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Birmingham Bar Association Bulletin

Family Law Charles H. Dunn The Appellate Apothecary A Few “Did You Knows?” for the Fervent Family Law Practitioner Did you know…an award of retirement benefits pursuant to §30-2-51(b), Code of Alabama (1975), may not include retirement benefits that were earned before the marriage or any interest or appreciation thereon, may not include any retirement benefits earned after the divorce complaint was filed or any interest or appreciation thereon, and may not include any benefits that were not vested on the date the divorce complaint was filed or any interest and appreciation thereon; however, that such an award may include retirement benefits that were vested on the date the divorce complaint was filed and any subsequent interest or appreciation thereon? For valuation purposes, if all the retirement benefits were accumulated during the marriage and were vested before the complaint for divorce was filed, then the present value of those benefits may be determined and subject to division on any date on or after the filing of the divorce complaint or on or before entry of the divorce judgment. Hill v. Hill, Ala. Civ. App. LEXIS 270 (Ala. Civ. App. Dec. 4, 2015). Did you know…that actions that are consolidated by the trial court each retain its separate identity and each action, therefore, requires the entry of a separate judgment? Be diligent--especially for appellate purposes--in reviewing your client’s case to make sure that the trial court has entered separate orders in all actions under consolidation. Ex parte Glassmeyer, 2016 Ala. Civ. App. LEXIS 73 (Ala. Civ. App. Mar. 25, 2016). Did you know…that an award of alimony in gross must be payable out of the marital estate or the payor’s estate as it exists at the time of divorce, and it cannot be based on the anticipated future earnings of the payor? House v. House, 185 So. 3d 1112 (Ala. Civ. App. 2015). Did you know…that as the petitioning spouse requesting alimony, the burden of proof rests with the petitioner to convince the trier of fact that a financial need for alimony exists and that the responding spouse has an ability to pay towards that need? It is important to note that as of late, the appellate courts have painstakingly reiterated the burden that squarely rests on the petitioner’s shoulders when seeking an award of alimony. First, in proving need, the petitioner should establish the standard and mode of living of the parties during the marriage and the nature of the financial costs to the parties of maintaining that station in life. While the submission of an itemized monthly budget to the trial court may be the preferred practice, nothing in the law requires the submission of such a budget in order to meet the evidentiary burden. Rather, the petitioner need only present sufficient evidence from which the trial court can reasonably infer the costs associated with the marital standard of living. After establishing the marital standard of living, the petitioner must establish his or her inability to achieve or maintain that same standard of living independently. Here, a trial court should consider the ability of the petitioner to earn income when determining the need for periodic alimony. Once the financial need for periodic alimony is established, the petitioner should prove the ability of the responding spouse to meet that need. For purposes of determining an ability to pay and for calculating an appropriate amount of alimony, the trial court should ordinarily use the responding spouse’s net income as the starting point for these evaluations. In considering the spouse’s ability to pay, all the financial obligations of the responding spouse, including those obligations created by the divorce judgment, should be proven by the petitioner. Lastly, the petitioner should be prepared to argue the equities of the case, which lie particularly within the trial court’s discretion. Shewbart v. Shewbart, 64 So. 3d 1080 (Ala. Civ. App. 2010). Did you know…that in order for an adult, disabled child to receive child support under Ex parte Brewington, 445 So. 2d 294 (Ala. 1983) and Ex parte Cohen, 763 So. 2d 253 (Ala. 1999), Alabama law does not require that the condition causing the disability has been medically diagnosed or that the child must have received treat- Continued on page 25 18 Birmingham Bar Association


Birmingham Bar Association Bulletin
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