Atlanta Divorce Attorney Blog

A decision of a Fulton County judge regarding jurisdiction in a custody modification case was recently overturned in Murillo v. Murillo, 360 Ga. App. 61 (2009). A husband and wife were divorced in Fulton County in 1997 and the wife was granted custody of the parties’ child. Id. at 62. In 2002, the wife moved with the child to North Carolina. In 2008, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the husband filed a Petition to Modify Custody in Fulton County Superior Court. Id. The trial court then granted the wife’s motion asking the court to decline jurisdiction as North Carolina was the more convenient forum for the proceeding. Id.

Generally, since Fulton County was the court that entered the original custody ruling, Fulton County had “exclusive, continuing jurisdiction” over the modification action unless the court determines that it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. OCGA §19-9-67. To make that determination, OCGA §19-9-67(b) requires the court to consider all of the following factors:

(1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

In vacating the decision of the Fulton County court, the Court of Appeals did not say that the end result was incorrect per se, but rather emphasized that the court did not consider and reference ALL of the required factors in its written Order in making its decision that it was no longer a convenient forum. Id. at 64. Thus, the Court of Appeals directed the trial courts to always consider ALL of the factors in making a jurisdiction decision.

In part one of our ten part series on how to effectively use mediation, we will examine steps to take to make sure you and your Atlanta divorce lawyer are ready for mediation. This blog will also work if you and your spouse plan on using mediation to settle your case without an Atlanta Divorce lawyer. The first item that we will cover is BEING PREPARED.

Assets & Liabilities - It is essential that both you and your Atlanta divorce lawyer have a clear understanding of exactly what is in the marital state, a complete list of all of the assets and liabilities, current account balances, and current business evaluations, if applicable. Many Atlanta divorce lawyers like to use a "marital balance sheet," or “MBS.” This is a sheet (usually prepared in Microsoft Excel) that contains the assets and liabilities of the marriage. It is most helpful when you have documentation to support the numbers on the MBS. Then, if called upon, you can then prove any of the figures.

When you and your spouse do not have a clear picture of your assets and liabilities, respective incomes, needs, and what the custody issues are, mediation and negotiating will be wasted and bad feelings will be fostered because you and your spouse will not be talking about the same thing and you may end up arguing over issues which are really non-issues. Moreover, if you are paying the mediator and your Atlanta divorce lawyer by the hour, it is in your best financial interests to stay focused on mediating the core of your case, not peripheral issues.

Child & Spousal Support - You and your spouse should prepare an accurate budget, normally in the form of a Domestic Relations Financial Affidavit that sets out your basic needs. You should exchange all documents, such as bank and other account statements, pay stubs, tax returns, insurance plans, pension information, etc., that provide a complete picture of you and your spouse’s financial situation. This is relatively simple if you and your spouse are W-2 wage earners and own a house and a simple retirement plan.

It can be more difficult if there is significant separate property involved, complex compensation issues (e.g. stock options), or other complicated financial situations. Obviously, if you and your spouse have filed a financial statement recently in which you have signed under oath that all assets and liabilities have been disclosed on the statement, that document should be provided to both of you. If you have a more complicated estate, an Atlanta divorce lawyer can be invaluable, especially since more complicated marital estates are often laden with tax complications.

Providing the other side with this information before meeting can save time, especially if the Atlanta divorce lawyers can agree on the MBS ahead of time. Once the Atlanta divorce lawyers have the same information and can agree on such issues as income, the property at issue, and you and your spouse’s net worth, the chances of a successful settlement negotiation are tremendously heightened.

On May 4, 2009, the Supreme Court affirmed the ruling in the Atlanta Divorce case of Patel v. Patel (S09F0505), In this case, This case involved a long marriage of 22 years. The Husband was a doctor who operated his Atlanta medical practice out of a condominium purchased during the marriage and the Wife did not work. The Fulton County divorce judge awarded the Husband the office condominium housing his medical practice as part of equitable division. The Wife believed that this was an error and appealed to the Supreme Court of Georgia, but the Supreme Court upheld the Fulton County divorce judge’s ruling.

In an Atlanta divorce case, the fact finder (the trial judge in this case), has broad discretion to distribute marital property to assure that property accumulated during the marriage is fairly divided between the parties. Given the overall distribution of assets between the parties and the trial court’s findings of fact specific to the office condominium, the Supreme Court could not find any evidence that the trial court abused its discretion in awarding the office condominium to Husband.

On May 4, 2009, the Supreme Court affirmed the ruling in the Fulton County divorce case of Patel v. Patel (S09F0505). This case involved a long marriage of 22 years. The Husband was a doctor who owned an Atlanta medical practice and the Wife did not work. The Wife had requested a long term alimony. The Atlanta divorce court only awarded four years of alimony with $5,000 for the first year; $4,000 for the following two years; and $3,000 for the final year. The Wife appealed this award, specifically, challenging the trial court’s finding that she is capable of updating her skills and reentering the work force, and its consideration of the parties’ respective financial resources. The Supreme Court affirmed the trial court’s ruling.

During the course of the divorce trial, evidence was presented that the wife was capable of going back to work. The Atlanta divorce court apparently reasoned that the Wife was capable of updating her skills and working again. The four years of alimony were clearly to give her the time to update her skills so that she could support herself.

The Supreme Court ruled that, ”if any facts are presented in court that would support the trial court’s decision, the Supreme Court will uphold the trial court’s decision.” In Georgia divorce cases involving alimony, there is no mathematical formula for the trial judge to use. Thus, fact-finders (the divorce judges) are given a wide latitude in fixing the amount of alimony. To this end they are to use their experience as enlightened persons in judging the amount necessary for alimony under the evidence as disclosed by the record and all the facts and circumstances of the case.

Continue reading "Atlanta Divorce, Alimony – Georgia Case Update" »

On May 4, 2009, the Georgia Supreme Court affirmed the ruling in the Atlanta Divorce case of Patel v. Patel (S09F0505), which denied the Wife an award of attorney’s fees. In a Georgia divorce, a trial court can, after considering the financial circumstances of the parties, award attorney fees to one party in order to "ensure effective representation of both spouses so that all issues can be fully and fairly resolved." Essentially, the Court wants to make sure that there is a level playing field for both parties, keeping one party from gaining an unfair advantage over the other.

In this Atlanta divorce, the parties had been married for 22 years. The Husband was a doctor with his own medical practice, and the Wife had been a stay at home mom. The evidence presented to the Fulton County divorce judge showed that both parties had used marital resources to pay for their attorney’s fees in their divorce. The Court found both parties had been adequately represented, and thus the trial judge did not award the Wife attorney’s fees.

Since the Fulton County divorce judge had considered the respective financial conditions of the parties, she did not abuse her discretion in denying attorney’s fees. In other words, the Wife’s lawyer had already been paid with resources from the parties’ marital estate. Her request for attorney’s fees was essentially asking for additional money from Husband even though her attorney’s fees had already been paid.

Due to the unique system under which divorces are handled in Atlanta as part of the Fulton County Family Law Pilot Project. Meriwether & Tharp has recently added a page exclusively on Atlanta Divorce to its web site.

Also, since our Atlanta Divorce Lawyers Guide was published over a series of blogs, we wanted to provide a link to all of these resources that explain, in detail, the various differences with handling family law cases in Atlanta. In short, the links to the divorce series are as follows:

• Overview of a divorce in Atlanta, Georgia
• Required discovery (Interrogatories, Request to produce), DRFA, and Child Support Worksheets
• Status Conferences
• Mediation
• Late Case Evaluation
• Guardian Ad Litem

Finally, if you are looking for resources in Fulton County (Atlanta) related to a divorce, please visit our blog entry regarding Fulton County divorce resources.

Our final blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the Fulton County’s Guardian Ad Litem program. A Guardian Ad Litem is an attorney who has had at least 20 hours of specialized training for child welfare and custody issues. In cases involving contested child custody, modifications of custody, modification of visitation, allegations of child neglect or child abuse, the Court can assign a Guardian Ad Litem to more closely evaluate the situation and report back to the court its findings. The Court or the Guardian Ad Litem can order psychological evaluations and drug testing if applicable to help in making a custody determination.

The cost of a Guardian Ad Litem can be rather high for most divorces in Georgia. Litigants should be aware that Fulton County offers a Guardian Ad Litem (GAL) at a reduced hourly rate.

The topic of “Late Case Evaluations” is our next blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia. A late case evaluation, like the name implies, is an option usually offered “late” in the case, but prior to going to a final hearing. It is typically scheduled by the Judge at the 120 Day Status Conference, although in certain limited circumstances, it can be scheduled earlier in the case (and may be referred to as an “early case evaluation”).

A late case evaluation is similar in many respects to a mediation. In Fulton County, it generally last four hours (although the length of time can be extended by the parties at their own costs). A late case evaluation is usually run by an experienced attorney. This individual, while serving in the role as an attorney, also provides the parties his or her “evaluation” of their positions (both their strengths and weaknesses) and his or her opinions as to what the likely result will be if the parties elect to pursue a final trial of their case rather than come to an agreement about all issues outstanding in their matter.

Our next blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the mediation. Unlike most counties, Fulton County has really put its money where its mouth is about the importance of the mediation process in resolving divorce and family law disputes. In particular, Fulton County provides a free mediator for TWO separate four hour mediations in an effort to resolve as many disputes as possible without the need for court intervention. For time over the four hours, the parties will split the cost of mediator’s hourly rate (usually $150 to $200 per hour) or reschedule for a second session.

Fulton County also has the Office of Alternative Dispute Resolution to assist in scheduling the mediations as well as provide a neutral location for the mediation to take place. Fulton County has many mediators to choose from and all who have attended mandatory mediation training for at least 68 hours. All cases involving contested custody are required to mediate and for the most part the Court will ask all cases to mediate no matter the type of case.

Our next blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the unique case management approach of Fulton County. In particular, the approach employed by Fulton County involves having a Judicial Officer (who is appointed by the Judge) holding various status conferences over the course of the case. The overarching principal behind the system is that by holding these various status conferences, the court is able to oversee the progress of each case every step of the way.

The first status conference is the 30 Day Status Conference which is scheduled by the Court approximately 30 days after the case is filed. This first status conference is mainly to introduce the process to the parties, exchange the required discovery discussed in our last blog in this series and address issues that cannot wait another 30 days.

If the case has not already settled, then the Court will hold a 60 Day Status Conference approximately 30 days from the last one and schedule mediation if one has not already occurred. Once again, this conference is held to measure the progress of the case and to ensure that the case is moving promptly through the court system.

Continue reading "Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia: Status Conferences" »

The next blog entry on our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the unique discovery procedures in place for Fulton county divorce and family law cases. Unlike all other counties in Georgia and all other types of cases in Georgia (whether in Atlanta or anywhere else in the state), Fulton County has a mandatory set of discovery that both parties must respond to at the 30 Day Status Conference.

At the point of filing a divorce or other family law matter in Fulton County, both parties receive what is generally known as the Standard Initiation Packet. While there is a lot of useful information in this packet, there are four particular documents that we wanted to draw your attention to: Answers to Interrogatories, Required Documents to be Produced, a Domestic Relations Financial Affidavit and information about the required Child Support Worksheets.

The Answers to Interrogatories and Required Documents to be Produced documents in particular are what we are referring to as the mandatory discovery disclosures in Fulton County. These documents require that each party complete the standard set of questions that are being asked (the Interrogatories) and “produce” various documents (such as tax returns, paystubs, evidence of other income, retirement, costs for the minor children, etc.) at the 30 Day Status Conference. Even if the parties live in the same household, this requirement must be met. The purpose of these requirements is to allow both sides the basic documentary information to proceed with issues such as child support, alimony and equitable division.

Because Atlanta is located in Fulton County, Georgia, most divorces and family law cases in Atlanta go through this court system. What very few people know, however, is that divorces in Atlanta are handled very differently than any other part of Georgia. Because this system is so different from all others in Georgia, our divorce lawyers have created the Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia to better help people understand these differences and guide them through the Fulton County system. This blog will be the first in a series of blogs that will form our new guide.

In Fulton County, there is a specially designated Family Division that is comprised of three judges who are dedicated to hear only family law cases. These cases include: divorce, child custody, child support, visitation, modifications, domestic violence, alimony, legitimation, paternity, adoptions, step parent adoptions and contempt. While to outsiders to our current divorce and family law system this may not appear to be that large of a deal, it is important to remember that in every other county in Georgia any Superior Court judge can hear any type of divorce or family law matter, but they also must handle cases involving criminal matters (from DUIs to murder trials), personal injury cases (from auto accidents to class action lawsuits), business law cases (from non-compete litigation to contract disputes), and the list goes on and on.

The Family Division began as a Family Law pilot project in 1998. The goal of the Family Law Division is to provide for a case management approach to resolving cases. It provide the parties an opportunity to reach solutions that best fit their situation while under the supervision of the Courts. The Court does this by providing many opportunities to discuss issues and reach settlement. The county manages the cases as follows:

Continue reading "Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia: Overview" »

For those seeking a divorce in Fulton County (which includes the cities of Alpharetta, Atlanta, Johns Creek, Milton, Roswell) we have added this blog entry to help you quickly find useful information. In particular, you will find the Fulton County Website provides a lot of useful information for all types of litigation matters. We urge you to stop and take a closer look at the Fulton County Family Law Division web site. In this part of the Fulton Court website you will discover various resources available from Fulton county regarding family law matters. In particular, we wanted to make sure you did not miss the Divorce Forms Section of this web site. Obviously some people have put a lot of effort in providing many of the forms that are used in a divorce on this section of the web site and it’s a resource that should not be overlooked. We also recommend you visit the portion of the website devoted to the Fulton County Families in Transition program which is mandatory for everyone obtaining a divorce involving minor children.

Outside of the Fulton Court system web site, there are a few other web sites you should review in the event you are considering or going through a divorce. If child support will be at issue in your case, the new Georgia Child Support Calculator and Worksheets are publically available. Also, you may want to spend a few minutes looking over the State Bar of Georgia’s website. Finally, as we are all aware, nothing is certain but death and taxes. Based upon our experience, family law clients often find the need to discuss tax matters with an accountant during the process of obtaining a divorce. Some IRS publications, forms, and resources that may be of special interest are:

Divorced or Separate Individuals

Child and Dependent Care Expenses

Individual Retirement Arrangements

Tax Guide for Individuals

Request for Copy of Tax Return