Skip to main content
Joseph Allan Shaw

Joseph Shaw’s Answers

23 total

  • What is the next legal step on getting the tenant out

    We are trying to evict a tenant for non payment and we sent a certified written notice and filed for eviction at the courthouse the seven days has passed and the tenant did not respond to it.

    Joseph’s Answer

    From the information you provided in your question, It is unclear whether you have followed all of the necessary steps. You must provide the tenant with a seven day notice, which gives the tenant 7 days to pay everything that is currently due, which if done, prevents the eviction from proceeding and the lease doesn't terminate. The seven day notice must contain certain language that the judge will require before ever granting an eviction. After the initial seven days, you must file an unlawful detainer complaint in Mobile District Court, which must also contain certain language and provisions required by law and the local courts. If you are wanting a monetary judgment for damages or unpaid rent, you must have the tenants personally served. Proper service has several legal requirements that must be met before your case will be successful. If the tenants do not answer within seven days, then you can file for a default judgment, asking for possession of the property and for a monetary judgment. As long as everything has been done pursuant to Alabama's Residential Landlord/Tenant Act, then a default judgment will likely be granted by the Judge. Seven days later, you can file for a writ of possession and execute the judgement against the tenant. In the event that the tenant answers your complaint, then you a trail date will be set and you will have a trial, which takes the place of the default judgment process. Throughout this whole process you must follow the landlord/tenant statute, or your complaint might get dismissed. It is much simpler to hire an attorney who handles these cases on a routine basis. If you handle the process incorrectly, the tenant might be able to file a counter-suit and receive damages and attorney fees from you.

    See question 
  • I was married in Texas but now live in Alabama can i file here instead

    My husband and I got married in Texas, but I have moved to Alabama since, would I be able to file here instead of driving all the way back to texas?

    Joseph’s Answer

    Did you husband move to Alabama with you? If so, then the only requirement would be for you to have resided here for six months so that Alabama will obtain subject matter jurisdiction. If your husband remained in Texas, then he would have to consent to personal jurisdiction in Alabama after you have resided here for at least six months.

    See question 
  • Do I have to give my children to their father after he has broken custody agreements?

    Has broken agreement: not getting kids on time, not sending letter when taking them out of state, and meeting half way.

    Joseph’s Answer

    You are not supposed to withhold visitation over issues like these or because of child support issues. The proper remedy is to ask the Court to hold him in contempt. Simply being difficult yourself in response to other parent being difficult might feel good and perhaps even will produce the proper outcome.....but, it can also give you unclean hands if someone resorts to the proper legal solutions. I concur that the proper course is to consult with an attorney who regularly practices in the Domestic Relations Court handling your case.....they know how your Judge is likely to react to these issues.

    See question 
  • How to prove a mother unfit?

    In the past two yrs my ex wife has had 7 boy friends, 8 homes (most with boyfriends) and 5 jobs (each bearly lasted a month), she has also had a third child (not mine). I have proof of all of this. She has also not supported our two children. We s...

    Joseph’s Answer

    If there is a custody fight between you and the mother of your children, you likely would not have to prove that she is unfit. The judge would simply have to determine whether it is in best interest of the children to be with her or you......not unfitness of either of you. However, if you signed custody over to your brother, you might have a much tougher fight getting them back from him if he were to challenge you on the issue. You should talk to a lawyer who practices in your area about this issue, as there are a lot of variables that can greatly impact these cases.

    See question 
  • How to gain visitation with child out of state?

    My fiance has a son from a previous marriage 13yrs ago. She will not allow him to see or speak to his son as of 2yrs ago. He wants to be in his life. The divorce decree states that he may have visitation "when convenient for both parties"... but i...

    Joseph’s Answer

    Continuing Jurisdiction likely remains in Martinsburg, WV, so the father likely needs to consult with an attorney who regularly practices in the same court where the custody was established. It sounds like a horrible visitation schedule that should be modified given the situation. I am not sure what the procedure would be in WV, but in Alabama, he would file a motion to modify visitation and ask the judge to order a new visitation schedule. There would be a hearing where both sides would make their arguments and then the judge would decide if the change is warranted. Normally there must a material change of circumstances before a change can be made. It sounds like it has become impossible for the parents to agree, so the father probably has a good case that should be presented to the judge. Please have him consult with a WV attorney right away.

    See question 
  • I have custody of a little boy, can his grandparents get him now?? That I have custody threw the juvenile courts

    We have had him since November 12, 2013. We have full custody of him.. threw juvenile court system.. his grandparents want him now, and we do not want to give him yo them.. the judge said if we want too, what can they do to get him?

    Joseph’s Answer

    Once a custody order has established custody, then a much higher burden (established by Ex parte McLendon, and often simply referred to as the McLendon standard) is required of the parties wishing to change that custody. Although custody is never res judicata or final, it is more difficult to change it once it has been established. You need to speak to an attorney and not ignore the situation.

    See question 
  • Can my wife file for a divorce in another state even tho she have one pending in another state?

    Me and my wife have a divorce in continues,our court date is in Aug. But I was served papers from a lawyer in Louisiana today. That shows that she filed for a divorce in Louisiana. And she have attorney here in Alabama as well. We had court two we...

    Joseph’s Answer

    There needs to be more information given before this question can be answered. If Alabama does not have jurisdiction, then she could file a motion to dismiss the case here and also file for divorce in the state that properly has jurisdiction while this motion is pending. Although personal jurisdiction in Alabama can be waived, subject matter jurisdiction cannot. If the person who filed for divorce has not lived in Alabama for at least six months, then Alabama does not have subject matter jurisdiction to hear the case. You need to discuss this issue with an attorney right away.

    See question 
  • Would it be better to admit to adultery and move on with court/mediation or continue hiding it? Paperwork was filed for Adultery

    A coworker and I started talking and decided to take it further while we both were in marriages that were obviously ending very soon. I serparted from my wife about 1-2 weeks after meeting her and she told hers she was divorcing him about 4 weeks ...

    Joseph’s Answer

    This question is more complicated than it first appears. First and foremost, keep in mind that Adultery is still a crime in Alabama (I have never seen it prosecuted, keep in mind that anything you say or answer can technically be used against you in a criminal case). I agree that it is never a good idea to lie. However, any decision on how to handle this issue must be carefully handled with full knowledge of the risks. I have had clients refuse to answer this question and require the opposing party to provide strict proof. I have also had clients be completely open and forthcoming about their behavior. In both scenarios, they did it with a full understanding of the risks and issues involved. I also agree that this issue will not affect child support (unless your income is outside the range of the rule 32 guidelines, where things can get crazy), but it could certainly affect alimony, property settlements, and the custody of the children. It could also affect how much bargaining power you have in negotiations regarding these issues. You need to meet with an experienced attorney right away and gain a full understanding of your situation and your options.

    See question 
  • What can be done about a joint-custodial-parent who frequently refuses to provide a means of contacting the child?

    My son's mother and I share joint physical and legal custody of our 2.5 year old son in the state of Alabama. I make it a point to speak with my son every day I don't see him. Usually, this is a 4-6 minute long call. A portion of our custody agre...

    Joseph’s Answer

    Is nightly telephone visitation addressed in the visitation schedule contained in the divorce decree/settlement agreement? If so, and if she is violating the schedule, then you could ask the court to hold the mother in contempt for violating the terms of the order. She could face sanctions, possibly having to pay your costs and attorney fees for having to enforce the agreement. You need to discuss the situation with an attorney who practices family law in your jurisdiction.

    See question 
  • Does having a live-in fiancee affect a joint custody agreement in the state of Alabama?

    I share joint legal and physical custody of my 2.5 year old son with his mother. A few short months after our split (we were never married), my son's mother is engaged to another man who has been involved with the 12 step program for drugs and alc...

    Joseph’s Answer

    There could be an issue with this. If it can be proven that the living arrangement/conditions are detrimental/unsafe to the child, then a modification of custody may be appropriate. If you have joint physical custody, you might be dealing with a simpler standard than if the mother had primary physical custody (i.e., you might not have to meet the requirements of Exparte McClendon that would otherwise have to be met). You need to meet with an experienced custody attorney to discuss this matter.

    See question