Author Archives: Matthew Carter

Adult Adoption is Allowed in Alabama

Alabama Adoption Laws
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Deciding to add a loved one to your family can be a time for joyous celebration. But if you are adopting, the legal procedures in place can make it a complex and potentially confusing one as well. The Yellowhammer State has specific laws that regulate who can be adopted, by whom, and how, so it’s best to be familiar with them before you start so your adoption can have a happy ending. This is an introduction to adoption laws in Alabama.
State Laws
Every state has adoption laws that exist to determine who is allowed to adopt and the special requirements for adoptive parents, in order to protect the best interests of the adoptee. While adoptions can be a momentous occasion, they can be a complex process; an attorney may help in understanding the law and what your legal requirements might be.
Adoption Laws in Alabama
Each state may have their own particular adoption laws, which could from those in other states. Adoption laws in Alabama are highlighted in the table below.
Code Section
Code of Alabama 26-10A-1, et seq.: Alabama Adoption Code
Who May Be Adopted
(1) Any minor (2) Any adult under following conditions: (a) He or she is permanently disabled (b) He or she is determined to be mentally retarded
Age that Child’s Consent Needed
14 years and older unless adoptee does not have mental capacity to give consent
Who May Adopt
Any adult person or husband and wife jointly; no rule or regulation of Department of Human Resources shall prevent adoption by single person solely because of a certain age; or by a person because he or she works outside the home.
Home Residency Required Prior to Finalization of Adoption?
60 days, unless waived by court when good cause is shown
State Agency/Court
Dept. of Human Resources/Probate Court
Statute of Limitations to Challenge
1 year
Alabama allows any minor or disabled adult to be adopted, and any adult may adopt. After the age of 14, a child must consent to the adoption. Although Alabama does not have a statutory restriction on same-sex adoption, some courts have turned down requests to adopt a same-sex spouse’s child. The state also has designated adoption courts that handle adoption proceedings in order to protect the best interests of the adoptee.

Changes to Gun Permit Requirment in Alabama

The Alabama Senate, divided sharply along party lines, has passed a bill eliminating the requirement for a permit from a county sheriff to carry a concealed handgun.
The Senate passed the bill by Sen. Gerald Allen, R-Tuscaloosa, after voting to cut off debate.
Democrats in the Senate opposed the bill and sought to amend it.
The bill passed by a vote of 25-8, with all eight Democrats in the Senate voting against it. It moves to the House of Representatives.
Allen said people should not have to buy a pistol permit to exercise their Second Amendment rights.
“It’s unthinkable that you have to pay a fee for a constitutional right. That’s really the heart of the whole issue,” Allen said.
Some law enforcement officials had argued against the bill in committee, saying it would take away an important enforcement tool.
People would still have the option of buying pistol permits, Allen noted, which he said would be important for those who want to carry in other states that recognize Alabama’s concealed carry law.
Sen. Rodger Smitherman, D-Birmingham, said the bill would not promote public safety but would turn the state into the “wild, wild West.”
The bill was one of a set of controversial bills on the Senate calendar today that Democrats generally opposed.

Alabama Legislature Approves ” Church” Expansion to Stand your Ground Law

The Alabama House of Representatives debated for almost three hours on the merits of a bill that the sponsor said would give legal protection for somebody who uses force to defend himself or others in a church.
The debate ended with lawmakers voting 40-16 to approve the bill, sending it to the Senate.
It says Alabama’s “stand your ground” law applies when using force to defend church members, employees and volunteers from death, serious injury, robbery and other crimes.
Rep. Lynn Greer, R-Rogersville, said his bill was a commonsense measure to allow church members to protect each other.
“If you’ve got some nut who walks in a side door and starts shooting, somebody needs to shoot back,” Greer said.
Democrats who took turns arguing against the bill said it was misguided or unnecessary.
Rep. Chris England, D-Tuscaloosa, said a person who uses justifiable force in a church is already protected by the “stand your ground” law. He called the bill “pandering.”
“The idea in Alabama that you would need a law that would create protection for you to be able to use deadly force to protect yourself in a church is a farce,” England said.
Under the stand your ground law, a person who uses physical force, including deadly force, can gain immunity from prosecution for those actions if a court finds they were justified.

Two New Laws affect Alimony and Retirement in Divorces

Two new laws went into effect January 1, 2018, which will affect divorce litigation. The Alabama legislature sought in these new laws to more precisely direct certain practices within Alabama courts: one dealing with equitable division of retirement accounts and the second, dealing with alimony. I have broken the discussion into two posts; today, I will discuss the changes to the law concerning retirement accounts in divorce litigation.
During my initial consultation with a client about divorce, I detail each of the main categories or issues which must be addressed by the court in a divorce case. Those categories can be broken down broadly as follows:
Legal and Physical Child Custody, if there are minor children, of course.
Visitation Rights, if there are minor children.
Child Support, if there are minor children.
Determination and Equitable Division of Marital Assets
Determination and Equitable Division of Marital Debts
Lastly, Alimony
Discussion about retirement accounts falls into the determination and equitable division of marital assets. Generally, Alabama law requires a divorce court to first determine what are the marital assets, as distinct from separate property of the parties. “Marital property” is simply anything owned by the husband or wife which has been used for the benefit of the marriage. It does not matter whose name is on the title.
Alabama law requires the judge to then equitably divide all the marital property. A division of marital property in a divorce case does not have to be equal, only equitable (or fair) considering the facts of the case. When deciding what is a fair division of marital property, a judge considers several things: the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage. See Golden v. Golden, 681 So. 2d 605.
So aren’t retirement accounts treated as marital property? This has been a tricky question in Alabama cases, especially regarding military retirement accounts. Until 1993, retirement benefits could not even be considered for ordering property division or alimony. “Alabama was the last state in the country to recognize retirement plans and pensions as marital property.” Family Law in Alabama: Practice and Procedure In 1993, however, Congress passed federal legislation addressing military retirement. And in 1996, the Alabama legislature made its statutory entry into the area; that law was effectively unchanged until January 1, 2018.
Under the old law, retirement accounts were to be divided only if the parties had been married for 10 years. Also, the court could not consider amounts funding those accounts from before the marriage. Retirement accounts could not be divided even if used for the benefit of the marriage. See Smith vs. Smith, 964 So.2d 663.
So what has changed on January 1, 2018?
Now, the judge may not consider any property acquired prior to the marriage or by inheritance or gift unless the judge also finds from the evidence that the property (including retirement accounts), or income produced by the property, had been used regularly for the common benefit of their marriage. The new law also now expressly states that marital property includes any interest, acquired, received, accumulated or earned during the marriage in any retirement account.
This new law also eliminates the requirement that the parties must be married for 10 years before the court may award retirement benefits. For the new statute, I think this actually may be the most critical practical change.
The revised statute also expands or clarifies the definition of retirement accounts to include not just retirement plans or accounts, but pensions, profit-sharing plans, savings plans, annuities, or similar benefit plans from any type of employment including self-employment, public or private employment, and military employment.
Lastly, the new statute also expresses that post-divorce passive increase or decrease in the value of retirement benefits shall borne by the parties on a pro rata basis.
(On a side note, if your divorce includes retirement accounts, make sure you include a “qualified domestic relations orders” (Q.D.R.O.) The Q.D.R.O. does nothing more than implement the division of property as stated in the divorce order for third party ERISA managers.)

Granparents Visitation Rights

By Erin

The Alabama Legislature on Wednesday passed a new bill that would give some grandparents the right to see their grandchildren, about five years after a similar law was deemed unconstitutional.
This year’s legislation, sponsored by Rep. Mike Jones, R-Andalusia, repeals the Alabama Grandparents Visitation Act, which was enacted in 2010.
Jones said the new bill sets out tougher standards that grandparents must meet to be eligible for visitation.
Opposed senators said parents might have valid reasons for keeping their children away from the grandparents.
Jones’ bill requires grandparents petitioning for visitation of their grandchildren to prove, by clear and convincing evidence, that the grandparent has an existing relationship with the grandchild and visitation is in the best interest of the child.
The bill includes the criteria and procedures for filing a petition with the court.
Grandparents can petition for visitation of their grandchildren if the children’s parents have filed for divorce; or if the children were born out of wedlock, and if one of both of the parents’ parental rights were terminated.
On Jan. 22, the Alabama Supreme Court refused a request by Alabama Attorney General Luther Strange to review a, Alabama Civil Court of Appeals decision that declared the state’s 2010 Alabama Grandparent Visitation Act unconstitutional.