Atlanta Divorce Attorney Blog

From everyone at Meriwether & Tharp we wish you a happy holidays! We will continue our divorce blog articles after the new year.

As a divorce attorney in Atlanta, I have noticed a recent trend wherein the simple question of when was the separation date for the parties is a major deal at the final trial. Why? If the parties to a divorce proceeding fail to maintain the separation during the pendency of the divorce, a Georgia trial court is not allowed to grant the divorce.

So what does the phrase “separation date” mean from a legal perspective? We know it is required to be listed on the Complaint for Divorce (in accordance with O.C.G.A. § 19-5-3(3)). Well the answer, according to the case of Blasingame vs. Blasingame, 249 Ga. 791 (1982), is that the parties in a divorce are considered separated when they stop having sexual relations. Notice that does not mean when the parties moved out of the house.

So what is the issue? If the parties have sexual relations after the divorce is filed, the case will be dismissed causing the parties to start the entire divorce process all over again – regardless of whether both parties want a divorce still and have agreed to how the entire divorce should be handled. Obviously not a favorable outcome for those affected.

On November 17, 2008, the Supreme Court upheld Judge Batchelor’s (Gwinnett Superior Court) decision in regards to the amount of child support and alimony awarded in the case. Although the case is generally unremarkable, it did re-emphasize a point that is often overlooked by individuals that are proceeding forward with divorce, child support, alimony and other family law types of matters.

In particular, the court held that: “The standard by which findings of fact are reviewed is the ‘any evidence’ rule, under which a finding by the trial court supported by any evidence must be upheld. Furthermore, in the absence of any mathematical formula, fact finders are given a wide latitude in fixing the amount of alimony and child support… under the evidence as disclosed by the record an all the facts and circumstances of the case.” The Supreme Court also noted that “this court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses.”

As I was reading the opinion, it reminded me that while attorneys are very well aware of these types of statements from the appellate courts in Georgia, most of our clients are not. In essence, what they mean is that the Supreme Court of Georgia and the Court of Appeals in Georgia rarely overturn trial court decisions on factual matters. Knowing this, and knowing that nearly all trials on family law matters come down to factual disputes, it emphasizes the point that if you want to prevail with your family law matter in Georgia, you must convince the fact finder of your factual allegations because they, in all likelihood, will be the sole determiner for the outcome of your case and you will not get a second bite at the apple.

Depending on where you reside in Metropolitan Atlanta, you will sometimes see billboards on the side of the highway or you may walk through the mall and see a full size advertisement on the store directory for attorneys charging $500 for uncontested divorces. On occasion, we will receive a call from someone who is looking to hire an attorney to see if we charge a flat fee. There are certain areas of the law where an attorney will either charge one fee upfront and it will cover all of the work performed on a file or on a contingency basis where the attorney will get paid or reimbursed for all filing fees and work performed on the case after the case is finished, such as a personal injury case. Divorce cases, however, do fall into either of these categories. Unlike with other types of matters, there is no way to estimate the total amount of time that is spent on a divorce case since the amount of time varies from case to case. Like a human fingerprint, each divorce case is unique and no two are alike.

In divorce cases, law firms generally bill their client on an hourly basis. Before the attorney begins working on a client’s case, however, the attorney requires their client to sign a fee agreement and pay a retainer fee. The fee agreement is a written contract between the client and his or her attorney and explains in detail what the client can expect from their attorney. The fee agreement will list services the attorney will provide, such as the preparation of any pleadings, the amount of the retainer, the hourly rate at which he or she is billed, and any additional costs, such as filing fees, courier fees, and travel costs. It is very important that you carefully read the fee agreement before you sign it. Sometimes when the client receives their first invoice, they do not realize that their attorney charges for all telephone calls and e-mail correspondence. Any time that you speak with your attorney, they are going to charge you for the time that they spent speaking with you or responding to your e-mail.

When you sign the fee agreement, you will also pay a retainer fee to the attorney. The retainer fee is a lump sum payment that you pay up front to your attorney to secure their services. It is similar to a security deposit that you make to an apartment complex or earnest money that you pay to the seller when purchasing a house. When your attorney or one of their staff performs any work on your file, they will bill off of this retainer. The retainer payment is NOT a flat fee and you will receive a bill for any additional time and money that the law firm spends on your file. In the fee agreement, law firms also charge a replenishing retainer. Once the amount of money left in your retainer gets below a certain amount, the law firm requires that you replenish your retainer to cover any work performed on your case. There is not set amount for the retainer in a divorce case. Each case is different. If you would like our law firm to quote you a retainer fee, you will need to speak with either one of our attorneys. They can quote you a reasonable retainer based on the facts of your case. In addition, the unused portion of your retainer is fully refundable. If there are any monies remaining in your retainer at the end of your case.

In a contested divorce, the answer to this is simple – YES. Since it is a contested matter, a hearing before a judge or jury will be required in order for them to make a final decision regarding the division of assets, child support, child custody, alimony, etc. In an uncontested divorce, however, the answer is somewhat complex and confusing.

For an uncontested divorce, the following factors need to be reviewed when determining whether you need a final hearing: 1) the county in which your divorce is filed; 2) the judge assigned to your case; and 3) whether you and your spouse have children. Each of these factors provides an important role in answering this one simple question. According to O.C.G.A. § 19-5-10(a), there are two ways to finalize a divorce in Georgia once you and your spouse have entered into a settlement agreement. You can either attend a final hearing or by a “Motion for Judgment on the Pleadings”, which is an option available only to attorneys. If you and your spouse are representing yourselves in your divorce, you must have a final hearing.

It may seem unusual, but each judge in a certain county handles final divorce hearings very differently and not all of the judges in a particular county may allow a “Motion for Judgment on the Pleadings” to finalize a divorce. You can have two judges in a particular county and one of them accepts a “Motion for Judgment on the Pleadings” while the other judge requires a final hearing. Also, it is not uncommon for judges to accept a “Motion for Judgment on the Pleadings” only if the parties do not have any children under the age of 18. If you and your spouse have children, the judge will require a hearing to finalize your divorce.

Continue reading " Do I have to go to Court to finalize my divorce in Georgia? " »

If your spouse’s attorney serves you with Interrogatories, Requests for Production of Documents, and Requests for Admissions, the length of time to answer discovery is the same. According to O.C.G.A §§§ 9-11-33(a)(2), 9-11-34(b)(2), and 9-11-36(a)(2) respectively, you have thirty days from the date on the Certificate of Service to respond to your spouse’s discovery requests. If, however, you receive the discovery requests at the same time when you are served with the Complaint for Divorce, you have forty-five days to respond to the discovery requests. (Please note that there is an exception for this general rule in Fulton County (Atlanta, Alpharetta) related to initial discovery disclosures that must be made in thirty days).

Even though you may respond to the discovery requests, your answers to the Interrogatories or Requests for Production of Documents are generally not filed with the court. According to Uniform Superior Court Rule 5.2, the Certificate of Service is the only document that your attorney must file with the court. The Certificate of Service is a document that your attorney will prepare and sign, which lists the style of your case, the name and address of the opposing party or attorney (if he or she is represented by an attorney), the method of delivery (i.e. mail, fax, or e-mail), and the date on which it was sent to the court for filing. A copy of the Certificate of Service is sent to the opposing party along with the original discovery responses.

When someone mentions the words “Domestic Violence”, some people may associate these words with physical abuse. Domestic violence, however, takes many shapes and forms and a person does not need to be physically abused to experience domestic violence. If your spouse verbally abuses you or he or she controls every facet of your life and he or she will not allow you to make any decisions on your own, then you may be a victim of domestic violence. Physical, verbal and mental abuse, however, are not the only forms of domestic violence. If you have been raped or have been stalked by another individual, you are also a victim of domestic violence. According to the Georgia Coalition Against Domestic Violence website, if your spouse, threatens you, controls you, abuses you, or you fear for you or your children’s safety, then you may be a victim of domestic violence.

If you are a victim of domestic violence, you have several options available to you. According to O.C.G.A. § 19-3-3, you can file a Petition seeking relief against family violence with the Court. If you need immediate assistance, however, then you can contact one of the family violence shelters in your area. You can find a list of these shelters on the Georgia Coalition Against Domestic Violence’s website or here for a list of shelters.

Due to Georgia Law, these websites are very limited on the information that they provide for these shelters so you will only find a telephone number or a Post Office Box. According to O.C.G.A. § 19-13-23, it is a misdemeanor to provide the address of a family violence shelter unless a client gives the address to his or her attorney or the family violence authorizes the address to be published.

In Georgia, child support orders may be modified upon a showing of a substantial change in either parent’s income or financial status, or in the needs of the children. O.C.G.A. §19-6-15(k)(1). A substantial change could include the loss of a job, decrease in income, increase in income, increase in the medical needs of the children, increase in the educational needs of the children (i.e. private school, tutoring, etc.), or decrease in the needs of the children (i.e. child no longer needs day care). This substantial change must occur between the date of the divorce decree or previous child support action and the filing of the new petition for modification of child support.

Generally, you can only bring a child support modification action once every two years so keep this in mind when deciding whether or not to file a modification. The two year limitation does not apply from the date of your divorce decree, but rather from the date of your last modification. In other words, you could bring a modification action within a few months of your divorce decree, but you would have to wait two years after that modification action before you could come back to court again. There are three exceptions to this two year rule: (1) If the non-custodial parent has failed to exercise court ordered visitation; (2) if the non-custodial parent has exercised more visitation than provided in the court order; or (3) the modification action is based upon an involuntary loss of income. O.C.G.A. §19-6-15(k)(2)(A) – (C).

Any modification of these orders must be done prospectively. This means that the Court can only modify these orders from the date of the filing of a petition. The Court cannot retroactively modify court orders from the date of the substantial change.

A child may be adopted by the spouse of his/her parent in Georgia regardless of whether the child’s other parent is still living, but there are different requirements for each situation. If the child has only one legal parent still living, the child may be adopted by the spouse of his/her living parent only if that parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(2). If both of the child’s legal parents are living, but not married to each other, the child may be adopted by the spouse of either parent only if the other parent voluntarily surrenders his/her parental rights in writing and the other parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(1). In either situation, a child fourteen years of age or older must consent in writing to his or her adoption. O.C.G.A. §19-8-6(b).

If the party whose rights the stepparent seeks to terminate refuses to surrender his/her rights, the Court will hold a hearing to determine whether the adoption is in the best interests of the child. If that parent cannot be found, the stepparent must exercise due diligence to try to locate the parent to provide him/her with sufficient notice under Georgia law. The biological/legal parent must receive adequate notice of the proceedings before the Court will grant the adoption and, in our experience as divorce attorneys in Atlanta, the Courts are very strict on this issue.

Before a stepparent adoption can be finalized, the stepparent must undergo a criminal background check through the Georgia Crime Information Center. The Department of Human Resources, or other representative appointed by the Court, will also become involved to verify the allegations in the Petition for Stepparent Adoption. This representative routinely interviews the stepparent and parent and may even visit the home where the child is living.

Alternative Dispute Resolution is a general phrase for providing parties to litigation an alternative way to resolve their disputes. Generally, parties that have disagreements in a Georgia divorce case go to a court seeking a judge or jury to determine who is ‘right’. A Georgia divorce case can be expensive and lengthy for the parties involved as parties file a complaint/answer, conduct extensive discovery (typically over a six month period), are heard on various motions, and ultimately have a final hearing regarding all of the issues involved in their case. When a Georgia divorce case ‘goes the distance’ under this system it is not atypical for the entire process to take in excess of one year and cost tens of thousands of dollars.

Alternative Dispute Resolution is an attempt to enable the parties to Georgia divorce cases to craft their own “alternative” solution to a trial court rendering a decision on their matters. Generally, there are three basic forms of alternative dispute resolution that are commonly used in conjuction with, and sometimes instead of, the trial court process: mediation, arbitration, and late case evaluation.

Mediation is a process wherein a third party neutral (a “mediator”) attempts to facilitate discussions between parties in order to help them best craft a solution to their disagreements. The mediator does not decide any issues in the case. Instead, the mediator listens to both parties, typically separately, and tries to guide negotiations to a win-win solution or a solution that both parties can ultimately accept. The parties maintain absolute control over this process and are free to reject any offers from the other party at any time. Because the parties are crafting their own solutions to their disputes, often the parties to this process find it a useful mechanism to resolving their disputes.

Continue reading " Alternative Dispute Resolution (ADR) in Georgia Divorce Cases: Mediation, Arbitration, and Late Case Evaluation " »

Our first in this series on child support analysis will focus on the impact of looking at BOTH parents’ incomes in determining child support, the major change in the 2007 child support guidelines in Georgia. This example will assume no deviation factors in its analysis.

Our example will look at a couple in Alpharetta, Georgia getting a divorce. The father currently makes $100,000 per year ($8,333 per month). The mother is currently a stay at home mom raising their two children and will be the primary physical custodian of the children after the divorce. Using Georgia’s Child Support Calculator, the father will pay $1,578 per month in child support for his two children.

But what happens if we changed our fact scenario just slightly and assumed that the mother was making a salary. For example, assume that the mother was making the following amounts per year:

$24,000 - Child support would be lowered to $1,454.12 per month.
$50,000 - Child support would be lowered to $1,356.73 per month.
$100,000 - Child support would be lowered to $1,194.00 per month.

As you can see, looking at both parents' incomes can have a substantial impact on the amount of child support under the new child support guidelines. For more information, see our previous post on How to Calculate Child Support in Georgia.

Although we strongly recommend seeking the advise of a Georgia divorce lawyer when you are wanting to learn more about certain legal situations you are facing in a divorce, we understand that some people want to learn as much as they can online. To help with your internet searches we wanted to provide you with some free resources for help researching the law in Georgia:

1. Laws that are passed in Georgia are statutes and become part of the 'Official Code of Georgia'. You will sometimes see references to Georgia law as the "OCGA". Lexis® currently allows for free access to Georgia's code. You can find Georgia Divorce Law by looking under Title 19.

2. After a law is passed, there often arises disagreements regarding the meaning of certain phrases within a law. These disagreements eventually go to court. In some cases, rulings of trial courts regarding the meanings of a statutes are challenged and either the Georgia Court of Appeals or the Supreme Court of Georgia makes a ruling regarding their interpretation of the meaning and application of various statutory language. While some of the most recent opinions of these courts can be found on their web sites, you may find it easier to search for Georgia divorce case law from LexisOne®. Please note this web site limit searchs to the last ten years of Georgia case law.

One final warning,the exact meaning of certain phrases in statutes and case law is often in dispute by even the best divorce lawyers if Georgia. While it is always a good idea to be as informed as possible, do not overlook the importance in seeking the advise of a Georgia divorce attorney prior to reaching any final conclusions or acting on the information you find in these sources.

This blog entry regarding tax issues related to a divorce is intended to alert you to issues to think about and provide some basic information. Before you sign any tax return or take any action with respect to your federal or state income returns, please review your situation with your current tax advisor.

Change of Mailing Address
You may officially notify the I.R.S. that you have changed your mailing address from the address used on your last tax return by filing I.R.S. Form 8822.

Alimony
Spousal support or alimony is taxable to the recipient and deductible from the income of the payor if all I.R.S. requirements are met. Lump sum alimony is not deductable. For more information see Divorced or Separated Individuals - IRS's Form 504.

Child Support
Child support payments are not deductible from the income of the payor or taxable to the recipient. For more information see Divorced or Separated Individuals - IRS's Form 504.

Dependency Exemption for Minor Children
Unless specifically addressed in your Decree, generally the custodial parent will be entitled to claim the dependency exemption for the minor children on his or her income tax return. The custodial parent may execute I.R.S. Form 8332, releasing the dependency exemption to the non-custodial parent. Release of Claim to Exemption
for Child of Divorced or Separated Parents - I.R.S. Form 8332.

Continue reading " Divorce and Taxes " »

If you and your former spouse were married for longer than ten (10) years and paid into the Social Security Trust Funds, you may be entitled to spouse's or survivor benefits on your former spouse's account upon reaching age 62, regardless of whether your former spouse has retired at that time. These benefits are provided by the federal government and are not usually addressed in a Decree.

The Social Security Administration advises contacting it three months in advance of your anticipated eligibility date. For survivor benefits, this could be as early as three months before turning age 60; for spouse's benefits, three months before turning age 62.

When applying for Social Security benefits, you should have your Social Security Number, Birth Certificate, Marriage Certificate and Final Decree, showing your marriage termination date. You may contact the Social Security Administration by phone at (800) 772-1213. Social Security laws are constantly changing, and your future benefits may be affected by those changes. To be sure of the exact benefits to which you are entitled, and your earliest eligibility to receive the benefits, contact the Social Security Administration directly.

Common law marriage is a marriage recognized in some states even when there has been no official ceremony performed or civil contract entered into. Common law marriage was abolished in Georgia beginning on January 1, 1997 and any common law marriage entered into on or after that date is not valid O.C.G.A. §19-3-1. However, Georgia still recognizes any valid common law marriage entered into prior to January 1, 1997 and, thus, it is important to understand how a common law marriage can be established.

There are three requirements for a valid common-law marriage in Georgia: (1) the parties must be able to contract; (2) there must be an actual contract; and (3) there must be consummation according to law (O.C.G.A. §19-3-1). These same requirements are applicable to ceremonial marriages, but apply a little differently in common law marriages. To be able to contract, both parties must be of sound mind, at least 18 years old, not related within a certain degree, and have no prior unresolved marriage. An actual contract is established in a common law marriage when the parties have a mutual agreement to be husband and wife and hold themselves out to the world as husband and wife. Consummation in a common law marriage is established by the continuous cohabitation of the parties. There is no required period of time that the parties have to live together, but the longer the cohabitation, the stronger the presumption that a common law marriage exists.

All of the above elements must be proven by a preponderance of the evidence to have existed prior to January 1, 1997 in order to establish a common law marriage that will be recognized by the state of Georgia. Once a common law marriage is established, the parties to that marriage are afforded the same rights as any other married couple, including the right to get a divorce.

In Georgia, your spouse generally has thirty days to respond to your discovery requests, such as interrogatories, request to produce documents, or request to admit. There are several key exceptions to this rule including: when discovery is filed with a complaint (in which case the deadline is generally forty-five days); when the requests are served by mail you have three additional days to respond under the mail rule; and the trial court can always shortened or lengthen the amount of time to respond in its discretion. Also, in Fulton County, there is an additional exception for the mandatory interrogatories and request to produce issued by the county that generally requires compliance within thirty days.

But what happens when someone fails to respond to the discovery responses? First, by failing to respond, a party can waive certain objections to discovery request. Second, the party that is seeking the responses can seek the court’s attention to force a response.

Seeking the court’s intervention in a discovery matter can be a rather lengthy process. Uniform Superior Court Rule 6.4(b) generally requires that you first make a good faith effort to obtain the discovery responses without the court’s intervention. Usually, this attempt is made in writing to provide for assurances that the other party understands the severity of your request and to provide you with documentary evidence that the attempt was made.

Continue reading " Georgia Divorce Discovery: Consequences for Failing to Respond " »

The Georgia Court of Appeals has entered a decision on November 13, 2008 in regards to the effective date of a modification of child support award. In Hampton v Nesbit(A08A1887) the court of appeals held that the Judge Merck, DeKalb Superior Court, abused its discretion in ordering a delay in the upward modification of child support until such time as the past due child support payments have been made.

In that action, the father had filed a petition seeking joint physical and legal custody of the minor child. The mother counterclaimed for contempt due to father’s past due child support payments. After hearing evidence, the trial court entered an income deduction order against the father which ordered the father to repay the arrearages at a rate of $300 per month beginning October 1, 2007 in order to avoid jail time and increased the amount of child support from $525 per month to $800 per month starting October 1, 2008 (at which point the trial court determined that the father should be caught up with his arrearages). The mother appealed indicating that the trial court could not delay the effective date of the upward award of modification.

The Court of Appeals reversed the trial court and held that the trial court did not have the right to fully delay implementation of the upward modification. Specifically, the Court of Appeals focused its attention upon O.C.G.A. § 19-6-15(k)(3)(B) which provides:

If there is a difference of 30 percent or more between a new award and a Georgia child support order entered prior to January 1, 2007, the court may, at its discretion, phase in the new child support award over a period of up to two years with the phasing in being largely evenly distributed with at least an initial immediate adjustment of not less than 25 percent of the difference and at least one intermediate adjustment prior to the final adjustment at the end of the phase-in period.

Accordingly, the Court of Appeals specifically held that while the trial court did not have authority to completely delay the modification it could have phased in the modification had the statutory requirements been met. Of note, the Court of Appeals also held that past due child support cannot be considered when reducing or increasing income under the child support calculations.

The divorce process is difficult for all parties involved. When someone is going through a divorce, he or she may feel that no one understands what they are going through emotionally. A divorce can be devastating on many different levels. Not only is someone losing their spouse and his or her best friend, but in most cases, he or she is losing his or her extended family and the lifestyle to which he or she has become accustomed. One of the spouses may feel like their entire world is falling apart and he or she has no one with whom they can share their feelings or to whom they can vent their anger. In some cases, one of the spouses may go to a counselor or therapist

When you are going through a divorce, who do you speak with when you feel that you have nowhere else to turn? The answer is quite simple. You need the support of both men and women who are experiencing the same emotions and feelings as you are. There are numerous divorce support groups throughout Atlanta. Most of these support groups are sponsored by an organization called DivorceCare and the groups are held at churches throughout Atlanta. Their meetings are two-fold. The first half, which lasts between 30 and 40 minutes, is a video seminar featuring top experts in the field, which discuss various issues and topics on divorce. The second half is a group meeting where they discuss both the video and what is happening in the lives of the group members. In addition, some of the DivorceCare locations also offer additional groups during the holidays since it can be an especially difficult period for someone going through a divorce.