Atlanta Divorce Attorney Blog

In some Georgia family law cases, the parties may request, or the Judge may order, a case to attend a Judicially Hosted Settlement Conference. A Judicially Hosted Settlement conference is like mediation, however, rather than using a mediator as a neutral party who will pass offers between the parties, a former Judge will serve in a neutral’s role. The Judge’s role is to help the parties agree on a settlement, but the parties are under no obligation to settle the case at the conference (just as parties are not obligated to settle a case at mediation). The conference can be utilized in lieu of mediation in some Georgia counties, and can always be utilized in addition to mediation.

The benefit of using a conference rather than mediation is that the Judge can assess the merits of the case and give the parties a guide as to how the Judge in their case will rule on the issues. The conference can be a “reality check” for both the parties and, for most cases, knowing how a Judge will rule makes the parties more eager to settle outside of the courtroom. However, the Judge’s opinion on the case is not a ruling and not binding on the parties, and the parties have the ability to agree on the outcome of the case, whether or not they agree with the Judge’s opinion. The entire process is confidential, and the parties are not under any obligation to settle. All in all, a Judicially Hosted Settlement Conference can be beneficial as it can be a cheaper and faster way to get your case resolved, and you can have a hand in determining the outcome.

By Elizabeth Doak, Associate, Meriwether & Tharp, LLC

Question: I was not married to my child’s mother and have no court order regarding custodial rights. The mother is currently in jail. Can I get my child without going to court?

Answer: In Georgia, in this situation, until the father goes to court and legitimates the child, he has no legal or custodial rights to the child. The father must obtain a Legitimization Order before he can do anything legally.

Question: What can I do to get sole custody of my child when I never married the father, but his name is on the birth certificate?

Answer: In Georgia, until the father legitimates the minor child, he has no legal or custodial rights. Thus, in this situation, the mother currently has sole custody of the child.

In Georgia and in other parts of the country, more and more couples are choosing to live together without getting married. More couples stay happily unmarried, by Gracie Bonds Staples, The Atlanta Journal-Constitution, March 11, 2012. According to a recent article on ajc.com, a New York based marketing communications agency conducted a survey, which found that 45% of never-married women and 68% of never-married men prefer a long term, committed relationship to marriage. This is, in part, due to the fact that moral judgments about cohabitation have largely disappeared. In addition, women’s gains in education and the workplace combined with an economy that values communication and negotiation skills (values more predominant among women) have made marriage non-essential for many people.

Living together without being married can legally mean different things in different states. Unfortunately in some states, such as Georgia, cohabitating partners have no legal benefits. Georgia does not recognize domestic partnerships or common law marriage, unless it was legally entered into prior to January 1, 1997. OCGA §19-3-1.1. Thus, parties in Georgia who choose to live together without legally marrying cannot divorce. What this means, practically speaking, is that neither party will be entitled to alimony or equitable division of assets if the relationship falls apart. A court will, therefore, not get involved and the parties will have to work everything out on their own. This could be particularly problematic if the parties own property together and have other joint assets, such as bank accounts, or if one party was the primary “bread winner” while the other party chose not to work. These are all issues you should think about, and possibly discuss with your partner, if you choose to cohabitate without getting married.

The Supreme Court of Georgia recently heard an appeal of a divorce case where the wife alleged error in calculating her interest in the husband’s pension and setting the alimony amount. Hammond v. Hammond, S11F1978 (2012). In that divorce case, there were very few marital assets, the most significant of which was the husband’s pension, which was vested, but had not yet matured. Id. According to Georgia law, this specific pension could not be attached, subjected to process, or assigned. Id. Thus, the trial court was limited in the ways it could be utilized for equitable division purposes. After a hearing where extensive evidence was presented, the trial court equitably divided the marital assets including an alimony award to the wife of $750 per month for 24 months. In addition, with regard to the pension the trial court ordered the husband to pay the wife alimony “in the amount of $1,250 per month, starting the first month husband receives his monthly pension benefit.” Id. at 2.

The wife appealed, arguing “the trial court erred as a matter of law in determining the amount of the award of alimony pertaining to husband’s pension benefit because it bears no relation to the correct valuation of the pension.” Id. at 3. Specifically, the wife alleged that the trial court should have used the time rule formula to quantify the value of the pension rather than distributing it as alimony. However, the trial court chose to evaluate and distribute the pension as alimony at the wife’s urging and, according to the Supreme Court of Georgia, the wife cannot now complain of error induce by her own conduct. Id. Moreover, a trial court is “given wife latitude in fixing the amount of alimony and child support,” and the Court found no abuse of discretion here. Id.

The wife further alleged that the court erred in calculating the amount of alimony to be awarded from the pension. Generally, alimony is awarded in accordance with the needs of one party and the ability of the other party to pay. The trial court has great discretion within these parameters. The Supreme Court of Georgia rejected the wife’s argument here because there was evidence that the trial court considered several factors, including “the value of the pension, the overwhelming marital debt, husband’s contribution of inherited assets to the marriage, and wife’s recent promotion.” Id. at 5. Thus, the Court held that the trial court did not abuse its great discretion in setting the alimony amount from the pension.

Question: Can I get a wage garnishment for back child support on Georgia?

Answer: In Georgia, you cannot obtain a garnishment until you have a Court Order establishing that the other party does owe you back owed child support. Thus, in general, until you have obtained an Order on a Contempt action, you cannot do anything. Once you have an Order establishing the amount owed, then you can request the Court to issue the garnishment.

Question: Can a mother sue the biological father of her children for back child support?

Answer: In Georgia, you cannot sue for retroactive child support, unless there was a previous Court Order establishing that support was proper and establishing the amount of support. If a party wants child support, they must seek it right away. That party can then receive support from the time the Order is entered and going forward until the child turns eighteen.

In Georgia, it often occurs that one party wishes to retain the marital home after a divorce. If the Husband and the Wife’s name are both on the mortgage loan documents as the borrowers, the question then becomes how to remove the name of the party relinquishing their interest in the home so that they are no longer liable for mortgage payments. Even in divorce situations, most lenders are unwilling to remove borrower’s names from loans because it leaves them less recourse in the event of a default or a foreclosure. To remove a party’s name in these situations, the loan either must be satisfied in full or the party wishing to retain the home must refinance.

When a home mortgage is refinanced, the existing mortgage is replaced by a new mortgage that has different terms. This process is frequently used to, among other things, achieve a better interest rate or consolidate debts. In a divorce situation where both party’s names are on the mortgage loan and one party is to retain the home, the party who is keeping the home is often required to refinance the mortgage into their name only. In today’s struggling real estate market, refinancing has become a problem due to the number of people who owe more on their home than it is worth. In these situations, a solution may be the Home Affordable Refinance Program (HARP).

HARP is a federally run program that allows eligible parties with mortgages owned or guaranteed by Fannie Mae or Freddie Mac to refinance their homes to a lower interest rate, even if they owe more on their mortgage loan than their home is worth. Eligibility requirements for borrowers wanting to utilize this program include, but may not be limited to: (1) zero missed payments in the last six months, (2) no more than one missed payment in the last twelve months, (3) a current loan-to-value ratio greater than 80%, and (4) no previous refinances under HARP. To determine if your current mortgage is owned or guaranteed by Fannie Mae or Freddie Mac, visit www.fanniemae.com/loanlookup and www.freddiemac.com/mymortgage.

If you are dealing with how to best address the issue of your marital home during a divorce, or are facing contempt action on a Final Judgment and Decree due to your inability to refinance the marital home, we recommend you contact one of our Atlanta Divorce Lawyers to assist you with this process.

By: Courtney H. Carpenter, Associate Attorney, Meriwether & Tharp, LLC

In Georgia, grandparents have very limited rights. I was recently asked about visitation for the paternal grandparents in a situation where the parents of the child (who never married) are refusing access to the child.

In this situation, the grandparent’s rights depend partly on whether the father has legitimated the minor child. Without a Court order granting legitimation, the father has no rights, which arguably means the paternal grandparents have no rights. Unfortunately, with this set of facts, there does not seem to be a valid claim for visitation.

In the past, Georgia courts held that prenuptial agreements made in contemplation of divorce were invalid on the ground that they were contrary to public policy. Thankfully, this is no longer the case. See Scherer v. Scherer, 249 Ga. 635 (1982) overruling Reynolds v. Reynolds, 217 Ga. 234 (1961). Today, prenuptial agreements made in contemplation of divorce are regularly enforced by courts across the state. Though agreements in contemplation of divorce do not necessarily violate public policy, the distinction between agreements made in contemplation of divorce and agreements made in contemplation of marriage has continued.

Several recent cases have attempted to distinguish agreements made in contemplation of marriage from agreements made in contemplation of divorce. The former require attestation by two (2) witnesses under O.C.G.A. § 19-3-63, while the latter do not.

In Dove v. Dove, 285 Ga. 647, 647 (2009), the Court held that a prenuptial agreement settling alimony issues was a contract made in contemplation of divorce and only required the signature of one (1) witness. However, in Sullivan v. Sullivan, 268 Ga. 53 (2009), where an agreement set out property rights, defining each party’s respective estates without defining alimony or division of property in the event of divorce, the agreement was considered one made in contemplation of marriage and required the attestation of two (2) witnesses.

While O.C.G.A. § 19-3-63 requires that contracts made in contemplation of marriage must be attested to by at least two witnesses, this statute does not apply to prenuptial agreements made in contemplation of divorce. Lawrence v. Lawrence, 286 Ga. 309 (2009). In Lawrence, the trial court upheld a prenuptial agreement that was only witnessed by one person. The Wife appealed, claiming that O.C.G.A. § 19-3-63 required the signatures of two witnesses. The Supreme Court of Georgia affirmed the trial court’s decision and stated that an agreement that contemplates that the marriage may end by divorce or dissolution, rather than only death, is an agreement that is made in contemplation of divorce, not marriage. Lawrence at 311-312.

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

In Georgia, for a prenuptial agreement to be deemed enforceable it must pass a three-part test set forth in Scherer v. Scherer, 249 Ga. 635 (1982). This three-part test, as restated in Blige v. Blige, 283 Ga. 65, 67 (2008), reads as follows:

"[T]he party seeking enforcement bears the burden of proof to demonstrate that: (1) the antenuptial agreement was not the result of fraud, duress, mistake, misrepresentation, or nondisclosure of material facts; (2) the agreement is not unconscionable; and (3) taking into account all relevant facts and circumstances, including changes beyond the parties’ contemplation when the agreement was executed, enforcement of the antenuptial agreement would be neither unfair nor unreasonable."

The party seeking to enforce the pre-nupt carries the burden of demonstrating the above mentioned factors.

Under Adams v. Adams, 278 Ga. 521 (2004), to satisfy the first prong of the Scherer test, the enforcing party must show “a full and fair disclosure of the assets of the parties prior to the execution of the [antenuptial] agreement.” Courts have held that a failure to disclose yearly income may amount to the nondisclosure of a material fact. To avoid such problems courts have endorsed financial statements and statements of income as “the most effective method[s] of satisfying the . . . disclosure obligation in most circumstances.” Blige at 69, n.12.

Satisfying the second and third prongs of the Scherer test requires that the party seeking to enforce the pre-nup demonstrate that the agreement is not clearly unconscionable and that its enforcement would not be unfair.

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