Atlanta Divorce Attorney Blog

In Georgia, an important task to undertake after your divorce is revising your will to make sure it is in line with your intent. I recently read an article that described how Amy Winehouse’s revised will left everything to her parents and brother, rather than to her ex-husband. Amy Winehouse got her will right, by Karen Datko, July 27, 2011. English law states that divorce does not “undo the presumption that the natural inheritor is the spouse,” and “[e]ven in the presence of a will written pre-marriage which states otherwise the surviving spouse, or ex-spouse, will again be the natural inheritor.” Id. Thus, if she had not revised her will, her former spouse likely would have inherited everything.

This is not the case in Georgia. Under Georgia law, “all provisions of a will made prior to a testator’s final divorce or the annulment of the testator’s marriage in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator…” OCGA §53-4-49. Thus, if a person divorces and then dies without changing his/her will, the ex-spouse will not inherit under the language of the will, and the person next in line to inherit will do so (so long as that person is not a descendant of the ex-spouse who is not also a descendant of the testator). Keep in mind this statute only applies after the divorce is final. Even with this safeguard in place, however, it is still important to review your will after your divorce to make sure the terms are still in line with your intent. Many things in your life will have changed post-divorce so it is very possible that you would not want the next person in line to inherit – particularly if it is a friend or relative of your former spouse. I would recommend revising it to remove the former spouse, just so there is no ambiguity.

The Supreme Court of Georgia recently addressed a divorce case, which highlights what can happen when the final divorce decree is signed by the judge, but not filed in the clerk’s office. Maples v. Maples, S11F0919 (2011). In that case, the trial court signed a final decree of divorce on June 1, 2000, but the divorce decree was not filed with the clerk until August 1, 2002. Id. Meanwhile, the parties, believing they were already divorced, remarried each other on June 25, 2000. Id. Ten years later, the wife filed a complaint for divorce and the parties thereafter learned that their original divorce decree was not filed until two years after they had remarried. Id. Upon the wife’s motion, the trial court amended the judgment in the 2000 case “by entering an order nunc pro tunc to ensure that the order reflected the true judgment rendered by the court, i.e., that the parties were to be divorced on June 1, 2000. Id. ("Nunc pro tunc" basically means that the order is backdated.) The husband appealed the entry of the nunc pro tunc order, asserting that a nunc pro tunc order cannot be used to backdate the entry of a divorce decree. Id. at 2. (Presumably, he wanted the 2010 divorce case to just be dismissed.)

The Supreme Court of Georgia affirmed the trial court’s holding, “[e]very court has the inherent power – and it is the court’s duty – to correct its own records to make them speak the truth. [Cits.] Where based solely on the record, and without the necessity for the introduction of extrinsic evidence, the court may, on its own motion and without notice, enter such judgment and decree nunc pro tunc at a later date.” Id.; quoting Norman v. Ault, 287 Ga. 324, 330 (5) (695 SE2d 633) (2010), quoting Moore v. Moore, 229 Ga. 600, 601 (2) (193 SE2d 608) (1972), overruled on other grounds. Here, the judgment had already been rendered and the divorce decree signed by the judge. There was nothing else to be done other than file the decree. The Court ended its opinion by pointing out that “[e]ntry of the divorce decree nunc pro tunc to the date of the signing of the decree was advantageous to husband, as well as wife, because it accurately reflected his intention to re-enter the bond of marriage on June 25, 2000.” Maples, at 5-6.

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. See Uniform Superior Court Rule 24.8. Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. The August – September 2011 parenting seminar schedule for the 9th judicial district is as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, August 4, 5:00pm – 9:00pm; Thursday, August 18, 5:00pm – 9:00pm; Thursday, September 1, 5:00pm – 9:00pm; Thursday, September 15, 5:00pm – 9:00pm
• Canton (RT Jones Memorial Library, 116 Brown Industrial Parkway) – Saturday, August 13, 10:00am – 2:00pm; Saturday, September 10, 10:00am – 2:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, August 10, 1:00pm – 5:00pm; Wednesday, September 14, 1:00pm – 5:00pm
• Cumming (Hampton Park Library, 5345 Settingdown Road) – Saturday, August 20, 1:00pm – 5:00pm; Saturday, September 17, 1:00pm – 5:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, August 8, 1:00pm – 5:00pm; Monday, September 12, 1:00pm – 5:00pm

The cost of the seminar is currently $50.00 per person. There is no pre-registration, but you must pay with money order. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

In this age of technology, visitation does not just include when you will physically see your children after going through a divorce in Georgia. Visitation also includes when and how you can communicate with your children during the times in which your former spouse has custody or visitation. For many parents this is a no brainer – the children can speak or otherwise communicate with the other parent as often as they would like. In more adversarial divorces, however, this is not always the case. For a while, it has been common practice in Georgia to include a clause for telephone visitation in a settlement agreement or final divorce decree.

Recently, family law attorneys have been recommending a clause for email visitation as well, once the children are age appropriate. This clause can be as simple stating that the children may communicate with the other parent via email, texting, or any other means of communication. We also recommend that there is language that the emails between parent and child be private and confidential, to cut down on the other parent reading or intercepting the emails. Again, for many parents, email visitation is not an issue. However, if you think that it may be an issue in your situation, be sure to ask for a clause in your settlement agreement or ask the judge to put a clause in your final divorce decree.

If your divorce is final in Georgia, your divorce decree will state who has legal and physical custody of the children. Legal custody deals with decision-making, and physical custody generally reflects with which parent the children will spend most of their time. Often, the major legal custody categories (health, education, religion, and extracurricular activities) are split between the parents, with one parent having final decision-making authority on two categories and the other parent having final decision-making authority on the other two. The divorce decree usually states that the parties both have access to all records and should try to work together but, if they cannot come to an agreement, the final decision-making authority kicks in.

Day-to-day decisions are handled differently, however. In Georgia, a final divorce decree is required to state: “Each parent shall make decisions regarding the day-to-day care of a child while that child is residing with that parent including any emergency decisions affecting the health or safety of a child.” Thus, if a child gets injured while in the custody of the parent who does not have final decision-making on health issues, that parent can still seek treatment for the child. Parents should use their common sense in situations such as this and keep the other parent informed of any major decisions made that affect the children.

When parents are going through, or have gone through, a divorce, one of the hardest adjustments is often learning how to work together to co-parent the children after child custody is determined. Co-parenting includes coordinating your schedules and those of the children, working together for visitation exchange, working out holidays, and making decisions regarding the children.

Sometimes, even something as simple as seeing the other person during a visitation exchange can be complicated. It may be difficult if one or both parents have animosity toward the other, or it may be awkward if a parent is remarried and the new spouse is there. If switching the children at a parent’s house results in an uncomfortable situation, consider switching the location, or possibly having another person present during the exchange. (Make sure this person will not exacerbate the situation!) Some parents meet at a designated store or shopping center. This takes away the opportunity for the parents to be completely alone together, and can lessen the awkwardness for both the parents and the children.

A Georgia mother recently lost primary physical custody of her child when the court found that her planned move to New York was not in the child's best interest. In that case, shortly after their divorce in which the Mother received primary physical custody of the parties’ child, the Mother notified the Father that she planned to move with the child to New York. Gallo v. Kofler, S11A0185 (2011). The Father filed a Petition for Modification of Custody and, after a hearing, the trial court issued an order giving the Father primary physical custody. Id. The Mother appealed, arguing that the trial court erred in modifying custody solely because of her planned move. Id.

The Supreme Court of Georgia disagreed with the Mother. Generally, in looking at a possible custody change, the trial court must be guided by the best interests of the child. Id. Though “self-executing change of custody provisions that would automatically change custody to a non-custodial parent in the event that the custodial parent moved to another location at some point in the future are invalid,” that does not mean that the trial court is required to wait until the Mother moved to New York to determine whether a modification of custody was in the child’s best interest. Id. at 3. There was evidence at the hearing that “the child had been thriving in Georgia,” the child would have a better quality of life in Georgia than in New York, the child’s relationship with the Father could be harmed by a move, and the Mother was financially instable. Id. at 3-4. The Supreme Court of Georgia found this evidence to sufficiently support the trial court’s decision to change physical custody to the father. Id. at 4.

The Georgia Supreme Court recently upheld an alimony award for a Wife, despite the fact that the Husband was disabled and unemployed. In that case, the Husband was held in contempt of the parties’ divorce decree for failing to make alimony payments to the Wife. McDonald v. McDonald, S11F0112 (2011). Specifically, as alimony, the Husband was to keep the Wife on his health insurance for 24 months and make her car payment for 12 months. Id. at 3. The Husband appealed, arguing that “the trial court erred in awarding Wife alimony because she failed to show a need for alimony, he had no ability to pay alimony because he is disabled and unemployed, and Wife’s alleged misconduct and the short duration of the marriage made alimony inappropriate.” Id. at 3-4. The Supreme Court of Georgia disagreed with the Husband.

The Court held that the trial court was authorized to make the alimony award because Wife’s disability caused her to need the alimony, and Husband’s disability income, future earnings, and property awarded in the divorce would enable him to satisfy the alimony award. Id. at 4. Thus, the “need for alimony” and “ability to pay alimony” requirements were satisfied. Though Husband’s disability may make it more difficult for him, the Supreme Court of Georgia found that the evidence supported the award, and the trial court did not abuse its discretion in awarding alimony to the Wife. Id.

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. See Uniform Superior Court Rule 24.8. Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. The July 2011 parenting seminar schedule for the 9th judicial district is as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, July 7 5:00pm – 9:00pm; Thursday, July 21 5:00pm – 9:00pm
• Canton (RT Jones Memorial Library, 116 Brown Industrial Parkway) – Saturday, July 9 10:00am – 2:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, July 13 1:00pm – 5:00pm
• Cumming (Central Park Recreation Center, 2300 Keith Bridge Road) – Saturday, July 23 10:00am – 2:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, July 25 1:00pm – 5:00pm

Dates for August and September will be forthcoming. The cost of the seminar is currently $50.00 per person. There is no pre-registration, but you must pay with money order. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.