tenant on the property
  • The tenant provided false or misleading information on their rental application or agreement
  • Dangerously discharged a firearm on the property

If the landlord doesn’t have a legal cause, they cannot evict the tenant. Instead, they’ll have to wait until the lease expires before expecting the tenant to move out. Once the lease ends, the landlord has to provide a written notice informing the tenant that they do not wish to renew the lease and have to move out of the property.

The lease termination notice is based on the tenancy agreement. So if the tenant paid rent on a month-to-month basis, the landlord has to provide a 30-day notice. 

Can You Fight An Eviction?

A tenant has the right to fight an eviction lawsuit even if the landlord has a valid legal ground for moving forward with it. In some cases, the tenant may also have a valid legal defense, such as if the landlord has shown discriminatory behavior or believes that the eviction was an act of retaliation. If the tenant decides to fight against action, additional costs may be tacked onto the lawsuit to cover court and legal fees. However, they’ll have more time to live in the rental unit. 

Can Your Landlord Remove You From The Property?

The only way a landlord can legally remove you from their property is if they win the eviction lawsuit. Even then, a law enforcement officer will be sent to enforce this legal order. Therefore, it’s against the law for a landlord to force the tenant out of the property or to remove their belongings. 

Get Help Now For Your Eviction Case

This article highlights some common eviction concerns but is not exhaustive. Evictions require attention to detail. When a landlord fails to follow the regulations and procedures required by Alabama law, the eviction is not valid. These laws are put in place to protect both the tenant, the property owner and to ensure that the eviction process is fair. The purpose of such procedures is to make sure the tenant has enough time to make other living arrangements. 

If you need help with an eviction, it’s important to seek legal representation as soon as possible. Here at Brackin & Johnson, we have decades of experience in handling eviction cases. Contact us today to schedule a consultation and let us fight for you.

How Is Property Divided in a Divorce in Alabama?

How Is Property Divided in a Divorce in Alabama?

No one hopes to go through a divorce, but it’s something that many people will experience in their lifetime. While your emotions may be running high, the most important thing to remember is that knowledge can be your best asset during the divorce process. Knowing how divorce processes work in your state, which forms you need to file, and how to find an experienced divorce attorney prepares you for your case and arms you with the best chance of a favorable outcome.

You will have many questions when you start the divorce process, and how property division is handled is likely one of them. Whether you and your spouse own a lot or a little bit of property, you need to know what you are each entitled to in the divorce proceedings — it’s often one of the most confusing subjects you will encounter. 

Equitable Distribution

Alabama is known as an equitable distribution state. This means that when couples don’t agree on how their property should be divided, the court will decide to divide property in an equitable manner, which the court will determine. 

What About Marital and Separate Property?

Most of the property obtained during the marriage will be considered marital property in the state of Alabama. So, if spouses both purchased a house while they were married, it will be considered marital property and will be divided as such according to equitable distribution principles. 

If a house is purchased by one spouse before the marriage or inherited by one spouse after the marriage, it may be considered separate property if it is not commingled in the marital estate.. This situation depends on a variety of factors, though — for instance, if both spouses used the property during the marriage and both parties benefited, the court may determine such property as marital property, despite how the couple obtained it. 

Property Types

Property is defined in two different categories in the state of Alabama: real property and personal property

Real property encompasses land and the buildings on the land, including houses and undeveloped tracts of land that either one or both spouses own or acquire before or during the marriage. 

Land is often a contention in divorce. This often happens when one spouse wants to keep a piece of land that might be owned jointly and comes with a mortgage or other debt that should be considered when the property is divided during divorce. 

Personal property is defined as any other property that is not land or buildings. This property may include antiques, furniture, cars, motorcycles, boats, artworks, jewelry, and other possessions. 

Property Inventory

Upon the decision to obtain a divorce, you should create an inventory of all your property. This should include both real and personal property. If you do so, working with a divorce attorney will likely be much easier. You will be able to establish what property you would like to keep and what property you are willing to negotiate. You’ll also produce a more explicit picture of the total amount of property that may be at stake during the divorce. 

You should also keep in mind the property’s value that might be divided during the divorce process. This includes potential debt related to ownership of that property. 

Property Division

There isn’t just one rule for how the court will divorce property during a divorce. The court will consider many factors, and it can help if both spouses agree on how everything should be divided. Mediators can help couples decide what to divide. 

If the court is a part of a situation where spouses won’t agree on the division, things can get unpredictable. Many factors are considered in property division, and an experienced divorce attorney can help you understand the process and the factors involved. 

Some of these factors include the following:

  • Length of the marriage
  • Standard of living during the marriage
  • The financial and contributions to the marriage made by each spouse.
  • Possible tax consequences related to property division

The longer a couple has been married, the more likely the courts will divide the property equally. Certain elements can play a part in that decision. 

Other Factors

Real and personal property aren’t the only property types considered during divorce proceedings. Some couples own intellectual property that must be considered. Retirement accounts and other investments may also be divided during a divorce. 

Sometimes there are essential tax consequences that may result from property division, so each spouse must be aware of such effects that could result from these factors. 

Baldwin County Family Law — Representation Tailored to You and Your Family

If you know that divorce is imminent, the sooner you start planning, the better. You never want to rush into the divorce process unprepared. The best option available to you is to hire an experienced divorce attorney to help you get prepared. 

The legal experts at Brackin & Johnson have provided family law representation to clients in Baldwin County, Alabama, for over 40 years. We will do everything we can to resolve disputes through negotiation and mediation. However, if it is in your best interest to go to trial, we will aggressively fight for you.

If you need an expert divorce attorney, contact Brackin & Johnson today. Let us help you make this process as seamless as possible.

How is Child Support Calculated in Alabama?

If you are getting a divorce and you have children, or if you are trying to establish paternity, the issue of child support may be heavy on your mind. In Alabama, regardless of their marital status, both parents are legally responsible for providing financial support to their children.

Typically the noncustodial parent (the parent without primary custody) is responsible for paying child support. And to ensure that child support obligations are fair to all involved, rules have been established that govern the amount of child support that the noncustodial parent should pay.

These calculations may be confusing, but you should have a general idea of how child support is determined. Today, we will take a closer look at child support determination in Alabama and assess your options.

Establishing Paternity

When a child is born in wedlock, the law presumes the child is the natural child of the husband and the wife. If the husband or wife wishes to challenge this, they must present evidence that the husband is not the child’s biological father.

If a child is born out of wedlock, the parents must establish paternity before the courts can determine child support. First, you must file a Petition to Establish Paternity in the court in the county where the child or the alleged father lives. Both parties can then establish paternity by signing an acknowledgment of paternity stating that both parties are the child’s natural parents. If either party refuses to sign the acknowledgment, the courts will require a DNA test to determine paternity.

Calculating Child Support

Alabama determines child support obligation on what is called the “Income Shares Model.” The Income Shares Model calculates child support based on the belief that children should receive the same financial support from each parent just as they would have if their parents remained together.

Calculation Formula

Here is the process to use to determine how much you will be required to pay in child support.

  • Combine each parent’s gross monthly income.
  • Match the parents’ total income with the number of children on the Schedule of Basic Child Support Obligations chart. The number on this chart will determine a basic support figure. 
  • Add expenses such as childcare, and the cost of health insurance.
  • Determine what percentage of the monthly gross income each parent earns.  This number will be used to determine the total obligation of each parent.

For example, Steve and Jane are divorcing and have one child. Jane will have primary custody, and Steve will have visitation rights. Steve earns $4,000 gross per month. Jane earns $2,000 gross per month. Additional expenses total $200 per month.

  • The total gross amount is $6,000.
  • The base obligation from the Schedule of Basic Child Support Obligations chart is $818.
  • Add $200 for the additional expenses for a total of $1,018.
  • Steve’s percentage of the total income is 67%. Multiply 67% x $1,018 for a total of $682 in child support that Steve will be responsible for paying. Steve’s payment may be reduced to the extent he pays for the health insurance or child care expenses. 

Deviating From Child Support Guidelines

The courts can also adjust child support schedules due to particular circumstances. Some of the circumstances that may cause a deviation are:

  • Extensive visitation rights or shared custody
  • One parent bearing the bulk of the cost for transportation related to visitation
  • College expenses incurred before the child turns 18
  • The child inherits or receive a substantial amount of income

There is no standard method for adjusting support in Alabama law, so the courts have broad discretion in these cases. Often times, the calculation above is used in part, and then modified based on the facts. However, if the judge does choose to deviate from the established guidelines, they must specify the exact reason for doing so.

Modifying or Terminating Child Support

The only way to modify or terminate a child support order once established is through a court order. If you seek a child support modification, you must show that there has been a material change in circumstances.

In many cases, a parent can have valid concerns about current child support obligations, but they may not meet the criteria for a material change in circumstance. Some circumstances may include (but are not limited to):

  • A substantial loss of income due to the parent losing a job or changing jobs
  • A promotion or transfer that has significantly increased the parent’s pay
  • Changes in child care costs
  • Changes in health insurance costs
  • One parent moving out of state
  • The child has reached the age of majority

Let the Child Support Experts at Brackin & Johnson Help You!

Many times a couple can reach a fair child support agreement without the intervention of the courts. But during a divorce, it’s often hard to reach a financial arrangement that both parties believe is fair and that adequately provides for their children. That is why the state established these guidelines.

The dedicated lawyers at Brackin & Johnson have over 40 years of experience providing comprehensive family law representation to Baldwin County, Alabama. No child support or divorce case is the same. We are ready to help you understand your legal options and figure out a settlement that works directly with your needs. 

If you or someone you love need to establish or modify child support, contact the expert child custody and child support lawyers at Brackin & Johnson today.

Contact Brackin & Johnson Today!

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