Atlanta Divorce Attorney Blog

According the Georgia Rules of Professional Conduct, a lawyer can represent only one of the spouses in a divorce. During the course of the divorce, if the one of the spouses remains unrepresented by a lawyer, the lawyer for the other spouse or their staff can still communicate with him or her, but under Rule 4.3 of the Georgia Rules of Professional Conduct, the attorney is unable to give the unrepresented spouse any legal advice. He or she can, however, give the unrepresented spouse information on procedural issues. If he or she has any questions that require legal advice, he or she will need to contact an attorney.

With the state of the economy in the United States today, it is not uncommon to hear that more and more people are losing their jobs and having difficulty finding new jobs that pay as well as their previous ones. While this is obviously having a huge effect on our economy as a whole, it is also creating new difficulties with individual’s child support obligations.

If you find yourself in this type of position, it is important to learn what to do, and not to do. The biggest mistake we see people make is that they don’t do anything. They stop paying child support and do not file anything with the court seeking assistance with this type of situation. This is the quickest way to find yourself in a contempt action and facing possible jail time.

Instead, if you are no longer able to pay child support or alimony because of your changed financial status, you can and should file a modification action with the court. This is the only way to legally change your support obligation. The court will not honor any verbal agreements that you and your spouse may make.

Continue reading " Modification of Child Support and/or Alimony After the Loss of a Job in Georgia " »

In Georgia, legitimation is the legal process that an unwed father takes to become the legal father of his child born out of wedlock (O.C.G.A. §19-7-22). More simply, a child born to a father that is not married to the mother is not considered the child’s legal father until he files for legitimation. This is true even when the father’s name is on the child’s birth certificate and/or the child has the father’s last name. This is often surprising to many people because a father’s custody rights are very different from state to state. We have had many calls from distressed fathers who have been very involved in their child’s life and find that one day the mother will not allow him to see the child without a Court Order. A father must legitimate to have visitation or custody, even if he has been paying child support. The good news is that in most cases in the Atlanta metro area (Fulton, Cobb, DeKalb, Gwinnett, Forsyth and Cherokee), the Court will grant the legitimation and set up visitation as part of the process.

A common question is whether the Mother can contest the legitimation or custody. The mother can contest the legitimation, but she must provide evidence that he is not the biological father or that the father is unfit. While the general definition of an unfit parent may be different depending on who you ask, the Court considers a father to be unfit in more extreme circumstances (for example, if he has been convicted of a sexual molestation or battery or has a proven drug addiction problem). The Court will usually give a father the chance to change his behavior and have a relationship with his child or children.

Most legitimation cases combine visitation and child support into one if there has not already been a child support order set up. Generally, we ask for joint legal custody and “standard visitation” time. You may have heard the term “standard visitation,” and in the Atlanta area, it generally means every other weekend (Friday evening through Sunday evening) with alternating holidays and two weeks of summer visitation. The alternating holidays mean that you may have a holiday this year and the other parent will have it next year. This is a starting point for most cases, and often if the parties cannot agree, it will be what a Judge rules.

As of 2007, the Court will use child support worksheets to determine the correct amount of child support. In general, the child support worksheets include both parents’ income, costs for health insurance, daycare, and extracurricular costs.

Meriwether & Tharp would like to wish everyone a Happy Thanksgiving!

Although there are several grounds for ending alimony, one of the most common is that a party decides to remarry. In these types of cases, O.C.G.A. § 19-6-5(b) indicates that a prior award of alimony can be modified if you decide to get re-married, and the modification will result in terminating your former spouse’s alimony obligation. What many people find surprising, however, is that remarriage is not the exclusive defining test for ending alimony.

Much more common is that after a parties divorce, one of the parties decides to date and eventually decides, without getting remarried, to move into the same residence with their new significant other. The State of Georgia has enacted a law, which is commonly referred to as the “live-in” lover statute, which addresses this exact situation. According to O.C.G.A. § 19-6-19(b), if you and your significant other are living together and having sexual relations, then your former spouse can file for modification of alimony upon the ground that you and your significant other are living together in a meretricious relationship. Adding to the equation, the court will be under the assumption in this type of situation that your need for alimony has just decreased because you are now splitting financial responsibilities with this person.

When deciding whether you want to seek a modification under this type of situation, you need to keep in mind that the court will require that you submit proof of this meretricious relationship. In addition, you must always be mindful that if the judge decides after reviewing the petition and the evidence that your former spouse is not living in a meretricious relationship, then you would be responsible for paying all of your former spouse’s attorney’s fees incurred in defending the action in addition to being responsible for your own attorney’s fees.

According to O.C.G.A. § 44-1-1, there are two types of property – real property and personal property. Real property or “realty” is defined by O.C.G.A. § 44-1-2 as not only the land, but any buildings attached to it. If the parties own a home, then the marital home is real property.

All other possessions that the parties own, such as furniture, televisions, and automobiles, are items of personal property. Personal property or “personalty” is defined by O.C.G.A § 44-1-3 as anything that is movable, has a value, and is not real property. Basically, it is anything that is not permanently attached to land.

One big national debate that is occurring is whether pets are personal property (like their furniture) or are not property at all (like children). Several states have created a new “quasi-property” definition for pets that handles their division more like children. Georgia, however, has not adopted a quasi-property status for pets and, as such, are currently considered just another item of personal property that the parties own. O.C.G.A. § 44-1-8. The practical effect is that a “best interest” of the children type of standard is not necessarily how a property division decision will be made by a court as it is in other states.

During a civil case, one of the party’s attorneys may suggest using one of the discovery procedures to obtain information from the opposing side. Discovery is especially useful in highly contested divorce cases because the opposing party will be required by law to disclose information to their spouse’s attorney. According to O.C.G.A. § 9-11-26(c), there are four types of discovery. Three of the discovery methods are written while the remaining one is done in person. The three written types of discovery are:

1. Interrogatories (see O.C.G.A. § 9-11-33): Interrogatories are questions that one spouse may ask to the other spouse requesting certain information. Most interrogatories request such things as names and addresses of certain witnesses vital to the case, employment history, and the names and addresses of anyone with whom the opposing spouse may have had sexual relations during the parties’ marriage. According to O.C.G.A. § 9-11-33(a)(1), each side is limited to only fifty interrogatories, including any subparts. Each of the parties’ attorneys can ask all fifty interrogatories at one time or he or she can split them up and ask them at different points throughout the discovery process.
2. Requests for Production of Documents (see O.C.G.A. § 9-11-34): Typically, when an attorney decides to send the opposing party a set of Interrogatories, he usually sends Requests for Production of Documents along with them. When an attorney would like to see a specific document, such as the spouse’s paystub, the parties’ tax return, bank statements, or cell phone records, he or she will ask the opposing attorney to give them a copy of these documents in the Request for Production of Documents. The reason that the Requests for Production of Documents are sent in conjunction with the Interrogatories is because the attorney may ask for copies of documents that he or she previously asked about in the Interrogatories. The attorney, however, is not required to do so. Unlike Interrogatories, there is no set limit on the number of Requests for Production of Documents the attorney may ask.
3. Requests for Admissions (see O.C.G.A. §9-11-36): Out of the four types of discovery, attorneys send Requests for Admissions the least. Requests for Admissions are basically statements that one party may ask to another party and he or she must admit or deny the statements under oath. An attorney may send Requests for Admissions to the other side if he or she wants the truth from the other side, such as if one party had sexual relations with someone other than his or her spouse during the marriage. Like Requests for Production of Documents, there is no limit on the number of Requests for Admissions that you can send to the opposing side during the discovery process.

Continue reading " Georgia’s Discovery Process in Divorce Cases " »

The first step in the divorce process is filing a Complaint for Divorce. This is the initial pleading in the case that sets forth all of the basic information, such as the opposing party’s address, date of the parties’ marriage, whether the parties have children, whether the parties own a home, etc. The Complaint for Divorce does not, however, tell how the assets and debts are to be divided, the amount of child support that the custodial parent is to receive or if the parties are going to sell their home. These issues will be resolved by the court at a future point in time if the parties are unable to reach a settlement agreement during the process of the divorce.

When you file the Complaint for Divorce, it is typically filed in the Superior Court for the county in which the opposing party resides. There are a few exceptions when it is filed in a different county. If the opposing party resides out of state, in certain circumstances you can file for divorce in the county in which you reside if you meet the residency requirements. When you file for divorce, the court charges a flat fee for filing your Complaint for Divorce. The State of Georgia does not have a set fee and filing fees do range from county to county. For example, Metropolitan Atlanta area filing fees for divorces currently range from $78.00 to $90.00. Also note, the filing fee, however, does not include the costs to have the Sheriff serve your spouse. If you wish to have your spouse served by the Sheriff, there is an additional fee of $25.00.

Once your divorce is filed with the court, you will receive a date-stamped copy of the Complaint for Divorce which shows the date and time on which it was filed. The date-stamped copy will also include a civil action file number, which is a unique number assigned to each divorce action and lets the parties know which judge has been assigned to a case. Of note, unless a county only has one judge serving on the Superior Court bench, the parties do not get to elect which judge is assigned to a particular case. Each county uses a different system for assigning judges based upon the civil action file number. Once the Complaint for Divorce is filed with the court, your spouse will have thirty days from the date on which he or she is served or acknowledges service to respond to the statements made in the Complaint for Divorce and they must file a written Answer with the court on or before this date.

Although child support is not deductible by a payee, alimony is generally deductible by the payer and must be included as income to the payee. While many attorneys provide this advice to their clients, there is one often overlooked exception to this alimony rule that should be carefully examined during a divorce case. In particular, if alimony payments decrease or terminate during the first three calendar years, you may accidently find yourself subject to the alimony recapture rule. If you are subject to this rule, you will have to include as income in the third year part of the alimony payments that you have previously deducted (and your former spouse can similarly deduct in the third year part of the alimony payments that were previously included as income). As pointed out by IRS publication 504:

“You are subject to the recapture rule in the third year if the alimony you pay in the third year decreases by more than $15,000 from the second year or the alimony you pay in the second and third years decreases significantly from the alimony you pay in the first year.”

If you are considering paying/receiving alimony as part of a divorce and think you may fall within this exception, we strongly urge you to seek the advice of a tax professional you trust to provide you guidance in this complex area.

For more information we recommend you start by reading IRS Publication 504 and consult with a tax professional.

On November 3, 2008, the Supreme Court of Georgia reached decision by a 4 to 3 vote, that held a party could seek a declaratory judgment as to his obligation for PAST due child support. Acevedo v. Kim f/k/a Acevedo, S08A0798 (11/3/08). While this decision is perhaps more important for lawyers handling cases to understand, it does emphasize some interesting legal principals.

Prior to discussing the case further, it is important to understand what a declaratory judgment is. A declaratory judgment is, among other things, a procedural mechanism litigants use to determine their “rights and obligations under a divorce decree that is unclear”. Acevedo. It is used to remove a party from the “risk of taking some future action that, without direction, would jeopardize his interest”. Acevedo.

The unique question before the Supreme Court in this matter was whether it was appropriate for to ask for a declaratory judgment for PAST due child support obligations. The majority opinion held that since there was a very real risk that he would be brought up on charges of contempt of court, “he needed direction from a judicial tribunal to remove the uncertainty regarding the consequences of his planned future actions.” A very strong dissent argued, however, that since the support at issue only involved previously owed arrearages, then “the logical consequence of this contrived construction would be the seeking of declaratory judgment as a defense to the payment of any found obligation or debt, thus spawning unnecessary and spurious litigation”. Acevedo.

While it remains to be seen what develops from this recent case, the close decision and unique construction of what is grounds for a declaratory judgment suggests that this will not be the last time we visit this issue in Georgia.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar in Georgia if the parties have children under the age of 18 due to the volatile nature of divorce and the impact it has on children. See Uniform Superior Court Rule 24.8. The parties are not required to attend the seminar together - they can take it at separate locations and on different dates. Even though the content of the parenting seminar is basically the same throughout the state, each county manages its own parenting seminar program. Generally, the topics addressed are how to reduce stress for children during a divorce, visitation recommendations, financial obligations, conflict management, the changing parental roles during a divorce, stress indicators for children, and the needs and age appropriate expectations of children going through a divorce.

You can find more information for parenting seminars in Metropolitan Atlanta counties from our blog at:

• Cobb County
• DeKalb County
• Forsyth County
• Gwinnett County
• Fulton County

Please note that there are only a limited number of seminars offered each month so it is important to review the schedule and try to attend the next available seminar. If you cannot attend the parenting seminar for the county in which your divorce is filed, most counties allow you to take the seminar in any other county in the State of Georgia to receive credit. If you take the seminar in another county, however, you will need to bring the civil action file number assigned to your case with you.

Continue reading " Atlanta Parenting Seminar Information " »

While we spend a lot of time in this blog talking about various divorce sub-topics in Georgia, most people coming into our office at the very beginning just want to know basically what is happens in a divorce in Georgia. While I think everyone know the obvious fact that a divorce ends a marriage, some of the major components are not as obvious.

From a big picture legal point of view, a divorce involves a division of marital assets and, when appropriate, an award of alimony. When children are involved, a divorce also resolves how custody and visitation with the children will be handled as well as determines the amount of child support that must be paid. While each of these issues can be fairly complex, a divorce really is as simple as making these basic determinations.

Procedurally, a divorce starts with the filing of a complaint which is then served upon the other spouse. From there, the spouse that was served with the notice of the lawsuit has thirty (30) days to file an answer (and possibly counterclaims). Once the answer is filed, the parties begin what is generally known as the discovery period where each party has the ability to ask written and oral questions to the other spouse (as well as third parties) about information related to the divorce action. Also, the discovery period allows each spouse to request that various documents be copied and turned over for their review.

At the conclusion of the discovery process, the Court generally entertains any motions by the parties and sets the case up for a final trial (either with or without a jury). Once the final trial occurs, the court then makes a final ruling addressing each of the legal points discussed above. Of course, at any point along the way, the parties are free to try and decide any or all of the issues themselves and there are various alternative dispute resolution mechanism in place to help the parties amicably resolve their differences.

Although generally you cannot deduct legal fees you have incurred in obtaining a divorce, there are several exceptions that you should consider talking with your tax professional about in more detail. In particular, you may be able to deduct fees paid for tax advice (subject to the 2% of adjusted gross income limit) you received in connection with the divorce, such as from appraisers, accountants and attorneys if you itemize deductions on Schedule A (Form 1040).

Interestingly, because alimony is considered income, you may also be able to deduct fees incurred in helping to obtain an alimony award.

In addition, certain legal fees you pay specifically for obtaining property, such as the cost of preparing and filing a deed in your name, may enable you to increase the basis of the property you receive.

One thing is clear, if you plan to try and deduct fees related to tax advise obtained during a divorce or fees incurred in obtaining alimony, you must make sure that your charges are clearly broken down in such a manner that you can determine charges that are deductible and charges that are not deductible.

Meriwether & Tharp, LLP would like to take a brief break from its blog to honor the service of our military veterans, both past and present. Your sacrifices are not forgotten and we honor your service to our country.

For those seeking a divorce in Fulton County (which includes the cities of Alpharetta, Atlanta, Johns Creek, Milton, Roswell) we have added this blog entry to help you quickly find useful information. In particular, you will find the Fulton County Website provides a lot of useful information for all types of litigation matters. We urge you to stop and take a closer look at the Fulton County Family Law Division web site. In this part of the Fulton Court website you will discover various resources available from Fulton county regarding family law matters. In particular, we wanted to make sure you did not miss the Divorce Forms Section of this web site. Obviously some people have put a lot of effort in providing many of the forms that are used in a divorce on this section of the web site and it’s a resource that should not be overlooked. We also recommend you visit the portion of the website devoted to the Fulton County Families in Transition program which is mandatory for everyone obtaining a divorce involving minor children.

Outside of the Fulton Court system web site, there are a few other web sites you should review in the event you are considering or going through a divorce. If child support will be at issue in your case, the new Georgia Child Support Calculator and Worksheets are publically available. Also, you may want to spend a few minutes looking over the State Bar of Georgia’s website. Finally, as we are all aware, nothing is certain but death and taxes. Based upon our experience, family law clients often find the need to discuss tax matters with an accountant during the process of obtaining a divorce. Some IRS publications, forms, and resources that may be of special interest are:

Divorced or Separate Individuals

Child and Dependent Care Expenses

Individual Retirement Arrangements

Tax Guide for Individuals

Request for Copy of Tax Return

Starting on January 1, 2007, the formula for calculating child support in Georgia changed drastically. Up until that point, Georgia was one of the last remaining states that evaluated only the income of the non-custodial parent when it calculated child support. With the passage of a new law, Georgia changed ended its prior methodology and instead adopted an income-sharing approach to determine child support.

Under the new law, codified as O.C.G.A. § 19-6-15, both the Mother’s and the Father’s incomes are now used to calculate support. In summary, the court now determines what is the annual gross income of both parties (or imputes what it believes said income should be based upon a parties education and work experience) and runs those numbers through a support calculator to determine the amount of child support a non-custodial parents should pay. For your use in evaluating child support, here is a link to the official Georgia Child Support Calculator and Worksheets.

If you have ever started to use this calculator you will quickly find that determining each party’s annual gross income is not the end of the analysis for determining child support. In particular, O.C.G.A. 19-6-15(b)(8) has delineated eleven deviations that the court can take into account when calculating child support. These factors are:

1. High income;
2. Low income;
3. Health related insurance;
4. Child and dependent care tax credit;
5. Travel expenses;
6. Alimony;
7. Mortgage;
8. Permanency plan or foster care plan;
9. Extraordinary expenses;
10. Parenting time; and,
11. Nonspecific deviations.

It is the analysis of these deviation factors (and determining the appropriate gross income numbers of the parties) that are critical to a proper analysis of how much child support is owed in a particular case.

We are proud to announce that we officially opened our satellite office in Canton, Georgia today. As Meriwether and Tharp’s client base and referrals continue to grow in Cherokee County, we thought it was appropriate to open a satellite office in Canton, the county seat, to provide an easier location for our clients to meet their attorneys. Our office is located directly across from the Courthouse in the Century Building in Downtown Canton. The address is 270 E. Main Street, Suite B, Canton, Georgia 30114. If you are in the area, please feel free to stop by and see our new office.