Atlanta Divorce Attorney Blog

As we have discussed on previous blogs, Georgia is an equitable distribution state which means that a division of marital assets does not have to be equal, but merely a fair division of property. While there are a number of factors to consider as part of equitable distribution, one of the most difficult ones is how to measure each party’s contributions to a marriage. While financial income generated is obviously easy to objectively measure, it is the non-financial contributions that are particularly challenging to consider.

So what are judges and lawyers looking at when measuring non-financial contributions? Generally speaking, these contributions cover two particular areas: household duties and parental tasks. Household duties range greatly from family to family but generally cover items such as: who does the cleaning, washes clothes, cooks meals, yard work and landscaping, grocery shopping, household and car repairs, financial management and record keeping, pet care, and purchases (from groceries, clothes, household items to larger personal property items such furniture, cars, and property).

Parental tasks, on the other hand, include everything from waking up a child in the morning to putting them to bed at night. This would include taking a child to school and other extracurricular activities, feeding a child, helping a child with homework, attending teacher conferences, and taking a child to a doctor. Obviously, these lists are not meant to be fully comprehensive of the contributions but are intended just to give you a start on thinking about what are each parties non-financial contributions to a marriage. With a little work developing a detailed list of these various non-financial contributions and the contributions made by both parties, appropriate consideration can be given to these non-financial factors when evaluating whether a particular divorce should deviate from an even fifty-fifty split of assets.

An interesting alimony modification case from Cumming, Georgia was recently reviewed (and affirmed) by the Georgia Supreme Court on April 28, 2009. See Crosby v. Lebert (S09A09). The facts in that case indicated that parties were divorced in December of 2005. The parties had entered into a settlement agreement in their Forsyth County divorce that required the Husband to make monthly installments on a Cadillac Escalade, but the payments were clearly defined as permanent periodic alimony, which "terminate upon remarriage of the party to whom the obligations are owed" under O.C.G.A. § 19-6-5 (b). Additionally, the Husband was required to pay the Wife’s health insurance, but these payments were considered periodic alimony payments as well. The Wife remarried in April of 2006 and the Husband informed her that she would be responsible for the remaining payments on the automobile and her own health insurance.

When the Wife protested, the Husband filed a Declaratory Judgment and moved for Summary Judgment. OCGA § 19-6-5 (b) states that "All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided." The Forsyth County divorce judge agreed with the Husband and the Wife became responsible for the remaining payments on the Escalade and her health insurance.

The Supreme Court affirmed the trial court’s ruling. The Wife argued that the Husband was supposed to “pay all monthly installment payments of Wife’s vehicle until the vehicle is paid in full” and he could therefore not stop his payments because of her remarriage. The rest of that provision , however, stated “…and shall do so in the form of permanent periodic alimony” (emphasis added). The Supreme Court found that the second half of the provision clearly showed the intent of the parties was to have it governed by OCGA § 19-6-5 (b).

On May 4, 2009, the Supreme Court affirmed the ruling in the Atlanta Divorce case of Patel v. Patel (S09F0505), In this case, This case involved a long marriage of 22 years. The Husband was a doctor who operated his Atlanta medical practice out of a condominium purchased during the marriage and the Wife did not work. The Fulton County divorce judge awarded the Husband the office condominium housing his medical practice as part of equitable division. The Wife believed that this was an error and appealed to the Supreme Court of Georgia, but the Supreme Court upheld the Fulton County divorce judge’s ruling.

In an Atlanta divorce case, the fact finder (the trial judge in this case), has broad discretion to distribute marital property to assure that property accumulated during the marriage is fairly divided between the parties. Given the overall distribution of assets between the parties and the trial court’s findings of fact specific to the office condominium, the Supreme Court could not find any evidence that the trial court abused its discretion in awarding the office condominium to Husband.

On May 4, 2009, the Supreme Court affirmed the ruling in the Fulton County divorce case of Patel v. Patel (S09F0505). This case involved a long marriage of 22 years. The Husband was a doctor who owned an Atlanta medical practice and the Wife did not work. The Wife had requested a long term alimony. The Atlanta divorce court only awarded four years of alimony with $5,000 for the first year; $4,000 for the following two years; and $3,000 for the final year. The Wife appealed this award, specifically, challenging the trial court’s finding that she is capable of updating her skills and reentering the work force, and its consideration of the parties’ respective financial resources. The Supreme Court affirmed the trial court’s ruling.

During the course of the divorce trial, evidence was presented that the wife was capable of going back to work. The Atlanta divorce court apparently reasoned that the Wife was capable of updating her skills and working again. The four years of alimony were clearly to give her the time to update her skills so that she could support herself.

The Supreme Court ruled that, ”if any facts are presented in court that would support the trial court’s decision, the Supreme Court will uphold the trial court’s decision.” In Georgia divorce cases involving alimony, there is no mathematical formula for the trial judge to use. Thus, fact-finders (the divorce judges) are given a wide latitude in fixing the amount of alimony. To this end they are to use their experience as enlightened persons in judging the amount necessary for alimony under the evidence as disclosed by the record and all the facts and circumstances of the case.

Continue reading " Atlanta Divorce, Alimony – Georgia Case Update " »

This week brings the annual Family Law Institute for Georgia family law attorneys. During this three day seminar attorneys and judges get together and get to know each other in a casual environment, rather than the traditional adversarial role. One of the speakers on the first day, Judge Steve Jones from Athens, Georgia raised a particular concern about the fiscal year 2010 budget that I thought should be shared with the community at large. He noted that the fiscal year 2010 budget (as approved by the Georgia House of Representatives and Senate) provided for several major adjustments including an overall reduction in funding for Superior Courts by nearly five percent with significant reductions in senior judge usage, law clerks, operating expenses, and on and on. While I recognize that the current economic times mean that cuts are inevitably going to be required, this is a particularly alarming concern.

While these budget cuts are obviously going to negatively affect the Superior Court system, what is perhaps as alarming is that the number of cases going though our court system continues to substantially increase. According to the Georgia Administrative Office of the Courts, Planning and Research Division, the number of domestic relations cases, and the overall court docket, continues to increase – up over six percent since last year. As you can imagine, the decline in the economy has resulted in an increase in divorces (due to financial problems), parents seeking child support and alimony modifications, increased “deadbeat” parent cases, and of course more foreclosure confirmation and general debt collection cases.

So what does this mean to you? With increasing demand and less funding, I think it is fair to say that we will face greater court backlog, more crowded court calendars, and potentially even a decrease in the effectiveness and efficiency of the courts.

On May 4, 2009, the Georgia Supreme Court affirmed the ruling in the Atlanta Divorce case of Patel v. Patel (S09F0505), which denied the Wife an award of attorney’s fees. In a Georgia divorce, a trial court can, after considering the financial circumstances of the parties, award attorney fees to one party in order to "ensure effective representation of both spouses so that all issues can be fully and fairly resolved." Essentially, the Court wants to make sure that there is a level playing field for both parties, keeping one party from gaining an unfair advantage over the other.

In this Atlanta divorce, the parties had been married for 22 years. The Husband was a doctor with his own medical practice, and the Wife had been a stay at home mom. The evidence presented to the Fulton County divorce judge showed that both parties had used marital resources to pay for their attorney’s fees in their divorce. The Court found both parties had been adequately represented, and thus the trial judge did not award the Wife attorney’s fees.

Since the Fulton County divorce judge had considered the respective financial conditions of the parties, she did not abuse her discretion in denying attorney’s fees. In other words, the Wife’s lawyer had already been paid with resources from the parties’ marital estate. Her request for attorney’s fees was essentially asking for additional money from Husband even though her attorney’s fees had already been paid.

On March 23, 2009, the Supreme Court of Georgia affirmed the trial court’s denial of the wife’s motion for new trial in her divorce action in Rembert v. Rembert (S08F1582). Specifically, the wife alleged that the trial court erred in granting final decision making authority to the husband, who was the primary physical custodian of the parties’ children, and in awarding primary physical custody to the husband.

In regard to decision making, the wife argued that the parties did not truly have joint legal custody because the husband had final decision making authority. The Supreme Court disagreed, reaffirming a prior holding that the language of the statute governing legal custody “clearly vests in the trial court discretion to decide which parent should be empowered to make final decisions where the parents are unable to agree.” Citing Frazier v. Frazier, 280 Ga. 687, 690 (2006). As the primary physical custodian, it was appropriate that the father had final decision making authority in the likely event that the parties would not agree.

In regard to primary physical custody, the Supreme Court held that it would not disturb the trial court’s judgment awarding custody to the father, who had a stable home and a job with a regular schedule, instead of the mother, who was dating a married man, was a full time student with substantial debt, and had threatened the life of a neighbor.

On March 5, 2009, the Georgia Court of Appeals reversed the trial court’s grant of a grandmother’s adoption petition in Owen v. Watts (A08A2012), something the appellate courts rarely do. The child had been removed from her home with her mother and grandmother and placed with a foster family. The grandmother then filed a petition to adopt the child and the foster parents, who had previously filed a petition to adopt the child, intervened in that action. The trial court granted the grandmother’s petition to adopt the child and the Court of Appeals reversed, finding that “there was no record evidence that supported a finding that the adoption was in the best interest of the child.” The grandmother’s testimony that she loved the child, had taken her to doctor’s appointments and had an appropriate house for the child to live in was held to be insufficient to meet this standard.

The Court of Appeals acknowledged that reversing the grant of adoption is something that the appellate courts rarely do, but rested its decision on the “plethora of evidence…from which the trial court could have concluded that an adoption by Watts was not in [the child’s] best interest.”

Simply put, joint custody means that both parents share equal input and/or spend equal amount of time with the child/children. Sole custody is essentially the opposite – when only one parent has the decision making power and the child or children live almost all of the time with that one parent. Custody is actually broken into two categories (physical and legal) and then labeled joint or sole within each category. Physical custody describes where a child lives most of the time and what parent will have visitation, whereas legal custody describes access to records and major decisions such as to schooling, religion, extracurricular activities and non-emergency health procedures.

It is most common to see joint custody in the category of legal custody. Joint legal custody means that both parents have input and should be involved in major decisions. Per O.C.G.A. § 19-9-1, (Georgia parenting plan law) there must be a designated tiebreaker or final decision maker if the parties cannot agree (usually the primary physical custodian). This prevents the parties from needing the Court’s intervention every time there is no agreement on any one issue.

In the category of physical custody, the parties must designate a primary physical custodian and typically do not label physical custody under the “sole vs. joint” designation. The primary physical custodian is the person the child/children live with most of the time and the noncustodial parent has visitation or parenting time. According to O.C.G.A. § 19-6-15 (Georgia child support law), even if the parties share equal amount of time with the child/children, the Court must still designate a primary custodian.

Continue reading " Child Custody: Joint Custody vs Sole Custody in Georgia " »

On March 13, 2009, the Georgia Court of Appeals affirmed the juvenile court’s termination of a father’s parental rights in In the Interest of D.F. (A08A2371). The father challenged the sufficiency of the evidence of his parental misconduct or inability, or that termination of parental rights would be in the children’s best interests. The Court of Appeals disagreed with the father, holding that “[t]he evidence authorized the juvenile court to find that although the father has not engaged in any abuse or intentional misconduct whatsoever toward his children, and although he has made a sincere and food faith effort to obtain reunification with the children by meeting his parental responsibilities, his mental infirmities simply render him incapable of parenting the children without the full-time assistance that is unavailable to him.” The Court, thus, found that terminating the father’s parental rights was in the best interests of the children.

On February 10, 2009, in Hall v. Wellborn (A08A1800), the Court of Appeals affirmed the trial court’s dismissal of a mother’s Petition to Enforce Custody due to lack of jurisdiction. In December 2003, the mother divorced her former husband and was awarded custody of the minor child who, through paternity testing, was found not to be the child of the former husband. Shortly thereafter, the mother and child moved to Florida where the child’s biological father lived. The father filed a paternity action in Florida seeking sole custody and was awarded primary physical custody of the child.

Shortly thereafter, the mother filed an action in Georgia seeking to enforce the original Georgia custody Order. The Court of Appeals affirmed the trial court’s dismissal of this action because the Georgia court had lost continuing, exclusive jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, a Georgia court that makes an initial child custody determination maintains continuing, exclusive jurisdiction over subsequent custody matters except when neither the child nor the child’s parents have a significant connection to the state, or when neither the child nor the child’s parents presently reside in the state. Thus, Georgia lost jurisdiction and Florida was the proper state in which to bring this custody action.

On February 23, 2009, the Georgia Court of Appeals affirmed the Dekalb county juvenile court’s deprivation ruling in In the Interest of Z.D. (A09A0487). The Dekalb juvenile court based its deprivation finding on the following evidence: (1) one child was punished for bedwetting by “either sitting on the toilet for prolonged periods of time or being made to sit in cold bath water;” (2) the father did not seek medical treatment for the children’s extremely unusual eating behaviors and, instead, beat the children with a belt if they ate school cafeteria food; (3) the father refused to agree to a home visit; (4) the father tried to withdraw the children from school after reports of suspected abuse; and (5) the father did not follow the DFCS safety plan. Based on the above, the Court of Appeals found that the deprivation finding by the juvenile court was supported by clear and convincing evidence.

Prenuptial contracts, or antenuptial agreements, are made to protect you in case of divorce and are not just for those with substantial assets. There has been a renewed interest in prenups recently because many people want to protect the financial security he/she built prior to the marriage. It can also rule out alimony ahead of time as well as liability for your soon-to-be spouse’s debt. It is a good idea to use a prenup as a way to discuss the important financial topics before you get married, including each of your financial expectations for what the other will be responsible for, such as substantial pre marital debt, keeping a family business separate property, retirement accrued before the marriage and after or even to preclude alimony ahead of time.

Keep the following in mind:

• You should leave at least 6-12 months before your wedding to talk about and agree to the terms of the prenup which can be thrown out if it is entered into too close to the wedding date.

• Contrary to what some believe, prenups are enforceable in Georgia. Be careful though, because each state can be different. What is okay in Georgia may not be the case in another state.

• You should have an attorney for each party, but in case you do not, the attorney drafting the prenup can only represent and give legal advice to one party. The unrepresented party will have to sign an acknowledgement stating the refusal of representation. Also, each person should pay for his/her attorney.

• You will need to attach an itemized statement or spreadsheet of the assets and debts you want to include in the prenup for each person. This is important because there must be a full disclosure of assets for a valid prenup.

• If you have assets prior to the marriage (retirement, stocks, house, etc), the balance or value prior to the marriage is considered separate property. It is a good idea to have statements and/or appraisals done just prior to the wedding date to set the premarital value.

• If you have substantial liquid assets, consider keeping what you already have prior to the marriage in a separate account with only your name on it. Keep in mind that when you shift money from your separate account into a joint account, you are likely “gifting” that money into the marriage.