Atlanta Divorce Attorney Blog

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 October – December 2011 parenting seminar schedule for the 9th judicial district is as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, October 6, 5:00pm – 9:00pm; Thursday, October 20, 5:00pm – 9:00pm; Thursday, November 3, 5:00pm – 9:00pm; Thursday, November 17, 5:00pm – 9:00pm; Thursday, December 1, 5:00pm – 9:00pm; Thursday, December 15, 5:00pm – 9:00pm

• Canton (RT Jones Memorial Library, 116 Brown Industrial Parkway) – Saturday, October 8, 10:00am – 2:00pm

• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, October 12, 1:00pm – 5:00pm; Wednesday, November 9, 1:00pm – 5:00pm; Wednesday, December 14, 1:00pm – 5:00pm

• Cumming (Hampton Park Library, 5345 Settingdown Road) – Saturday, October 29, 10:45am – 2:45pm; Saturday, December 3, 10:45am – 2:45pm

• Cumming (Central Park Recreation Center, 2300 Keith Bridge Road) – Saturday, November 12, 10:00am – 2:00pm

• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, October 10, 1:00pm – 5:00pm; Monday, November 14, 1:00pm – 5:00pm

• Dahlonega (North Georgia College & State University, Continuing Education Building, 25 Schultz Avenue) – Tuesday, October 18, 9:00am – 1:00pm; Tuesday, November 8, 9:00am – 1:00pm; Thursday, December 8, 9:00am – 1:00pm

The cost of the seminar is currently $50.00 per person. There is no pre-registration, but you must pay with money order. 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. Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. The August – September 2011 parenting seminar schedule for the 9th judicial district is as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, August 4, 5:00pm – 9:00pm; Thursday, August 18, 5:00pm – 9:00pm; Thursday, September 1, 5:00pm – 9:00pm; Thursday, September 15, 5:00pm – 9:00pm
• Canton (RT Jones Memorial Library, 116 Brown Industrial Parkway) – Saturday, August 13, 10:00am – 2:00pm; Saturday, September 10, 10:00am – 2:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, August 10, 1:00pm – 5:00pm; Wednesday, September 14, 1:00pm – 5:00pm
• Cumming (Hampton Park Library, 5345 Settingdown Road) – Saturday, August 20, 1:00pm – 5:00pm; Saturday, September 17, 1:00pm – 5:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, August 8, 1:00pm – 5:00pm; Monday, September 12, 1:00pm – 5:00pm

The cost of the seminar is currently $50.00 per person. There is no pre-registration, but you must pay with money order. 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. Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. The July 2011 parenting seminar schedule for the 9th judicial district is as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, July 7 5:00pm – 9:00pm; Thursday, July 21 5:00pm – 9:00pm
• Canton (RT Jones Memorial Library, 116 Brown Industrial Parkway) – Saturday, July 9 10:00am – 2:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, July 13 1:00pm – 5:00pm
• Cumming (Central Park Recreation Center, 2300 Keith Bridge Road) – Saturday, July 23 10:00am – 2:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, July 25 1:00pm – 5:00pm

Dates for August and September will be forthcoming. The cost of the seminar is currently $50.00 per person. There is no pre-registration, but you must pay with money order. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

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.

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.

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.

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.

The Georgia Court of Appeals recently denied paternal grandparent visitation where the biological father had given up his parental rights. In Bailey v. Kunz, the mother was married to and had a child with the biological father. Bailey v. Kunz, A10A1809 (2011). After the biological parents divorced, the mother remarried, the biological father surrendered his parental rights, and the mother’s new husband (“adoptive father” and, with the mother, “parents”) adopted the child. Id. A dispute arose between the parents of the child (the mother and the adoptive father) and the parents of the biological father (“biological grandparents”) over visitation with the child. The parents moved to dismiss the biological grandparents’ petition for visitation “arguing that such a petition was not authorized because [they] were the legal parents and lived together with the child.” Id. After the trial court denied the petition, the parents appealed and the Georgia Court of Appeals reversed the trial court’s denial of the motion to dismiss.

The statute governing grandparent visitation states: “Except as otherwise provided in this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, . . . or whenever there has been an adoption in which the adopted child has been adopted by the child's blood relative or by a stepparent, notwithstanding the provisions of Code Section 19-8-19. This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents.” OCGA §19-7-3(b).

According to the Georgia Court of Appeals, the adoptive father is a “parent” for purposes of the grandparent visitation statute because, in the adoption statute, a “parent” includes the legal father of the child. Id. at 4. It would be inconsistent to treat him as a parent in one statute but not in another. Applying this logic in this case, the parents of the minor child are not separated and the child is living with both parents, making the petition for grandparent visitation unauthorized.

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.

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.

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).

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.

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.

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.

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 asked about the right way to tell children that you and your spouse are getting a divorce. A divorce is a very difficult process to go through and, often times, it is toughest on the children who may struggle to understand why their family is changing, and may feel like their family is falling apart. Generally, there is no “right” way to tell the children, as every family is different and the reasons for the divorce can vary greatly. The important thing is to make the children understand that, though you and your spouse are separating, you both love them and will always be there for them. Depending on the ages of your children, it may also be helpful for the children to understand how the future will work – when they will see the parent who is moving out, who will take them to school, where they will live, etc. However you and your spouse choose to break the news to the children, do not let the conversation turn into finger pointing or bashing the other person. This will only make the whole process more difficult on the children, and will make for a much more acrimonious divorce.

Your first meeting with an Atlanta divorce attorney will be a time for your attorney to gather information about your case. There are several documents you should bring with you to this meeting so that the attorney can learn as much as possible.

Account statements - Bring the most recent statement for any accounts that are in your name, your spouse’s name (if it is available to you), and your joint names. This includes statements for checking/savings accounts, investment accounts, retirement accounts, credit cards, and stock options. These statements will give your attorney a good idea of the assets that will be equitably divided between your and your spouse.

Bills – Bring the most recent statement for each bill that is paid by you and/or your spouse. This includes utility bills, mortgage statements, insurance statements, medical expenses, car payments, children’s expenses and credit card statements. These documents will help in alimony/child support negotiations, and will help determine who should pay these expenses while the divorce is pending and thereafter.

Income – Bring your most recent paystub and that of your spouse (if you have access to it). In addition, bring tax returns for the previous 3 years. Income plays a large role in most divorces so it is important that your attorney has a clear picture of this issue.

In general, bring everything to your first meeting with an attorney that you think is important to your case. Once the attorney has all the information, he/she can work with you to manage your expectations about your divorce and determine the appropriate steps to take to reach a positive outcome in your case.

An interesting alimony modification case from Cumming, Georgia was recently reviewed (and affirmed) by the Georgia Supreme Court on April 28, 2009. See Crosby v. Lebert (S09A09). The facts in that case indicated that parties were divorced in December of 2005. The parties had entered into a settlement agreement in their Forsyth County divorce that required the Husband to make monthly installments on a Cadillac Escalade, but the payments were clearly defined as permanent periodic alimony, which "terminate upon remarriage of the party to whom the obligations are owed" under O.C.G.A. § 19-6-5 (b). Additionally, the Husband was required to pay the Wife’s health insurance, but these payments were considered periodic alimony payments as well. The Wife remarried in April of 2006 and the Husband informed her that she would be responsible for the remaining payments on the automobile and her own health insurance.

When the Wife protested, the Husband filed a Declaratory Judgment and moved for Summary Judgment. OCGA § 19-6-5 (b) states that "All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided." The Forsyth County divorce judge agreed with the Husband and the Wife became responsible for the remaining payments on the Escalade and her health insurance.

The Supreme Court affirmed the trial court’s ruling. The Wife argued that the Husband was supposed to “pay all monthly installment payments of Wife’s vehicle until the vehicle is paid in full” and he could therefore not stop his payments because of her remarriage. The rest of that provision , however, stated “…and shall do so in the form of permanent periodic alimony” (emphasis added). The Supreme Court found that the second half of the provision clearly showed the intent of the parties was to have it governed by OCGA § 19-6-5 (b).