Atlanta Divorce Attorney Blog

When divorcing parents are trying to reach an agreement on holiday visitation, the holidays most often discussed are Thanksgiving, Christmas/Winter Break, Easter/Spring Break, Mother’s Day and Father’s Day. This is not an exhaustive list of holidays, however, and there may be some additional special days that you want to discuss when working out a visitation schedule.

For example, if your extended family has a yearly reunion on July 4 each year, it may be important for you to have the children with you on this date every year, or at least as often as possible. In addition, for those families who celebrate the Jewish High Holidays, it may be important to those parents to work out an arrangement to split the holidays each year, or for each parent to have time with the children on each holiday.

Every family is different, and a holiday that is not important to one family may be very important to another, and vice versa. If a certain day means a lot to you and/or your former spouse, make sure you work out the details and include them in your settlement agreement to minimize later disagreements.

A recently released 2009 report from the U.S. Census found that divorce rates vary by region, and are highest in the South, including Georgia. Highest Divorce Rates By State: New Data From ‘Marital Events of Americans: 2009’ Report, by Ashley Reich, The Huffington Post, August 25, 2011. According to this article analyzing the census report, divorce rates are highest in the southern states, and lowest in the Northeast. The national average is 9.2 divorces per 1,000 men and 9.7 divorces per 1,000 women. In the south (which includes Georgia), however, there are 10.2 divorces per 1,000 men and 11.1 divorces per 1,000 women. Id. The state with the highest divorce rate for men is Arkansas with 13.5 divorces per 1,000 men. Id. Alaska has the highest divorce rate for women, with 16.2 divorces per 1,000 women. Id.

According to Diana Elliott, a family demographer at the Census Bureau, “Divorce rates tend to be higher in the South because marriage rates are also higher in the south. In contrast, in the Northeast, first marriages tend to be delayed and the marriage rates are lower, meaning there are also fewer divorces.” 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 October – December 2011 parenting seminar schedule for the 9th judicial district is as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, October 6, 5:00pm – 9:00pm; Thursday, October 20, 5:00pm – 9:00pm; Thursday, November 3, 5:00pm – 9:00pm; Thursday, November 17, 5:00pm – 9:00pm; Thursday, December 1, 5:00pm – 9:00pm; Thursday, December 15, 5:00pm – 9:00pm

• Canton (RT Jones Memorial Library, 116 Brown Industrial Parkway) – Saturday, October 8, 10:00am – 2:00pm

• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, October 12, 1:00pm – 5:00pm; Wednesday, November 9, 1:00pm – 5:00pm; Wednesday, December 14, 1:00pm – 5:00pm

• Cumming (Hampton Park Library, 5345 Settingdown Road) – Saturday, October 29, 10:45am – 2:45pm; Saturday, December 3, 10:45am – 2:45pm

• Cumming (Central Park Recreation Center, 2300 Keith Bridge Road) – Saturday, November 12, 10:00am – 2:00pm

• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, October 10, 1:00pm – 5:00pm; Monday, November 14, 1:00pm – 5:00pm

• Dahlonega (North Georgia College & State University, Continuing Education Building, 25 Schultz Avenue) – Tuesday, October 18, 9:00am – 1:00pm; Tuesday, November 8, 9:00am – 1:00pm; Thursday, December 8, 9:00am – 1:00pm

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.

Our Atlanta divorce attorneys have recently learned of some interactive websites that may be helpful for parents sharing custody of their children in Georgia. In particular, these websites are a helpful resource for parents who are struggling to communicate effectively or just need help staying organized.

OurFamilyWizard.com, JointParents.com and ParentingTime.net offer a range of features such as a visitation calendar, an expense log, daily journal, photo sharing, and a messaging forum. Visitation calendars allow parents to easily see who has visitation and the children's schedule. The expense log tracks who incurred an expense, the type of expense, the other parent's share, and whether that expense has been paid. Journals, photo sharing, and messaging forums provide a space for parents to communicate to each other about their children's activities, progress in school, etc. All calendars, expenses, photos and messages can be kept and recorded for future reference and may be helpful if there is future litigation. Some of the websites, like OurFamilyWizard.com, provide free professional or third party accounts for attorneys, counselors, teachers, or grandparents.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

There was recently a new article on ajc.com about the lawsuit against NFL receiver Terrell Owens in Fulton County for failure to pay child support. Lawyer: T.O. could face jail for failure to pay child support, by Christian Boone, The Atlanta Journal-Constitution, September 8, 2011. As mentioned in my previous blog on the subject, one possible punishment for the willful failure to pay child support is incarceration – and it looks like the plaintiff’s lawyer has petitioned the trial court for just that. According to the article, the original contempt petition for June and July child support payments was withdrawn after the full amounts were paid. However, now Owens appears to have failed to pay support for August or September, which is the subject of the current lawsuit.

The plaintiff’s attorney says that Owens has given no reason for his refusal to pay. The article further states that, though he is not currently signed by any NFL team, he is starring in a reality television show and his estimated monthly income is $666,000. If this is true, he should be able to afford the $5,000 child support payments. The case is currently pending, and a judge will decide whether to jail Owens or force him to make all back payments along with attorney’s fees.

In Georgia, in addition to alimony being subject to modification due to a change in the income and financial status of either former spouse, cohabitation by the payee is also grounds for modification. Georgia law states “the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of a former spouse.” OCGA §19-6-19(b). Cohabitation is specifically defined as “dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person.” Id. Thus, for example, if an alimony payee/former wife is cohabitating with a new boyfriend, the payor/former husband may seek to modify and/or eliminate his alimony obligation under this law.

Though this is a fairly black and white rule, it should be noted that if the petitioner is unable to prove his/her case under these grounds, he/she “shall be liable for reasonable attorney’s fees incurred by the respondent for defense of the action.” Id. Thus, it is best to make sure your former spouse is actually cohabitating, and that you will be able to prove it, before bringing a modification action under this ground.

In Georgia, a judgment for permanent alimony for the support of a spouse “shall be subject to revision upon petition filed by either former spouse showing a change in the income and financial status of either former spouse.” OCGA §19-6-19(a). For example, if the alimony payor loses his job, he may seek a downward modification based upon his decrease in income. In addition, if the alimony payee suddenly receives a large sum of money, through inheritance for example, the payor may seek to modify based upon this change in financial status. Conversely, the payee may seek upward modification if the payor’s income increases or if the payee’s income decreases.

Like child support modifications, no petition for alimony modification may be filed “within a period of two years from the date of the final order on a previous petition by the same former spouse.” Id. It should also be noted that a petition for modification of alimony can only be filed in cases of “weekly, monthly, annual, or similar periodic payments.” OCGA §19-6-21. Lump sum alimony cannot be modified. Id.

Atlanta divorce attorneys are often asked about common law marriage. According to Georgia law, “no common-law marriage shall be entered into in this state on or after January 1, 1997.” OCGA §19-3-1.1. If a valid common-law marriage was entered into prior to January 1, 1997, it will continue to be recognized in Georgia. Id. There are three requirements for a valid common law marriage: the parties must be able to contract, must agree to live together as man and wife, and must consummate this agreement. Ga. Osteopathic Hosp. v. O’Neal, 198Ga. App 770, 778 (1991). In addition, “the fact of cohabitation is treated as essential, if not the main factor in establishing in this State a common-law marriage.” Fireman’s Fund Ins. Co. v. Smith, 151 Ga. App. 270, 271 (1979). If all of these requirements were met BEFORE January 1, 1997, the common-law marriage will likely be recoginzed in Georgia.

Parties to a valid common law marriage entered into prior to January 1, 1997 may obtain a divorce and ask the court to award alimony equitable distribution, and/or child support. After January 1, 1997, you must have a valid ceremonial marriage in order for the marriage to be recognized.

In Georgia, it is fairly simple to restore your maiden name after a divorce. Specifically, Georgia law states that “[i]n all divorce actions, a party may pray in his pleadings for the restoration of a maiden or prior name.” OCGA §19-5-16. This means that you can request the name change in your Complaint for Divorce, or in your Answer to your spouse’s Complaint for Divorce. If the divorce is granted, the Final Judgment and Decree of Divorce “shall specify and restore the party the name so prayed for in the pleadings.” Id. Thus, the trial court is required to grant the name change if it is properly requested.