Posted On: October 30, 2008

What is the difference between a contested and uncontested divorce?

If you are thinking about filing for divorce and you contact an attorney, one of the first questions they will ask you is whether your divorce is going to be contested or uncontested. Often, the answer to that question is not so simple.

Generally speaking, when we ask that question we are trying to determine whether you and your spouse have discussed some (or all) of the issues that may be involved in your divorce and how far apart the two of you have been in those discussions. If you and your spouse have worked out all of the issues, such as equitable division, alimony, and child support, prior to contacting an attorney, then your divorce will most likely be uncontested. From an attorney’s perspective, in an uncontested divorce, an attorney for one of the parties will draft a settlement agreement reflecting the agreement, both parties will review it, there will be minimal, if any, changes to the agreement, and then it will be ready for the parties to sign and file with the court.

A contested divorce, on the other hand, generally refers to a situation where you may not have spoken to your spouse about the issues in your divorce or that you have been unable to come to an agreement upon the terms of the settlement agreement. In this type of matter, your attorney will negotiate the terms of the settlement agreement (if possible) with your spouse or, if applicable, the opposing attorney. While certainly some of these types of cases ultimately lead to litigation and eventually a trial, it is important to understand that the vast majority of these “contested” cases result in the parties ultimately resolving their differences outside of a courtroom.

Sometimes, it is difficult to determine whether a divorce is uncontested or contested in the beginning and what may seem to be an uncontested divorce can ultimately turn out to be contested in the end. The key question is whether you perceive that you and your spouse can work things out over the course of a divorce, but whether you have already done so. Hopefully this blog gives you a little better idea of what an attorney is really asking when he/she asks if your divorce is contested or uncontested.

Posted On: October 24, 2008

Forsyth & Cherokee Counties (Cumming, Ball Ground, Canton, and Woodstock) Parenting Seminar Information

Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. All of the counties in this 9th judicial district work jointly to offer their seminar for divorcing parents throughout the judicial district. They are currently offering seminars in:

  • Cumming at the Forsyth County Library located at 585 Dahlonega Street, Cumming, GA 30040
  • Canton at the R. T. Jones Memorial Library located at 116 Brown Industrial Parkway, Canton, GA 30114
  • and in Blairsville, Clarkesville, Dahlonega, Ellijay, and Gainesville.

The cost of the seminar is currently $50.00 per person. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

Posted On: October 20, 2008

Georgia's factors for determining alimony

There are several misconceptions about the award of alimony in a divorce case. Some people believe that if his or her spouse commits adultery during the marriage, then the judge assigned to their divorce case will automatically award alimony to the non-cheating spouse. Others think that the judge may also automatically award alimony if they have not worked during their marriage to raise a family and take care of the home.

According to O.C.G.A. § 19-6-1, the judge looks at two factors when determining child support – the needs of the party and the ability of the other party to pay alimony. While no one can foresee the future to know exactly what a judge will do in a particular case, Georgia divorce law does provide a list of more specific factors for a judge to consider when awarding alimony:

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Posted On: October 15, 2008

Georgia Child Custody

Many people assume that the mother automatically receives custody of the minor children in a divorce whether she is a fit or unfit parent and the father will never receive custody of the children. Contrary to what some people assume, the law is required to be gender neutral when evaluating custody.

In Georgia, the judge assigned to a divorce or modification action must make a determination of who should get custody based upon the broad concept of what is in the “minor child’s best interest.” When determining the best interest of the child, the judge will analyze a long list of factors in order to make his/her decision. The following are the list of factors for a judge to consider when awarding custody under Georgia family law:

    (A) The love, affection, bonding, and emotional ties existing between each parent and the child;

    (B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

    (C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;

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Posted On: October 13, 2008

Gwinnett County (Buford, Dacula, Duluth, Lawrenceville, Lilburn, Norcross, Snellville, and Suwanee) Parenting Seminar Information

Gwinnett County (Buford, Dacula, Duluth, Lawrenceville, Lilburn, Norcross, Snellville, and Suwanee) offers its Parenting Seminar in order to help parties involved in a divorce with minor children met their mandatory parenting time seminar at the Gwinnett Justice and Administration Center, 75 Langley Drive, Lawrenceville, Georgia 30045. Day seminars are held in conference room A West Wing. Evening seminars are held Jury assembly Room East Wing.

One unique fact about the Gwinnett seminars is they are offer either a four hour weekday seminar (from 9:00 am to 1:00 p.m.) or two two-hour evening sessions (from 6:00 p.m. to 8:00 p.m.). The cost of the seminar is currently $30.00 per person and registration MUST be received prior to the day of the seminar. You can find additional information and register online for these seminars at the Gwinnett County Parenting Seminar website.

Posted On: October 11, 2008

What are the Georgia requirements for getting an annulment?

Fairly frequently, people call our office attempting to get an annulment of their marriage rather than a divorce. Often we find, however, that the caller is not eligible for a annulment. The reason why is that you can only seek to obtain an annulment for certain specific grounds.

In Georgia, there are six grounds for granting an annulment in Georgia. Four of these grounds fall into a category of unique cases, specifically: 1) intermarriage between the parties (such as father/daughter, etc); 2) one of the parties is under 16 years of age; 3) one of the parties did not have the mental capacity at the time of the marriage; 4) one of the parties was committing bigamy (i.e. one spouse was married to someone else at the time of the marriage). Outside of these four unique factual circumstances, there are really only two grounds for annulment that are commonly used in Georgia: 1) Force, menace, or duress was used in obtaining the marriage; 2) Fraud.

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Posted On: October 8, 2008

Fulton County (Alpharetta, Atlanta, Johns Creek, Milton, Roswell) Parenting Seminar Information

Fulton County (Alpharetta, Atlanta, Johns Creek, Milton, Roswell) offers its Family in Transition seminar in order to help parties involved in a divorce with minor children met their mandatory parenting time seminar at three different locations in the county. Currently, it is offering a:

  • Saturday morning seminar once per month from 9:00 a.m. to 1:00 p.m. at the Downtown Justice Center Building located at 160 Pryor Street, S.W., Courtroom G33, Atlanta, Georgia.
  • Weekday morning seminar once per month from 9:00 a.m. to 1:00 p.m. at the South Fulton Service Center located at 5600 Stonewall Tell Road, College Park, Georgia in the auditorium.
  • Weekday evening seminar once per month from 4:00 p.m. to 8:00 p.m. at the North Fulton Service Center located at 7741 Roswell Road, Atlanta, Georgia in the auditorium.

Please note that both the North and South service center locations require pre-registration. The cost of the seminar is currently $30.00 per person. You can find additional information about these seminars at Fulton County Families in Transition program website.

Posted On: October 6, 2008

Georgia Family Law Case Update – Termination of Parental Rights in Georgia

On July 16, 2008, the Georgia Court of Appeals issued a ruling In the Interest of J. L. C., A08A0679, that upheld a termination of parental rights. In that matter, DFCS petitioned for the termination of parental rights based upon allegations that the parents had not: 1) obtained adequate housing for the child; 2) maintained employment; 3) contributed to support for the child; 4) visited the child, and had a history of chronic, un-rehabilitated use of drugs or alcohol. The Georgia Court of Appeals agreed with the trial court noting that the criteria for terminating parental rights are well established:

"First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; 3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home."
Posted On: October 2, 2008

Equitable Division of Marital Property in Georgia

In the United States, property, assets, and debts are generally divided in one of two different ways during a divorce. In a community property state, each spouse is automatically entitled to one-half of the marital estate. In an equitable division state, each party receives an “equitable portion” of the marital estate but that does not necessarily mean that each party is entitled to exactly one-half of the estate. In the United States, there are nine community property states, which include Arizona and California, and the remaining states, such as Georgia, are equitable division states.

Prior to discussing Georgia’s equitable distribution of marital property further, it is important to first understand what is and is not marital property. Martial property is the real and personal property and assets acquired by the parties during the marriage. Moore v Moore, 249 Ga. 27 (1982). Marital property does NOT include a property that one party brought to the marriage or property that one acquired during the marriage by gift, inheritance, bequest, or devise unless the appreciation in the value of said property was caused by efforts of the other property during the marriage. Payson v Payson, 274 Ga. 231 (2001) and Bailey v Bailey, 250 Ga. 15 (1982). Of note, gifts between spouses of marital property remain marital property subject to equitable division. McArthur v McArthur, 256 Ga. 762 (1987).

In regards to what the court ultimately determines is marital property, the Supreme Court has reiterated as recently as October 27, 2008 that equitable division does not necessarily mean an equal division of property. Arkwright v. Arkwright, S08F1399 (2008). Instead, the court is given broad discretion to determine, based upon the facts in any given case, how the division of marital assets shall occur. Trial courts tend to exercise this broad discretion by looking at the various factors such as each party’s contribution to the acquisition and maintenance of the property, the purpose and intent of the parties regarding the ownership of the property, the duration of the marriage, any prior marriage of either party, the conduct of the parties during the marriage and as cause of divorce, and the contribution or service of each spouse to the family unit. Yates v Yates, 259 Ga. 131, Moore v Moore, 249 Ga. 27 (1982), Lowery v Lowery, 262 Ga 20 (1992), and Peters v Peters, 248 Ga. 4980 (1981).