Atlanta Divorce Attorney Blog

Georgia divorce attorneys are often asked whether the filing of a divorce action means the parties are legally separated. This question often comes from people who are interested in starting to date other people during the pending divorce.

Please keep in mind that Georgia does not recognize legal separation. Therefore, nothing changes about your marital status until your final divorce decree has been signed by the Judge. Until you receive your final divorce decree, you are still married in the eyes of the law and sex with anyone who is not your spouse is considered adultery. Whether this adultery is considered to be the cause of your divorce is a different question. It is important to note, however, that the Judge can take your actions both before and during the pending divorce action into consideration in awarding alimony, custody, and equitable division of assets.

The Supreme Court of Georgia recently heard an appeal of a divorce case, which highlights the security, or risk (depending on which side you are on), of entering into a prenuptial agreement in Georgia. Sides v. Sides, S11F1140 (2011). In that case, the parties began dating in 1989 and, shortly thereafter, the Wife became pregnant. Id. Due to the great disparity in assets and income between the parties, they negotiated and signed a prenuptial agreement before marrying in 1990. Id. Under the agreement, “Wife would have been entitled to substantially more resources if the parties divorced after their twenty-year anniversary, and substantially less if the parties divorced prior to their twenty year anniversary.” Id. at 2. Nearly twenty years later, the Husband filed a Compliant for Divorce and Motion to Enforce the Prenuptial Agreement, which the trial court granted a mere 62 days prior to the couple’s twenty year anniversary, and the WIfe appealed. Id.

The Supreme Court of Georgia affirmed the enforcement of the prenuptial agreement. The Court first laid out the factors to be considered by the trial court in deciding the validity of the prenuptial agreement: “(1) [W]as the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) [I]s the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?” Id., quoting Scherer v. Scherer, 249 Ga. 635, 641 (3) (1982).

In this case, both attorneys “deposed that they would not have allowed their clients to enter the agreement without full financial disclosures being made,” and Wife was long aware of the “vast disparity” between their incomes. Id. at 3. Thus, the evidence supported that full financial disclosures were made prior to signing and the agreement was not unconscionable. In addition, the increase in Husband’s net worth was anticipated and, therefore, it was not a “change of circumstance that would make the enforcement of the agreement unfair and unreasonable.” Id. at 4. The trial court, thus, did not abuse its discretion in upholding the prenuptial agreement.

In Georgia, even in divorce cases with two fit parents, one parent will be awarded primary physical custody. In a recent divorce case with two fit parents, the trial court awarded primary physical custody of the parties’ two minor children to the Wife, and the Husband appealed. Rowden v. Rowden, S11F0812 (2011).

In affirming the trial court’s ruling, the Supreme Court of Georgia stated that: “In a contest between parents over the custody of a child [or children], the trial court has very broad discretion, looking always to the best interest of the child[ren], and may award the child[ren] to one even though the other may not be an unfit person to exercise custody or had not otherwise lost the right to custody.” Id. at 2, quoting LaFont v. Rouviere, 283 Ga. 60, 62 (2) (2008). Here, the trial court found that both parents were fit and spent quality time with the children. Id. at 3. However, “Husband did not have a concrete childcare plan for the children, nor did he engage his children in age-appropriate activities with other children that could have assisted in their social development. Wife, on the other hand, got the children involved in summer camps, lived near her own parents (who could help her with the children), and, unlike Husband, planned social events for the children such as birthday parties.” Id. The Supreme Court of Georgia therefore held that the evidence supported the trial court’s decision to award primary physical custody to the mother.

It is important to note that the trial court was not saying that the father was not a fit or good parent. Rather, it relied on the evidence above to tip the scales in favor of the mother for primary physical custody.

In Georgia, child support is calculated using the child support worksheets to obtain a presumptive child support amount, which can then be deviated from using several specified grounds. OCGA §19-6-15. One such deviation is the travel expenses deviation, which can be used to account for substantial travel costs incurred when the parents live in different cities or states. OCGA §19-6-15(i)(2)(F). In allowing this deviation, the court must consider “the circumstances of the respective parents as well as which parent moved and the reason for such move.” Id.

I recently attended a seminar where several Atlanta-based judges discussed this issue. The judges were consistent in stating that they would only grant this deviation for things that had been done in the past, not just things a party said he/she would do. For example, if an out of town parent previously only visited twice a year, it is unlikely that this parent would get a deviation for monthly travel expenses. In addition, the judges all agreed that if the distance between parents was great, they would be more likely to award travel expenses for fewer, longer visits (such as over winter break or summer) rather than short monthly visits, as this would be a better use of quality visitation time as well as travel expenses. Overall, the judges do not want to discourage visitation, but also do not want to encourage misuse of this deviation.

In Georgia, child support is calculated using the child support worksheets to obtain a presumptive child support amount, which can then be deviated from using several specified grounds. OCGA §19-6-15. One such deviation is the parenting time deviation which can apply “when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time as set forth in the order of visitation or when the child resides with both parents equally.” OCGA §19-6-15(i)(2)(K)(i). The statute, however, gives no guidelines for what the deviation should be.

I recently attended a seminar where several Atlanta-based judges discussed this issue using the example of a child who resides with each parent equally. One Fulton county judge stated that, even with equally shared visitation, if one parent makes significantly more money than the other, some child support should be paid to the other parent. Another Judge agreed, with the caveat that if the higher wage earner was paying other expenses such as day care and/or medical, this should count toward support and, thus, it is possible that no child support would be paid to the other parent. Thus, since it is in the discretion of the judge, it is likely that the deviation will vary depending on your county and your judge. All of the Judges believed, however, that, in this situation, the calculation should start with the presumptive child support amount and go down from there, rather than assuming there should be no child support paid.

In yet another celebrity family law case that has made national news, country singer Mindy McCready has found herself in the middle of a custody dispute with her mother. Mindy McCready’s son found in Arkansas, CNN.com, December 3, 2011. Due to McCready’s troubled past, the singer’s mother has custody of her 5-year-old son and McCready has visitation rights. Last week, McCready unlawfully took her son from her mother’s home claiming he was not safe there, and asked a court to restore custody to her, all the while refusing to travel back to Florida per a Judge’s order. Authorities recently found McCready and her son in Arkansas, and her son will be returned to McCready’s mother in Florida.

Though this case is not in Georgia, it sets a good example of what not to do when you are seeking a custody modification (which is presumably what McCready was trying to do). If there is a custody order in place, you must follow that order, until there is another order replacing it. If you feel your child is in danger under the current custody arrangement, you can file an emergency petition for modification of custody, which will be heard more quickly, or you can seek the help of law enforcement, if necessary. Taking matters into your own hands usually only makes things worse. Remember, the judge will always be looking at the best interest of your children. McCready likely made things much worse for herself by acting above the law and taking her son without first going through the court system, as these actions will be considered by the judge in the custody modification action.

According to TMZ.com**, Usher Raymond’s ex-wife has filed actions for modification of child support and modification of custody/contempt against the singer in Atlanta, Georgia. Usher’s Ex-Wife: You Don’t Deserve Our Kids, TMZ.com, November 29, 2011.

In the child support modification action, Ms. Raymond is claiming that Usher has continued to have financial success since their divorce and she should, therefore, get an upward modification of child support. In Georgia, if she can prove that there has been a substantial change in his income, specifically that he is making significantly more money now, she will likely get the upward modification she is seeking. This assumes there are no other factors at play.

In the custody modification action, which seems to include contempt claims, Ms. Raymond is claiming that: (1) Usher has failed to obtain the required permission from her to travel out of state with the children; (2) Usher has failed to get her approval before hiring nannies, as required; (3) Usher has failed to give her the first chance to watch the children when he is away for an extended time, as required; (4) Usher failed to allow her to have the children for 2-weeks in the summer of 2011, as required; and (5)Usher refused to let her have custody of the children during winter break in 2010, as required. In Georgia, to obtain a custody modification, Ms, Raymond must prove that there has been a substantial change affecting the best interests of the children. The judge will weigh all relevant factors and may appoint a guardian ad litem to do a custody evaluation if the parties are unable to come to an agreement. If the parties are unable to come to an agreement, this case could go on for a long time as a full custody investigation and evaluation will likely be completed. It should be noted that, if these claims are filed as a contempt action rather than a custody modification action, the judge cannot change custody in a contempt action. Thus, Ms. Raymond will have to file a separate petition for modification of custody.

**The facts reported in the blog are based solely on the article cited above. The author is not involved in the case.

When celebrity family law cases make national news, clients often wonder how the case would turn out in Georgia. In a celebrity family law case currently gripping the headlines, Kim Kardashian and Kris Humphries are now battling over whether their 72-day marriage will end in divorce or annulment. Kim Kardashian ‘doesn’t want a battle’ with Kris Humphries: Source, by Jennifer Garcia, PEOPLE.com, December 2, 2011. Though Kardashian filed for divorce to end their marriage, Humphries has filed for an annulment on the grounds of fraud. If the parties obtain an annulment, it will be as if the marriage never happened.

In California, like in Georgia, fraud is grounds for an annulment. However, in both states, the fraud must be proven, not just alleged, or an annulment cannot be granted. Though there is speculation in the media about the fraud in this marriage, Humphries must come with facts, not just speculation in order to be granted an annulment. If the fraud cannot be proven, the marriage will end in divorce. The same would happen in Georgia. It will be interesting to see how this one turns out, and whether the divorce/annulment action lasts longer than the marriage itself.

Domestic violence or domestic abuse can exist in a number of ways. Most often, people think of a woman who has been beaten by her husband or boyfriend as a victim of domestic violence. It is important to remember, however, that a woman can be the abuser and a man can be the victim. Domestic violence occurs in all types of couples – heterosexual, homosexual, transgender, etc. – across all races and at all income levels. The form of abuse can vary as well and includes physical abuse (punching, kicking, slapping and hair pulling), emotional or mental abuse (talking down to someone, isolating them from their families, and using scare tactics), spiritual abuse (not permitting someone to freely exercise their religion), or economic abuse (not providing someone the money they need or constantly keeping tabs of someone’s spending). Victims of domestic violence often experience a combination of these types of abuse.

If you feel that you have been in a family violence situation or are currently going through a family violence situation, you can and should consider speaking with an Atlanta divorce attorney and obtaining a temporary protective order.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC