Atlanta Divorce Attorney Blog

Georgia family law attorneys often deal with post-divorce custody issues. For example, sometimes, unfortunately, a parent refuses to return a child at the end of his/her visitation time. In this situation in Georgia, if the parties have been divorced in the past 3 years, there should be a Parenting Plan in place that sets forth each parent’s respective custodial times. If a parent has violated the terms of that Parenting Plan, the other parent can call the police to see if they will help enforce the Parenting Plan. If the police decline to get involved, the parent will have to file a Petition for Contempt with the Court that granted the divorce or in the county of the other parent’s residence.

If the divorce was granted more than three years ago, there should be a settlement agreement or Order from the Court setting forth each parent’s respective parenting times. In that situation, the course of action would be the same as above.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

With the increasing publicity related to celebrities and their custody disputes (Usher, T.O., Mindy McCready and other artists we have posted about), an interesting question arises as to how judges in Georgia handle child support obligations when one parent makes a significantly higher income than the other parent. The purpose of child support is to provide the minor child with a lifestyle that reflects the income of both parents. What do you do when one parent makes ten times, twenty times, or even one hundred times more?

I recently attended a seminar where a panel of judges discussed this issue. A Gwinnet County judge indicated that lump sum child support might be appropriate. Lump sum child support is usually one large payment that, once paid, would completely resolve the parent’s obligation to pay child support in the future. The benefit to lump sum child support would be ensuring that the entire child support obligation until the minor child turns eighteen would have already been paid even if the high-income parent were to lose his or her job later. However, if the high income earning parent were to lose his or her job later, an argument could be made that the lump sum child support was inappropriate because that parent would have had to pay a lower child support payment if his or her income were lower.

A Cobb County judge suggested that another way to determine child support in high-income cases is to use percentages. By way of example, if the child support payment should be 15% of the parent’s net income, then it should not matter whether the 15% is applied to an income of $40,000.00 or $400,000.00 or $4,000,000.00. A Fulton County judge stated that her main concern in such cases is that the money is put to good use and be used for the minor child rather than going to the living expenses of the other parent. This Fulton County judge stated that, depending on the case, it may be in the best interest of the child to require that a certain sum be set for the minor child and defer accessibility to that fund so the custodial parent does not waste it. Another judge stated, however, that just because one parent earns a significantly higher income than the other does not mean that the child support obligation should be significantly higher as well. This judge wanted to prevent the situation where the custodial parent was essentially “winning the lottery” through child support and stated that a downward deviation is appropriate.

By Emily Yu, Associate Attorney, Meriwether & Tharp, LLC

The Supreme Court of Georgia recently heard a case regarding a self-executing modification in a final decree of divorce. Johnson v. Johnson, S11F1856 (2012). In that divorce case, the final decree of divorce awarded primary physical custody of the parties’ daughter to the mother, with supervised visitation to the father. Id. The parenting plan further provided that the father’s overnight visitation must be supervised by “a reasonable adult approved by [a therapist treating the child], until such time as [the therapist] determines that supervision is not necessary.” Id. Under the parenting plan, the therapist had the additional authority “to determine how supervised visitation should be phased out over time and when supervision may end.” Id. The father appealed, contending that the “provisions concerning the termination of the supervised visitation constituted an improper self-executing modification contingent on the determination of the therapist.” Id. at 2.

The Supreme Court of Georgia agreed with the father that the provision is an improper self-executing change of visitation because it allows for an automatic change in his visitation based on a future event, without any additional judicial scrutiny. Id. at 2-3. The Court held that “a self-executing change in custody/visitation that constitutes a material change, i.e. is one ‘that is allowable only upon a determination that it is in the best interests of the [child] at the time of the change,’ generally violates Georgia’s public policy founded on the best interests of the child.” Id. at 3. The responsibility for making this decision must be made by the court and cannot be delegated to another person or entity. Id. In this case, the provision regarding the change in the father’s visitation is considered a material change. Since, under this provision, it will occur automatically without any judicial scrutiny, “it is an invalid self-executing change of visitation” and must be stricken from the final divorce judgment. Id. at 4.

The Supreme Court of Georgia recently affirmed a divorce action where the husband was awarded primary physical custody of the children despite evidence of alleged family violence. Finklea v. Finklea, S11F1804 (2012). At the final hearing in that divorce case, the parties “each testified extensively about acts of family violence committed by the other spouse, which led to multiple police reports filed against each other.” Id. at 2. In its final judgment, the trial court said it was making its decision “[a]fter hearing testimony of the parties and considering all the evidence tendered at trial.” Id. Neither party asked for written findings of fact supporting the custody award. Id. The trial court ultimately awarded primary physical custody to the husband.

The wife appealed, alleging that “in awarding primary physical custody of the parties’ two children to Husband, the trial court abused its discretion in failing to cosider evidence of alleged family violence perpetrated by Husband against her." Id. at 1. The Supreme Court of Georgia disagreed, holding that, under the circumstances described above, the trial court did consider evidence of family violence presented at the final hearing. Id. at 3. In addition, the Court found no abuse of discretion in the trial court’s award of primary physical custody to the husband. The trial court exercised its discretion in awarding custody to one parent over the other and “[w]here there is any evidence to support the decision of the trial court, this Court cannot say there was an abuse of discretion.” Id. at 3, quoting Haskell v. Haskell, 286 Ga. 112, 112 (2009).

The Supreme Court of Georgia recently reversed a trial court’s decision in a custody modification case because the trial court erroneously relied on evidence from the temporary hearing in making its final custody determination. Vaughn v. Davis, S11A1950 (2012). In that case, the parties had been granted joint legal and physical custody of their children in their divorce action. Neither was required to pay child support to the other, but they were ordered to split the children’s expenses. Id. The mother later filed a motion for change of custody and child support. Id. At the temporary hearing at which both parties appeared pro se, the trial court entered a temporary order awarding primary physical custody to the father, with the visitation to the mother. The mother was also ordered to pay child support to the father. Id.

The mother retained an attorney prior to the final hearing in the case. At the final hearing, the trial court again granted primary physical custody to the father, with visitation for the mother. Id. at 2. After her motion for a new trial was denied, the mother appealed, contending “that the trial court erred by relying on evidence adduced at the temporary hearing.” Id.

The Supreme Court of Georgia agreed with the mother, citing a case from 2010 which held that “[t]he nature and quality of the evicence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing, and parties should ordinarily expect that only that evidence which their opponent sees fit to offer at the final, more formal hearing will be relied on to support the permanent custody award…Accordingly, we now hold that, absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.” Id. at 2-3, quoting Pace v. Pace, 287 Ga. 899, 901 (2010).

Here, it is clear that the trial court relied on evidence from the temporary hearing in reaching its final custody decision, and “there is no indication that the parties were notified in advance that this was going to happen.” Vaughn at 3. Thus, the trial court’s order must be reversed and remanded for further proceedings.

In Georgia, when spouses live in different counties, or if one spouse lives in Georgia and one lives out of state, there are specific rules which govern where the divorce action must be filed. Georgia law states that: “No court shall grant a divorce to any person who has not been a bone fide resident of this state for six months before the filing of the petition for divorce.” OCGA §19-5-2. An exception to this rule is that “a nonresident of this state may file a petition for divorce, in the county of the residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.” Id.

If both parties have resided in Georgia for more than six months, the Petitioner must file the divorce action in the county in which the Respondent resides, even if the Petitioner does not live in that county. So, if the Petitioner resides in Fulton County and the Respondent resides in Cobb County, the divorce action must be filed in Cobb County. If the Petitioner resides out of state and the Respondent has resided in Georgia for at least six months, the divorce action must be filed in the Georgia county in which the Respondent resides. If the Petitioner resides in Georgia and the Respondent resides out of state, the divorce action cannot be filed in Georgia but, rather, must be filed in the state in which the Respondent resides.

Atlanta divorce attorneys are often asked how pension plans are divided upon a divorce in Georgia. In general, pension plans are treated like any other property – if they accrued during the marriage, they are marital property subject to equitable division. Any portion that accrued prior to the marriage, however, is considered the separate property of that spouse.

Consider an example where a husband had a pension that began accruing in 1990, and the couple married in 1995 and divorced in 2005. In that situation, the wife would be entitled to an equitable portion of the pension that accrued from 1995 until 2005, but would not be entitled to anything from 1990 to 1995 as that portion would be the husband’s separate property.

Dividing pensions and other retirement accounts in a divorce can be complicated. Many companies have very specific regulations that must be followed and precise language that must be used in the divorce decree in order for the account to be divided. If you are dealing with one of these accounts in your divorce action, we recommend that you contact one of our Atlanta divorce attorneys for assistance to ensure a smooth division of these assets.

In these tough economic times, people are often looking for ways to save money. So it is not surprising that Georgia divorce attorneys are often asked if a person can obtain a divorce online, rather than hire an attorney and go through the court system.

In Georgia, you cannot get a divorce online. You can obtain the divorce paperwork online, but you must file it with the Superior Court, who will then grant your divorce after going through the required legal procedure. Some counties offer help with divorce filings and make it easier than others to file and obtain a divorce without an attorney. However, there are some aspects of a divorce case, particularly child custody and child support, that require specific legal documents (i.e. parenting plan, child support worksheets) that must be filled out correctly and completely before the court will grant the divorce, even if all issues are agreed upon. Thus, while there is certainly nothing wrong with negotiating issues in your divorce without the assistance of at attorney, it might actually save you time and money to hire an attorney to help you with the paperwork to ensure it is done correctly and that there will be no issues in having your divorce granted as expeditiously as possible.

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.

With the holiday season upon us, many divorced parents in Georgia will look to their parenting plan for guidance on arranging their holiday schedules. Parenting plans are custody agreements that are submitted jointly or individually by each party in an action that involves child custody in Georgia. Except in those cases where emergency relief is necessary due to family violence, parenting plans are required in all actions in Georgia where child custody is at issue.

A parenting plan may be temporary until a final decree is entered, at which time a permanent parenting plan will go into effect. Under Georgia law, when considering either a joint plan or opposing plans of the parties, the court must make its determination based upon the best interest of the child. O.C.G.A. § 19-9-3. The court bases its determination on a number of factors including, but not limited to, the relationship that exists between each parent and the child, and the ability of each parent to provide the child with basic necessities. Id. at a(3).

Parenting plans require that both parties acknowledge and decide on a variety of issues. O.C.G.A. § 19-9-1. Holiday visitation is one such issue, and it can be difficult and emotional for parties to come to an agreement because it requires each party to agree to some holidays away from their children. It may never be easy to split time with your child and the other parent, but a successful parenting plan can alleviate tensions between the parties and allow each parent to enjoy time with their child.

If you need help creating a parenting plan, or seek to modify your existing parenting plan, please contact our Atlanta divorce attorneys to assist you in the process.

By Courtney Carpenter, Associate Attorney, Meriwether & Tharp LLC

Georgia divorce lawyers are often asked how long an average divorce takes in this state. This is a difficult question to answer because there is not really an “average” divorce case. The length of time depends greatly on whether the parties are able to settle matters and, if not, what issues they are fighting about. Even cases with similar facts can be very different. For example, consider a case where both parties work, and have 2 children, a marital home, several joint accounts, and some separate property. Some parties with these facts are able to resolve everything fairly quickly and easily. Other parties with these same facts, however, may argue over every custody, child support, alimony and/or equitable division of assets. Even one contested issue can cause a divorce to drag on, especially if it is something about which both parties feel passionate.

The length of a divorce case can also depend on the County in which the divorce is filed because some courts are more back logged than others. Often, there is not much you can do about this issue.

In our experience, the average time range for a divorce in Georgia is 45 days for a completely uncontested divorce to about 3 years for a hotly contested divorce. However, as mentioned above, this time can vary greatly based upon the specific facts of your case.

In Georgia, a spouse who has an affair risks the affair playing a large role in the outcome of the divorce case, specifically with the issue of support. First and foremost, adultery is an absolute bar to alimony in Georgia. This means that the person who had the affair is not entitled to alimony, whether they need it or not, and will not be successful on a claim for alimony in court.

On the other hand, adultery does not impact child support as this support belongs to the child, not the parent. Thus, anything relating to child support, such as daycare, medical, and extracurricular expenses for the children, will still be up for discussion and will be shared according to the child support worksheets. It should be noted, however, that adultery can affect child custody, which will determine who pays child support. If a parent has committed adultery in the presence of the children, this parent is acting contrary to the children’s best interests (the standard for determining custody in Georgia), which could result in that parent losing a custody battle and then having the obligation to pay child support.

The Supreme Court of Georgia recently heard a case dealing with supervised visitation that was to be phased out through a transition period. In Sigal v. Sigal, before filing for divorce, the mother first filed a petition for separate maintenance. Sigal v. Sigal, S11F0835 (2011). In the decree from that case, the mother was granted primary custody and the father’s visitation was required to be supervised as a result of his documented drug and alcohol abuse problems. Id. at 2. The mother subsequently filed for divorce and “asserted that all issues regarding custody, visitation and support of the children were fully adjudicated in the decree of separate maintenance.” Id. The father disagreed and sought “reasonable and fair unsupervised visitation” with the children. Id. After hearing testimony from both parties, the trial court orally announced its ruling, holding that the father could have unsupervised visitation provided that he took and passed a drug test within the next 45 days and provided that the unsupervised visitation be phased in over a three month transition period. Id. at 3-4.

For reasons unknown, the final divorce decree was not entered for several months, though the visitation provision was entered nunc pro tunc from the date of the hearing. (This means that the visitation provision went into effect as of the date of the hearing, rather than the date of the final divorce decree). Id. at 4-5. As a result, the three-month transition period had already expired by the time the final decree was entered. Id.

For this reason, the mother appealed, and the Supreme Court of Georgia reversed the trial court’s ruling. The Court held that “the nunc pro tunc action as to the gradual transition provision in the decree here did not serve to conform the decree to the truth or the justice of the situation as originally intended by the trial court.” Id. at 7. “Rather, it had the exact opposite effect by eliminating the truth and justice recognized by the trial court…regarding the need of these children for a gradual transition period from supervised to unsupervised visitation with their father.” Id. at 7-8. For this reason, the trial court abused its discretion in making the visitation provision nunc pro tunc.

In Georgia, child custody is determined using the “best interests of the child” standard. OCGA §19-9-3(a)(2). In custody cases where the child is under the age of 11, the court is not required to consider the child’s desires in determining which parent will have custody.

In custody cases where the child is 11, 12 or 13 years of age, “the judge shall consider the desires and educational needs of the child in determining which parent shall have custody.” OCGA §19-9-3(a)(6). The judge still has complete discretion in making the custody determination and, though he must consider the child’s desires, “the child’s desires shall not be controlling.” Id. The determination is still based upon best interests of the child and the child’s desires are a factor to be considered in making this determination.

In custody cases where the child is 14 years of age or older, “the child shall have the right to select the parent with whom he or she desires to live.” OCGA §19-9-3(a)(5). The custody selection made by a child in this age group “shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.” Id. Thus, the court will follow the election of the child, unless that election is not in the child’s best interest.

Georgia divorce attorneys are often asked whether a parent’s line of work can impact child custody. In Georgia, child custody is determined using the “best interests of the child” standard. OCGA §19-9-3(a)(2). In determining the best interests of the child, ”the judge may consider any relevant factor.” OCGA §19-9-3(a)(3). This means that anything and everything may impact a custody determination, including a parent’s employment. For example, if you are a truck driver traveling 5 days a week, then it is not practical for you to be the primary physical custodian because you are not home most of the time. This factor will be weighed with all other factors in the determination of custody.

In Georgia, the procedure for service of process (i.e. service of divorce papers) on a party to a divorce action is the same as in any civil action in this state. According to Georgia law, “Process shall be served by: (1) The sheriff of the county where the action is brought or where the defendant is found or by such sheriff’s deputy; (2) The marshal or sheriff of the court or by such official’s deputy; (3) Any citizen of the United States specially appointed by the court for that purpose; (4) A person who is not a party and is not younger than 18 years of age and has been appointed as a permanent process server by the court in which the action is brought; or (5) A certified process server under Code Section 9-11-4.1, provided that sheriff of the county for which process is to be served allows such servers to serve process in such county.” OCGA §9-11-4(c).

In divorces and other family law cases, it is often prudent to have a certified process server, rather than a marshal or sheriff, serve your spouse. A marshal or sheriff will be in uniform when serving the papers, while a certified process server is usually in plain clothes. If you are having your spouse served while he/she is at work, it will cause less of a scene for a plain-clothes person to give him/her a stack of papers rather than a uniformed officer. In addition, if your spouse is avoiding service, you can often direct a certified process server exactly where to go and when to give him the best chance of effecting service. You can even give him the make and model of your spouse’s car and a photograph of your spouse. Often, a sheriff and/or marshal is unable to give your case this extra attention that may be necessary to effect service. For the above reasons, though a certified process server is more expensive, it may be money well spent in your divorce case.

In a recent blog, we emphasized that, when going through a divorce in Georgia, it is important to understand how one holiday may mean more to one parent or family than another. This is particularly the case when it comes to religious holidays and how they are observed. Unless a spouse is particularly religious and strong in their faith, religion is not usually heavily emphasized in a divorce in Georgia. However, for some families, religion and celebrating religious holidays may be particularly important and the impact of religion on divorce must be considered.

For example, orthodox Jewish families may regularly observe the Saturday Sabbath which begins on Friday evenings and continues until Saturday evening. Some families do not use electricity or drive cars during the Sabbath. If this is the case, it is important to contemplate how telephone visitation with minor children will occur on Fridays and Saturdays and, if there is visitation scheduled, how the minor children will be transported to the other parent’s home. Spouses may also need to negotiate other aspects of such religious holidays like dietary restrictions or dress.

In cases where religion is important to one parent or the other, final decision making authority for religion or religious training may be a contentious point. It will be helpful to define what “religious training” means and whether it includes Catholic school, Sunday school, or regularly attending religious services. It is also important to determine what a more religious parent may expect from the other parent. Will both parties be required to observe dietary restrictions or dress provisions when the minor children are with each parent? When religion is an important factor in your divorce, it is better to spend the time having detailed and thorough conversations with the other parent so that clear provisions can be included in your Settlement Agreement.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

The Supreme Court of Georgia recently addressed a divorce case where separate property was erroneously classified as marital property and equitably divided. In that case, parties were married in 1993 and divorced in 2010. Highsmith v. Highsmith, S11F1052 (2011). In its final decree of divorce, the trial court classified some of the parties’ property as separate and some as marital. Specifically, the trial court classified an investment account in the Wife’s name as marital and subject to equitable division. Id. at 1-2. After the Wife’s motion for a new trial was denied, she appealed, alleging, “the trial court erred when it improperly designated her Scottrade account as marital property…” Id. at 3.

The Supreme Court of Georgia agreed with the Wife. The evidence from the divorce trial showed that the Wife had sold a house she owned prior to the marriage and put all of the proceeds in the Scottrade account at issue, which contained $300,000. Id. At the time of the trial, the balance of this account was $74,000, due, primarily, to the fact that she withdrew a large sum from this account and placed it into a joint account for real estate investment purposes during the marriage. Id.

The Georgia Supreme Court adamantly held that “the evidence showed Wife brought the account to the marriage.” Id. at 4. Thus, “[w]hatever as left in the account at the time the marriage ended was Wife’s separate property because no marital funds were placed into the account and its value, with the exception of Wife’s removal of $210,000, rose or fell with the market rather than being thr result of any labor or investment made by the Husband or the parties together during the marriage.” Id. at 4-5. The fact that a portion of this account was placed into a joint account during the marriage did not transform the remainder of that account into marital property.

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.

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

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.

In Georgia, an important task to undertake after your divorce is revising your will to make sure it is in line with your intent. I recently read an article that described how Amy Winehouse’s revised will left everything to her parents and brother, rather than to her ex-husband. Amy Winehouse got her will right, by Karen Datko, July 27, 2011. English law states that divorce does not “undo the presumption that the natural inheritor is the spouse,” and “[e]ven in the presence of a will written pre-marriage which states otherwise the surviving spouse, or ex-spouse, will again be the natural inheritor.” Id. Thus, if she had not revised her will, her former spouse likely would have inherited everything.

This is not the case in Georgia. Under Georgia law, “all provisions of a will made prior to a testator’s final divorce or the annulment of the testator’s marriage in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator…” OCGA §53-4-49. Thus, if a person divorces and then dies without changing his/her will, the ex-spouse will not inherit under the language of the will, and the person next in line to inherit will do so (so long as that person is not a descendant of the ex-spouse who is not also a descendant of the testator). Keep in mind this statute only applies after the divorce is final. Even with this safeguard in place, however, it is still important to review your will after your divorce to make sure the terms are still in line with your intent. Many things in your life will have changed post-divorce so it is very possible that you would not want the next person in line to inherit – particularly if it is a friend or relative of your former spouse. I would recommend revising it to remove the former spouse, just so there is no ambiguity.

The Supreme Court of Georgia recently addressed a divorce case, which highlights what can happen when the final divorce decree is signed by the judge, but not filed in the clerk’s office. Maples v. Maples, S11F0919 (2011). In that case, the trial court signed a final decree of divorce on June 1, 2000, but the divorce decree was not filed with the clerk until August 1, 2002. Id. Meanwhile, the parties, believing they were already divorced, remarried each other on June 25, 2000. Id. Ten years later, the wife filed a complaint for divorce and the parties thereafter learned that their original divorce decree was not filed until two years after they had remarried. Id. Upon the wife’s motion, the trial court amended the judgment in the 2000 case “by entering an order nunc pro tunc to ensure that the order reflected the true judgment rendered by the court, i.e., that the parties were to be divorced on June 1, 2000. Id. ("Nunc pro tunc" basically means that the order is backdated.) The husband appealed the entry of the nunc pro tunc order, asserting that a nunc pro tunc order cannot be used to backdate the entry of a divorce decree. Id. at 2. (Presumably, he wanted the 2010 divorce case to just be dismissed.)

The Supreme Court of Georgia affirmed the trial court’s holding, “[e]very court has the inherent power – and it is the court’s duty – to correct its own records to make them speak the truth. [Cits.] Where based solely on the record, and without the necessity for the introduction of extrinsic evidence, the court may, on its own motion and without notice, enter such judgment and decree nunc pro tunc at a later date.” Id.; quoting Norman v. Ault, 287 Ga. 324, 330 (5) (695 SE2d 633) (2010), quoting Moore v. Moore, 229 Ga. 600, 601 (2) (193 SE2d 608) (1972), overruled on other grounds. Here, the judgment had already been rendered and the divorce decree signed by the judge. There was nothing else to be done other than file the decree. The Court ended its opinion by pointing out that “[e]ntry of the divorce decree nunc pro tunc to the date of the signing of the decree was advantageous to husband, as well as wife, because it accurately reflected his intention to re-enter the bond of marriage on June 25, 2000.” Maples, at 5-6.

A Georgia mother recently lost primary physical custody of her child when the court found that her planned move to New York was not in the child's best interest. In that case, shortly after their divorce in which the Mother received primary physical custody of the parties’ child, the Mother notified the Father that she planned to move with the child to New York. Gallo v. Kofler, S11A0185 (2011). The Father filed a Petition for Modification of Custody and, after a hearing, the trial court issued an order giving the Father primary physical custody. Id. The Mother appealed, arguing that the trial court erred in modifying custody solely because of her planned move. Id.

The Supreme Court of Georgia disagreed with the Mother. Generally, in looking at a possible custody change, the trial court must be guided by the best interests of the child. Id. Though “self-executing change of custody provisions that would automatically change custody to a non-custodial parent in the event that the custodial parent moved to another location at some point in the future are invalid,” that does not mean that the trial court is required to wait until the Mother moved to New York to determine whether a modification of custody was in the child’s best interest. Id. at 3. There was evidence at the hearing that “the child had been thriving in Georgia,” the child would have a better quality of life in Georgia than in New York, the child’s relationship with the Father could be harmed by a move, and the Mother was financially instable. Id. at 3-4. The Supreme Court of Georgia found this evidence to sufficiently support the trial court’s decision to change physical custody to the father. Id. at 4.

The Georgia Supreme Court recently upheld an alimony award for a Wife, despite the fact that the Husband was disabled and unemployed. In that case, the Husband was held in contempt of the parties’ divorce decree for failing to make alimony payments to the Wife. McDonald v. McDonald, S11F0112 (2011). Specifically, as alimony, the Husband was to keep the Wife on his health insurance for 24 months and make her car payment for 12 months. Id. at 3. The Husband appealed, arguing that “the trial court erred in awarding Wife alimony because she failed to show a need for alimony, he had no ability to pay alimony because he is disabled and unemployed, and Wife’s alleged misconduct and the short duration of the marriage made alimony inappropriate.” Id. at 3-4. The Supreme Court of Georgia disagreed with the Husband.

The Court held that the trial court was authorized to make the alimony award because Wife’s disability caused her to need the alimony, and Husband’s disability income, future earnings, and property awarded in the divorce would enable him to satisfy the alimony award. Id. at 4. Thus, the “need for alimony” and “ability to pay alimony” requirements were satisfied. Though Husband’s disability may make it more difficult for him, the Supreme Court of Georgia found that the evidence supported the award, and the trial court did not abuse its discretion in awarding alimony to the Wife. Id.

The Supreme Court of Georgia recently reversed a trial court's decision regarding a restriction on overnight guests during a parent's visitation time. Ward v. Ward, S11A0437 (2011). In that case, the parties’ Final Judgment and Decree of Divorce awarded primary physical custody of the children to the father, with the mother receiving substantial visitation. Id. About a year after the divorce, the parties each filed modification actions and the divorce decree was amended to include a visitation provision providing that the mother “shall not have any overnight male guests while the minor children are present.” Id.

The mother appealed, arguing that the amended visitation provision was overbroad, and the Supreme Court of Georgia agreed. Id. at 2. Presumably, this provision was included to prohibit the mother from having a boyfriend spend the night, but the Court was moved by the mother’s argument that, as written, the provision “prohibits her from having her father, a brother, a new spouse, or even the children’s father spend the night at her house while the minor children are present.” Id. Generally, “a trial court has discretion to place restrictions on custodial parents’ behavior that will harm their children,” but here, the restriction prohibits the mother from having non-romantic male visitors, which were not shown to be harmful to the children. Id. at 3. Thus, the Supreme Court of Georgia held that the trial court abused its discretion in amending the divorce decree in this manner.

Provisions such as the one addressed in this case are fairly common in divorce decrees. A better way to write this provision would be that the mother shall not have any overnight male guest that is not related by blood or marriage while the minor children are present.

In addition to addressing the final decision making issue in Avren v. Garten, the Supreme Court of Georgia also addressed the trial court’s dismissal of the mother’s petitions for contempt, and modification of custody, child support and visitation. Avren v. Garten, S11A0064 (2011). The mother contended that the trial court erred in dismissing these actions. Id. at 3.

The Supreme Court of Georgia disagreed with the mother, holding that the mother’s petitions for modification of custody, modification of visitation, and her petition for contempt were properly dismissed pursuant to OCGA §19-9-24(b), which “prohibits a legal guardian from bringing an action for modification of child custody or visitation rights or any application for contempt of court so long as visitation rights are withheld by the legal guardian in violation of the custody order.” Id. at 4. In this case, there was overwhelming evidence that the mother had left the house with the child on scheduled visitation days during the time in which the father was to pick up the child. Id. Under these circumstances, the Supreme Court of Georgia held that the trial court did not err when it dismissed these actions. Id. at 5.

The Supreme Court of Georgia also held that the mother’s petition for modification of child support was properly dismissed due to the “two-year rule.” This rule provides that “[n]o 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.” OCGA §19-6-15(k)(2). In this case, the mother filed the current petition only 11 months after her previous petition for modification of child support. Id. at 6. Since it had been less than two years, the mother's petition was properly dismissed. Id. at 7.

The Supreme Court of Georgia recently heard an appeal regarding final decision making authority in a Georgia divorce decree. Avren v. Garten, S11A0064 (2011). In that case, the parties were divorced, and the final order awarded the father final decision making authority for the child regarding health and medical issues. Id. at 2. The trial court subsequently found the mother in contempt for taking the parties’ minor child to counseling over the father's objection, and the mother appealed. Id.

The Supreme Court of Georgia disagreed with the mother’s assertion that the trial court abused its discretion in finding her in contempt. The Court specifically noted that “[m]other acknowledged at the contempt hearing that she had taken the child to a therapist that Father disapproved,” despite the fact that the father had final decision making authority on this issue. Id. at 3. These facts provided sufficient evidence “to support the trial court’s determination that Mother willfully disobeyed a prior court order” and, thus, the finding of contempt was upheld. Id.

The 9th Judicial District (Forsyth and Cherokee counties) recently added another June parenting seminar date:

Saturday, June 25, 2011, 10:00am – 2:00pm in Cumming at the Central Park Recreation Center (2300 Keith Bridge Road)

The cost of the seminar is $50.00 per person. There is no pre-registration and you must arrive 30 minutes early to register. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website. Check back for parenting seminar dates for July – September 2011.

The Supreme Court of Georgia often hears appeals of custody determinations, though the standard to overturn a trial court's ruling on this issue is very high. In a recent case, the parties’ Final Judgment and Decree of Divorce awarded the parties joint legal custody of their eight-year-old daughter, with the Wife receiving primary physical custody and the Husband receiving visitation. Reed v. Reed, S11A0085 (2011). The Husband appealed, challenging the trial court’s custody determination. Id.

The Supreme Court of Georgia disagreed with the Husband, emphasizing long standing Georgia law that, so long as the trial court used its discretion “to determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness,” the Court will not interfere. Id. at 1-2; OCGA §19-9-3(a)(2). The Court found that there was “ample evidence” to support the trial court’s custody award, specifically that “...Wife had served as primary caregiver since the child’s birth and had a strong, loving relationship with the child, and that Husband had on occasions both before and during the divorce proceedings exhibited conduct casting doubt on his trustworthiness, truthfulness, and judgment.” Reed, at 2. The Supreme Court of Georgia touched on the Husband’s argument that the trial court “failed to consider the Wife’s anticipated move to North Carolina,” but held that the trial court considered this fact and “did not find it dispositive with regard to the child’s best interests.” Id. Thus, the trial court did not abuse its discretion and the judgment was affirmed.

A question Georgia divorce attorneys are often asked is “Who pays for the divorce?” Generally, each party pays for their own attorney’s fees. However, there are safeguards in place to protect a spouse who has no access to marital assets from the spouse who is using these assets at his/her disposal. Georgia law specifically states that the grant of attorney’s fees shall be within the sound discretion of the trial court so long as the court considers the financial circumstances of both parties a part of its determination. OCGA §19-6-2(a)(1). The fees can be awarded in full, at the end of the divorce proceeding, or on account, which means the spouse ordered to pay the other’s fees must pay them as they become due. OCGA §19-6-2(a)(2). Attorney’s fees may be awarded at a temporary hearing, a final hearing, or both, if the financial circumstances warrant the awards. OCGA §19-6-2(b). Just as any other order, an award of attorney’s fees can be enforced by an action for contempt.

Consider a couple that is going through a divorce, and all the marital accounts are in the husband’s name. The wife cannot make any withdrawals from the marital accounts, or even sign checks, because her name is not on the accounts. Thus, she is likely unable to pay a retainer or to keep up with monthly attorney bills. In this situation, we would highly recommend that the wife make a motion for attorney’s fees, so that she may utilize the martial accounts and defend herself equitably in the divorce action.

With school getting out and summer upon us, it seems appropriate to discuss summer visitation. Whether you are currently going through a divorce, or have already gone through a divorce, summer visitation is something that you and your former spouse (or soon-to-be former spouse) should discuss. Camp and other extracurricular activities can often take up a lot of the children’s time, so it is important that you are on the same page about these activities and how they may impact visitation.

If your divorce is final, you are required to abide by your final divorce decree regarding vsummer visitation. Often, divorce decrees allow each parent to take the children on a vacation for up to two uninterrupted weeks, so long as each parent notifies the other of his/her intent. I recommend that you go back and read your divorce decree to make sure you are clear on your rights and obligations.

If you do not yet have a final divorce decree and there is no temporary order governing custody and visitation for the summer, I highly recommend that you seek to get a temporary agreement in place. There are several reasons for coming to a summer visitation arrangement sooner rather than later: (1) You can make travel plans, if necessary; (2) You can make arrangements for taking time off work or arranging child care/camp during the time you have the children; and (3) You can ensure that both parents will have some time with the children over the summer.

The Supreme Court of Georgia recently upheld an award of attorney’s fees based upon Wife’s conduct during the divorce litigation that caused the Husband to incur unnecessary attorney’s fees. Abt v. Abt, S11F0670 (2011). In that case, after a temporary hearing, the parties were awarded joint legal custody of their two children, with the Wife being named primary physical custodian. Id. Subsequently, the Wife’s boyfriend moved into the marital residence, and “the children revised their election of custodial parent several times, related in part to wife’s new boyfriend and his residence in the home.” Id. Just prior to the final trial, the wife moved for appointment of a guardian ad litem, and the trial was delayed so a guardian could be appointed “to address the custodial fluctuations of the children.” Id. After the final hearing, the trial court ordered the Wife to pay Husband $14,862.50 in attorney’s fees and the Wife appealed. Id. at 2.

The attorney’s fees were awarded pursuant to OCGA §9-15-14(b), which authorizes “an award of reasonable and necessary attorney fees upon a finding that an action or any part thereof lacked substantial justification, was interposed for delay or harassment, or an attorney or party unnecessarily expanded the proceeding by other improper conduct.” Id. at 3. The Supreme Court of Georgia held that the trial court did not abuse its discretion in the award of attorney’s fees to Husband, as the trial court found that the Wife’s actions during the divorce proceeding “caused the children to vacillate in their respective custodial elections and resulted in the necessity for the appointment of a guardian ad litem, the need to conduce emergency hearings, the entry of an order restraining wife from approaching husband’s residence or business location, and the overall expansion of litigation.” Id. at 4. These findings supported the trial court’s holding that wife’s actions unnecessarily expanded the litigation and, thus, there was no error in the award of attorney’s fees. Id.

The Supreme Court of Georgia recently held a Husband to the exact language in his divorce decree, even though it may cause him hardship. Greenwood v. Greenwood, S11A0611 (2011). In that case, the parties’ final judgment and decree of divorce awarded the marital residence to the Husband, and required him to “timely refinance the marital residence...so as to completely remove the Wife from any liability relating to the underlying mortgage.” Id. If the Husband did not refinance the mortgage by the deadline, he was required to immediately pay $10,000 to the Wife as a penalty. Id. at 2. After the Husband failed to refinance the mortgage and/or pay the penalty, the Wife filed a motion for contempt. Id. The trial court found the Husband in contempt, but converted the monetary penalty into a lien against the marital residence and stated in its order that, due to current market conditions, it would give the Husband a reasonable time to sell the house to remove Wife from the mortgage. Id. at 3.

The Wife appealed, alleging that the trial court improperly modified the divorce decree, and the Supreme Court of Georgia agreed. In general, “[w]hile the trial court has broad discretion to determine whether [a divorce] decree has been violated and has authority to interpret and clarify the decree, it does not have the power in a contempt proceeding to modify the terms of the…decree.” Id. at 4; quoting Dohn v. Dohn, 276 Ga. 826 (2003). Here, the Supreme Court of Georgia held that it was “clear that the trial court improperly modified the divorce decree by converting Husband’s penalty for failure to remove Wife from the mortgage by an explicitly-stated deadline into a lien on the marital residence.” Id. at 4. A lien “that may possibly be recouped at some indeterminate time in the future” is contrary to a monetary penalty which became due on October 2, 2009 and, thus, the Supreme Court of Georgia reversed this portion of the order. Id. at 5. Though the Court was sympathetic to the hardship the market may place on Husband, allowing him a reasonable time to sell was also an impermissible modification of the divorce decree. Id. at 6.

The Supreme Court of Georgia recently reversed a decision of the trial court in a divorce case, which made certain directives regarding the parties’ tax liability. Symms v. Symms, S10F1783 (2011). During the final hearing in that divorce case, there was testimony that “the parties had failed to report income from the [wife’s] photography business for the purpose of the assessment and payment of income tax.” Id. at 2. The trial court's final judgment and decree of divorce included several provisions addressing tax issues, including, but not limited to, ordering the parties to amend four years of income tax returns (for which the court specified exact dollar amounts to be used for income) and ordering that the parties be equally responsible for any tax liability and/or penalties. Id. The husband appealed, arguing, “the superior court exceeded its authority in ordering the filing of amended tax returns reflecting the legal determination of joint and several liability and the factual determinations of income.” Id. at 3.

The Supreme Court of Georgia agreed, stating generally “our State Courts are not authorized to impose income tax liability.” Id., quoting Blanchard v. Blanchard, 261 Ga. 11, 15 (1991). Specifically, the Court held that ordering the parties to be jointly and severally liable for any tax liability or penalties was “premature because of the Husband’s contested claim that he qualifies as an ‘innocent spouse’,” and that he is entitled to an IRS determination of his status as such. Id. at 3. In addition, the Court held that the dollar amounts that the trial court ordered be reported on the amendment of the previous tax returns were “either largely speculative…or blatant misrepresentations” with no accurate documentation backing them up. Id. at 4. Thus, the portion of the final judgment and decree of divorce related to the parties’ taxes could not stand.

The Supreme Court of Georgia recently upheld a monetary judgment against a third party in a divorce action. Huling v. Huling, S10F1591 (2011). In that case, the husband filed for divorce after 23 years of marriage. Husband’s father, sister, and two companies (“third-party plaintiffs”) were joined as indispensible parties after the wife alleged “marital property had been transferred to these parties in an attempt to defraud Wife of her claim to equitable division of such assets.” Id. After the jury charge conference in which counsel for husband and wife engaged in a “lengthy discussion” regarding the formal and content of the jury form, the jury returned a verdict finding that husband and the other joined parties (“appellants”) “had conspired to defraud Wife” and awarded her a substantial sum, entered jointly and severally against the appellants. Id. at 2. The appellants then appealed, contending that “the judgment against the third-party plaintiffs cannot stand because…an equitable division claim cannot be brought against a third party to the marriage, and,…a money judgment against a third party cannot be entered under such circumstances.” Id. at 3.

The Supreme Court of Georgia rejected this argument, holding that “any error in the judgment against the third-party plaintiffs was induced by appellants” and they cannot now complain about it. Id. at 4-5. Specifically, the Court pointed out that, in the jury charge conference, the Husband’s attorney stated that any judgment would be jointly and severally against all of the appellants, and that they all stood together. Id. at 4. The attorney for the third-party plaintiffs later agreed with this statement. Id. Thus, they cannot now complain about it and are held to the judgment against them.

It is extremely unlikely that this ruling will be extended to third parties in general, as it is wholly based upon the particular circumstances surrounding the charge conference.

The Supreme Court of Georgia recently clarified the meaning of "attends school" as it relates to child support obligations. Draughn v. Draughn, S10A1599 (2011). In that case, the parties’ divorce decree stated that the father was to pay child support until the child “reaches the age of eighteen…; provided that if [the child] becomes eighteen years old while enrolled in and attending a secondary school on a full time basis, then the child support shall continue for [said child] until he has graduated from secondary school or reaches the age of twenty, whichever comes first.” Id. Shortly before the child turned 18, he stopped attending private high school and enrolled in an online high school equivalency program, but he failed to complete the online program and did not graduate. Id. at 2. After the father subsequently stopped paying child support, the mother filed a motion for contempt.

An issue addressed by the Supreme Court of Georgia on appeal was whether online schooling satisfies the requirement that the child “attends” a secondary school. The trial court found that online classes were not considered to be “attending school”, but the Supreme Court of Georgia disagreed. (Interestingly, the trial court did not base its contempt judgment on this finding, but the Supreme Court of Georgia was concerned as to whether the trial court’s assertion was correct and, therefore, asked the parties to address the issue so it could rule.)

The Supreme Court of Georgia unequivocally held that “once a child enrolls in approved online courses in an effort to graduate from secondary school, his online attendance constitutes 'attending school' for purposes of extending child support beyond the child’s attainment of the age of majority.” Id. at 4-5. The Court based its ruling on the state government’s endorsement and regulation of online learning opportunities. In doing so, the Court is keeping up with the realities of the digital age and allowing children to participate in alternative forms of education.

The 9th Judicial District (Forsyth and Cherokee counties) recently revised its April – June 2011 parenting seminar schedule as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, April 21, 5:00pm – 9:00pm; Thursday, May 5, 5:00pm – 9:00pm; Thursday, May 19, 5:00pm – 9:00pm; Thursday, June 2, 5:00pm – 9:00pm; Thursday, June 16, 5:00pm – 9:00pm
• Dahlonega (North Georgia College and State University, Continuing Education Bldg., Highway 60) –Tuesday, April 19, 9:00am – 1:00pm; Tuesday, May 17, 9:00am – 1:00pm; Wednesday, June 1, 9:00am – 1:00pm
• Blairsville (Haralson Civic Center, 165 Welborn Street) –Monday, May 9, 1:00pm – 5:00pm; Monday, June 6, 1:00pm – 5:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, May 11, 1:00pm – 5:00pm; Wednesday, June 8, 1:00pm – 5:00pm
• Cumming (Hampton Park Library, 5345 Settingdown Road) – Wednesday, April 20, 4:00pm – 8:00pm
• Cumming (Sharon Forks Library, 2820 Old Atlanta Road) – Monday, May 16, 4:00pm – 8:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, April 25, 1:00pm – 5:00pm; Monday, May 23, 1:00pm – 5:00pm; Monday, June 13, 1:00pm – 5:00pm
• Canton (RT Jones Memorial Library, 116 Brown Industrial Parkway) – Saturday, April 30, 10:00am – 2:00pm; Saturday, May 21, 10:00am – 2:00pm; Saturday, June 11, 10:00am – 2:00pm

The cost of the seminar is currently $50.00 per person. There is no pre-registration and you must arrive 30 minutes early to register. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

The Georgia Supreme Court recently clarified two issues surrounding the child support deviation for life insurance. Simmons v. Simmons, S10F1818 (2011). In Simmons v. Simmons, the parties were divorced and the Final Judgment and Decree of Divorce ordered the husband, among other things, “to maintain $150,000 in insurance on his life for the benefit of the child and establish a trust in which to place any proceeds.” Id. at 1. The husband appealed several portions of the Final Judgment and Decree of Divorce to the Georgia Supreme Court including the life insurance provision, arguing that the amount in which he is required to maintain a life insurance policy exceeds his cumulative child support obligation. Id. at 6.

The Georgia Supreme Court disagreed with the husband, holding that the statute addressing life insurance “does not limit the value of any such insurance to the future child support obligation of the parent,” but, rather, “is within the trial court’s discretion.” Id. at 6-7. The Georgia Supreme Court found no abuse of discretion by the trial court. Thus, any life insurance policy value may be acceptable as long as it can be supported by the evidence.

The husband also unsuccessfully argued that the trial court “failed to consider the cost of the life insurance in calculating his child support obligation.” Id. at 7. In dismissing this argument, the Georgia Supreme Court stated that although the statute provides that “[t]he amount of the premium for such life insurance may be considered as a deviation to the presumptive amount of child support,” the deviation is not required and the trial court did not abuse it’s discretion in declining to consider the deviation. Id.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The eighth factor to be considered is “[s]uch other relevant factors as the court deems equitable and proper.” OCGA §19-6-5(a)(8). Much like the “nonspecific deviation” category in the child support guidelines, this factor is included to cover specific situations that may not have been contemplated by the Legislature. All of the factors under this statute help the court to determine the need of one party for alimony versus the ability of the other party to pay alimony. Every divorcing couple’s situation is unique so as long as any “other relevant factor” helps the determination of this analysis, the court will likely consider it.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The seventh factor to be considered is “[t]he condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties.” OCGA §19-6-5(a)(7). This factor considers the financial position each party will be in after the divorce. In general, the greater the separate estate of each party, the less need there is for alimony. However, there is also a greater ability to pay alimony if a party has separate assets from which he/she can draw income. In regard to considering a spouse’s earning capacity post-divorce, the Georgia Supreme Court has stated: “Certainly a wife who has training and skills which could be used to command good earnings but which were not used, because the husband prohibited her from working, will find years later that she has lost her formerly competitive position in the labor market.” Moon v. Moon, 237 Ga. 635, 636 (1976). In a situation such as this, alimony may be awarded to allow the wife time to become competitive in the labor market again.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The sixth factor to be considered is “[t]he contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.” OCGA §19-6-5(a)(6). This factor considers non-monetary contributions to the marriage, and may apply in situations where one parent stayed at home with the children while the other parent worked. A non-monetary contribution may be being available to take the children to doctor's appointments, or staying home with them so that day care is not necessary. In addition, it may apply where one spouse sacrificed earning potential to devote time and energy to the home and family, and to support the other spouse’s career. Moon v. Moon, 237 Ga. 635 (1976).

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 revised March 2011 parenting seminar schedule and partial April – June 2011 parenting seminar schedule for the 9th judicial district is as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) –Thursday, March 31, 5:00pm – 9:00pm; Thursday, April 7, 5:00pm – 9:00pm; Thursday, April 21, 5:00pm – 9:00pm; Thursday, May 5, 5:00pm – 9:00pm; Thursday, May 19, 5:00pm – 9:00pm; Thursday June 2, 5:00pm – 9:00pm; Thursday, June 16, 5:00pm – 9:00pm

• Dahlonega (North Georgia College and State University, Continuing Education Bldg., Highway 60) – Monday, March 28, 9:00am – 1:00pm; Tuesday, April 19, 9:00am – 1:00pm; Tuesday, May 17, 9:00am – 1:00pm; Wednesday, June 1, 9:00am – 1:00pm

• Blairsville (Haralson Civic Center, 165 Welborn Street) – Monday, April 4, 1:00pm – 5:00pm; Monday, May 9, 1:00pm – 5:00pm; Monday, June 6, 1:00pm – 5:00pm

• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, April 13, 1:00pm – 5:00pm; Wednesday, May 11, 1:00pm – 5:00pm; Wednesday, June 8, 1:00pm – 5:00pm

• Cumming (Hampton Park Library, 5345 Settingdown Road) – Wednesday, April 20, 4:00pm – 8:00pm

• Cumming (Sharon Forks Library, 2820 Old Atlanta Road) – Monday, May 16, 4:00pm – 8:00pm

Additional dates during this time period will be forthcoming. The cost of the seminar is currently $50.00 per person. There is no pre-registration. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The fifth factor to be considered is “[t]he time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment.” OCGA §19-6-5(a)(5). This factor often applies where you have a spouse who stayed at home with the children during the marriage and, thus, did not have a traditional job. In this situation, for example, that spouse may not have the computer skills necessary to obtain employment, especially if he/she has been out of the workforce for an extended time. The judge may, therefore, award alimony for a period of time that would allow that spouse to acquire the skills necessary to obtain “appropriate employment.” The idea here is that, once that spouse has the training or education required, he/she should then be able to obtain appropriate employment and support himself/herself without alimony.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The fourth factor to be considered is “[t]he financial resources of each party.” OCGA §19-6-5(a)(4). “Financial resources” is a very broad term that includes all assets of the parties, specifically, but not limited to, property and associated expenses, income, debts, retirement benefits, and military benefits. See generally Weiner v. Weiner, 219 Ga. 44 (1963); Kosikowski v. Kosikowski, 240 Ga. 381 (1977); Stumpf v. Stumpf, 249 Ga. 759 (1982). Again, this factor helps the fact finder determine need vs. ability to pay alimony – the greater the financial resources, the less the need for alimony. Conversely, the greater the financial resources, the greater the ability to pay alimony.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The third factor to be considered is “[t]he age and the physical and emotional condition of both parties.” OCGA §19-6-5(a)(3). The age and condition of each of the parties plays into the “need vs. ability to pay” alimony analysis. A party who is elderly and/or has a medical condition requiring extensive treatment, for example, certainly has an argument for the need for alimony. However, that same party, when placed on the other side of the alimony equation, may use this age and condition to allege that he/she has a very limited ability to pay alimony.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The second factor to be considered is “[t]he duration of the marriage.” OCGA §19-6-5(a)(2). In general, if alimony is awarded, the longer the marriage, the longer a spouse will pay alimony. Though the judge will take all of the factors into consideration, a twenty-year marriage is more likely to result in an alimony award than a 5-year marriage. However, it is important to keep in mind that if there is neither a need for the alimony on the part of one party nor the ability to pay by the other party, even the demise of a 30-year marriage may result in no alimony.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The first factor to be considered is “[t]he standard of living established during the marriage.” OCGA §19-6-5(a)(1). The Supreme Court of Georgia has held and reaffirmed that the judge and/or jury may consider “the social standing and luxuries of life which the spouse had been enjoying and would have continued to enjoy had there been no separation.” Bodrey v. Bodrey, 246 Ga. 122, 123 (1980); McNally v. McNally, 223 Ga. 246, 248 (1976). Thus, for example, if the parties lived an extravagant, luxurious lifestyle when married due to the high income of the husband, this lifestyle would be considered in awarding alimony to the wife, especially if she could not otherwise retain that same social standing.

Any case in Georgia involving child custody must have a formal parenting plan incorporated into the final decree. OCGA §19-9-1. In addition to the general acknowledgments discussed in the previous blog, there are also several specific things that must be included in the parenting plan:

(A) Where and when a child will be in each parent’s physical care, designating where the child will spend each day of the year;

(B) How holidays, birthdays, vacations, school breaks, and other special occasions will be spent with each parent including the time of day that each event will begin and end;

(C) Transportation arrangements including how the child will be exchanged between the parents, the location of the exchange, how the transportation costs will be paid, and any other matter relating to the child spending time with each parent;

(D) Whether supervision will be needed for any parenting time and, if so, the particulars of the supervision;

(E) An allocation of decision-making authority to one or both of the parents with regard to the child's education, health, extracurricular activities, and religious upbringing, and if the parents agree the matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution; and

(F) What, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child and the other parent's right to access education, health, extracurricular activity, and religious information regarding the child.

OCGA §19-9-1(b)(2)(A)-(F). These items give specific guidance to parents as to all the details surrounding custody and visitation in an effort to eliminate confusion or disagreements.

Ideally, the parents will work together to come up with a parenting plan that addresses their unique situation. However, if the parents are unable to agree, each party shall file a proposed parenting plan with the judge, who will make the ultimate decision considering both proposals and the best interests of the child. OCGA §19-9-1(c).

Any case in Georgia involving child custody must have a formal parenting plan incorporated into the final decree. OCGA §19-9-1. There are several requirements for the mandated parenting plans. The parenting plan MUST include:

(A) A recognition that a close and continuing parent-child relationship and continuity in the child's life will be in the child's best interest;

(B) A recognition that the child's needs will change and grow as the child matures and demonstrate that the parents will make an effort to parent that takes this issue into account so that future modifications to the parenting plan are minimized;

(C) A recognition that a parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with such parent; and

(D) That both parents will have access to all of the child's records and information, including, but not limited to, education, health, extracurricular activities, and religious communications.

OCGA §19-9-1(b)(1)(A)-(D). These acknowledgements force the parents to think through how they will work together in the broader sense to raise their children. These statements must appear in any settlement agreement and/or final judgment and decree. To ensure compliance, it is recommended that the wording of the statute be followed very closely, if not exactly.

The Supreme Court of Georgia recently made an interesting, if not surprising, ruling, denying a parenting time deviation in a joint custody case. Willis v. Willis, S10F1357 (January 24, 2010). In that divorce case, the parties were awarded joint legal and physical custody of their only child, with physical custody alternating weekly. Id. The trial court designated the husband as the non-custodial parent “[s]olely for purposes of calculating child support.” Id. After considering the parties’ incomes and the wife’s payment of the child’s health insurance premiums, the court ordered the husband “to pay monthly child support of $961 to Wife and to divide evenly with Wife the child’s uninsured health-care expenses.” Id. at 2.

The husband appealed, claiming, “the trial court abused its discretion and unjustly enriched Wife” when it did not give him a parenting time deviation, given the joint physical custody. Id. The Supreme Court of Georgia agreed with the trial court that in order to grant a deviation, the trial court “must find that the application of the presumptive amount of child support would be unjust or inappropriate and that the best interest of the child for whom support is being determined will be served by deviation from the presumptive amount of child support.” Id. at 4, OCGA 19-6-15(c)(2)(E)(iii). The Court found no abuse of discretion in the trial court’s holding that the presumptive amount of child support was not excessive or inadequate, nor did it unjustly enrich the wife, and that a downward deviation would not be in the best interests of the child. Id. at 4.

This case shows that a parenting time deviation is not presumed just because of a shared custody arrangement. There are certain findings necessary for the court to grant this deviation and, without those findings, the deviation will not be granted. This case might ultimately make it a little more difficult for a parent to get a parenting time deviation, but it is not impossible as long as you present the proper evidence to the court – the presumptive amount of child support is unjust or inappropriate, and the child’s best interest will be served by the deviation.

Today in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the brewing custody battle between Halle Berry and Gabriel Aubry. Berry and Aubry have a daughter, Nahla, together, though they were never married. After they broke up last year, it appeared that they were amicably and informally sharing custody of Nahla, but this arrangement has recently transformed into a bitter custody battle. Aubry filed a petition to establish paternity and to have a formal custody arrangement, signaling that the parties are no longer able to work the arrangement out on their own.

According to People Magazine, Berry has stated that she has “'serious concerns' about Nahla’s well-being while in Aubry’s care,” and Aubry has denied these allegations. In a custody battle such as this, courts almost always appoint a Guardian ad Litem to assist in determining custody and it is likely a Guardian will be appointed in this case if the parties are unable to reach a settlement through mediation or otherwise. A Guardian ad Litem represents the child, and conducts interviews with the parties and other people with direct knowledge of the situation to piece through the various allegations. Upon completion of a thorough evaluation, the Guardian will make a custody recommendation to the court that is guided by the child’s best interest.

Unfortunately, even with a Guardian ad Litem, in a bitter custody battle such as this one, the allegations can get ugly (they already have here) and the child often gets dragged into the middle. Berry and Aubry both say they have Nahla’s best interest at heart but it remains to be seen if they will keep her best interest, rather than their anger toward each other, in the forefront of the custody battle.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The final deviation category under the statute is nonspecific deviation. OCGA §19-6-15(i)(3).

The nonspecific deviation category is a catch-all deviation, included to cover specific situations that may not have been contemplated by the Legislature. Specifically, the statute says that a deviation “may be appropriate for reasons in addition to those established under this subsection.” Id. Every family situation is unique and what applies in one family may not apply in another. This deviation gives a parent the ability to ask for a deviation for any reason, but the deviation may only be granted “when the court or the jury finds it is in the best interest of the child.” Id.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The tenth deviation category under the statute is parenting time. OCGA §19-6-15(i)(2)(K).

Generally, the Georgia child support guidelines are “based upon expenditures for a child in intact households.” OCGA §19-6-15(i)(2)(K)(i). Since, after a divorce, a child is spending time in two households, the presumptive amount of child support may not be appropriate. The court may order a parenting time deviation “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.” Id. If the child resides with both parents equally, for example, the parent designated as the non-custodial parent may request a downward deviation in his/her child support obligation so that he/she has sufficient funds to spend on the child during the extended time the child is residing with him/her.

It should be noted that a claim for a parenting time deviation may only be between the custodial and non-custodial parent, not any third parties. OCGA §19-6-15(i)(2)(K)(iii).

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. Gwinnett County (Buford, Dacula, Duluth, Lawrenceville, Lilburn, Norcross, Snellville, and Suwanee) offers its Parenting Seminar at the Gwinnett Justice and Administration Center, 75 Langley Drive, Lawrenceville, Georgia 30045. The seminars are held in Conference Room A West Wing on the second floor. The 2011 schedule is as follows:

Thursday morning seminars from 9:00am – 1:00pm: February 3, February 10, February 24, March 3, March 10, March 24, April 7, April 14, April 28, May 5, May 26, June 2, June 9, June 23, July 7, July 14, July 28, August 4, August 11, August 25, September 1, September 8, September 22, October 6, October 13, October 27, November 3, November 10, December 1, December 8

Thursday evening seminars from 5:00pm – 9:00pm: February 17, March 17, April 21, May 19, June 16, July 21, August 18, September 15, October 20, November 17, December 15

The cost of the seminar is currently $30.00 per person and registration MUST be received prior to the day of the seminar. You can find additional information and register online for these seminars at the Gwinnett County Parenting Seminar website.

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 January – March 2011 parenting seminar schedule for the 9th judicial district is as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, February 3, 5:00pm – 9:00pm; Thursday, February 17, 5:00pm – 9:00pm; Thursday, March 3, 5:00pm – 9:00pm; Thursday, March 17, 5:00pm – 9:00pm; Thursday, March 31, 5:00pm – 9:00pm
• Dahlonega (North Georgia College and State University, Continuing Education Bldg., Highway 60) – Tuesday February 22, 9:00am – 1:00pm; Monday, March 28, 9:00am – 1:00pm
• Blairsville (Haralson Civic Center, 165 Welborn Street) – Monday, February 7, 1:00pm – 5:00pm; Monday, March 7, 1:00pm – 5:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, February 9, 1:00pm – 5:00pm; Wednesday, March 9, 1:00pm – 5:00pm
• Woodstock (Woodstock Public Library, 7735 Main Street) – Saturday, January 29, 10:00am – 2:00pm; Saturday, February 26, 10:0am – 2:00pm; Saturday, March 12, 10:00am – 2:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, February 28, 1:00pm – 5:00pm; Monday, March 21, 1:00pm – 5:00pm
• Cumming (First Baptist Church Cumming, Kids Town Building, 1597 Sawnee Drive) – Saturday, September 25, 10:00am – 2:00pm
• Dawsonville (Dawson County Library, 342 Allen Street) – Saturday, February 12, 10:30am – 2:30pm; Saturday, March 19, 10:30am – 2:30pm

The cost of the seminar is currently $50.00 per person. There is no pre-registration. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

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. The following is the 2011 parenting seminar schedule for Fulton County (Alpharetta, Atlanta, Johns Creek, Milton, Roswell):

• Saturday morning seminar once per month from 9:00 a.m. to 1:00 p.m. at the Downtown Justice Center Building located at 160 Pryor Street, S.W., Courtroom G33, Atlanta, Georgia. 2011 dates – February 19, March 19, April 23, May 21, June 18, July 23, August 20, September 17, October 22, November 19, December 17

• Wednesday morning seminar once per month from 9:00 a.m. to 1:00 p.m. at the South Fulton Service Center located at 5600 Stonewall Tell Road, College Park, Georgia in the auditorium. 2011 dates – January 26, February 23, March 23, April 27, May 25, June 22, July 27, August 24, September 28, October 26, November 23, December 28

• Thursday evening seminar once per month from 4:00 p.m. to 8:00 p.m. at the Dorothy Benson Senior Multipurpose Complex located at 6500 Vernon Woods, Drive, Building B, Sandy Springs, Georgia. 2011 dates – February 3, March 3, April 7, May 5, June 2, July 7, August 4, September 8, October 6, November 3, December 1

Please note that both the South Fulton Service Center and the Dorothy Benson Senior Multipurpose Complex locations require pre-registration. The cost of the seminar is currently $30.00 per person. You can find additional information about these seminars at Fulton County Families in Transition program website.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The tenth deviation category under the statute is extraordinary expenses. OCGA §19-6-15(i)(2)(J). Generally, child support is based upon “average child expenses for families given the parents’ combined adjusted income and number of children.” Id. The legislature recognized that expenses for children are highly variable and, thus, included this deviation so that these expenses may be considered on a case-by-case basis. Id. If extraordinary expenses are found, they “shall be prorated between the parents by assigning or deducting credit for actual payments” made for these extraordinary expenses. Id.

There are three types of extraordinary expenses that may be considered:

1. Extraordinary educational expenses – Includes tuition, room and board, lab fees, books, fees, and other reasonable and necessary expenses associated with education OCGA §19-6-15(i)(2)(J)(i). Expenses must be “appropriate to the parent’s financial abilities and to the lifestyle of the child if the parents and the child were living together.” Id.

2. Special expenses incurred for child rearing – Includes summer camp, music/art lessons, extracurricular activities. The basic child support obligation covers average amounts for these expenses, but “when these special expenses exceed 7 percent of the basic child support obligation, then the additional amount of special expenses shall be considered as a deviation to cover the full amount of the special expenses.” OCGA §19-6-15(i)(2)(J)(ii).

3. Extraordinary medical expenses – Includes medical expenses not covered by insurance that cause extreme economic hardship. OCGA §19-6-15(i)(2)(J)(iii).

Georgia courts can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The ninth deviation category under the statute is Permanency Plan or Foster Care Plan. OCGA §19-6-15(i)(2)(I). This deviation may be considered when the child is in foster care.

Under this deviation, when the child is in the legal custody of a public or private child protection or foster care agency, the court can consider a deviation “if the deviation will assist in accomplishing a permanency plan or foster care plan for the child that has a goal of returning the child to the parent or parents and the parent’s need to establish an adequate household or to otherwise adequately prepare herself or himself for the return of the child clearly justifies a deviation for this purpose.” Id. For example, consider a situation where a child is in the custody of a state agency, and the parent is diligently working two jobs so that he/she can attain a stable residence for the child. The parent may be able to make ends meet, attain a stable residence and accomplish the goals necessary for return of the child to his/her custody, but only if he/she received a downward deviation in child support. In this situation, the court would look at the big picture and end goal, and may grant the deviation under the circumstances.

Georgia courts can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The eighth deviation category under the statute is mortgage. OCGA §19-6-15(i)(2)(H). This deviation may be considered when the noncustodial parent/child support payor is providing a home for the child. Id.

Specifically, the court may consider a deviation where “the noncustodial parent is providing shelter, such as paying the mortgage of the home, or has provided a home at no cost to the custodial parent in which the child resides.” Id. For example, a noncustodial parent may own several properties, and allow the child and custodial parent to live in one of the properties in which the noncustodial parent does not live. Like many of the other deviations, in this situation, the parent is providing a benefit to the child in addition to his or her child support obligation and, therefore, may ask the court to pay less child support. With the mortgage deviation, the court may deviate by allocating the costs of the home between the parents, or decreasing the noncustodial parent’s child support obligation by “an amount equivalent to such [housing] costs." Id.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The seventh deviation category under the statute is alimony. OCGA §19-6-15(i)(2)(G). This deviation may be considered when a parent is paying court ordered alimony.

Under the child support statute, “actual payments of alimony shall not be considered as a deduction from gross income.” Id. Rather than treating these payments as a deduction, the legislature decided to consider them "as a deviation from the presumptive amount of child support.” Id. Thus, it is not automatic that a parent will get this deviation. Unlike most of the other deviations, the court or jury must make written findings of its consideration of alimony payments as a basis for deviation. This means there must be written findings in the final order supporting the deviation.

The language "actual payments" infers that the alimony payments must actually be made. A court order for alimony payments that is not being complied with will not be sufficient.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The sixth deviation category under the statute is travel expenses. OCGA §19-6-15(i)(2)(F). This deviation is included in the statute to cover a situation where the parents live in different cities or states and visitation related travel expenses are substantial for one or both parents.

If parents live in different cities or states, the logistics for visitation can be a little more complicated. If a plane flight is necessary, and the child is too young to fly alone, one parent must fly the child to and from visitation and, thus, there are round trip airline tickets on each end. Even if the distance can be travelled by car, gas has become increasingly expensive. If travel expenses for visitation are found to be substantial, “the court may order the allocation of such costs…by deviation from the presumptive amount of child support, taking into consideration the circumstances of the respective parents as well as which parent moved and the reason for such move.” Id. The court may be more likely to allow a deviation for a parent who moved due to a job or to be closer to family who could help with child care rather than a parent who moved away from his/her children to be closer to a new girlfriend/boyfriend.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The fifth deviation category under the statute is child and dependent care tax credit. OCGA §19-6-15(i)(2)(E). This deviation is included in the statute consider a deviation where “one of the parents is entitled to the Child and Dependent Care Tax Credit.” Id.

A “dependent” is defined as “[a] natural or legally adopted child of the taxpayer.” OCGA §48-7A-2(3). There is a specific schedule for the child and dependent care tax credit that is based upon income, and the tax credit is basically subtracted from the amount of taxes a person owes. OCGA §48-7A-3(b). A child can only be claimed as a dependent once. Thus, after a divorce, only one parent is entitled to this tax credit for each child. Generally, the parent who has primary physical custody is entitled to this credit, though the parties can negotiate this issue as part of their settlement discussions.

If a parent is entitled to this tax credit, the court “may deviate from the presumptive amount of child support in consideration of such credit.” OCGA §19-6-15(i)(2)(E).

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The fourth deviation category under the statute is life insurance. OCGA §19-6-15(i)(2)(D). This deviation is included in the statute to cover a situation in which “either parent has purchased life insurance on the life of either parent or the lives of both parents for the benefit of the child.” Id. The life insurance may be something the parents agreed upon in a settlement agreement, or it may be an order of the court.

This deviation is handled similarly to the “other health related insurance” deviation. If one parent has life insurance on either or both parents for the benefit of the child, the insurance premiums are an expense that parent is paying for the child’s benefit. That parent is, thus, paying child support and paying an additional amount in insurance premiums. The key here is that the life insurance must be on the life of either or both parents AND the child must be the beneficiary of the policy. In this situation, “the court may deviate from the presumptive amount of child support for the cost of such insurance by either adding or subtracting the amount of the premium.” Id.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The third deviation category under the statute is other health related insurance. OCGA §19-6-15(i)(2)(C). This deviation is included in the statute to cover a situation in which a parent “has vision or dental insurance available at a reasonable cost for the child.” Id.

If the non-custodial parent has vision and/or dental insurance for the child, the insurance premiums are an expense that parent is paying for the benefit of the child. That parent is, thus, paying child support and paying an additional amount in insurance premiums. For example, consider a situation in which the presumptive amount of child support is $800 per month, and the noncustodial parent is paying an additional $100 per month in vision/dental insurance premiums for the child. This parent is essentially paying $900 per month for the child. This parent may request a downward child support deviation to make up this difference.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The second deviation category under the statute is low income. OCGA §19-6-15(i)(2)(B). To obtain a deviation under this category, the parent “shall demonstrate no earning capacity or that his or her pro rata share of the presumptive amount of child support would create an extreme economic hardship for such parent.” OCGA §19-6-15(i)(2)(B)(i).

There are certain steps the court or jury must go through in considering a low-income deviation. First, the fact finder must “examine all attributable and excluded sources of income, assets and benefits available to the noncustodial parent” and ensure that the parent's expenses are justified and actually paid by that parent. OCGA §19-6-15(i)(2)(B)(ii). Then, the fact finder shall consider the income, assets, benefits and expenses of each parent, the hardship of a downward deviation on the custodial parent’s household, the needs of each parent and those of the children, and the ability of the noncustodial parent to pay child support. OCGA §19-6-15(i)(2)(B)(iii).

Even if a low-income deviation is granted, the minimum child support for one child “shall not be less than $100.00 per month” and this amount “shall be increased by at least $50.00 for each additional child.” OCGA §19-6-15(i)(2)(B)(v).

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The first deviation category under the statute is high income. OCGA §19-6-15(i)(2)(A). According to the statute, “parents are considered high-income parents if their combined adjusted income exceeds $30,000.00 per month.” Id. For parents who fall into this category, “the court shall set the basic child support obligation at the highest amount allowed by the child support obligation table.” Id. In addition, the court or jury has the option to consider an upward deviation to reach an appropriate award of child support “which is consistent with the best interest of the child.” Id.

In determining a property child support amount for parents who fall into this category, the court will likely consider the lifestyle in which the children lived before the divorce. There is no monetary cap to the child support for parents who fall into this category. The court is only limited by the best interest of the child and the ability of the custodial parent to provide basic necessities.

In Georgia, child support is calculated using both the mother’s and the father’s incomes. O.C.G.A. §19-6-15. Generally, the Court determines the annual gross incomes of both parties (or imputes what it believes the income should be based upon a party’s education and work experience) and runs those numbers through a child support calculator to determine the proper amount of child support. The amount of child support is presumptive and may be rebutted by either party, and court may deviate from the amount determined by the child support calculator. OCGA §19-6-15(i)(1)(A).

In deviating, the court must give primary consideration to the best interest of the child(ren) for whom support is being determined. Id. The court must specifically find “that an amount of child support other than the amount calculated is reasonably necessary to provide for the needs of the child for whom child support is being determined.” OCGA §19-6-15 (i)(1)(B). In addition, no deviation shall be made “which seriously impairs the ability of the custodial parent to maintain minimally adequate housing, food, and clothing for the child being supported by the order and to provide other basic necessities.” OCGA §19-6-15 (i)(1)(C).

There are eleven deviation categories, all of which will be explained further in future blogs: high income; low income; other health related insurance; life insurance; child and dependent care tax credit; travel expenses; alimony; mortgage; permanency plan or foster care plan; extraordinary expenses; parenting time; and nonspecific deviation.

The Supreme Court of Georgia recently heard an interesting case regarding self-executing child support provisions in a divorce settlement agreement. In Tanner v. Morris, the parties’ divorce settlement agreement gave the mother primary physical custody and stated that the father was to pay child support to the mother for the three minor children “for so long as each child shall remain in high school and while also living at home with Wife prior to beginning college or other secondary education.” Tanner v. Morris, S10A1227 at 2 (2010) (emphasis added).

Shortly after the divorce was final, the parties’ eldest child began living with the father, and the father ceased making child support payments for that child. Id. The middle child subsequently began living with the father, and the father thereafter ceased making child support payments for that child. Id. at 3. When the father refused the mother’s request for return of the middle child to her custody, the mother filed an action for contempt. Id. The trial court held that the father had child support arrearage for both children, but only held him in contempt for the support for the middle child, since the mother never requested return of the eldest child. Id. The father appealed.

The Supreme Court of Georgia found that the language “while also living at home with Wife” made the child support provision self-executing, meaning that the child support was modifiable without a new order from the court. Id. at 4. Since the Court has previously held self-executing provisions such as this one to be lawful, the Court held that “it was error for the trial court to hold [the father] in contempt for relying on the self-executing provision in the parties’ settlement agreement to reduce his child support obligation when he had [the mother’s] consent to allow the children to live with him." Id. Thus, the portion of the trial court’s judgment as to the arrearage for the eldest child was reversed. Id. at 5. The Court also vacated the arrearage amount for the middle child, holding that “the arrearage amount should be from the time [the father] lost [the mother’s] consent to keep the middle child, rather than the full amount awarded by the trial court." Id.

The Supreme Court of Georgia recently heard a case regarding whether property owned by a third party can be equitably divided in a divorce. In Armour v. Holcombe, the husband’s mother purchased a house during the parties’ marriage and allowed the parties to live there. Armour v. Holcombe, S10AF0946 (2010). A few years later, the husband’s mother deeded the property to the husband as a gift. Id. The husband refinanced the property and both he and his mother made payments on the debt. Id. In March 2005, the husband deeded the property back to his mother as he was facing financial difficulty. Id. Six months later, the wife filed for divorce and added the husband’s mother as a defendant, alleging that the deed “was executed to deprive Wife of her marital interest in the property.” Id. at 2.

Despite the trial court ordering the home sold and proceeds held in escrow pending the outcome of the litigation, the wife decided not to pursue the fraudulent conveyance issue at the divorce trial. Id. Nonetheless, the trial court instructed the jury that the sales proceeds were a marital asset subject to equitable division, and the jury awarded the wife approximately 2/3 of the proceeds. Id.

The husband’s mother appealed, arguing that the trial court erred because “there was no evidence that the property was a marital asset,” and the Georgia Supreme Court agreed. Id. The Court emphasized that the wife did not cite any case law regarding property owned by a third party being subject to equitable division, “nor should authority for such a ruling be expected.” Id. at 5. The Court adamantly held “[i]t would be highly disruptive to the transfer and ownership of property to allow a divorcing spouse to claim that property held by a third party is subject to equitable division in the divorce action based merely upon that spouse’s actions regarding the property during its prior ownership by the other spouse.” Id. at 5.

The Georgia Supreme Court mentioned that the wife may have had recourse with a fraudulent conveyance claim, but the wife “chose to abandon” this avenue. Id. at 7.

In this installment of An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to address the divorce of Charlie Sheen and Brooke Mueller. People magazine recently reported that the parties have each filed for divorce. Sheen is seeking joint legal and physical custody of their twin boys, and Mueller is seeking primary physical custody with visitation rights for Sheen.

Surprisingly, it appears that this divorce might not be as contested as one would imagine, given their history together. Apparently, while separated earlier this year, they entered into an agreement settling matters of child custody, child support and equitable division. It appears that spousal support may still be a contested issue. In addition, it appears that Sheen’s divorce filing differed from the purported agreement on the issue of custody.

If the parties do end up in court with a contested divorce, my guess, based upon their history, is that it won’t be pretty. Both parties have recently been in rehab for substance abuse – a fact the judge would seriously consider in awarding custody. In addition, Sheen was sentenced to domestic violence counseling stemming from their altercation over Christmas last year, and was recently hospitalized after an “incident” at the Plaza Hotel. Each party will likely drag the other through the mud in trying to prove to the judge that he or she should be awarded custody. If this case was in Georgia, the judge would hear all of the evidence and weigh many factors before awarding custody based on the best interests of the children standard.

If you are going through a divorce, or have recently gone through a divorce, the holidays can be a particularly difficult time. When you and your former spouse (or soon-to-be former spouse) have children together, this time of year can be even more challenging for everyone involved as the whole family will have to cope with spending holidays separately.

If your divorce is final, you are required to abide by your final divorce decree regarding who has the children for the holidays. If you do not yet have a final divorce decree and there is no temporary order governing custody and visitation for the holidays, I highly recommend that you seek to get an agreement in place. There are several reasons for coming to a holiday arrangement sooner rather than later: (1) You can make travel plans, if necessary; (2) You can make arrangements for taking time off work or getting child care during the time you have the children when they will be off school; (3) You can ensure that both parents will have some time with the children over the holidays; and (4) The children will know what to expect and may, therefore, be able to cope with the changes a little better.

In making an agreement, you may want to consider our sample holiday visitation ideas.

Final decision-making regarding children and religion can be an important issue for many parents going through a divorce. The Georgia Court of Appeals recently addressed this issue. In Greene v. Greene, the parties entered into a Settlement Agreement in their divorce action, which provided that the parties would have joint legal custody with the mother as the sole physical custodian. Greene v. Greene, A10A1463 (2010). In addition, the mother would have final decision-making authority on all matters related to religion. Id. The parties agreed that “the child would be raised in the Jewish faith, would attend Hebrew school, become Bat Mitzvah and follow other Jewish traditions." Id. at 4. After the father violated this provision of the Settlement Agreement, the mother filed a motion for contempt. The trial court granted the mother’s motion, and the father appealed.

On appeal the father admitted that, in spite of the agreement, he had taken the child to numerous Christian churches, shared Christian prayers with the child, read the Bible to the child, played Christian music for the child, gave the child Christian books and DVDs, and told the child that she was “Jewish on the outside and Christian on the inside.” Id. The father acknowledged that he knew the Settlement Agreement gave the mother final decision making authority on religion, but contended that the trial court’s ruling “restricted his freedom to share his religious beliefs with his child.” Id. at 2.

The Georgia Court of Appeals disagreed with the father. The Court held that when the Settlement Agreement is “clear, unambiguous, and capable of only one interpretation as written, the provision’s plain meaning must be strictly enforced.” Id. at 5, quoting Page v. Baylard, 281 Ga. 586, 587 (1) (642 SE2d 14) (2007). In affirming the trial court’s ruling, the Court said “the Settlement Agreement is clear that Wife had the right to make the final decisions about the child’s religious upbringing, and the trial court correctly concluded that the Agreement governs.” Id. at 5.

The Supreme Court of Georgia recently reinstated a bright line rule regarding a party retaining the benefits of a Georgia divorce decree that that same party is challenging. In Thompson v. Thompson, the Husband challenged the Final Judgment and Decree of Divorce, alleging that the trial court erred in its equitable division award by dividing funds and property that were his non-marital assets. Thompson v. Thompson, S10F1231 (2010). The trial court denied the husband’s motions for new trial, clarification, and reconsideration, holding that “he had availed himself of the benefits of the final order” and was, thereby, prohibited from challenging it. Id. The husband subsequently appealed the denial of his motions.

In affirming the trial court’s ruling, Supreme Court of Georgia followed long-standing principles of Georgia law. Specifically, the Court held that “one who has accepted benefits such as spousal support or equitable division of property under a divorce decree is estopped from seeking to set aside that decree without first returning the benefits.” Id. at 3. Thus, if you want to dispute a Final Judgment and Decree of Divorce in Georgia, you must either not accept any support or equitable division from that award, or you must return any portion of the award that you have accepted, before initiating any challenge.

The Court clarified that a party “may collect an award of child support and still repudiate a final judgment, as those benefits belong to the child.” Id. at 3-4.

In Georgia, there is a difference between the evidence that can be presented in a temporary hearing versus a final hearing in a divorce case. In Pace v. Pace, after a temporary hearing at which both parties testified, the husband was awarded physical custody of the children and the parties were awarded legal custody. Pace v. Pace, S10F0843 (2010). About a year later, a final hearing was held, at which both parties and multiple witnesses testified, and a Final Judgment and Decree of Divorce was entered, awarding permanent physical and legal custody of the children to the husband. Id. The wife appealed after being denied a new trial.

In its review, the Georgia Supreme Court noted that “the trial court relied substantially on testimony adduced at the temporary hearing in making its determination on permanent custody,” that the parties were not on notice that this testimony would be considered for permanent custody, and that the trial court relied on its “memory and notes” rather than a transcript in reaching its decision. Id. at 2.

The Georgia Supreme Court held that the trial court erred in its reliance on evidence from the temporary hearing because an award of temporary custody “differ[s] in its nature and purpose from an award of temporary custody”. Id. at 3, quoting Foster v. Foster, 230 Ga. 658, 660 (1973). Further, temporary orders and final orders are not governed by the same rules of law. Pace, at 3. In a temporary hearing, only the parties and one additional witness for each side may testify. Uniform Superior Court Rule 24.5(A). In addition, minor children cannot testify at temporary hearings. Id. at (B). These rules do not apply at a final hearing. Thus, stated the Court, “the nature and quality of the evidence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing…” Pace, at 4. The Georgia Supreme Court held that “absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.” Id. at 5.

Atlanta divorce attorneys are often asked whether a party has to pay alimony or child support when the order requiring alimony/child support has been appealed. The Georgia Supreme Court recently clarified this issue. Robinson v. Robinson, S10A0929 (2010). In Robinson v. Robinson, there was an August 2007 temporary order in the divorce case requiring, among other things, that the husband pay the wife $3,000 per month in temporary alimony. Id. In November 2008, a Final Judgment and Decree of Divorce was entered in the case, providing lump sum permanent alimony to the wife, but no periodic/monthly alimony. Id. at 2. The Georgia Supreme Court denied the husband’s appeal of this award, and remittitur was entered in July 2009. Id. ("Remittitur" means that the appellate court's order goes back to the trial court for final order consistent with the appellate court's decision.) Shortly thereafter, the wife filed a motion for contempt alleging that the husband had not fully paid alimony in June, July and August 2009, while the husband’s appeal was pending. Id. at 3. The trial court found that the husband was not in contempt, and reasoned that the wife was not entitled to periodic alimony under the Final Judgment and Decree, that the Final Judgment and Decree was essentially affirmed by the denial of the husband’s appeal, and that the ruling that no periodic alimony would be due was effective as of the date of the Final Judgment and Decree (November 2008). Id. at 4.

The issue presented to the Georgia Supreme Court on the wife’s appeal was whether permanent awards in a Final Judgment and Decree of Divorce take effect as of the date of the remittitur, or whether they relate back to the date of the Final Judgment and Decree. Id. at 5. In reversing the trial court’s decision as to the alimony issue, the Georgia Supreme Court clarified previously confusing and contradicting precedent on this issue. Specifically, the Court held that “a temporary award continues in effect until the entry of the remittitur in the trial court, and it is from that date forward that any permanent award in a final judgment and decree of divorce has effect.” Id. at 11. Thus, the award does not relate back to the date of the FInal Judgment and Decree of Divorce.

In addition, the Court held that any payments of temporary alimony should not offset lump sum alimony because “temporary alimony is different in character and purpose from an award of permanent alimony because it is intended to meet the exigencies arising out of the domestic crisis of a pending proceeding for divorce.” Id. at 10.

In Georgia, parties in a divorce may request temporary alimony, pending a final judgment in the divorce case. OCGA §19-6-3(a). Often during a divorce action, one party is unemployed and/or left with no access to martial funds with which to pay for his/her attorney’s fees. The temporary alimony awarded can help that party pay attorney’s fees or other expenses incurred during the pendency of the divorce action.

Under Georgia law, temporary alimony will be awarded “as the condition of the parties and the facts of the case may justify.” Id. In determining whether temporary alimony is warranted, “the judge shall consider the peculiar necessities created for each party by the pending litigation and any evidence of a separate estate owned by either party.” OCGA §19-6-3(b). If the party seeking temporary alimony has an ample separate estate with which to pay fees and other expenses, the judge may refuse to award temporary alimony. Id. Thus, temporary alimony is based upon need.

It should be noted that, if temporary alimony is awarded, this does not necessarily mean that the judge will award permanent alimony. Nor does the denial of temporary alimony necessarily mean that permanent alimony will be denied.

This week in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the recent separation of Courteney Cox and David Arquette. After 11 years of marriage and one child together, the couple announced that they were on a “trial separation.” People Magazine, October 25, 2010. In their statement, they said “…[w]e remain best friends and responsible parents to our daughter and we still love each other deeply. As we go though this process we are determined to use kindness and understanding to get through this together…”

However, since the announcement, Arquette does not seem to be using “kindness” in the process. He has gone on Howard Stern’s radio show to detail the reasons for the split and even publicly admitted to sleeping with another woman since he and Cox separated. We have yet to see if the couple will reconcile and, if not, how their divorce will play out, but it is likely that the sting of Arquette’s actions will have some bearing on the outcome.

Unlike Arquette, non-celebrities don’t usually have the ability to speak to media outlets about their divorces. However, spilling detailed relationship troubles to everyone you know and rubbing your spouse’s face in your post-separation activities, such as Arquette has done, will likely make for a more bitter and litigious divorce, which, in turn, will cost both parties more money. As a colleague of mine always says, one thing that can drive up the cost of a divorce is emotion. There is simply no reason to make an emotional process even more difficult for you, your spouse, or your children.

The Georgia Court of Appeals recently reversed a Dekalb County Superior Court’s grant of an upward child support modification. In that case, a mother filed for a modification of her child support obligation against her ex-husband, who had primary physical custody of their children. Harris v. Williams, 304 Ga. App. 390 (2010).

This trial court’s decision to increase the mother’s child support obligation is somewhat unique because the mother asked for a modification, but “did not allege any change in her income or financial status to support a modification of her child support, and [the father] did not file a counterclaim to modify child support.” Id. at 393. Yet the trial court still increased the child support obligation. In order to modify child support, a party must show “a substantial change in either parent’s income and financial status or the needs of the child[ren].” OCGA §19-6-15(k)(1). In this case, there was no evidence that the mother’s income or earning capacity had increased, and nothing was mentioned about any increased needs of the children. Harris, 304 Ga. App. at 394.

Generally, a trial court’s decision on a child support modification is reviewed for an “abuse of discretion” and, if there is evidence to support the trial court’s decision, the appellate court will affirm. Id. at 393. Here, due to the lack of evidence supporting a modification, the Georgia Court of Appeals found that the trial court abused its discretion in increasing the mother’s child support obligation, and reversed that portion of the judgment. Id. at 394.

This week in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the well-publicized divorce of Tiger Woods and Elin Nordegren. The scandal surrounding Tiger’s multiple extramarital affairs began around Thanksgiving 2009. For the next several months, it seemed like women with whom he had affairs were coming out of the woodwork and speaking to the media each week. Throughout what must have been a gut wrenching time for Nordegren, she remained tactful, continuing her life as privately as possible, and did not thwart the relationship between Woods and their children.

A lesson to take from Nordegren is, no matter what your spouse has put you through and how angry you are at him/her, put your children first. At a time when she could have easily badmouthed Woods in the media and to their children, possibly ruining their relationship with him, she remained discreet. She only spoke to the media once and, even then, she called Woods a good father and refused to share details of the previous 10 months. Due to her actions, the children will likely have a positive relationship with both of their parents despite the hurt and anger that may exist between the parents.

The Georgia Supreme Court recently reversed a Cobb County Superior Court’s grant of a child support modification. In Herrin v. Herrin, the father had primary physical custody of the children and the mother was paying child support pursuant to a settlement agreement in the parties’ previous divorce action. Herrin v. Herrin, 287 Ga. 427 (2010). The father filed a petition for modification of child support alleging that the mother’s income had increased. Id. at 428. Following a hearing, the superior court found a “substantial and material change in the mother’s income,” basing its ruling, in part, on the mother’s ability to earn additional income. Id.

On appeal, the Georgia Supreme Court stated “[i]n certain circumstances, earning capacity rather than gross income may be used to determine child support, and while a party’s past income is some evidence of earning capacity, it alone is not conclusive, but must be considered along with other relevant circumstances.” Id., quoting Duncan v. Duncan, 262 Ga. 872, 873 (1993). The evidence showed that the mother’s income had actually decreased by the time of the modification hearing, that she had tried to increase her hours and find a higher paying job but was unable to do so, and, though she had a real estate license, “she was unable to pursue a career selling real estate because of the depressed real estate market and her inability to fund out-of-pocket expenses required of a real estate sales agent.” Herrin, 287 Ga. at 429.

Looking at all of these relevant circumstances, the Georgia Supreme Court agreed with the mother and reversed the child support modification, holding that the record from the trial court proceedings “is devoid of evidence that the mother had the ability or means to earn the amount found by the superior court and upon which it based the award of increased child support.” Id. at 427.

In this weekly installment of An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I will discuss the ongoing divorce action of the owner of the Los Angeles Dodgers. As you may have read in the New York Times or other news outlets, the owner of the Los Angeles Dodgers is going through a divorce, putting ownership of the Major League Baseball team in dispute. The key to this case is a post-nuptial agreement, of which there are two versions – one version gives the team to the husband/owner and the other version makes the parties joint owners of the team. The owner’s wife is asking that the agreement be thrown out and is alleging that the version giving complete ownership of the team to her husband was obtained fraudulently. If the agreement is thrown out, the team will be divided with the parties’ other assets under California’s community property law.

If this case was in Georgia and the agreement was invalidated, the team would be equitably divided. As explained in detail in previous blogs, equitable division does not necessarily mean equal. The judge would consider all the circumstances in deciding how (or if) to divide the team. Thus, the outcome of the case could be much different in Georgia than in it would be in California, where the parties would each receive 50% of the team. Closing arguments were recently completed and the judge now has 90 days to decide the fate of the parties and the Los Angeles Dodgers. It will be interesting to see how this one turns out.

The Georgia Supreme Court recently emphasized the importance of the specific language in a Georgia divorce settlement agreement. In that case, the parties jointly purchased a 27-acre tract of land during their marriage. Gonzalez v. Crocket, 287 Ga. 430 (2010). For financing purposes, they subdivided the property into a five-acre tract upon which the marital residence was built, and a 22-acre tract. Id. In the parties' divorce settlement agreement, the husband received the marital residence, which he was to refinance into his own name, and the wife was to quitclaim her interest in that marital residence to the husband. Id. at 431.

Several years later, the husband filed a Petition for Contempt against the wife for failing to quitclaim the 22-acre tract to him. Id. The trial court denied his petition, ruling that the settlement agreement did not address the 22-acre tract and it, therefore, remained jointly owned by the parties. Id.

The husband appealed, and Georgia Supreme Court agreed with the trial court, affirming a long standing rule that “title to property not described in a verdict or judgment is unaffected by the decree and remains titled in the name of the owners as before the decree was entered.” Id. at 432, citing Messaadi v. Messaadi, 282 Ga. 126, 127 (2007). The settlement agreement only mentioned “the marital residence” and did not even mention the other property. In addition, the parties treated the properties as separate during the marriage and subsequent to the divorce. Since the 22-acre tract was not specifically described in the divorce decree, even though it was adjacent to the property on which the marital residence was located, it remained the joint property of the parties and the wife was not obligated to quitclaim her interest to the husband. Id.

The Georgia Supreme Court recently upheld a short time frame for payment of lump sum alimony and property division awards in a divorce case. Wier v. Wier, 287 Ga. 443 (2010). In that case, the parties were married for nearly 20 years and, following a jury trial, the wife was awarded $200,000 as lump sum property division to be paid within 15 days, and $600,000 as lump sum alimony to be paid within 90 days. Id. The husband appealed, arguing, among other things, that he was unable to timely make the alimony and property division payments. Id.

The Georgia Supreme Court disagreed with the husband. The Court pointed out “the evidence showed that [husband] owns property valued at more than $1.6 million and his gross monthly income exceeds $16,600.” Id. Under long standing Georgia law, “a party can be required to sell or encumber property in order to pay equitable division and alimony awards.” Id.; Hollandsworth v. Hollandsworth, 242 Ga. 790 (1979). Emphasizing that the husband did not present any evidence of his inability to pay in a timely manner, the Georgia Supreme Court held that he can “sell or encumber his property, or take any other action he deems necessary, to comply with the trial court’s order.” Wier, 287 Ga. at 443.

Though child support is generally thought of as being paid in monthly installments, the Georgia Supreme Court recently affirmed a divorce decree which ordered a father to make one lump sum child support payment. Mullin v. Roy, S10F1120 (2010). In that case, shortly after the wife filed for divorce, the husband was arrested for possession of child pornography, lost his $80,000/year job, and began living off a $422,000 inheritance. Id. The husband pled guilty to the charges and was sentenced to five years in prison the day after the divorce trial. Id. at 2.

In its divorce decree, the trial court acknowledged husband’s argument that he will have decreased earning capacity due to his sex offender status upon being released from prison, and calculated child support by settling “on an amount halfway between husband’s and wife’s projections for his future earnings.” Id. Based on the husband’s guilty plea and impending sentence, as well as the dwindling amount that remained of his inheritance, the trial court ordered the husband to pay his entire child support obligation within 60 days. Id. at 3.

The husband appealed, arguing that the court did not have the authority to award lump sum child support. Id. The Georgia Supreme Court agreed, holding that the child support statute “explicitly authorizes trial courts to exercise discretion in setting the amount and timing of payment.” Id.; OCGA §19-6-15(c)(2)(B). Though child support is typically paid in monthly installments, “there is no indication that the 2007 version of the guidelines statute eliminated the longstanding discretion of trial courts to order lump-sum payment under appropriate circumstances.” Id.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law, the thirteenth of which is “[t]he marriage is irretrievably broken.” OCGA §19-5-3(13). A divorce under this ground is generally referred to as a no-fault divorce.

A marriage is irretrievably broken “where either or both parties are unable or refuse to cohabit and there are no prospects for reconciliation.” Harwell v. Harwell, 233 Ga. 89, 91 (1974). However, both parties do not need to agree that the marriage is irretrievably broken. The Supreme Court has held that “where one of the parties to a marriage refuses to cohabit with the other and testifies that the marriage is irretrievably broken, the fact that the other party maintains hope for reconciliation will not suppose a finding…that there are ‘prospects for reconciliation.’” McCoy v. McCoy, 236 Ga. 633, 634 (1976). Therefore, if one party requests a divorce on this ground and testifies that there is no chance of reconciliation, the other party cannot prevent the divorce simply by testifying that he/she believes they can reconcile.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law, the twelfth of which is “[h]abitual drug addiction.” OCGA §19-5-3(12).

“Habitual drug addiction” is defined in the statute as addiction to the following controlled substances: narcotic drugs, marijuana, or stimulant drugs, depressant drugs, or hallucinogenic drugs. OCGA 19-5-3(12); OCGA 16-13-2(a). There must be a pattern of drug use resulting the party's addiction to the controlled substance. The terms "habitual" and "addiction" imply that a one-time use of a controlled substance will not be sufficient to obtain a divorce under this ground.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The eleventh ground under the statute is “[i]ncurable mental illness.” OCGA §19-5-3(11).

There are three strict requirements necessary to obtain a divorce under this ground: (1) the mentally ill party must be adjudged to be mentally ill by the court or must be certified to be mentally ill by two physicians who have each personally examined the party; (2) the mentally ill party must have been in a mental institution or under continuous treatment for mental illness for at least two years preceding the filing of the divorce action; and (3) a chief executive officer of the institution and one physician appointed by the court must make a thorough examination of the party and certify under oath that it is their opinion “that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party’s mental health cannot be expected at any time during his life.” OCGA 19-5-3(11).

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. DeKalb County (Avondale Estates, Chamblee, Decatur, Doraville, Lithonia, and Stone Mountain) offers its Seminar for Divorcing Parents at three different locations in the county. All remaining 2010 seminars will take place in the 1st floor Jury Room of the Dekalb County Courthouse Judicial Tower, located at 556 N. McDonough Street, Decatur, Georgia. The schedule for the remainder of 2010 is as follows:

Friday, September 10, 9:30am – 1:30pm
Friday, September 24, 9:30am – 1:30pm
Monday, October 4, 5:00pm – 9:00pm
Friday, October 22, 9:30am – 1:30pm
Monday, November 8, 5:00pm – 9:00pm
Friday, November 19, 9:30am – 1:30pm
Monday, December 6, 5:00pm – 9:00pm
Friday, December 17, 9:30am – 1:30pm

The cost of the seminar is currently $30.00 per person. Dates and time are subject to change so please check the DeKalb County Seminar for Divorcing Parents website for the most up to date information and for online registration under the divorce tab.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The tenth ground under the statute is “[c]ruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health.” OCGA §19-5-3(10).

In order to obtain a divorce under this ground, the offending party must intend wound his/her spouse. Connor v. Connor, 212 Ga. 92, 94 (1955). It should be noted, however, that actual physical violence is not necessary. Slaughter v. Slaughter, 190 Ga. 229, 232 (1940). Generally, a party may not obtain a divorce under this ground based upon a single act of cruelty or violence, but if the single act is “accompanied by circumstances indicating a probability of repetition of similar conduct,” this may be sufficient. Phinzy v. Phinzy, 154 Ga. 199, 213 (1922). In addition, in certain instances, nagging and mental anguish have been held sufficient to obtain a divorce based upon cruel treatment. Womble v. Womble, 214 Ga. 438 (1958); Ross v. Ross, 169 Ga. 529 (1929).

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The ninth ground under the statute is “[h]abitual intoxication.” OCGA §19-5-3(9).

To obtain a divorce under this ground, it is not necessary for the Petitioner to prove that his or her spouse was continuously and constantly drunk during the marriage. Fuller v. Fuller, 108 Ga. 256 (1899). However, evidence that party “was ‘drunk’ or ‘under the influence of liquor’ on one occasion prior to the separation is wholly insufficient to sustain a divorce on the ground of habitual intoxication.” Stimpson v. Stimpson, 213 Ga. 235 (1957). Thus, there must be a pattern of drunkenness, but does not have to be a constant, unending situation.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Gwinnett County (Buford, Dacula, Duluth, Lawrenceville, Lilburn, Norcross, Snellville, and Suwanee) offers its Parenting Seminar at the Gwinnett Justice and Administration Center, 75 Langley Drive, Lawrenceville, Georgia 30045. The seminars are held in Conference Room A West Wing on the second floor. The schedule for the remainder of 2010 is as follows:

Weekday seminars from 9:00am – 1:00pm: September 2, September 9, September 23, October 7, October 14, October 28, November 4, November 10, December 2, December 9

Evening seminars from 5:00pm – 9:00pm: September 16, October 21, November 18, December 16

The cost of the seminar is currently $30.00 per person and registration MUST be received prior to the day of the seminar. You can find additional information and register online for these seminars at the Gwinnett County Parenting Seminar website.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The eighth ground under the statute is “[t]he conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer.” OCGA §19-5-3(8).

Turpitude, in its legal sense includes “everything done contrary to justice, honesty, modesty or good morals.” Holloway v. Holloway, 126 Ga. 459, 460 (1906), quoting Black’s Law Dict. It is a very broad definition that can include almost any crime. There are three elements that must be proven in order for a court to grant a divorce under this ground: (1) the commission of the offense involving moral turpitude; (2) the conviction for said offense; and (3) a sentence of two years or longer in a penal institution. Holloway, 126 Ga. at 460.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The seventh ground under the statute is “[w]illful and continued desertion by either of the parties for a term of one year.” OCGA §19-5-3(7).

Generally, desertion is “the voluntary separation of one of the marries parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other.” Cagle v. Cagle, 193 Ga. 34 (1961). There are three elements that must be proven in order for a court to grant a divorce on the ground of desertion: (1) the parties’ cohabitation ended; (2) the offending party intended to desert his/her spouse; and (3) the desertion lasted for a minimum of one year. Id. It should be noted that “the pardon of the convict does not destroy the right to a divorce” under this ground. Id. at 461.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Cobb County (Acworth, Austell, Kennesaw, Marietta, Powder Springs and Smyrna) offers its Divorcing Parents Seminar at the Cobb County Superior Court Building (Building D; 6th floor jury assembly room), 30 Waddell Street, Marietta, GA 30090.

Cobb County offers a four-hour weekday seminar (from 8:30 am to 1:00 pm) or two two-hour evening sessions (from 7:00 pm to 9:00 pm). The schedule for the remainder of 2010 is as follows:

Thursday morning classes (8:30am – 1:00pm): September 2, September 16, October 7, October 21, November 4, November 18, December 2, December 16

Monday evening classes (7:00pm – 9:00pm): September 13 AND 20, October 11 AND 18, November 8 AND 15, December 13 AND 20

The cost of the seminar is currently $30.00 per person. You can find additional information and register online for these seminars at the Cobb County Divorcing Parents Seminar website.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The sixth ground under the statute is “[a]dultery in either of the parties after marriage.” OCGA §19-5-3(6).

Generally, a married person commits adultery when he or she “voluntarily has sexual intercourse with a person other than his [or her] spouse.” OCGA §16-6-19; Owens v. Owens, 247 Ga. 139, 140 (1981). Adultery includes “extramarital homosexual, as well as heterosexual, relations.” Owens v. Owens, 247 Ga. 139, 140 (1981). It is difficult to prove adultery with direct evidence and, often, the party only has circumstantial evidence. In Georgia, “[a]dultery may be proved by circumstantial evidence, but such evidence must infer as a necessary conclusion that adultery was committed.” Johnson v. Johnson, 218 Ga. 28 (1962). If the evidence can lead to more than one interpretation, it is not sufficient to prove adultery. Id.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The fifth ground under the statute is “[p]regnancy of the wife by a man other than her husband, at the time of the marriage, unknown to the husband.” OCGA §19-5-3(5).

This ground is fairly straightforward, but all of the elements must be sufficiently proven. The Petitioner must prove that the wife was pregnant at the time of the marriage, that the child is not the husband’s biological child, and that the husband did not know that the wife was pregnant with someone else’s child. Since the party must prove that the child is not the husband’s biological child, there must be a paternity test and, thus, if the divorce is based solely on this ground, the parties will have to wait until after the child is born to obtain the divorce.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar 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. All of the counties in this 9th judicial district work jointly to offer their seminar for divorcing parents throughout the judicial district.

The schedule for September 2010 is as follows:
• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, September 2, 5:00pm – 9:00pm; Thursday, September 16, 5:00pm – 9:00pm
• Dahlonega (North Georgia College and State University, Continuing Education Bldg., Highway 60) – Wednesday, September 8, 9:00am – 1:00pm
• Blairsville (Haralson Civic Center, 165 Welborn Street) – Monday, September 13, 9:00am – 1:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Tuesday, September 14, 1:00pm – 5:00pm
• Woodstock (Woodstock Public Library, 7735 Main Street) – Saturday, September 18, 10:00am – 2:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, September, 20 1:00pm – 5:00pm
• Cumming (First Baptist Church Cumming, Kids Town Building, 1597 Sawnee Drive) – Saturday, September 25, 10:00am – 2:00pm

The cost of the seminar is currently $50.00 per person. There is no pre-registration. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The fourth ground under the statute is “[f]orce, menace, duress, or fraud in obtaining the marriage.” OCGA §19-5-3(4).

The Supreme Court of Georgia held that duress includes “any conduct which overpowers the will and coerces or constrains the performance of an act which otherwise would not have been performed.” Bryant v. Bryant, 192 Ga. 114, 116 (1941) quoting Dorsey v. Bryans, 143 Ga. 186, 188. Menace is “any overt act of a threatening character, short of an actual assault.” Bryant v. Bryant, 192 Ga. 114, 116 (1941) quoting Cumming v. State, 99 Ga. 662, 665 (27 S.E. 177). Thus, to obtain a divorce under this ground, you must prove that you were forced into the marriage and that, without the force, you would not have gotten married.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The third ground under the statute is “[i]mpotency at the time of the marriage.” OCGA §19-5-3(3).

A party filing a Complaint for Divorce alleging impotency as a ground for the divorce must only allege that the impotency existed at the time of the marriage. Lovelace v. Lovelace, 179 Ga. 822, 830 (1934). The Petitioner does not have to allege that the Respondent knew of the impotency while she did not, nor that she “had not condoned the alleged impotency.” Id. Knowledge and condonation are potential affirmative defenses, which must be proved by the Respondent, and do not need to be alleged by the Petitioner in anticipation of these defenses. Id.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Fulton County (Alpharetta, Atlanta, Johns Creek, Milton, Roswell) offers its Family in Transition seminar at three different locations in the county. The following is a list of locations and schedule of seminars for the rest of the year:

• Saturday morning seminar once per month from 9:00 a.m. to 1:00 p.m. at the Downtown Justice Center Building located at 160 Pryor Street, S.W., Courtroom G33, Atlanta, Georgia. Remaining 2010 dates – September 18, October 16, November 13, and December 18.
• Weekday morning seminar once per month from 9:00 a.m. to 1:00 p.m. at the South Fulton Service Center located at 5600 Stonewall Tell Road, College Park, Georgia in the auditorium. Remaining 2010 dates – August 31, September 21, October 19, November 16, and December 21.
• Weekday evening seminar once per month from 4:00 p.m. to 8:00 p.m. at the Dorothy Benson Senior Multipurpose Complex located at 6500 Vernon Woods, Drive, Building B, Sandy Springs, Georgia. Remaining 2010 dates – September 9, October 7, November 4, and December 2.

Please note that both the South Fulton Service Center and the Dorothy Benson Senior Multipurpose Complex locations require pre-registration. The cost of the seminar is currently $30.00 per person. You can find additional information about these seminars at Fulton County Families in Transition program website.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The second ground under the statute is “[m]ental incapacity at the time of the marriage.” OCGA §19-5-3(2).

In Georgia, to have the mental capacity to be married, the party must be of sound mind and be at least 18 years of age (unless parental consent is provided). If either of these is lacking, the divorce can be based on the ground of mental incapacity so long as the incapacity is sufficiently proven.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The first ground under the statute is “[i]ntermarriage by persons within the prohibited degrees of consanguinity or affinity.” OCGA §19-5-3(1).

In Georgia, the prohibited degrees of relation are father and daughter/stepdaughter, mother and son/stepson, brother and sister (whole or half), grandparent and grandchild, aunt and nephew, or uncle and niece. OCGA §19-3-3(a). These marriages are void from their inception. OCGA §19-3-3(b). It should be noted that if a person marries another person to whom he/she knows is related, by blood or marriage, within one of these prohibited degrees, that person is subject to imprisonment. OCGA §19-3-3(a).

Because these marriages are void from inception, with this ground a person may get an annulment or a divorce. However, “where children are born or are to be born as a result of the marriage,” an annulment cannot be granted and the parties must pursue divorce. OCGA §19-4-1.

As Atlanta divorce attorneys, we are often confronted with questions from parents who want to know more about joint physical custody and legal custody of their children. In order to answer these questions, further investigation is usually required on our end to discover exactly what the parent means by “joint custody.”

In Georgia, there are two aspects to custody: legal custody and physical custody. Legal custody refers to which parent has the right to make decisions concerning the care and welfare of the child. Physical custody refers to where the child will live on a daily basis. Absent serious misconduct by one of the parties, it is nearly routine in Atlanta child custody and divorce cases for the parties to be awarded joint legal custody of the children. This means that both parties are entitled to be made aware of all issues affecting the children’s welfare and that the parties must confer in good faith to try to reach an agreement regarding any major decisions affecting the children. Where the parties are granted joint legal custody, the court will also designate a mechanism for settling any disagreements between the parents (mediation, tiebreaking authority, etc.).

Joint physical custody is a different matter altogether. Many parents use the term “joint custody” when referring to the concept of 50/50 physical custody—an arrangement where the child spends equal amounts of time with each parent. This type of arrangement is most often set up so that the parents alternate week long periods with the child. There are many benefits to this type of custody arrangement, including giving the child the opportunity to build ongoing and lasting bonds with each parent. From a financial standpoint, it may also eliminate the need for either party to pay child support. If the parents cannot agree regarding joint custody, the Court will order that custody be awarded based upon the best interests of the child or children. O.C.G.A. § 19-9-3.