Atlanta Divorce Attorney Blog

Meriwether & Tharp, LLP is pleased to announce that Robert L Tharp selected for the "Rising Stars" list published in the 2009 Georgia Super Lawyers.

Our final blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the Fulton County’s Guardian Ad Litem program. A Guardian Ad Litem is an attorney who has had at least 20 hours of specialized training for child welfare and custody issues. In cases involving contested child custody, modifications of custody, modification of visitation, allegations of child neglect or child abuse, the Court can assign a Guardian Ad Litem to more closely evaluate the situation and report back to the court its findings. The Court or the Guardian Ad Litem can order psychological evaluations and drug testing if applicable to help in making a custody determination.

The cost of a Guardian Ad Litem can be rather high for most divorces in Georgia. Litigants should be aware that Fulton County offers a Guardian Ad Litem (GAL) at a reduced hourly rate.

The topic of “Late Case Evaluations” is our next blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia. A late case evaluation, like the name implies, is an option usually offered “late” in the case, but prior to going to a final hearing. It is typically scheduled by the Judge at the 120 Day Status Conference, although in certain limited circumstances, it can be scheduled earlier in the case (and may be referred to as an “early case evaluation”).

A late case evaluation is similar in many respects to a mediation. In Fulton County, it generally last four hours (although the length of time can be extended by the parties at their own costs). A late case evaluation is usually run by an experienced attorney. This individual, while serving in the role as an attorney, also provides the parties his or her “evaluation” of their positions (both their strengths and weaknesses) and his or her opinions as to what the likely result will be if the parties elect to pursue a final trial of their case rather than come to an agreement about all issues outstanding in their matter.

In a Georgia divorce, there are two documents where you can ask for your name to be restored back to your maiden name. If you are positive that you wish to change your name back to your maiden name, then your request is listed in the Complaint for Divorce, which is the initial pleading filed with the Court. Most times, the wife is unsure whether she wants to keep her married name or change her name back to her maiden name. According to O.C.G.A. § 19-5-16, you can request to restore your maiden name in the Complaint for Divorce, but it is not final until your divorce is finalized. There is a section in the Final Judgment and Decree that specifically asks for the Court to restore the wife’s name back to her maiden name. If you desire to change your name back, then you will need to list the name as you would like it to appear on the Final Judgment and Decree. Once the judge signs the Final Judgment and Decree, you can change her name back to your maiden name.

Even though the judge signs the Final Judgment and Decree, there are several other steps that you must take to legally change your name on documents. When you obtain a copy of the Final Judgment and Decree signed by the judge, you are only receiving a date-stamped copy from the court. If you want to legally change your name on your social security card, your drivers license or your bank account, then you will need to obtain a certified copy of the Final Judgment and Decree. You can obtain a certified copy from the Clerk of Superior Court of the county in which your divorce was granted and depending on the size of the Final Judgment and Decree, it typically costs only a few dollars. Most clerk of court are open Monday through Friday from 8:00 a.m. to 5:00 p.m. and closed on certain holidays. Before driving to the courthouse, it is recommended that you contact the Clerk’s office for their particular hours of operation.

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According to O.C.G.A. § 19-6-2, you can be awarded attorney’s fees in a divorce, but the award of attorney’s fees is ultimately decided by the judge assigned in your case. After the judge hears testimony from both you and your spouse, he or she will look at the facts of the case and base his or her decision on one factor – the financial circumstances of both parties in a divorce. O.C.G.A. § 19-6-2(a)(1). This is similar to the award of alimony in a divorce case because the judge will look at both parties’ incomes and decide on one party’s ability or inability to pay attorney’s fees and the other party’s need for attorney’s fees. Even though you may ask for attorney’s fees, there is no guarantee that the judge will actually grant attorney’s fees in your case.

If the judge awards attorney’s fees in your divorce, the judge will sign a Final Order showing the amount of attorney’s fees that your spouse is required to pay. One of the disadvantages about the judge awarding attorney’s fees in your case is that amount of attorney’s fees that the judge awards in his Final Order may or may not reflect the total amount of attorney’s fees that you incurred in your divorce according to § 19-6-2(a)(2). The judge could actually award an amount less than what you incurred.

When the judge is determining the amount of attorney’s fees, he or she may look at several factors. The judge may review the invoices from both you and your spouse’s attorneys and determine if the amount that you incurred is fair. When reviewing the invoices, the judge may look at the hourly rates of staff at your law firm, such as the attorney, associate attorney, and/or paralegal working on your case, as well as the charges that you incurred as compared to those hourly rates and charges that your spouse incurred from the opposing law firm. As we mentioned previously in this blog, it is difficult to determine whether someone will be awarded attorney’s fees since the award is based on the sole discretion of the judge and because each divorce case and each judge is different, it is difficult to determine whether he or she will award attorney’s fees in your particular divorce case.

The exact statutory authorization for attorney’s fees under the Official Code of Georgia is:

Continue reading " Attorneys Fees in a Georgia Divorce under O.C.G.A. § 19-6-2 " »

Our next blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the mediation. Unlike most counties, Fulton County has really put its money where its mouth is about the importance of the mediation process in resolving divorce and family law disputes. In particular, Fulton County provides a free mediator for TWO separate four hour mediations in an effort to resolve as many disputes as possible without the need for court intervention. For time over the four hours, the parties will split the cost of mediator’s hourly rate (usually $150 to $200 per hour) or reschedule for a second session.

Fulton County also has the Office of Alternative Dispute Resolution to assist in scheduling the mediations as well as provide a neutral location for the mediation to take place. Fulton County has many mediators to choose from and all who have attended mandatory mediation training for at least 68 hours. All cases involving contested custody are required to mediate and for the most part the Court will ask all cases to mediate no matter the type of case.

If you have been on your spouses’ health insurance policy during your marriage, you will most likely not be able to remain on the policy after the divorce. Conversely, if you have traditionally carried your spouse on your health insurance policy, you will most likely not be able to continue that coverage, even if you want to do so. This is because divorce is considered to be a qualifying event terminating coverage for a former spouse.

This does not mean that an unemployed spouse will be without health insurance coverage. A person who has been on his or her spouse’s health insurance policy may have the right to apply for health benefits through the former spouse’s current place of employment. Pursuant to COBRA legislation, non-employee spouses may be eligible for certain insurance coverage at group rates after the divorce is final. The insurance can continue up to 36 months, depending on your situation and the premiums should not exceed 105% of the current group rate.

However, a divorced spouse under the terms of a group insurance policy has only thirty (30) days from the date of the divorce to apply and pay for additional conversion policy for himself/herself and sixty (60) days from the date of the qualifying event, such as a divorce, to notify the health insurance administrator for purposes of continuation coverage. Only if you file within that time period will you be eligible for COBRA coverage. Please check with your former spouse or through their employer immediately, as federal statutes and deadlines may (and often do) change.

In Georgia, whether your divorce is resolved through a Settlement Agreement or with a final trial, the terms of the divorce will ultimately become an Order of the Court. Court Orders in divorce cases can be modified in limited circumstances. Specifically, Court Orders for child support, periodic alimony and rehabilitative alimony (but not lump sum alimony) may be modified upon a showing of a substantial change in your or your spouse’s financial circumstances, or your children’s circumstances. You can only bring a modification once every two years so keep this in mind when deciding whether to file a modification. 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. Any agreements to modify a Court Order must be in writing, executed by both parties and entered by the Court as an Order or such an agreement is not binding.

If a parent who has been awarded custody under a custody order of any type intends to move to a residence that is outside the state or a considerable distance from your home, the Court may consider the wisdom of the move. Do not wait until after the move to discuss this issue with an attorney. In Georgia, you must give at least thirty (30) days advance notice to your former spouse. Your settlement agreement may have additional requirements.

Orders of the Court regarding division of property are not modifiable at any future date. They can be changed only by amending the Final Decree, an appeal to the Court of Appeals or Supreme Court of Georgia, or by written agreement signed by both parties and filed with the court as an order.

Our next blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the unique case management approach of Fulton County. In particular, the approach employed by Fulton County involves having a Judicial Officer (who is appointed by the Judge) holding various status conferences over the course of the case. The overarching principal behind the system is that by holding these various status conferences, the court is able to oversee the progress of each case every step of the way.

The first status conference is the 30 Day Status Conference which is scheduled by the Court approximately 30 days after the case is filed. This first status conference is mainly to introduce the process to the parties, exchange the required discovery discussed in our last blog in this series and address issues that cannot wait another 30 days.

If the case has not already settled, then the Court will hold a 60 Day Status Conference approximately 30 days from the last one and schedule mediation if one has not already occurred. Once again, this conference is held to measure the progress of the case and to ensure that the case is moving promptly through the court system.

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When you say the word “alimony”, the first thing that comes to mind is divorce. Even though most people have heard the word, most people do not truly know what it means. According to O.C.G.A. § 19-6-1(a), alimony is defined as “an allowance out of one party’s estate made for the support of the other party when living separately”. There are several misconceptions about alimony. Some people may feel that they are automatically entitled to alimony regardless of the length of the marriage or the financial situation of the parties. Others may feel that they will be awarded enough alimony to continue living the lifestyle to which they had become accustomed during their marriage.

When a judge grants alimony, there are several factors that he or she uses to determine whether to award alimony and the duration of alimony in a case. First, if one of the parties has committed adultery or has abandoned their spouse during his or her marriage, then the judge most likely will not grant alimony in a case according to O.C.G.A. § 19-6-1(b). Also, the judge will take into account the financial needs of the parties and the ability of one of the parties to pay alimony to the other party according to O.C.G.A. § 19-6-1(c). If the parties make approximately the same amount of money per year, it is highly doubtful that the judge will award alimony to one of the parties in a divorce. Once the judge has heard all of the evidence, it is under his or her discretion whether to award alimony in a case. Just because the parties are getting divorced does not automatically mean that a judge will award alimony to one of the parties in the case.

In Georgia, a judge can award alimony on either a temporary or permanent basis. The difference between temporary and permanent alimony depends on whether the divorce is final. According to O.C.G.A. § 19-6-3(a), temporary alimony is awarded “when an action for divorce or permanent alimony is pending”. For one of the parties to receive temporary alimony, the parties must have a hearing in front of the judge according to O.C.G.A. § 19-6-3(a) and the judge will decide whether to award temporary alimony and the amount of alimony based on the financial needs of one of the parties and the facts of the case. If the judge allows temporary alimony, he or she will enter into an order requiring one party to pay alimony to the other party during the course of their divorce. Permanent alimony, however, is awarded when the parties’ divorce is final and the judge has executed the Final Judgment and Decree. People are often confused about the definition of permanent alimony because it does not mean that the one of the parties is required to pay alimony to his or her spouse for the remainder of his or her life.