Atlanta Divorce Attorney Blog

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.

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.

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 the Dekalb County Courthouse Judicial Tower. The 2011 schedule is as follows:

Monday evening seminars from 5:00pm – 9:00pm (1st floor Jury Room of the Dekalb County Courthouse Judicial Tower): February 7, March 7, April 4, May 2, June 6, July 5 (Tuesday), August 1

Wednesday afternoon seminars from 12:30pm – 4:30 pm (5th floor of the Dekalb County Courthouse Judicial Tower, room 5215): February 16, March 16, April 20, May 18, June 15, July 13, August 17, September 14

Friday morning seminars from 9:30am – 1:30pm (1st floor Jury Room of the Dekalb County Courthouse Judicial Tower): February 25, March 25, April 22, May 27, June 24, July 29, August 26, September 23

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.

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.

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.