Atlanta Divorce Attorney Blog

In Georgia, there are certain degrees of relationship within which marriage is prohibited. Specifically, marriage is prohibited between the following relationships: (1) Father and daughter or stepdaughter; (2) Mother and son or stepson; (3) Brother and sister of the whole blood or the half blood; (4) Grandparent or grandchild; (5) Aunt and nephew; and (6) Uncle and niece. OCGA §19-3-3(a). These marriages are forbidden whether the relation is by blood or marriage. Id. In addition to these marriages being “void from their inception,” a person who knowingly enters a marriage prohibited by this law “shall be punished by imprisonment for not less than one nor more than three years.” OCGA §19-3-3(a) and (b).

In addition, if there is another state that allows a marriage within the degrees prohibited in Georgia, such a marriage performed there will not be recognized in this state. The law clearly states that “[p]arties residing in this state may not evade any of the laws of this state as to marriage by going into another state for the solemnization of the marriage ceremony.” OCGA §19-3-43. Thus, the parties will not be entitled to any of the benefits of marriage in Georgia, including the ability to obtain a divorce.

In Georgia, same sex marriage is prohibited. Specifically, Georgia law states that it is “the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state.” OCGA §19-3-3.1(a). In addition, even if a same sex couple marries in a state that recognizes same sex marriage, such as New York, the marriage shall be void in Georgia. Thus, the parties will not be recognized as spouses in Georgia and will not be “entitled to the benefits of marriage,” which include the ability to obtain a divorce. OCGA §19-3-3.1(b). Georgia law further states that “the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such marriage.” Id. Georgia courts, therefore, will not get involved at all and, if a legal issue arises incident to the same sex relationship, it must be addressed in a state that recognizes same sex marriage, though the parties will have to overcome any jurisdictional hurdles in that state.

Before a person can get divorced, they must have a valid marriage. In Georgia, to constitute a valid marriage, there must be: (1) Parties able to contract; (2) An actual contract; and (3) Consummation according to law. OCGA §19-3-1. To be able to contract marriage, a person must: (1) Be of sound mind; (2) Be at least 18 years of age, or be 16 or 17 years of age with parental consent; (3) Have no living spouse of a previous unresolved marriage; and (4) Not be related to the prospective spouse by blood or marriage within the prohibited degrees. OCGA §19-3-2. To have an actual contract, the parties must have “actually contracted to be man and wife in the forms and with the solemnities required by law.” Pitts v. State, 147 Ga. 801, 803 (1918).

If any of these prerequisites is missing, the marriage is not valid in Georgia and the parties cannot be awarded equitable distribution of their assets or alimony. If you are unsure whether you have a valid marriage and are, therefore, able to obtain a divorce, contact a Georgia divorce or family law attorney to assist you.

According to the Atlanta Journal Constitution, NFL receiver Terrell Owens was recently sued in Fulton County for failing to pay child support. T.O. sued for child support, by George Mathis, The Atlanta Journal-Constitution, August 11, 2011. Owens has a five-year-old daughter with the woman bringing the lawsuit, which alleges that Owens has not paid his August child support and told the plaintiff that he does not plan to make future payments. According to the article, Owens was ordered in May 2007 to pay $5,000 per month in child support, and made June and July payments only after being threatened with legal action.

In Georgia, if the court finds that Owens’ failure to pay his court-ordered child support is willful (i.e. he has the money to pay, but just doesn’t want to), he could be subject to sanctions for contempt, which may include license revocation and/or incarceration. Owens’ defense may be that, although he has historically made a very large salary in the NFL, he is currently not on a team and, thus, technically has no income. Perhaps he will argue that he is unable to make the large child support payments due to the fact that he is currently unemployed. I would not be surprised if he filed a modification action to lower his child support if an NFL team does not sign him. Given his historic earning potential, it will be interesting to see what the court does.

Last week, I discussed the Gottschalk case, where the father appealed several aspects of the Georgia trial court’s order for supervised visitation. Gottschalk v. Gottschalk, A11A0565 (2011). As mentioned, several of the father’s allegations of error were based upon the trial court’s order prohibiting dissemination of the custody evaluation. After alleging that the trial court erred in prohibiting the parties from showing the custody evaluation to their expert witnesses, the father then contended that, “regardless of the language in the orders about the custody evaluator’s report, prohibiting [the father’s] expert from testifying about the report denied [the father] his due process rights,” because the guardian relied on the report in making custody recommendations. Id. at 18.

The Georgia Court of Appeals rejected this allegation, holding that the father “had notice that the custody evaluator’s report was not to be distributed without permission of the court,” and did not avail himself of the option to obtain the court’s permission that would have allowed him to use the report. Id. at 19. In addition, the mother did not have notice that this expert would be called and moved to exclude his testimony altogether, but the court allowed the father to call the witness. Id. at 20. Thus, his due process rights were not denied. As mentioned in the previous blog, if the father had obtained permission for his expert to review and testify to the custody evaluation, as he had done with other witnesses, his expert would have been able to testify about it and he would have nothing about which to complain.

The Georgia Court of Appeals recently upheld an order for supervised visitation, despite the father's allegations of 17 errors by the trial court. Gottschalk v. Gottschalk, A11A0565 (2011). In that case, the parties consented to joint legal and physical custody of their children in their divorce action, with detailed visitation provisions in the final decree. Id. at 3. About a year later, after the father’s arrest, the mother filed a petition seeking supervised visitation for the father. Id. The trial court appointed a custody evaluator, who was to write a report to be distributed ONLY to the court, guardian ad litem and the parties, except upon the court’s express permission otherwise. Id. at 4. During the hearing, the trial court discovered that the father’s expert witness had received a copy of the custody evaluation, and barred the expert from testifying about it since the father had not received express permission to disclose it to him. Id. at 7. The trial court ultimately granted the petition for supervised visitation, holding, with significant factual support, that the father’s “conduct was potentially dangerous for the children.” Id. at 9. After the father’s motion for a new trial was denied, he appealed.

Several of the father’s allegations of error were based upon the trial court’s order prohibiting dissemination of the custody evaluation. In one enumeration of error, he alleges “the trial court erred in interpreting the court’s prior orders as forbidding the parties from allowing their expert witnesses to review the custody evaluator’s report to testify about problems with the methodology used.” Id. at 17-18. The Georgia Court of Appeals disagreed, holding that the orders were “very clear that the report could be disseminated only to the parties, attorneys, and guardian unless otherwise allowed by the court,” and the language “is not susceptible to any other interpretation.” Id. The Court of Appeals also pointed out that parties consented to the order, and “both sides had previously sought and obtained permission to reveal the contents for the report to specific people.” Id. Thus, the Court was not at all sympathetic to this allegation. If the father had just gone through the proper procedure, his expert likely would have been permitted to review the report and testify about it.

It’s hard to believe that school is about to begin (or already has begun in some counties!) in Georgia. The start of school also means the start of after school and weekend activities. This time of year can be particularly stressful for parents who are going through, or have recently gone through, a divorce, as the family adjusts to visitation with the kids’ new, and likely busier, schedules.

If your divorce is final, your final divorce decree should lay out each parent’s rights as they relate to school and extracurricular activities. In Georgia, the final parenting plan must include language indicating that “both parents will have access to all of the children’s records and information, including but not limited to, education, health, extra-curricular activities, and religious communications.” Thus, even where one parent has primary physical custody, the other parent is also entitled to equal information about the child’s school and extra-curricular activities. If you think you may have an issue getting information from your spouse, it is prudent to contact the school and/or extra-curricular entity to ask them to send you the information directly. This will cut down on any miscommunication.

If your divorce is final, and there is no temporary order addressing custody and visitation in place, we recommend that you speak to your attorney about getting such an order in place, especially if you and your spouse are unable to come to an agreement. This will ensure that both parents get time with the children, and no one misses out on any important school or extracurricular events.

The Court of Appeals of Georgia recently heard a legitimation case that highlights the importance of including a hearing transcript with the appeal in Georgia. Charlot v. Goldwire, A11A0684 (2011). In that case, the trial court granted the father’s petition, awarding the father joint physical and legal custody of the one year old child with the mother designated as the primary physical custodian. Id. at 2. In addition, the trial court ordered the father to pay child support in accordance with the parties’ respective incomes and the child support worksheet, and awarded attorney’s fees to the mother. Id.

The father appealed the custody/visitation determination, the child support amount, and the award of attorney fees. The Court of Appeals of Georgia quickly dismissed the father’s arguments as to custody/visitation and child support, as there were no hearing transcripts included with the appeal that would detail what happened at the hearings. (Child support worksheets were included.) Id. at 3. Therefore, the Court of Appeals had to assume that the evidence was sufficient to support the trial court’s findings.

The lack of a transcript helped the father on the attorney fees issue, however, as the award was vacated. According to Georgia law, a court is authorized to award attorney fees in cases involving paternity, but the fees must be supported by statute of contract. Id. at 5; OCGA §19-7-50. In this case, “the trial court failed to identify in its order assessing attorney fees the basis on which the fees were granted,” and there is no transcript of the hearing to support the reason behind the attorney fees award. Charlot, at 6. The Court of Appeals held: “Where the record does not contain the basis for the award in either the order awarding attorney fees, or a transcript of the attorney fees hearing, we are unable to properly review the claim, and the attorney fees award can not be sustained.” Id.

The Georgia Court of Appeals recently re-emphasized long standing Georgia case law that prohibits custody from being modified in a contempt action. Coker v. Moemeka, A11A0005 (2011). In that case, the father filed a contempt action against the mother. Shortly before the court was scheduled to hear the case, the father filed a motion for change of custody, which the trial court granted at the hearing, along with the father’s contempt petition. Id. at 4.

The mother appealed, alleging that she was not properly served, and because the father improperly added the custody issue to the contempt proceeding. Id. at 5. As to the custody issue, the Court of Appeals agreed with the mother. Georgia case law clearly states that “[i]n a contempt proceeding, the trial court does not have authority to modify a final order of custody, which must be brought as a separate action.” Id. at 6, quoting McCall v. McCall, 246 Ga. App. 770, 772 (1) (542 SE2d 168) (2000). Since this was a question of law, rather than fact, the Court owed no deference to the trial court’s ruling and vacated the custody order as plain legal error by the trial court. Coker, at 5.