October 1, 2012

Do it Yourself Legal Services vs. Hiring an Atlanta Divorce Attorney

Out Atlanta divorce attorneys are often asked what benefit they can provide beyond a Do-It-Yourself legal website. A recent Consumer Reports article entitled “Legal DIY websites are no match for a pro – They provide services for a fraction of what you’d pay a lawyer” reviewed three of the top Legal DIY websites – LegalZoom, Nolo and Rocket Lawyer. The conclusion reached in this article was that these sites were acceptable if your situation was simple, but will likely not be sufficient if there are children or significant joint assets/debts involved. At Meriwether & Tharp LLC, we have had clients who first had divorce documents prepared at one of these websites, but ended up hiring us to properly draft these documents. The cost for Legal Zoom is substantially less than our retainer, but as the old saying goes “You get what you pay for”.

A site like LegalZoom prepares documents for all states. Thus, the documents that you receive are boilerplate documents and are not tailored to your particular situation or your particular state/county. One of the disadvantages of using this site is that you may not get an attorney who is familiar with certain courts or Judges in Metro Atlanta. One of the advantages to hiring one of our experienced Atlanta divorce attorneys is that we have tried cases in most of the Metro Atlanta counties and we are familiar with the Judges. Our paralegals are familiar with filing procedures so your divorce or other family law related matter is filed properly with the Court. Some counties, such as Cobb and Gwinnett, require documents to be filed that are specific to that county only so it is important that you hire someone who is knowledgeable about a specific county.

With the current economy and unemployment rate, it is understandable why people are choosing to use a less expensive alternative to hiring an attorney. If you are considering using a site such as Legal Zoom, ask yourself the following questions.

- Do my spouse and I have any minor children?
- Do my spouse and I own a home?
- Do my spouse and I have any credit cards together?
- Do my spouse and I have any bank accounts together?
- Does either party need/want alimony?
- Do either my spouse or I have any retirement accounts?

If you answer yes to any of the above questions, we recommend hiring, or at least consulting with, an attorney regarding your divorce. If you have already used the services of a Legal DIY site, we recommend that you have an attorney review these documents to make sure that they comply with the requirements of the county in which you filed. If you would like to schedule a consultation with one of the attorneys at Meriwether & Tharp, please call our office at 678-879-9000. We charge a consultation fee of $200.00. Even if you do not retain us to represent you in your legal matter, you will have peace of mind after you meet with one of attorneys.

By Amy Trice, Paralegal, Meriwether & Tharp, LLC

June 29, 2012

Judicially Hosted Settlement Conferences in Georgia

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

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

By Elizabeth Doak, Associate, Meriwether & Tharp, LLC

June 18, 2012

Calculating a Spouse's Interest in a Pension in a Georgia Divorce

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

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

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

June 4, 2012

The continuing saga of enforcing a pre-nuptial agreement in Georgia

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

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

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

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

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

June 1, 2012

Enforceability of a prenuptial agreement in Georgia

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

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

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

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

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

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

May 11, 2012

Exit Strategies: Atlanta Divorce and The Marital Home

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

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

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

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

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

By Alyssa Vaughn, Associate, Meriwether & Tharp, LLC

May 7, 2012

Refinance of marital home after divorce in Georgia

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

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

April 27, 2012

Are Personal Injury Settlements or Awards Considered Income for Purposes of Calculating Child Support in Georgia? - Part 3

In the first two parts of the discussion regarding personal injury awards in Georgia divorce cases, we examined whether personal injury awards were subject to equitable division. In part 3, we discuss how personal injury settlements and awards are handled when calculating child support in Georgia.

The first step when calculating child support in Georgia is to accurately determine the amount of each parent’s gross monthly income. So the question is, is a personal injury settlement or award included in gross income for purposes of calculating child support in Georgia? According to Georgia’s Child Support Statute, gross income is defined to specifically include personal injury awards as well as awards from other civil actions. OCGA § 19-6-15(f)(1)(a)(xvi). Nevertheless, even if a personal injury award is included in gross income, the statue allows a Court the authority in these types of situations to calculate gross income differently.

The frame of reference most often used in determining an individual’s gross monthly income is examining the parent’s income over the last year. For parents who have received certain types of settlements or awards, however, reviewing their income over the typical one year time period may result in the imposition of an inequitable child support obligation. Everyone loses when child support is set at an unsustainable amount and a parent is unable to meet their support obligation on an ongoing basis.

Fortunately, the legislature contemplated this potential inequity and crafted the Child Support Statute to allow for situations in which a parent’s sole income is from irregular payments or a single, lump-sum payment as a result of a personal injury suit. Under the law, when a parent has received such an award, the fact finder may permit gross income to be computed by averaging the amounts received over a reasonable period of time or permit a one-time lump-sum child support payment to be made of a percentage of the total award received. OCGA § 19-6-15(f)(1)(a)(xvi). If you have received an award or settlement as a result of a personal injury suit, an experienced Georgia family law attorney can assist you in determining the appropriate amount of child support in your particular situation.

By Alyssa Vaughn, Associate, Meriwether & Tharp, LLC

April 16, 2012

Five Costly Divorce Mistakes

A recent article on forbes.com addressed five costly mistakes made during divorce proceedings. Divorcing Women: Don’t Make These Five Costly Mistakes, by Jeff Landers, forbes.com. Though the author specifically addressed his article to women, both men and women are equally capable of making these mistakes, which could cause a divorce to be more expensive and go on much longer.

Mistake #1 – Texting. It is important to be extremely careful about any texts, emails or other forms of digital communication sent or received as they can, and likely will, be scrutinized in hops that they can be used as evidence against you in your divorce case. According to the American Academy of Matrimonial Lawyers (“AAML”), there has been a sharp increase in the number of cases using evidence obtained from smart phones, including texts, over the past three years. In short, if something is written electronically, assume that your soon to be ex-spouse will see it.

Mistake #2 – Facebooking. Much like texts and emails, anything you put on your Facebook page, including status updates, pictures, and comments, can potentially be used against you in your divorce case. According to the AAML, there has also been an increase in evidence obtained from social networking websites over the past five years.

Mistake #3 – Dating. Many people going through a divorce make the mistake of dating before the divorce is finalized. Not only will this likely anger your spouse and likely make them more willing to fight you tooth and nail in the divorce action, but any money spent on your paramour could come back to bite you in the divorce proceedings.

Mistake #4 – Snooping. Depending on what state you live in, snooping on your spouse can get you in a lot of legal trouble. Though it may be tempting to access your spouse’s email, especially if you know his/her password, the article recommends that you consult with your divorce attorney first, to ensure you know your rights under Georgia law.

Mistake #5 – Shopping. The article also discourages shopping as a form of “feel good therapy” during your divorce. More often than not, trying to get back at your spouse by spending and or/ dissipating marital assets will only increase your debt and bring up another issue that needs to be addressed in relation to equitable division.

Making these mistakes may hurt your divorce case, but, if your spouse makes any of these mistakes, you may be able to use them to your advantage. It is important that you communicate with your Atlanta Divorce Attorney about all of these issues so that he/she can best use any available information to benefit your case.

April 13, 2012

Can smoking make you lose custody of your children?

I recently read an interesting article about how a parent’s smoking may affect child custody. Smokers losing custody cases a growing trend, by Myra Fleischer, The Washington Times. According to the article, “states are increasingly factoring cigarette smoking in making decisions about who gets custody of minor children. An anti-tobacco advocacy group surveyed custody cases involving smoking found that many courts have issued orders prohibiting smoking in the presence of a child, or even within 24 hours before a child arrives in the home. The survey further found that no court has ever ruled that subjecting a child to tobacco smoke should be ignored in deciding custody.

In Georgia specifically, custody is awarded according to the best interest of the child standard, and the court can consider any factor in making that decision. Thus, it is well within the confines of Georgia law for a judge to consider smoking as a factor in determining custody. According to the article, there was a Georgia custody modification case in which the mother was addicting to smoking and, after the divorce, her child was found to have asthma. In reaching its decision, the Georgia court “found that the mother was smoking in the presence of her child, which it said implied that she had insufficient concern for her child.” This reason alone was enough to change custody.

This article further shows how anything and everything can come into play in a custody battle, especially if the parent is engaging in an activity that is harmful to the child. If you are a smoker and going through a custody fight, and are unable to break the habit, at the very least you should not smoke in the presence of the children or allow others to do so.