Atlanta Divorce Attorney Blog

Adultery on the part of one spouse can affect many aspects of a divorce in Georgia, including alimony, equitable distribution, and even child custody. If a spouse’s adultery was the cause of the divorce, the adulterous party is barred from receiving alimony. Thus, if you can prove that your spouse committed adultery and that the adultery caused the separation; your spouse will not be successful on an alimony claim in Court.

Alimony also comes into play in equitable distribution. Generally, equitable distribution results in splitting the marital estate 50/50, unless there is a reason to give one spouse a greater portion of the marital estate. One reason to give one spouse a disproportionate amount of the marital estate is the bad conduct of the other party, which can include adultery. If an adulterous spouse committed egregious adultery in the presence of the other spouse and/or children, this conduct may result in an unequal split of the marital estate. Similarly, if the adulterous spouse spent substantial marital funds on his or her paramour, the other spouse could get a disproportionate amount of the marital estate to make up the difference and even punish the adulterous spouse.

Alimony can also affect child custody. In determining child custody, the Court is primarily concerned with the best interests of the children. If a parent has committed adultery in the presence of the children and brings his or her paramour around the children, this parent is acting contrary to the children’s best interests, which could result in that parent losing a custody battle.

If your ex-spouse fails to comply with a final divorce decree, there are certain actions, such as filing a motion for contempt, which you can take to compel compliance. We recommend that you first try to obtain compliance yourself by making requests of your ex-spouse in writing before resorting to legal action. Remember to be cordial in the letters – you are usually more likely to get a favorable response from being nice and the letters may be used in Court later. Also, be sure to keep an accurate record of what you receive or have paid and all receipts, as this will be important in Court.

In the event that your attempts to obtain voluntary compliance with the final divorce decree fail, you can file a Petition for Contempt with the Court. Both parties will then have to appear in Court and your ex-spouse will have to explain why he/she has not complied with the Order. If the Court finds that his/her non-compliance is willful (i.e. he/she has the money to pay, but just doesn’t want to), your ex-spouse may be subject to sanctions for contempt which could include incarceration.

While you should not be eager to return to Court, the Court will not look favorably upon an unreasonable delay to enforce your rights. Thus, if your ex-spouse shows a pattern of non-compliance, we recommend addressing the issue as soon as possible, whether with written requests to your ex-spouse or a Petition for Contempt, if the written requests fail.

On November 17, 2008, the Georgia Court of Appeals affirmed a Juvenile Court’s finding of deprivation under Georgia law and the removal of the child from her parents’ custody. The trial court specifically held that the child was deprived because the child was sexually abused by her Father and because the Mother failed to protect the child from this abuse.

In In the Interest of B.H. (A08A1102), the Georgia Court of Appeals stressed that, in reviewing a judgment determining that child is deprived, “we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived.” Citing In the Interest of S.S., 232 Ga. App. 287, 289 (1998). Using this standard, the Court of Appeals affirmed the finding of deprivation as to the Father, referring to testimony of another child into the house as to the abuse perpetrated by the Father and holding that a rational trier of fact could have found deprivation by clear and convincing evidence. The Court of Appeals applied the same standard and reasoning to the deprivation finding against the Mother, referring to specific evidence that the Mother had “manipulated [the child] to ensure the return of the father to the home without regard to whether he had sexually abused the child.”

If you are unhappy with the Judge’s Order, you have a very short period of time in which to act and a limited number of options. Your options include filing a Motion to Alter or Amend the Judgment or for New Trial within thirty (30) days of the Order, or appealing the court's decision to the Court of Appeals or Supreme Court of Georgia.

If you wish to file a divorce appeal to the Court of Appeals or the Supreme Court of Georgia, it is important to contact an attorney as soon as possible as there are strict filing deadlines which, depending on your case, can range from ten (10) days to thirty (30) days from the date of the Final Decree. Failure to file one of these pleadings before the deadline causes your right to appeal to be permanently lost.

Our attorneys can help you determine if you have grounds to appeal the Final Order, which could include an abuse of discretion by the trial court. Appeals can be complex so it is important to provide ample time to an attorney to evaluate your appeal and to prepare the necessary paperwork before the deadline.

In the Georgia Court of Appeals finding of deprivation in In the Interest of B.H. (A08A1102) on November 17, 2008, the Court addressed several procedural issues in juvenile court proceedings. First, The Court of Appeals affirmed the juvenile court’s excluding of testimony by the child’s former court-appointed special advocate (CASA). The parents wanted the CASA to testify to dispute the child’s previous allegations. Georgia law defines the CASA role as to advocate for the best interests of the child and protects the CASA/child relationship by keeping information acquired by the CASA confidential. Though confidential information could be disclosed with a court order, the Court of Appeals agreed with the trial court that requiring this CASA to testify would be “inconsistent with the purpose of the CASA program” especially because the parents had multiple other witnesses to impeach the child.

Next, the Court of Appeals upheld the trial court’s ruling limiting the scope of discovery requested by the parents, since the parents had already obtained the requested information in other formats.

In addition, the Court of Appeals upheld the trial court’s requirement that the Father view the child’s testimony from a television monitor in another room. Though there is a constitutional right to confront one’s witnesses, the Court of Appeals addressed the importance of protecting a child witness from trauma and held that, since the Father could view the testimony as it occurred and the court provided a person to run notes from the Father to his attorney, the Father’s constitutional rights were not violated.

Continue reading " Deprivation (Procedural Issues) - Georgia Case Law Update " »

As an Atlanta divorce lawyer, our law firm is often confronted with dealing with issues of adultery as they related to a divorce. In Georgia, adultery on the part of one spouse can affect many aspects of a divorce proceeding, including alimony, equitable distribution, and even child custody. In order to get to the point that adultery will affect a divorce case, you must prove the adultery, which can be very difficult. Since there is rarely direct proof of adultery, most times it must be proved by circumstantial evidence.

If you and your spouse share cell phone accounts, look at the itemized statements to see if there are substantial calls to a certain number. If you share an email address, you can look at incoming and outgoing emails. If you do not share phone or email accounts, we do not recommend breaking into your spouse’s account if he or she has not given you access, as this could be a criminal violation and the resulting information will likely be inadmissible in Court.

Once a divorce case is filed, however, you will be able to obtain information from your spouse through discovery that may provide evidence of his or her adultery. You can request anything that is reasonably calculated to lead to the discovery of admissible evidence, which includes phone records, emails, other correspondence, bank statements, and credit card statements. Phone records may show numerous calls to a paramour. Emails may show correspondence between your spouse and a paramour. Bank and credit card statements may show evidence of substantial funds spent on flowers, hotels, and other gifts that you did not receive.

Continue reading " How can I prove my spouse’s adultery? " »

Due to the unique system under which divorces are handled in Atlanta as part of the Fulton County Family Law Pilot Project. Meriwether & Tharp has recently added a page exclusively on Atlanta Divorce to its web site.

Also, since our Atlanta Divorce Lawyers Guide was published over a series of blogs, we wanted to provide a link to all of these resources that explain, in detail, the various differences with handling family law cases in Atlanta. In short, the links to the divorce series are as follows:

• Overview of a divorce in Atlanta, Georgia
• Required discovery (Interrogatories, Request to produce), DRFA, and Child Support Worksheets
• Status Conferences
• Mediation
• Late Case Evaluation
• Guardian Ad Litem

Finally, if you are looking for resources in Fulton County (Atlanta) related to a divorce, please visit our blog entry regarding Fulton County divorce resources.

In Georgia, divorces are filed in the Superior Courts. In order to file for divorce in Georgia, the Court must have subject matter jurisdiction over the marriage and personal jurisdiction over the non-filing spouse.

For Georgia to have subject matter jurisdiction, the filing party must have been a resident of the state for six months prior to filing. O.C.G.A. §19-5-2. In the case of a party who travels a lot for business reasons, this means the party must have established an initial residence in Georgia and intend to return to Georgia to live. If the filing party is not a resident of Georgia, the divorce can still be brought in this state if the respondent has been a resident of Georgia and of the county in which the action is brought for six months prior to filing. O.C.G.A. §19-5-2. The six-month subject matter jurisdiction requirement cannot be waived.

The State of Georgia must also have personal jurisdiction over the non-filing spouse. If the non-filing spouse lives in Georgia and is personally served within Georgia, then Georgia has personal jurisdiction. The non-filing spouse can waive personal jurisdiction and consent to jurisdiction in Georgia for the divorce action. If the non-filing spouse does not waive jurisdiction, the filing spouse likely has to go to that party’s state of residence to file the divorce.

Georgia’s Domestic Relations Financial Affidavit (DRFA) is a sworn financial statement required by most counties in divorce and other family law cases in Georgia. The DRFA is an itemized list of your monthly income and expenses, and a list of your assets and debts including bank accounts, retirement accounts, houses, and credit cards.

The DRFA is extremely helpful for a number of reasons in family law cases. First, it is a good overview of the financial situation of the parties and of the marital estate. Second, the DRFA is extremely helpful in determining alimony. Alimony is awarded on a need vs. ability to pay basis and the DRFA quickly shows how much expendable income or deficit a person has on a monthly basis. Third, the DRFA requires the parties to think through the expenses for their children which they should receive credit for on the child support worksheets.

As a sworn statement, the DRFA is often relied upon in Court as a snapshot of your financial circumstances so it is important to be as honest and accurate as possible. Look at monthly bills and expenses and put the actual numbers on there. We recommend keeping all documents on which you based your DRFA numbers so they are easily accessible if your numbers are later challenged in Court.

On December 1, 2008, in In the Interest of A.R., the Georgia Court of Appeals affirmed the deprivation ruling of the juvenile court over the Father’s challenge of the sufficiency of evidence and admission of evidence. The Father contended that the juvenile court erred in finding the children deprived, since there was no evidence that he was the person who hurt the children. The Court of Appeals disagreed, referring to evidence that the children were injured and became developmentally delayed while in the Father’s care, and the fact that the Father’s incarceration rendered him unable to comply with the reunification plan.

The Father further challenged the admissibility of certain testimony and documentary evidence, but failed to provide support for his appeal of these issues or to show how the admissibility was reversible. In its holdings, the Court of Appeals implicitly stressed the importance of being specific in how and why the lower court erred, which is a guideline all parties should follow in appeals.

On January 12, 2009, the Supreme Court of Georgia addressed an interesting issue regarding equitable division of marital property in the Georgia divorce case of Smith v. Smith (S08F1706), where the parties had married and divorced each other twice. The parties were first married in 1979 and divorced in 1988. The remarried in 1999 and divorced in 2008. The trial court awarded the Wife, among other property, a portion of the Husband’s military retirement pay, and the Husband appealed that specific award.

The Husband argued that he retired from the military in 1995, between the parties’ first and second marriages and, thus, his military retirement pay was his separate property, not subject to equitable distribution. The Georgia Supreme Court agreed and reversed the judgment of the trial court. The Court held the military retirement pay to be the Husband’s separate property because all contributions to the plan predated the second marriage (i.e. there were no contributions during the second marriage) and, since the Wife was not awarded any portion of this account in the first divorce, that account became the Husband’s separate property at that time.

In Rumley-Miawama v. Miawama (S08F1541), the Supreme Court of Georgia heard a Wife’s appeal from the judgment in her divorce case. The Wife was unhappy with the visitation, child support and equitable division of property portions of the trial court’s judgment.

In regard to child support, the Supreme Court affirmed the trial court’s decision not to apply a deviation from the child support guidelines for equal parenting time and held that the trial court did not abuse its discretion in choosing not to apply this deviation. The Supreme Court pointed out that the trial court did use its discretion to give the Wife a deviation for travel expenses.

The Supreme Court of Georgia did agree with the Wife that the trial court erred in including a self-executing change of visitation provision in its judgments. The visitation portion of the judgment, which takes effect if Wife moves out of state and significantly limits her visitation, was reversed, as the Supreme Court held that it failed to reflect consideration of the best interests of the children, which is of paramount importance in Georgia.

Continue reading " Georgia Case Law Update – Visitation, Child Support, Marital Property " »

An ante-nuptial agreement (commonly referred to as a pre-nuptial agreement or “pre-nup”, according to O.C.G.A. § 19-3-62, is a contract into which a couple enters prior to marriage, which divides his or her assets in case the couple’s marriage ends in divorce. Many people usually associate pre-nups with the rich and famous or the wealthy, but anyone can obtain a pre-nup in Georgia regardless of their wealth and assets. Typically, each party will keep the assets that he or she had prior to the marriage and the division of assets is detailed in the pre-nup. One party usually keeps all of their money and assets that he or she had prior to the marriage and the other party keeps theirs. It basically says what is mine is mine and what is yours is yours. Also, if the marriage does end in divorce, the pre-nup will detail what (if any) alimony or assets the other spouse is entitled to receive.

The only enforceable clauses in a pre-nup deal with the parties’ assets. Recently, family law attorneys throughout the country have seen a new trend in pre-nups. Couples now want to add health-related clauses, such as how much weight his or her spouse can gain during the marriage or when they will have their first child. For instance, a man may want to add a clause that states his wife is only allowed to gain a certain number of pounds during their marriage and if she gains any more than the allotted amount, then she will be subject to monetary penalties. Not only are clauses like this unusual (to say the least), but health related clauses are not enforceable in the State of Georgia. The only clauses in pre-nups that are enforceable in Georgia are the ones dealing with money and/or assets of the parties.

Meriwether & Tharp, LLP is pleased to announce the hiring of its newest associate attorney, David J. Beaudry. David J. Beaudry practices exclusively in the area of family law and divorce. He has been a contributing researcher for several continuing legal education manuals on family law issues and is the author of “The Status of Gift Giving in a Georgia Divorce,” Georgia Family Law Review (Feb 2006). Mr. Beaudry was a presenter at “A Road Map Through Divorce Proceedings” (2007) and “Divorce Issues in Georgia” (2008) Continuing Legal Education seminars sponsored by the National Business Institute (NBI). Mr. Beaudry is a member of both the New Jersey State Bar and the Georgia State Bar and is admitted to practice before the Georgia Court of Appeals and the Georgia Supreme Court. Mr. Beaudry is also a member of the Family Law Sections of the American and Atlanta Bar Associations. He earned his B.S. degree from Florida State University and his J.D. degree from Seton Hall University.

There are several do-it-yourself, uncontested divorce web sites for people to download forms to help them with their divorce in Georgia. We have had several people contact us recently about helping them finalize their divorce in Cherokee County. In each case they had paid an online, self-help web site to put together their forms to file for divorce. The couples had fortunately mediated their issues and entered a divorce agreement without hiring a Canton or Woodstock divorce lawyer. The problem arose when they went to the Judge to approve their uncontested divorce. Their Cherokee County divorce paperwork did not meet the requirements for the Court to approve their divorce, and the Court recommended that they hire a Canton, Georgia divorce lawyer to finalize their divorce.

In the end, they had to hire a Canton divorce attorney to get their uncontested divorce approved. So, to answer the question posed in the title of this blog, I would have to say that it depends on how much money they spent. On a positive note, the divorce paperwork they received from the web site allowed them to settle all of their issues on their own without the need for a divorce lawyer. From this perspective, the money they spent was probably worth it.

For the divorcing couple considering spending money on a self-help divorce web site, they need to consider whether the web site is familiar specifically with the rules of the County in which they are filing for a divorce. For the divorces in Cherokee County, I would suggest that if they spend the money on a divorce web site to try to settle their issues, they should take their divorce paperwork to a Canton or Woodstock divorce lawyer in Georgia to review the paperwork prior to submitting it to the Judge. The divorce lawyer can make sure that it meets the requirements of the Court. Otherwise, the divorcing couple may miss several days of work going to Court to get their divorce finalized. Moreover, it could delay the divorce being granted by months.