Do I Need a Postnuptial Agreement?

Marriage is a legal contract. Many people do not look at it that way, but at the end of the day, marriage is a legal transaction. You enter into a contract with another person to be legally wed for the duration of your life, or until you both decide to end the marriage. In today’s society, we are all keen to prepare for the unknown and for any circumstances that might arise. For this reason, many people today enter into prenuptial agreements that outline what will happen in the even their marriages end for some reason.

Did you know that there is also such a thing as a postnuptial agreement? A postnuptial agreement operates in a similar manner in that it outlines what will happen to assets and property during the duration of the marriage and also what should happen if the marriage ends.

Why Sign a Postnuptial Agreement?

There are many reasons that a couple might choose to enter into a postnuptial agreement. It could be that they did not think about their assets and property until they were already married, so a prenuptial agreement was not an option. Another common reason is that one spouse’s financial position changes. If there is suddenly a large increase in a spouse’s assets, or he or she is set to inherit property, it is not uncommon for a couple to use these financial changes as a stepping stone toward a postnuptial agreement. The post-nuptial agreement can make divorce proceedings less painful in that many decisions and issues have already been decided. Additionally, a postnuptial agreement supersedes other state laws surrounding divorce.

What Should a Postnuptial Agreement Include?

In Alabama, the Uniform Marital Property Act lays out the requirements that must be followed when creating a postnuptial agreement. In addition to satisfying any specific state requirements for a postnuptial agreement, the agreement must be in writing and signed by both parties. It is important to note that a postnuptial agreement cannot dictate terms of future child support arrangements.

Now that you understand what a postnuptial agreement is and the source of its legality, it is time to get into the specifics of what might be included in a postnuptial agreement. Couples can choose which property and assets to include in the agreement, but the following are the common types of assets or property that appear in Alabama postnuptial agreements.

• The right each spouse has to property
• How the management and control of property will be handled
• How to dispose of property if the couple divorces or one spouse dies
• Spousal support upon divorce
• If there is a will or trust named to carry out the wishes of the postnuptial agreement

A common misconception surrounding post-nuptial agreements is that they are not enforced in court and therefore become useless during divorce proceedings. This is untrue, as postnuptial agreements are enforceable just like any other contract, provided there are certain requirements met. The following are the basic requirements to ensure the enforceability of the postnuptial agreement:

• There was full and fair disclosure of assets by each spouse in the making of the agreement. The financial status of each spouse was disclosed.
• The agreement was entered into voluntarily, with no coercion or force, by both parties
• The agreement is “fair” to both parties. What is fair for one couple is not the same for another, so this fairness assessment is evaluated on a case by case basis.

When can I Get a Postnuptial Agreement?

It is never too late for a couple to enter into a postnuptial agreement. At any time during your marriage, you are permitted to enter into an agreement with your spouse. In fact, it is probably the smart thing to do. It is important to have a plan for the future, even if you are not anticipating a divorce. It is never a bad idea to know what will happen should your current life situation change. In fact, couples can have multiple agreements that cover different topics.

Contact a Postnuptial Agreement Lawyer Today The family law attorneys at Massey, Stotser & Nichols, PC are here to help you with your legal needs. Whether you need a prenuptial agreement before your upcoming wedding, or your financial situations have changed and you and your spouse want to have a postnuptial agreement put in place, our attorneys are here for you. Do not let social stigma or any misconceptions others may have surrounding a postnuptial agreement deter you from seeking the advice of an experienced attorney. We are on your side and ready to help you. Contact us today for a consultation.

How do Stepparent Adoptions Work in Alabama?

Many couples think that after a divorce is finalized, all family issues are resolved. However, that is not always the case. Sometimes as people move forward in their new life after divorce, circumstances change. This is most commonly seen when children are involved and one parent remarries. The person they marry now becomes a stepparent. In these cases, stepparents often want just as much say in what happens to the children as a biological parent does. When this is the case, they often look into stepparent adoption.

Stepparent adoptions can be beneficial to a family, particularly the child being adopted. Those going through the process must first understand what their legal rights and responsibilities are, and the hurdles that may make this style of adoption more difficult.

Benefits of Stepparent Adoptions

When adopting a stepchild, there are many obvious benefits. It can enhance the emotional ties between the stepparent and the child, and make the child feel more secure in the stability of their home. It also allows the stepparent to become more involved in the raising and care of the child. There are other benefits, as well.

One benefit is that if the biological parent married to the stepparent passes away, the stepparent still has full legal rights to the child. This allows the stepparent to retain child custody and the relationship they have developed with the child. Without legal adoption papers, anything could happen in court, leaving the future of the child and the stepparent uncertain.

Adopting a stepchild also guarantees that the child is treated as a natural child upon the stepparent’s death. This makes it easier to distribute inheritances and other benefits the stepparent may wish to pass on to the child.

The Legal Impacts of Stepparent Adoptions

While there are many benefits to stepparent adoptions, there are other ramifications which both parents must first consider. Most importantly, it is important to consider what will happen if the natural parent and stepparent divorce.

After a stepparent adoption takes place, both parents have a legal right to the child. As such, the courts will view the stepparent as a natural parent when making decisions on child custody and visitation matters. This also means that the stepparent will still be considered legally responsible for providing for the child when it comes to negotiating child support.

These are just two of the biggest legal impacts of stepparent adoption. Anyone wishing to adopt a stepchild, or who wishes to allow a stepparent to adopt, should consult a Birmingham family lawyer who can help them understand all the legal impacts of stepparent adoption.

Consent of the Other Natural Parent

When a stepchild is adopted by a stepparent, the adoption legally severs the ties between the child and their other natural parent. As such, the stepparent who wishes to adopt and his or her spouse must serve the other natural parent with adoption papers. This is typically done using a Petition for Adoption. In order for the adoption to proceed, the other natural parent must give his or her consent, or the stepparent and their partner must terminate the other parent’s parental rights.

There are a few exceptions to the requirement of consent in Alabama. These include:

• If the natural parent is deceased
• If the natural parent’s rights have already been legally terminated
• If the natural parent has been deemed incompetent and unable to provide consent
• If the natural parent is a father who has, in writing, denied paternity
• If the natural parent has already relinquished parental rights
• If the natural father is unknown to the mother, and his identity is not revealed by the court

When natural parents agree to the adoption, the process is relatively simple. If the natural parent is given notice of the adoption, such as in the form of a Petition to Adopt, and does not reply in a timely manner, the adoption may proceed without his or her consent. In other cases, if the natural parent has failed to meet his or her obligations, such as paying child support, this is deemed as implied consent and the adoption can continue.

Want to Adopt? Call Our Alabama Family Lawyers If there is anything better than being a stepparent to a child, it is legally adopting that child as one of your own. At Massey, Stotser & Nichols, we consider it an honor and privilege to help bring families together. If you want to adopt your stepchild, call our Birmingham family lawyers today at (205) 619-6290. We will take the initial steps to get the process started, and then assist you every step of the way. Call us today or send us a message online to schedule your consultation.

Orders of Protection in Alabama

Domestic violence is a serious problem throughout the entire country. Statistics show that almost 20 people per minute are abused by an intimate partner. If you add this figure up, that is more than 10 million men and women being abused every year. Domestic violence affects, on average, one in four women and one in nine men. It is important to talk about these statistics to raise awareness and reduce the stigma surrounding domestic violence. Those who are abused by an intimate partner often find it difficult to leave the situation for a variety of reasons. One of those reasons could be the lack of knowledge of options and protections available to them to combat the situation.

A vital protection that is offered in the state of Alabama for those who are a victim of domestic violence is an order of protection being granted on their behalf. An order of protection, sometimes called a protective order or no contact restraining order, is a legal tool available that essentially makes it so that your abusive partner can have no contact with you whatsoever. The individual whom the order is against is required to follow certain conditions, outlined in the order, or otherwise face criminal penalties, including incarceration.

The order of protection centered around letting the abusive partner have no contact with you is among the most common and will be the focus of this discussion because of its benefits to domestic violence survivors. Any adult in the state of Alabama is permitted to request the protective order for themselves, but also on behalf of minor children. Intimate partner is not limited just to a romantic partner, but can include another family member or member of the household who is being abusive.

It is not as simple as saying you want a protective order for one to be granted. There is a legal process for obtaining the order. The process starts with a petition for protection from abuse (PFA). You attorney will file this petition with the court. Included in the petition is your account of the situation and any history of abuse. It is important to be as specific as possible in this description so that an accurate portrait of the situation is painted. You want to give as many details as possible in an effort to obtain an order of protection. In addition to including information about the history of abuse and current abuse, providing information about the abusers vehicle, address, employer, any weapons that he or she owns, use of drugs of alcohol, and even a photo can be useful.

If the order of protection is an emergency situation and needs to be granted as soon as possible, it is possible for the order to be heard “ex parte.” This means that the judge will hear the case and make a determination without the other party being notified. These emergency, ex parte orders can be extremely useful in cases of violence and when someone is in immediate danger. However, the other party does have the right to present his or her case in court and must eventually be notified. If the order is granted, the abuser will be served and notified of the order and made aware of a court date in the future to discuss extending the order past the emergency term.

At the final hearing, both sides are present to present their evidence and have their day in court. In the case of non-emergencies, this hearing is usually held within 10 days of the initial filing of the petition.

Each protective order can contain a variety of conditions that are unique to the situation. The following are common conditions often contained in a protective order:

• No physical contact between the abuser and the survivor
• The abuser is required to remain a certain distance away for the survivor at all times
• The abuser is not permitted to enter the home or residence of the survivor, even if it was previously a shared home
• The abuser cannot purchase, or even possess, a firearm or other weapon
• No marital property can be sold
• Temporary child custody arrangements

The family law attorneys at Massey, Stotser & Nichols, PC are here for you if you are a victim of domestic violence. We know how hard it is to leave an abusive situation and want to get you every protection afforded to you under Alabama law, including a protective order to keep the abuser away from you. Contact us today for a consultation.

The Devastating Impact of False Allegations of Abuse in Divorce

Unfortunately, allegations of domestic violence or abuse are common in Alabama divorce proceedings. In some cases, one party is able to present evidence to substantiate the claims. In these cases, family courts must investigate into the matter and consider it when making decisions on things such as child custody.

In many cases though, these allegations are false. In fact, one study out of Texas shows that hundreds of families across America deal with false allegations of abuse every week. When this happens, one spouse states the other is abusive in an effort to influence divorce hearings. For the accused spouse, these allegations are extremely difficult to deal with and have significant impact.

Orders of Protection

After one spouse makes allegations of domestic violence or abuse, a judge may issue an emergency order of protection. The legal standard for these orders is very low, even though they have tremendous impacts for both the short and long-term.

Orders of protection are no-contact orders. Once one is issued, the accused can no longer have contact with the accuser. They often have to leave the family home and cannot even have contact with their children. It can prevent one parent from taking the children outside of a certain jurisdiction, even for a very short time. It can also prevent the accused from selling or disposing of personal or real property. All of this can happen without any real proof of abuse being presented to the courts.

Once an order of protection is issued, the terms are legally binding for the accused. Violating the order, or false allegations of violating the order, also have real consequences. In fact, it could mean jail time for the alleged offender.

Impacts of the False Allegations

A false allegation of domestic violence or abuse always has a severe impact. However, in divorce cases, it can be disastrous for those accused.

In most cases, once a false accusation has been made, or an order of protection issued, the accused parent must stay away from both their spouse and their children. This means absolutely no contact, at least initially. Sometimes though, that contact ban remains in place for the entire proceedings. In some cases, a judge may allow the accused parent supervised visitation, but this is rare.

When children are prevented from seeing their parents, it always has a negative impact. In divorce proceedings, though, the effects can be devastating. Preventing a child from seeing one parent throughout divorce proceedings automatically swings child custody matters in favor of the accusing parent.

The accusing parent can easily argue that the child should remain with him or her because this is the arrangement to which the child has become accustomed. If a child spent the entire divorce proceedings with the accusing parent, that parent can then argue that dividing time up equally between both parents now would cause confusion and insecurity for the child.

Unfortunately, this tactic, although extremely unfair, is also quite effective. In many cases, it works for the accusing parent.

How to Clear Your Name

Hearing your spouse falsely accuse you of domestic violence or abuse in court is shocking and upsetting. However, you do not have to sit there and simply wait for the judge to issue an order of protection. You must fight the allegations, and once again level the playing field.

An attorney can help you get an order dismissed, vacated, or modified so that you at least have some visitation with your children. While you may still have the accusation hanging over your head, taking these steps can help you in your child custody case later on. Of course, any evidence you can present that the other spouse is lying will also help. Although it is difficult to prove something never happened, it is possible to prove your spouse has been dishonest in the past.

Contact Our Alabama Family Attorneys for Help

Divorce can quickly become ugly and unfortunately, there are a number of tactics spouses use just to win their case. This includes making false accusations of domestic violence and abuse. When a spouse makes these false allegations, it is extremely difficult for the one accused, but do not give up hope. One of our Birmingham family attorneys is here to help.

At Massey, Stotser & Nichols, PC, we are committed to helping those going through a divorce. We will work hard to ensure proceedings are fair, that your rights are upheld at all times, and will refute any false allegations made by the other side. Call us today at (205) 619-6290 or send us a message online to schedule a consultation.

Divorce Terms Everyone Should Know

Divorcing from your spouse is not as simple as saying that the marriage is done and you both want to go your separate ways. There is a formal legal process that must be followed so that you and your spouse are no longer legally connected. An experienced divorce attorney can help you through the process and ensure that the right steps and actions are taken so that there are no hiccups in your case. While your attorney is on your side and explaining what is happening every step of the way, you might want to have a general understanding of some of the terminology associated with divorce proceedings so that you can best prepare for the road ahead. Knowing some terminology early on can also help you figure out which questions your want to ask.

 

The legal system in the United States is complex and can be confusing. Individuals can gain experience by going through different legal proceedings, but likely are only going to know a limited amount of information about their particular situation, not the system in general. The following are terms that often arise during divorce proceedings:

 

• Civil Procedure: Divorce proceedings are a part of civil court. In order for proceedings to go smoothly, both in divorce and other civil manners, there are certain rules that must be followed by all parties to be compliant with the law. Alabama has its own Rules of Civil Procedure. Included in these rules are the time frames in which documents must be served, the amount of notice that must be given to another party, filed document requirements, and many other rules that might apply in a particular case.
• Residency Requirement: In order to file for a divorce in Alabama, there are residency requirements that must be met. Both parties are not required to be a resident of Alabama. If the defendant is not a resident, the filing spouse, the plaintiff, must have been a resident of the state of Alabama before the divorce can be filed.
• Jurisdiction: Every case needs to be filed in the proper jurisdiction. In a divorce proceeding, there are different options that might be appropriate depending on the circumstances. A divorce can be filed:
  • In the county where the defendant to the divorce resides
  • The county where the couple seeking the divorce lived at the time of their separation
  • In the county where the plaintiff resides if the defendant is not a resident in the state of Alabama
• Legal Grounds for Divorce: In order to file for divorce, there needs to be a reason for it. Alabama recognizes the following as legal grounds for divorce:
  • Abandonment of marriage voluntarily one year before filing the case;
  • The court determining that the spouses are incompatible to live together any further;
  • The court determining there was a breakdown of the marriage that is irretrievable;
  • One spouse being incurably incapacitated after entering into marriage;
  • A spouse committing adultery;
  • Imprisonment of a spouse for at least two years of a seven year or greater sentence;
  • A spouse committing a crime against nature
  • Addiction to drugs, alcohol, or other impairing substances
  • Confinement in a mental hospital for five successive years, if incurably insane at the time of filing;
  • A wife being pregnant without the husband’s knowledge at the time of marriage;
  • Violence against a spouse; or
  • A wife living separate of her husband for at least two years, with no support given from the husband.
• Property Division: One of the biggest elements of a divorce is determining what happens to marital property. Alabama is an equitable distribution state. This means that whatever is deemed to be marital property will be split equitably among the spouses. It is important to note that equitable does not mean equal. The court will determine what a “fair” distribution of property will be. Spouses can come to their own agreement that is then approved by the court.

 

If you are considering filing for divorce and do not know where to start, the divorce attorneys at Massey, Stotser & Nichols, PC are here to help you. We know that it can be difficult to come to the decision to end a marriage. We want to help set you up for success in the next chapter of your life by representing you through divorce proceedings and reaching the best result possible under the circumstances. Contact us today for a consultation.

Can I Receive Gifts During Real Estate Closings?

Commercial real estate is a tough market for consumers. Anyone looking to put their property on the market can quickly find themselves bombarded with real estate agents looking to help them sell it. Licensed real estate agents need customers to work with. This includes both those looking to buy and sell property. One way in which a real estate agent might look to garner more clients is through various incentives like gifts, cash, prizes, or other types of valuable incentives. While this is great for prospective clients and the real estate agent garnering interest in their services, the legality of offering incentives must be examined under Alabama law.

There are both federal and state statutes that illustrate what a licensed real estate agent is and is not allowed to do regarding incentives that can be used in real estate transactions. State law prohibits the licensed real estate broker to give a rebate or receive a rebate in a transaction. Federal law prohibits “kickbacks.” The licensed real estate broker cannot receive unearned fees that are connected to a real estate transaction. These two laws may seem to contradict each other, but there are examples of “gifts” that might be permissible in a real estate transaction.

Any “incentive” that is being given during a real estate transaction can only be given to a party. Typically, this means that only a buyer, seller, lessee, or lessor may benefit from any incentive advertised. The following are incentives and gifts that are permissible during real estate transactions in Alabama:

• Owners of a property being paid cash when the property is listed for sale
• Offering a cash incentive to a buyer who is interested in buying a home, so that the sale will proceed
• Gifting a car to a customer as an incentive to buy a home
• Offering one month of free rent to a lessee interested in renting an apartment
• An agreement for any repairs that need to be made on a home to paid for by someone other than the buyer in an effort to close the sale.

It is not enough for an incentive to fall within these permissible categories. The way in which a gift is given also carries a lot of weight in a transaction. Other laws cannot be violated in an attempt to offer up an incentive to a party of a real estate transaction. The following are the main requirements for incentives during a real estate transaction:

• Every party to the transaction must be informed about any incentive or gifts being given
• The incentive needs to be given in advance of, or at, the closing of the sale.

If a licensed real estate broker fails to disclose an incentive, misrepresents it, or otherwise fails to disclose the transaction to an interested party, this is considered a violation. A violation could result in voiding a contract for sale or even criminal charges in some instances.

While it is helpful to know what is permissible under the law, it can be equally as important to know what to look out for, what red flags to be aware of. The following incentives are not permissible in a real estate transaction:

• Referral fees paid to a licensed real estate broker by a title insurance company, mortgage company, or homeowners’ insurance. A paid vacation to the licensed broker is also considered a rebate
• Referral fees paid to the licensed real estate broker by various contractors: pool installer, carpet installer, landscaper, etc.
• A license real estate agent paying a fee to another for referring a buyer or seller to them for business.
• Essentially, be wary of referral fees that are present in a transaction and make sure to find out if they are valid.

 

The real estate attorneys at Massey, Stotser & Nichols, PC are here to help you with your real estate closing. We have vast experience with real estate transactions, and we want to be sure that your closing goes off without a hitch. Buying a new piece of property is an exciting time. You should not have to worry about anything during this process, especially the validity of the closing agreement. Let us handle the legalities of closing and making sure that everything is done according to the letter of the law. Contact us today for experienced legal assistance.

Two MSN Attorneys in the 27th Edition of The Best Lawyers in America

BIRMINGHAM, Ala. – Massey, Stotser & Nichols, PC, a law firm based in Birmingham, Alabama, has announced that two of its attorneys have been included in the 27th edition of The Best Lawyers in America. The Best Lawyers In America is a highly regarded peer-reviewed publication that has been highlighting the top private practicing attorneys in the US for more than 30 years.

Senior Partner Randy Nichols has been honored for his work in family law. He practices all aspects of family law litigation and appeals as well as mediates family law disputes. Born and raised in Virginia, he went to college at Duke University. He then went to law school at the University of Virginia School of Law. He moved to Alabama in 1986 to pursue a career in law.

Randy is a Certified Mediator for Appellate Courts. He has taught family law as an Adjunct Professor at the Cumberland School of Law and the Birmingham School of Law. In 2002 and again in 2019-20, he has served as president of the Alabama Chapter of the American Academy of Matrimonial Lawyers. He is a member of the Alabama State Bar Association and Birmingham Bar Association. He has been a partner at the firm for over 20 years.

Partner James A. Kee, Jr. has also been honored for his work in construction law. Mr. Kee’s practice is primarily in the area of civil litigation with an emphasis on insurance and corporate defense. He specializes in construction litigation (residential and commercial) and insurance coverage analysis/litigation as well as the defense of a variety of personal injury claims (product liability, construction accidents, automobile accidents, and premises liability). His litigation work includes significant state, federal, and appellate court practice.

Jim Kee graduated from Auburn University in 1981 with a Bachelor’s degree in Business Administration. He later graduated from the Cumberland School of Law at Samford University in 1985. He is a member of the Alabama State Bar Association. He has also held the Martindale Hubbell AV rating for 20 years. He is a member of or is associated with the Alabama Defense Lawyers Association, Defense Research Institute, Elite Lawyers of the South (ALM and Martindale), Alabama Super Lawyers (Construction/Insurance), and more.

We are so proud that Randy and Jim have been selected for this recognition. It is a true testament to their dedication to each of their practice areas and to making sure that our clients have the best representation,” said Rick Stotser, MSN Attorneys Senior Partner. “Their unwavering commitment to their clients is what has made them stand out year after year.”

Massey, Stotser & Nichols, PC, was founded in 1977 to provide legal services for individuals, families, and businesses in the Birmingham area. The firm offers representation in areas including business law, real estate law, mediation, insurance, construction, government, family law, estate planning, and probate. The firm’s team of Alabama trial and transactional attorneys has a broad range of knowledge and experience. In addition to its professional associations, the firm is also actively involved in supporting local organizations.

The Best Lawyers in America©, first published in 1983, has used a very strict peer-review process, consistently, to fulfill its core mission – to highlight the top legal talent in America. The scope and scale of the publication have dramatically grown over the past three decades. It continues to be a trusted and unbiased voice, respected by both clients and legal professionals all over the country. The 2021 Edition, which is also the 27th edition, is based on more than 8 million evaluations and recognizes just over 65,000 attorneys in 147 practice areas. It has been organized by state, city, and practice area for easy readability.