Atlanta Divorce Attorney Blog

Question: How do I prevent my ex-spouse from stopping alimony payments?

Answer: If your ex-spouse has a Court Order to may alimony, and a condition has not occurred in the Order that would allow him to terminate the alimony payments (ex: remarriage), then you can file for contempt against your ex-spouse after he stops paying. There is nothing you can do before he stops paying because he has not violated any Order.

Question: Can my attorney of many years, who has seen my mental health records, represent my wife in our separation agreement?

Answer: There is likely a conflict of interest here, especially if your attorney knows information that may impact the divorce proceedings. You may waive this conflict if you would like but, depending on your situation, it may be best for each of you to have separate attorneys.

Question: I want to remove my name from the deed on the house, but how can I make sure that my spouse refinances to remove my name from the home equity loans?

Answer: In this situation, I recommend that the parties arrange to refinance all the loans at once. Both parties can show up to the closing and the quitclaim deed can be signed at the same time the refinance documents are signed. Otherwise, I would not recommend a person signing a quitclaim deed when they still have liability on the house.

The Supreme Court of Georgia recently reemphasized long standing Georgia law prohibiting a petition for modification of child support from being filed within two years of a previous petition for modification by the same parent. Bagwell v. Bagwell, S11A1316 (2012). In that case, the father filed a petition for downward modification of child support in May 2010, “alleging a substantial decrease in his income and financial status since the divorce, which decreased his ability to pay the previously awarded child support.” Id. After a hearing, the trial court granted the mother’s motion for sanctions due to the father’s failure to respond to discovery and dismissed the modification petition. Id. at 2. Two weeks later, the father filed another petition for downward modification of child support, with the same allegations as the previous petition. Id. at 2-3. The mother moved to dismiss the second petition in accordance with OCGA §19-6-15(k)(2) which states: “No petition to modify child support may be filed by either parent within a period of two years from the date of the final order on a previous petition to modify by the same parent except where (A) A noncustodial parent has failed to exercise the court ordered visitation; (B) A noncustodial parent has exercised a greater amount of visitation than was provided in the court order; or (C) The motion to modify is based upon an involuntary loss of income.”

Despite this clarity in this statute, the trial court allowed the second petition to continue “in the interest of fundamental fairness and judicial economy,” since it characterized the first order as a sanction, rather than a dismissal. Id. at 3. The mother appealed, and the Supreme Court of Georgia agreed with the mother.

The Court first held that the trial court’s dismissal of the father’s first petition was a final order for the purpose of OCGA §19-6-15(k)(2) because it was an involuntary dismissal, which “constitutes an adjudication upon the merits of a claim, unless the trial court in its order of dismissal specifies otherwise.” Id. at 4; OCGA §9-11-41(b). Further, the Court stated that classifying the dismissal as a sanction does not make a difference, as a dismissal for this reason is still adjudication on the merits. Id. at 5.

The Court additionally struck down the father’s argument that he had an involuntary loss of income and should, thus, fall under an exception to the two-year rule for two reasons. First, the father did not specifically invoke this exception in his second petition. Second, he would have had to have an involuntary loss of income in the two weeks between the dismissal of his first petition and the filing of his second petition. Id. at 7-8.

In reversing the trial court’s ruling, the Supreme Court of Georgia also held that there was no merit to the trial court’s judicial economy argument. Allowing the second modification action to proceed under these circumstances, it held, “is tantamount to abuse of the judicial system.” Id. at 9.

A problem sometimes faced by individuals in Georgia embroiled in either a divorce or a custody dispute with a spouse out of the state or country is how best to serve notice on the opposing party. The spouse’s whereabouts may be unknown, in which case simply hiring a process server won’t do the trick. However, in order to satisfy the due process clause of the United States Constitution, it is necessary for all parties to be given notice of a proceeding. For persons residing out of state, notice must be given in a manner calculated to give actual notice pursuant to either the laws of the state where service is to occur or the state where the proceeding is to occur.

One way of reaching those who either can’t or don’t want to be found is to make use of service by publication. According to O.C.G.A. § 9-11-4(f)(1)(A), personal service must be attempted before service by publication is proper. The Court in Gaddis v. Dyer Lumber Co., 168 Ga.App. 334, 335 (1983), stated “In order to justify service by publication where the address of the defendant is known, or believed to be known, generally it must be shown that service was attempted unsuccessfully at the defendant’s last known address and that personal service was proven impossible.”

The Court in Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1983), noted that because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts.

However, if the address of an opposing party is known, then according to O.C.G.A. § 9-11-4(f)(1)(A), the Petitioner must supply the exact address of the nonresident to the Clerk. If the Petitioner knows the address of the defendant but does not furnish it to the Clerk of Court for purposes of mailing the notice, the judgment could then be set aside for fraud. Stiles v. Stiles, 183 Ga. 199, 205 (1936).

If you are facing similar issues involving service on an out-of-state spouse, please contact one of our skilled Atlanta Divorce attorneys.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

Question: My wife left me and took our children with her. I have not seen them for three years. How can I find her to serve divorce papers and seek custody?

Answer: Some lawyers and most private investigators have access to databases that should be able to show where the other party is living. If you are trying to handle the divorce without the help of an attorney, you will likely need to hire a private investigator to find our where she is. Once you find where she is living, you can then personally serve her with the divorce papers to start the divorce process.

Question: Can I legally ask my husband for a separation but not have to leave my home?

Answer: Georgia does not recognize a “legal separation.” When you file for divorce, you assert in the pleadings that you are living in a “bona fide state of separation.” That simply means that you and your husband have not had marital relations (sex) since a certain date. There is an action for separate maintenance that can be filed in certain circumstances, but you should schedule a consultation with an Atlanta divorce lawyer to determine whether your specific situation would fall into this category.

Question: How do I get a divorce if my spouse won’t sign the papers, attend the classes, or follow through with any of the requirements?

Answer: If your spouse won’t cooperate, you may have to schedule the case for a final contested hearing. Before you attend this hearing, however, it is strongly recommended that you consult with an Atlanta divorce lawyer to make sure that you have prepared all your paperwork correctly for a final divorce. If your spouse does not attend a parenting class, some judges will still grant the divorce but may deny visitation to the offending spouse until he/she attends the class.

In a divorce in Georgia, the Court has the power to equitably divide property acquired by the labor of the parties during a divorce. For the most part, this means tangible items like houses, cars, retirement accounts, and bank accounts. But what does the Court do with intellectual property—how can they equitably divide an idea?

Georgia Courts have not specifically addressed whether a patent is a marital asset, but they have addressed intellectual property in the form of legal and medical degrees. In Lowery v. Lowery, 262 Ga. 20 (1992), the Supreme Court of Georgia held that the education and degree of the Husband were not akin to real property, and could not be valued as an asset upon divorce. The Court stated that the value of the intellectual property was “too speculative to calculate, being simply the possibility of enhanced earnings they provide. That potential may never be realized for any number of reasons.” The Court went on to state that a degree cannot be transferred and its value terminates upon the death of the Husband. However, unlike a non-transferable asset like education, patents can be sold and there is a thriving market in the sale of patents. Further, patents generate tangible (or otherwise valuable) assets—a patent was behind the creation of every piece of modern technology.

The distinction between a patent and a degree is that a patent is the property of the creator, and the right to intellectual property is one granted by the Constitution, thus it is the right of the creator to sell the patent as he or she chooses. Based on the constitutional granting of these rights, the Georgia courts could take the view that patents are non-marital assets, but include a patent’s potential when considering a party’s ability to pay alimony. Further, the income generated from a patent or intellectual property could be considered income, and a former spouse could receive an entitlement to a percentage of the income generated from the patent as an equitable division of property.

Again, the Supreme Court of Georgia has not addressed this issue in particular, but the Court may look to the case of Goldstein v. Goldstein, 262 Ga. 136 (1992) to determine the value of intellectual property. In Goldstein, the Supreme Court found that the income from an attorney’s contingent fee agreements was not a marital asset due to the fact that it was “nearly impossible” to determine the amount of work and expense that would go into generating income from intellectual property. This would mean that even if the Court determined that a former spouse was entitled to a percentage of the income generated from a patent, the income may never be realized.

The number of international patents filed in 2010 alone totaled more than 160,000, so although Georgia courts have determined that the value of intellectual property is speculative, it is clear that it is an issue that the court will soon have to address.

By Elizabeth Doak, Associate, Meriwether & Tharp, LLC

In more than a few recent cases, the stumbling block to settling the case has been the marital home. As a result of the real estate market meltdown, Atlanta divorce attorneys have had to rethink how they structure agreements regarding real property. So what do you do in a case when neither party wants the marital home? It’s the proverbial hot potato no one wants to be left holding.

When clients are contemplating walking away from a home, our job as divorce attorneys is to eliminate or at least minimize a client’s loss when structuring an exit strategy. The first step in making this happen is to ensure the client has the information necessary to make an educated and informed decision. One of the key pieces of information is how much equity, if any, is in the property. Knowing whether the client would need to bring funds to the closing table if the property were sold allows us to immediately rule out certain options. Other critical facts clients need to be aware of include who is listed as a borrower on the mortgage, how far the mortgage is in arrears and both parties’ financial condition and employment plans.

Several possible alternatives clients may want to consider include bankruptcy, foreclosure, leasing, a short sale and a limited sale. Something I am seeing more often in divorce practice is parties choosing to “walk away” from a property. Although this is not a situation we encourage, in some cases foreclosure is the only option. While “walking away” may not be the best moral decision for some, it may make sense, at least from an economic perspective, to those parties who owe much more than the home is worth. If the parties agree to a foreclosure, the parties need to ensure that the possibility of a Deficiency Judgment is addressed.

Other alternatives to consider are leasing out the property until the market recovers or placing the home on the market in the hope of a short sale. A short sale may not be an option, however, since most lenders won’t even consider an offer on the property for less than the amount owed, unless the borrowers are at least several months behind on the mortgage.

In situations when parties are underwater or facing foreclosure on the marital residence, it is important to have an experienced divorce attorney. Regardless of the situation, an improperly drafted agreement could leave a person with a financial obligation in the divorce case that they cannot even bankrupt. The few hundred dollars a person might save by not having a lawyer draft the agreement can easily be lost if they draft a bad agreement. A knowledgeable attorney can work with you to craft the right agreement, to suit your specific needs and minimize any losses.

By Alyssa Vaughn, Associate, Meriwether & Tharp, LLC

One of the most complicated financial aspects of a divorce can be what happens to the marital home when both parties’ names are on the mortgage. Since one party will likely move out of the marital home after the divorce, that party will likely want his/her name off the mortgage so he/she can buy a new home. If the other party doesn’t refinance to take the moving party’s name off the mortgage, the moving party's rights are going to depend on what is in the settlement agreement or final order granting the divorce.

If the final divorce documents are silent as to the mortgage, then there may be nothing the moving party can do because there is nothing requiring a refinance. If the final divorce documents state, however, that the ex-spouse must refinance within so many days, and he has not refinanced within this time frame, then the moving party can file a Petition for Contempt against him to force him to refinance.

The Court of Appeals of Georgia recently heard a case which emphasizes the importance of having a transcript for the Court to refer to on appeal in family law cases. Johnson v. Ware, A11A1559 (2012). In that case, the trial court consolidated two actions concerning custody and visitation of the children, one action filed by each party. In one action (the “Ware Action”), the mother sought a modification of the father’s visitation. In the other action (the “Johnson Action”), the father sought primary physical custody of the children. The cases were tried together by agreement of the parties. Id. at 2. After the trial (in which there was no transcript takedown), the trial court held that the mother should remain the primary physical custodian and included a Parenting Plan, which specifically outlined visitation. Id. at 3.

The father appealed, arguing that the trial court erred in modifying custodial rights he was given under the parties’ settlement agreement and divorce decree. Id. at 4. According to the Court of Appeals, however, he could not show reversible error because neither the settlement agreement nor the divorce decree was in the record on appeal. Id. In addition, there was no transcript so there was no evidence regarding how that issue was treated at trial. Id. at 5. The Court of Appeals held: “The burden is on the party alleging error to show it affirmatively by the record. When the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” Id. at 5. The Court, therefore, affirmed the trial court’s decision. The father also asserted that the trial court erred by refusing to hear all the evidence he offered at trial. Id. However, again, without a transcript, the father was unable to prove this assertion and the trial court’s order was affirmed. Id. at 6.

This case shows the importance of having the court reporter takedown the proceedings. The expense involved is likely worth it as it is nearly impossible to be successful on appeal without having evidence of what happened at the trial court level to which the Court of Appeals of Georgia or Supreme Court of Georgia can refer.