Atlanta Divorce Attorney Blog

Under the Georgia Child Support Guidelines, expenses for a child’s health insurance premiums are included in the child support calculation. OCGA §19-6-15(h). The total health insurance premium is prorated between the parents based upon their respective incomes on the child support worksheets. The health insurance premium gets added as an adjustment to the basic child support obligation as an “additional expense” on the Child Support Worksheets. OCGA 19-6-15(h)(2)(A). The total premium is then divided pro rata between the parents and the end result is that the payor gets credit toward his/her child support obligation for the amount paid. Thus, the child support obligation is lowered by the amount of the premium for which the other parent is responsible.

For example, if the father makes $40,000 per year and the mother makes $60,000 per year, and the health insurance premium is $100/month, the father will be responsible for $40 and the mother will be responsible for $60. If the father is the child support payor and he is the one paying the premiums, his child support obligation will be lowered by $60/month, which is the amount of the health insurance premium for which the mother is responsible.

If you are going through a divorce and you and your spouse have children together, an inevitable question will be: how often will I see my children? It is most common for one parent to have primary physical custody with the other parent having secondary physical custody and visitation. In discussing the custody and visitation arrangement with your spouse or divorce attorney, you will likely hear the term “standard visitation.”

“Standard visitation” is generally every other weekend with one overnight during the week in which the non-custodial parent does not have weekend visitation. Standard visitation includes an equal split of all holidays. Each parent generally has half of the holidays each year with the holidays rotating every other year. For example, one parent will have Thanksgiving with the children in even numbered years and the other parent will have Thanksgiving with the children in odd numbered years. In addition, with standard visitation, each parent generally has blocks of extended time (2-3 weeks) during the summer for vacations with the children.

Our divorce law firm likes to use “standard visitation” as a starting point for custody and visitation discussions as the “standard visitation” outlined above does not work for all families. Some families want different holidays addressed while work commitments may keep some parents from having overnights with the children during the week. Whatever your family’s situation, it is important to find a visitation schedule that works well for both parents as well as the children.

The Georgia Supreme Court recently affirmed the Court of Appeals’ reversal of an alimony award as contrary to the evidence presented at trial. Coker v. Coker, 286 Ga. 20 (2009). The parties were married for approximately 24 years and had no children together. The only marital asset was a house. In addition, the husband had a separate asset, an interest in an LLC, which was worth approximately $100,000, but could not be converted to cash. Id. at 20, 21. The wife’s income was $45,000 and the husband’s income at the time of trial was $500/week, though the trial court determined his annual income to be $30,000. Id. Despite the husband’s meager income and assets, the trial court awarded the wife lump sum alimony in the amount of $36,500, which was to be paid within 3 months of the final decree of divorce. Id.

Generally, alimony is to be awarded based upon the needs of the party to whom it is awarded and the ability of the other party to pay. OCGA § 19-6-1 (c). In determining whether alimony should be awarded, and the amount thereof, the court looks at many factors, including the separate assets of each party and their earning capacities. OCGA § 19-6-1 (a). The Supreme Court acknowledged that the wife’s anticipated expenses justified her need for alimony, but stated that “the record is completely devoid of any evidence of Husband's ability to pay the trial court's lump sum alimony award.” Id. at 22. Without that evidence, the award must be reversed.

Recently, the Supreme Court of Georgia affirmed a Gwinnett Superior Court’s granting of a wife’s motion to strike the husband’s demand for a jury trial in the parties’ divorce action. In a divorce case, either party can demand a jury trial. Generally, “when a party makes a timely demand for a jury trial, the trial court cannot proceed without a jury unless the parties consent to a bench trial by a written stipulation filed with the court or an oral stipulation made in open court and entered in the record.” OCGA § 9-11-39 (a). One exception to this general rule is that “a party in a divorce case can, by [his] voluntary actions, impliedly waive a demand for a jury trial.” Matthews v. Matthews, 268 Ga. 863, 864 (2) (494 SE2d 325) (1998).

In Kauttner v. Kauttner, the wife filed for divorce and the husband requested a jury trial. Kautter v. Kautter, 286 Ga. 16 (2009). When the case was called for trial, the husband deliberately chose not to attend and instructed his attorney not to participate in the proceedings. As a result, the wife filed a motion to strike the jury demand. The Gwinnett Superior Court granted the wife’s motion and conducted a bench trial, and the husband appealed.

The Supreme Court of Georgia affirmed the granting of the motion to strike the husband’s demand for jury trial. The Court emphasized that the husband knew of the trial date and had no legitimate reason for not attending. Though the husband argued that by not attending he did not intend to waive the demand for jury trial, the Court stated that his actions were an implicit waiver and the trial court was authorized to strike his demand.

On April 28, 2009, the Georgia Supreme Court reversed an Order of the Dekalb County Superior Court finding a wife in contempt of the equitable distribution portion of the parties’ divorce decree. Farris v. Farris (S09A0302). Following a November 13, 2007 bench trial, Judge Castellani made an oral ruling regarding equitable distribution of the parties’ assets, but did not formalize this ruling until over a month later. The divorce decree provided that the wife shall place the marital residence on the market and shall control all aspects of the listing and sale for six months. If the residence did not sell within six months, the husband would take over control of the listing and sale, and this process shall repeat every six months until the house sold. The parties were to equally split the proceeds from the sale and the house was not to be sold for less than $650,000.00.

After the oral ruling but before entry of the final decree of divorce, the husband offered to purchase the wife’s interest in the house for $325,000, but the wife rejected this offer. Shortly after the final decree was entered, the wife accepted an offer on the house from the parties’ daughter in the amount of $650,150, which the husband rejected. The wife then filed a motion to hold the husband in contempt for rejecting this offer and the husband filed a motion for contempt against the wife for rejecting his offer. The Judge found the wife in contempt.

The Georgia Supreme Court reversed, stating adamantly that the wife could not be held in contempt of the divorce decree because there was no divorce decree entered at the time of husband’s offer. “Before a person may be held in contempt for violating a court order, the order should inform him in definite terms as to the duties thereby imposed upon him, and the command must therefore be express rather than implied. [Cit.]" (Punctuation omitted.) Hall v. Nelson, 282 Ga. 441, 444 (3) (651 SE2d 72) (2007).” Simply put, an oral Order is not sufficient for contempt. A person is not bound by a divorce decree until it is in writing and entered by the court.

On June 1, 2009, the Georgia Supreme Court reaffirmed the great discretion of the trial courts in determining the amount and length of alimony. In Sprouse v. Sprouse (S09F0709), the parties entered into a common law marriage in Alabama in 1996, which was terminated by divorce in 2001. Subsequently, the parties resumed living together and married on March 5, 2005. Approximately two years later, the husband filed for divorce and, after a bench trial, the wife was awarded alimony for 13 years. The husband appealed, contending that the alimony award was excessive in amount and duration in light of the parties’ relatively short marriage. Specifically, the husband argued that the trial court abused its discretion in considering the entire length of time the parties had been together, rather than just the length of the marriage.

Unlike child support, there is no statutory formula for determining alimony. Rather, there are eight statutory factors that the Judge can consider in awarding the amount and length of alimony, if any. O.C.G.A. §19-6-5(a). http://www.atlantadivorceattorneyblog.com/2008/10/what_are_the_factors_in_determ.html#more Here, the Supreme Court found that the trial court had discretion to consider length of the parties’ entire relationship as a factor in determining alimony under O.C.G.A. §19-6-5(a)(8), a catch-all provision allowing the court to consider “such other relevant factors as the court deems equitable and proper.” Thus, the Georgia Supreme Court reaffirmed that “[i]n the absence of any mathematical formula, fact-finders are given a wide latitude in fixing the amount of alimony . . . and to this end they are to use their experience as enlightened persons in judging the amount necessary for support under the evidence as disclosed by the record and all the facts and circumstances of the case.” Arkwright v. Arkwright, 284 Ga. 545, 546 (2) (a) (668 SE2d 709) (2008).

In part five of our ten part series on how to effectively use mediation in your contested divorce case, we will continue to 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. In this blog, we go into how to handle yourself at mediation and what usually goes on at mediation.

Mediations typically start with an opening statement by either side. Most of the time, you should have your Atlanta divorce lawyer make the statement to keep it factually accurate and non-inflammatory. It does not do any good to increase the tension at the beginning of mediation. Avoid an opening statement full of vile accusations, conduct issues, and inaccuracies. This has no effect other than to sabotage mediation; when the whole purpose of mediation is to avoid that type of conflict.

After the parties have given opening statements, the mediators tend to meet privately with the parties in what is called a caucus. In the caucus session, the more inflammatory facts can be made known to the mediator; and can be communicated to your spouse in a much more pleasant and less hostile manner by the mediator - rather than the opposing side.

Continue reading "How to Effectively Use Mediation to Settle with Your Contested Canton, Georgia Divorce – Part V" »

In part four of our ten part series on how to effectively use mediation in your contested divorce case, we will continue to 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. In this blog, we go into a the importance of prioritizing issues that are important to you.

Being prepared involves setting priorities. It is important that you understand at the outset, which are the most important goals to obtain through settlement. If primary physical custody of your children means more to you than anything else, you both need to be clear that this means that you might need to make certain financial concessions in order to obtain custody. Setting clear priorities before negotiation helps both you focus on what is most important to you, and allows your Atlanta divorce attorney to prepare your strategy.

If there have been any settlement negotiations before the mediation, you should outline them in a concise manner. Often the best way is by using a chart so that on one piece of paper each person’s position on each separate issue can be tracked. This will often help in two areas. First, your Atlanta divorce lawyer may see a trend or strategy in your spouse’s negotiation. Second, it will enable the mediator, who has no prior knowledge of the case, to look at what has occurred, the positions taken by you and your spouse, where there are agreements, where there are differences, and more importantly how different those differences are. This tells the mediator exactly where attention needs to be placed and where the time, energy and fort of the mediation need to be spent. It is a quick snapshot of what has transpired. Even more important, it is a road map of where mediation needs to go and, hopefully, how to get there.

In part three of our ten part series on how to effectively use mediation in your contested divorce case, we will continue to 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. In this blog, we go into a little more detail on the preparation necessary for an effective mediation in a contested divorce case.

Budget Accuracy. As Atlanta divorce lawyers, we find that one of the greatest problems in mediation is "inflated" or "deflated" budgets, which have absolutely no relation to reality or historical spending levels. If budgets represent actual numbers and historical levels of expenditures, mediation has a much greater chance of success. You want to avoid paying your Atlanta divorce lawyer an hourly rate to "haggle" over the accuracy of budget numbers. If you have not been the one who has taken care of the finances during the divorce, make sure that you have requested the information from your spouse to obtain the documents necessary to prepare an accurate budget. If he won’t turn them over, your Atlanta divorce lawyer can seek this information through formal discovery.

Have extra copies of all documents. Do not go to mediation with only one copy of a document that you intend to rely upon. Have multiple copies so that everyone can look at the same documents, can make notes on them, and go over those documents in the initial caucus. If you plan on making the extra copies yourself, make sure you tell your Atlanta divorce lawyer ahead of time.

Continue reading "How to Effectively Use Mediation to Settle with Your Atlanta Divorce – Part III" »

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.

In a highly contested Atlanta divorce, the costs can rise quickly. Since most contested Atlanta divorces involve situations that can change on a moment’s notice, Atlanta divorce lawyers often have to make quick decisions in order to protect a client’s interest. In certain situations, the Atlanta divorce lawyer has not had the opportunity to discuss the situation with the client ahead of time. In other situations, your Atlanta divorce lawyer may have had support staff working on your file behind the scenes to keep your case moving forward in a timely fashion.

What the above scenarios sometimes result in is a client receiving a bill that they do not understand and are hesitant to pay. In any scenario where you may have a question about a bill, you need to either call or meet with your Atlanta divorce lawyer to candidly speak with him or her about the bill. If you receive a bill that has some charges that appear high, do not call and say that the bill is too high. Contact your Atlanta divorce lawyer to ask him or her about the specific charges that you have questions concerning and why you have those questions. Often, there is a very reasonable explanation for the charges. Sometimes it is a simple billing error that the Atlanta divorce lawyer can quickly correct.

Aside from the obvious reasons why it is important to discuss the invoice with your lawyer, you do not want to lose trust in your lawyer. You may reach a point in your case where a very good settlement offer is made by your spouse. Your lawyer may tell you to take it because he or she knows you would never do better with the Judge you have in your case. If you do not trust your lawyer, you may reject the offer and try your case, only to receive a worse result in front of the Judge and potentially be open to attorney’s fees from your spouse for rejecting a good settlement offer.

One last note to make about communicating with your Atlanta divorce lawyer regarding fees is do not ignore an invoice that you cannot pay. If you are struggling with the invoice, immediately contact your Atlanta divorce lawyer and be honest. Tell him or her your situation and discuss what can be done to deal with the ongoing costs going forward. Pay whatever you can on the invoice as soon as possible and perhaps change your litigation strategy so that you do not spend your children’s college education in a contested divorce case.

With the ongoing real estate decline, couples involved in a Cherokee County divorce are finding that the most difficult piece of property to deal with in equitable distribution is the marital residence or a vacation home. At present, both parties find it impossible to refinance the existing mortgages before or after their Cherokee County divorce because of the real estate’s declining value. In addition, selling the real estate presents several major concerns considering that the property will most likely sit on the market for several months if not years. If you have hired a Cherokee County divorce lawyer, you can help him or her out by trying to resolve these issues with your spouse on your own:

1) Who will make the mortgage payments?

2) What if the party responsible for making the payments simply fails to make them?

3) Who is in charge of maintaining the property?

4) Where does the money come from for necessary repairs?

5) Who selects the real estate agent both initially and when the initial contract expires?

6) Who decides the appropriate sales price?

7) What if the parties have to come to the table with money?

8) What if the appraisal does not come in high enough to justify the purchase price?

If you are having problems reaching common grounds on these issues, your Cherokee County divorce lawyer should be able to help you. You can also explore two other options, including the short sale and a sale at a public auction.

If you are involved in a contested custody case in Georgia, chances are that a Guardian ad Litem has been appointed in your case. Over the course of the next several blogs, we will discuss several do’s and don’ts concerning how to interact with the Guardian to hopefully achieve a favorable recommendation from him or her in your Georgia contested custody case.

Since the Guardian’s ultimate recommendation is given a tremendous amount of weight by the Court, it is important that you do not do the following things:

1. Do not pressure the children’s teachers, counselors, or day care providers to tell the Guardian what a great person you are.
2. Do not ask the Guardian for his or her decision, because it will be presented in a report.
3. Do not talk to the children about what they are going to say to the Guardian.
4. Do not constantly belittle the other party, because it can back-fire against you. You could be accused of parental alienation. If, however, you have some documentary information that could help the Guardian make a decision, you can provide that to him or her, after having your custody lawyer review it.
5. Do not call, mail or e-mail the Guardian on a daily basis.
6. Do not try to pressure any psychologist that the children may be seeing.
7. Do not try to control the Guardian’s investigation. Guardian’s in contested custody cases in Georgia are usually well trained and versed in what to look for in order to make a recommendation on whom should have custody. If the other party claims you are controlling, you will only be proving their case.

If you are working on settling an Atlanta divorce with your spouse and trying to determine the amount of child support to pay, you need to keep in mind one key factor. The amount of child support in Georgia must be reasonable and if you are deviating from the presumptive amount in the child support worksheets, you have to be able to explain the reasons for the deviation to the Atlanta divorce judge. If you cannot, he or she will most likely reject your settlement. The reason is that the right of child support belongs to the child and cannot be waived by an agreement of the parents. Worthington v. Worthington , 250 Ga. 730, 731 (1) (301 SE2d 44) (1983); Dept. of Human Resources v. Mitchell , 232 Ga. App. 215, 216-217 (1) (501 SE2d 508) (1998).

An Atlanta Divorce Lawyer can help you make sure that your agreement with your spouse is one that the Court’s will accept. This will save you the pain and inconvenience of going to Court several times in the hopes that you have put together your paperwork in a manner that will be acceptable to your Atlanta Divorce Judge. Some attorneys, such as those at our Atlanta Divorce Law Firm will even offer a flat fee for this service.

As we have discussed on previous blogs, Georgia is an equitable distribution state which means that a division of marital assets does not have to be equal, but merely a fair division of property. While there are a number of factors to consider as part of equitable distribution, one of the most difficult ones is how to measure each party’s contributions to a marriage. While financial income generated is obviously easy to objectively measure, it is the non-financial contributions that are particularly challenging to consider.

So what are judges and lawyers looking at when measuring non-financial contributions? Generally speaking, these contributions cover two particular areas: household duties and parental tasks. Household duties range greatly from family to family but generally cover items such as: who does the cleaning, washes clothes, cooks meals, yard work and landscaping, grocery shopping, household and car repairs, financial management and record keeping, pet care, and purchases (from groceries, clothes, household items to larger personal property items such furniture, cars, and property).

Parental tasks, on the other hand, include everything from waking up a child in the morning to putting them to bed at night. This would include taking a child to school and other extracurricular activities, feeding a child, helping a child with homework, attending teacher conferences, and taking a child to a doctor. Obviously, these lists are not meant to be fully comprehensive of the contributions but are intended just to give you a start on thinking about what are each parties non-financial contributions to a marriage. With a little work developing a detailed list of these various non-financial contributions and the contributions made by both parties, appropriate consideration can be given to these non-financial factors when evaluating whether a particular divorce should deviate from an even fifty-fifty split of assets.

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).

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" »

This week brings the annual Family Law Institute for Georgia family law attorneys. During this three day seminar attorneys and judges get together and get to know each other in a casual environment, rather than the traditional adversarial role. One of the speakers on the first day, Judge Steve Jones from Athens, Georgia raised a particular concern about the fiscal year 2010 budget that I thought should be shared with the community at large. He noted that the fiscal year 2010 budget (as approved by the Georgia House of Representatives and Senate) provided for several major adjustments including an overall reduction in funding for Superior Courts by nearly five percent with significant reductions in senior judge usage, law clerks, operating expenses, and on and on. While I recognize that the current economic times mean that cuts are inevitably going to be required, this is a particularly alarming concern.

While these budget cuts are obviously going to negatively affect the Superior Court system, what is perhaps as alarming is that the number of cases going though our court system continues to substantially increase. According to the Georgia Administrative Office of the Courts, Planning and Research Division, the number of domestic relations cases, and the overall court docket, continues to increase – up over six percent since last year. As you can imagine, the decline in the economy has resulted in an increase in divorces (due to financial problems), parents seeking child support and alimony modifications, increased “deadbeat” parent cases, and of course more foreclosure confirmation and general debt collection cases.

So what does this mean to you? With increasing demand and less funding, I think it is fair to say that we will face greater court backlog, more crowded court calendars, and potentially even a decrease in the effectiveness and efficiency of the courts.

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.

On March 23, 2009, the Supreme Court of Georgia affirmed the trial court’s denial of the wife’s motion for new trial in her divorce action in Rembert v. Rembert (S08F1582). Specifically, the wife alleged that the trial court erred in granting final decision making authority to the husband, who was the primary physical custodian of the parties’ children, and in awarding primary physical custody to the husband.

In regard to decision making, the wife argued that the parties did not truly have joint legal custody because the husband had final decision making authority. The Supreme Court disagreed, reaffirming a prior holding that the language of the statute governing legal custody “clearly vests in the trial court discretion to decide which parent should be empowered to make final decisions where the parents are unable to agree.” Citing Frazier v. Frazier, 280 Ga. 687, 690 (2006). As the primary physical custodian, it was appropriate that the father had final decision making authority in the likely event that the parties would not agree.

In regard to primary physical custody, the Supreme Court held that it would not disturb the trial court’s judgment awarding custody to the father, who had a stable home and a job with a regular schedule, instead of the mother, who was dating a married man, was a full time student with substantial debt, and had threatened the life of a neighbor.

Simply put, joint custody means that both parents share equal input and/or spend equal amount of time with the child/children. Sole custody is essentially the opposite – when only one parent has the decision making power and the child or children live almost all of the time with that one parent. Custody is actually broken into two categories (physical and legal) and then labeled joint or sole within each category. Physical custody describes where a child lives most of the time and what parent will have visitation, whereas legal custody describes access to records and major decisions such as to schooling, religion, extracurricular activities and non-emergency health procedures.

It is most common to see joint custody in the category of legal custody. Joint legal custody means that both parents have input and should be involved in major decisions. Per O.C.G.A. § 19-9-1, (Georgia parenting plan law) there must be a designated tiebreaker or final decision maker if the parties cannot agree (usually the primary physical custodian). This prevents the parties from needing the Court’s intervention every time there is no agreement on any one issue.

In the category of physical custody, the parties must designate a primary physical custodian and typically do not label physical custody under the “sole vs. joint” designation. The primary physical custodian is the person the child/children live with most of the time and the noncustodial parent has visitation or parenting time. According to O.C.G.A. § 19-6-15 (Georgia child support law), even if the parties share equal amount of time with the child/children, the Court must still designate a primary custodian.

Continue reading "Child Custody: Joint Custody vs Sole Custody in Georgia" »

On January 29, 2009, the Georgia Court of Appeals reversed the decision of the trial court, which held that the Husband’s claim for indemnification under the divorce settlement agreement was barred by res judicata. In Stone v. Stone, (A08A2020), the parties separated on August 28, 2005 and the Husband filed for divorce shortly thereafter. During the pending divorce, the Wife obtained five cash advances from an equity line of credit on the marital home and used the money for her own personal expenses. The Wife disclosed this action prior to finalizing the divorce and the parties’ settlement agreement reflected that the Husband would retain the marital home, but that the Wife would be responsible for, indemnify and hold Husband harmless from any liability arising out of this debt.

After the trial court entered a final decree incorporating the terms of the settlement agreement, the Husband sued the Wife for indemnification on the equity line of credit. The trial court dismissed the action after the Wife argued that Husband’s claim was barred by the prior divorce action because it could have been resolved at that time. The Court of Appeals disagreed, stating that “the breach allegation was not – and could not have been – adjudicated in the divorce proceeding, which concluded when the parties settled the case…” The Court of Appeals did not reach the merits of the Husband’s claim, but reversed the trial court’s dismissal.

On November 17, 2008, the Supreme Court of Georgia reaffirmed long standing case law that it will not set aside a trial court’s factual findings unless they are found to be clearly erroneous. In Vereen v. Vereen (S08F0736), the Husband in a Gwinnett County divorce action contended that the trial court failed to consider evidence in making its rulings on child support, alimony, attorney’s fees and a tax debt, and failed to enforce a temporary order in the case.

Specifically, the Husband alleged that the trial court erred in its determination of his income, determination that his age and health conditions did not affect his ability to pay child support, and allocation of responsibility for a $27,000 tax debt to him. The Supreme Court found that the trial court specifically considered extensive evidence on these issues including testimony from the Husband regarding his income and health, evidence regarding his payment of the mortgage and other bills, evidence of his major cash purchases, and evidence that the tax debt was his alone. Satisfied that the trial court did not err, the Supreme Court declined Husband’s request that the trial court’s Order be overturned.

The Husband further alleged that the trial court erred in failing to enforce a temporary order in the case. To this allegation of error, the Supreme Court simply states that “the record reflects no motion by Husband to hold Wife in contempt for having allegedly failed to comply with this order” and “[w]ithout a ruling from the trial court on this issue, there can be no finding of error.”

On January 26, 2009, the Supreme Court of Georgia issued a ruling in Amerson v. Vandiver (S08A1707) regarding a Father’s agreement to termination of his parental rights in a divorce action. In March 2004, the parties entered into a settlement agreement in their divorce action wherein the Mother would have sole, permanent custody of the children and the Father agreed to the termination of his parental rights. Four years later, the Father moved to set aside the Final Judgment and Decree of Divorce alleging that the superior court lacked jurisdiction to terminate his parental rights.

After the superior court agreed with the Father and set aside the part of the judgment terminating his parental rights, the Mother appealed. The Supreme Court of Georgia pointed out that the juvenile courts, not the superior court, have sole jurisdiction for terminating parental rights, except in the case of adoption proceedings. Nonetheless, the Court went on to say that “[t]he stability of the family and of society demands that one who intends to attack an apparently valid decree of divorce should proceed with the utmost promptness.” The Court reversed the superior court’s ruling and held that the Father’s acts of invoking superior court jurisdiction for his divorce and entering into a settlement agreement which the superior court incorporated into its final decree, coupled with the Father’s four year delay in trying to set the decree aside, prevented him from attacking the agreement.

Adultery on the part of one spouse can affect many aspects of a divorce in Georgia, including alimony, equitable distribution, and even child custody. If a spouse’s adultery was the cause of the divorce, the adulterous party is barred from receiving alimony. Thus, if you can prove that your spouse committed adultery and that the adultery caused the separation; your spouse will not be successful on an alimony claim in Court.

Alimony also comes into play in equitable distribution. Generally, equitable distribution results in splitting the marital estate 50/50, unless there is a reason to give one spouse a greater portion of the marital estate. One reason to give one spouse a disproportionate amount of the marital estate is the bad conduct of the other party, which can include adultery. If an adulterous spouse committed egregious adultery in the presence of the other spouse and/or children, this conduct may result in an unequal split of the marital estate. Similarly, if the adulterous spouse spent substantial marital funds on his or her paramour, the other spouse could get a disproportionate amount of the marital estate to make up the difference and even punish the adulterous spouse.

Alimony can also affect child custody. In determining child custody, the Court is primarily concerned with the best interests of the children. If a parent has committed adultery in the presence of the children and brings his or her paramour around the children, this parent is acting contrary to the children’s best interests, which could result in that parent losing a custody battle.

If your ex-spouse fails to comply with a final divorce decree, there are certain actions, such as filing a motion for contempt, which you can take to compel compliance. We recommend that you first try to obtain compliance yourself by making requests of your ex-spouse in writing before resorting to legal action. Remember to be cordial in the letters – you are usually more likely to get a favorable response from being nice and the letters may be used in Court later. Also, be sure to keep an accurate record of what you receive or have paid and all receipts, as this will be important in Court.

In the event that your attempts to obtain voluntary compliance with the final divorce decree fail, you can file a Petition for Contempt with the Court. Both parties will then have to appear in Court and your ex-spouse will have to explain why he/she has not complied with the Order. If the Court finds that his/her non-compliance is willful (i.e. he/she has the money to pay, but just doesn’t want to), your ex-spouse may be subject to sanctions for contempt which could include incarceration.

While you should not be eager to return to Court, the Court will not look favorably upon an unreasonable delay to enforce your rights. Thus, if your ex-spouse shows a pattern of non-compliance, we recommend addressing the issue as soon as possible, whether with written requests to your ex-spouse or a Petition for Contempt, if the written requests fail.

As an Atlanta divorce lawyer, our law firm is often confronted with dealing with issues of adultery as they related to a divorce. In Georgia, adultery on the part of one spouse can affect many aspects of a divorce proceeding, including alimony, equitable distribution, and even child custody. In order to get to the point that adultery will affect a divorce case, you must prove the adultery, which can be very difficult. Since there is rarely direct proof of adultery, most times it must be proved by circumstantial evidence.

If you and your spouse share cell phone accounts, look at the itemized statements to see if there are substantial calls to a certain number. If you share an email address, you can look at incoming and outgoing emails. If you do not share phone or email accounts, we do not recommend breaking into your spouse’s account if he or she has not given you access, as this could be a criminal violation and the resulting information will likely be inadmissible in Court.

Once a divorce case is filed, however, you will be able to obtain information from your spouse through discovery that may provide evidence of his or her adultery. You can request anything that is reasonably calculated to lead to the discovery of admissible evidence, which includes phone records, emails, other correspondence, bank statements, and credit card statements. Phone records may show numerous calls to a paramour. Emails may show correspondence between your spouse and a paramour. Bank and credit card statements may show evidence of substantial funds spent on flowers, hotels, and other gifts that you did not receive.

Continue reading "How can I prove my spouse’s adultery? " »

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.

In Georgia, divorces are filed in the Superior Courts. In order to file for divorce in Georgia, the Court must have subject matter jurisdiction over the marriage and personal jurisdiction over the non-filing spouse.

For Georgia to have subject matter jurisdiction, the filing party must have been a resident of the state for six months prior to filing. O.C.G.A. §19-5-2. In the case of a party who travels a lot for business reasons, this means the party must have established an initial residence in Georgia and intend to return to Georgia to live. If the filing party is not a resident of Georgia, the divorce can still be brought in this state if the respondent has been a resident of Georgia and of the county in which the action is brought for six months prior to filing. O.C.G.A. §19-5-2. The six-month subject matter jurisdiction requirement cannot be waived.

The State of Georgia must also have personal jurisdiction over the non-filing spouse. If the non-filing spouse lives in Georgia and is personally served within Georgia, then Georgia has personal jurisdiction. The non-filing spouse can waive personal jurisdiction and consent to jurisdiction in Georgia for the divorce action. If the non-filing spouse does not waive jurisdiction, the filing spouse likely has to go to that party’s state of residence to file the divorce.

Georgia’s Domestic Relations Financial Affidavit (DRFA) is a sworn financial statement required by most counties in divorce and other family law cases in Georgia. The DRFA is an itemized list of your monthly income and expenses, and a list of your assets and debts including bank accounts, retirement accounts, houses, and credit cards.

The DRFA is extremely helpful for a number of reasons in family law cases. First, it is a good overview of the financial situation of the parties and of the marital estate. Second, the DRFA is extremely helpful in determining alimony. Alimony is awarded on a need vs. ability to pay basis and the DRFA quickly shows how much expendable income or deficit a person has on a monthly basis. Third, the DRFA requires the parties to think through the expenses for their children which they should receive credit for on the child support worksheets.

As a sworn statement, the DRFA is often relied upon in Court as a snapshot of your financial circumstances so it is important to be as honest and accurate as possible. Look at monthly bills and expenses and put the actual numbers on there. We recommend keeping all documents on which you based your DRFA numbers so they are easily accessible if your numbers are later challenged in Court.

On January 12, 2009, the Supreme Court of Georgia addressed an interesting issue regarding equitable division of marital property in the Georgia divorce case of Smith v. Smith (S08F1706), where the parties had married and divorced each other twice. The parties were first married in 1979 and divorced in 1988. The remarried in 1999 and divorced in 2008. The trial court awarded the Wife, among other property, a portion of the Husband’s military retirement pay, and the Husband appealed that specific award.

The Husband argued that he retired from the military in 1995, between the parties’ first and second marriages and, thus, his military retirement pay was his separate property, not subject to equitable distribution. The Georgia Supreme Court agreed and reversed the judgment of the trial court. The Court held the military retirement pay to be the Husband’s separate property because all contributions to the plan predated the second marriage (i.e. there were no contributions during the second marriage) and, since the Wife was not awarded any portion of this account in the first divorce, that account became the Husband’s separate property at that time.

In Rumley-Miawama v. Miawama (S08F1541), the Supreme Court of Georgia heard a Wife’s appeal from the judgment in her divorce case. The Wife was unhappy with the visitation, child support and equitable division of property portions of the trial court’s judgment.

In regard to child support, the Supreme Court affirmed the trial court’s decision not to apply a deviation from the child support guidelines for equal parenting time and held that the trial court did not abuse its discretion in choosing not to apply this deviation. The Supreme Court pointed out that the trial court did use its discretion to give the Wife a deviation for travel expenses.

The Supreme Court of Georgia did agree with the Wife that the trial court erred in including a self-executing change of visitation provision in its judgments. The visitation portion of the judgment, which takes effect if Wife moves out of state and significantly limits her visitation, was reversed, as the Supreme Court held that it failed to reflect consideration of the best interests of the children, which is of paramount importance in Georgia.

Continue reading "Georgia Case Law Update – Visitation, Child Support, Marital Property " »

There are several do-it-yourself, uncontested divorce web sites for people to download forms to help them with their divorce in Georgia. We have had several people contact us recently about helping them finalize their divorce in Cherokee County. In each case they had paid an online, self-help web site to put together their forms to file for divorce. The couples had fortunately mediated their issues and entered a divorce agreement without hiring a Canton or Woodstock divorce lawyer. The problem arose when they went to the Judge to approve their uncontested divorce. Their Cherokee County divorce paperwork did not meet the requirements for the Court to approve their divorce, and the Court recommended that they hire a Canton, Georgia divorce lawyer to finalize their divorce.

In the end, they had to hire a Canton divorce attorney to get their uncontested divorce approved. So, to answer the question posed in the title of this blog, I would have to say that it depends on how much money they spent. On a positive note, the divorce paperwork they received from the web site allowed them to settle all of their issues on their own without the need for a divorce lawyer. From this perspective, the money they spent was probably worth it.

For the divorcing couple considering spending money on a self-help divorce web site, they need to consider whether the web site is familiar specifically with the rules of the County in which they are filing for a divorce. For the divorces in Cherokee County, I would suggest that if they spend the money on a divorce web site to try to settle their issues, they should take their divorce paperwork to a Canton or Woodstock divorce lawyer in Georgia to review the paperwork prior to submitting it to the Judge. The divorce lawyer can make sure that it meets the requirements of the Court. Otherwise, the divorcing couple may miss several days of work going to Court to get their divorce finalized. Moreover, it could delay the divorce being granted by months.

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.

In a Georgia divorce, there are two documents where you can ask for your name to be restored back to your maiden name. If you are positive that you wish to change your name back to your maiden name, then your request is listed in the Complaint for Divorce, which is the initial pleading filed with the Court. Most times, the wife is unsure whether she wants to keep her married name or change her name back to her maiden name. According to O.C.G.A. § 19-5-16, you can request to restore your maiden name in the Complaint for Divorce, but it is not final until your divorce is finalized. There is a section in the Final Judgment and Decree that specifically asks for the Court to restore the wife’s name back to her maiden name. If you desire to change your name back, then you will need to list the name as you would like it to appear on the Final Judgment and Decree. Once the judge signs the Final Judgment and Decree, you can change her name back to your maiden name.

Even though the judge signs the Final Judgment and Decree, there are several other steps that you must take to legally change your name on documents. When you obtain a copy of the Final Judgment and Decree signed by the judge, you are only receiving a date-stamped copy from the court. If you want to legally change your name on your social security card, your drivers license or your bank account, then you will need to obtain a certified copy of the Final Judgment and Decree. You can obtain a certified copy from the Clerk of Superior Court of the county in which your divorce was granted and depending on the size of the Final Judgment and Decree, it typically costs only a few dollars. Most clerk of court are open Monday through Friday from 8:00 a.m. to 5:00 p.m. and closed on certain holidays. Before driving to the courthouse, it is recommended that you contact the Clerk’s office for their particular hours of operation.

Continue reading "How do I change my last name back to my maiden name as part of a divorce in Georgia? " »

According to O.C.G.A. § 19-6-2, you can be awarded attorney’s fees in a divorce, but the award of attorney’s fees is ultimately decided by the judge assigned in your case. After the judge hears testimony from both you and your spouse, he or she will look at the facts of the case and base his or her decision on one factor – the financial circumstances of both parties in a divorce. O.C.G.A. § 19-6-2(a)(1). This is similar to the award of alimony in a divorce case because the judge will look at both parties’ incomes and decide on one party’s ability or inability to pay attorney’s fees and the other party’s need for attorney’s fees. Even though you may ask for attorney’s fees, there is no guarantee that the judge will actually grant attorney’s fees in your case.

If the judge awards attorney’s fees in your divorce, the judge will sign a Final Order showing the amount of attorney’s fees that your spouse is required to pay. One of the disadvantages about the judge awarding attorney’s fees in your case is that amount of attorney’s fees that the judge awards in his Final Order may or may not reflect the total amount of attorney’s fees that you incurred in your divorce according to § 19-6-2(a)(2). The judge could actually award an amount less than what you incurred.

When the judge is determining the amount of attorney’s fees, he or she may look at several factors. The judge may review the invoices from both you and your spouse’s attorneys and determine if the amount that you incurred is fair. When reviewing the invoices, the judge may look at the hourly rates of staff at your law firm, such as the attorney, associate attorney, and/or paralegal working on your case, as well as the charges that you incurred as compared to those hourly rates and charges that your spouse incurred from the opposing law firm. As we mentioned previously in this blog, it is difficult to determine whether someone will be awarded attorney’s fees since the award is based on the sole discretion of the judge and because each divorce case and each judge is different, it is difficult to determine whether he or she will award attorney’s fees in your particular divorce case.

The exact statutory authorization for attorney’s fees under the Official Code of Georgia is:

Continue reading "Attorneys Fees in a Georgia Divorce under O.C.G.A. § 19-6-2 " »

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.

If you have been on your spouses’ health insurance policy during your marriage, you will most likely not be able to remain on the policy after the divorce. Conversely, if you have traditionally carried your spouse on your health insurance policy, you will most likely not be able to continue that coverage, even if you want to do so. This is because divorce is considered to be a qualifying event terminating coverage for a former spouse.

This does not mean that an unemployed spouse will be without health insurance coverage. A person who has been on his or her spouse’s health insurance policy may have the right to apply for health benefits through the former spouse’s current place of employment. Pursuant to COBRA legislation, non-employee spouses may be eligible for certain insurance coverage at group rates after the divorce is final. The insurance can continue up to 36 months, depending on your situation and the premiums should not exceed 105% of the current group rate.

However, a divorced spouse under the terms of a group insurance policy has only thirty (30) days from the date of the divorce to apply and pay for additional conversion policy for himself/herself and sixty (60) days from the date of the qualifying event, such as a divorce, to notify the health insurance administrator for purposes of continuation coverage. Only if you file within that time period will you be eligible for COBRA coverage. Please check with your former spouse or through their employer immediately, as federal statutes and deadlines may (and often do) change.

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" »

When you say the word “alimony”, the first thing that comes to mind is divorce. Even though most people have heard the word, most people do not truly know what it means. According to O.C.G.A. § 19-6-1(a), alimony is defined as “an allowance out of one party’s estate made for the support of the other party when living separately”. There are several misconceptions about alimony. Some people may feel that they are automatically entitled to alimony regardless of the length of the marriage or the financial situation of the parties. Others may feel that they will be awarded enough alimony to continue living the lifestyle to which they had become accustomed during their marriage.

When a judge grants alimony, there are several factors that he or she uses to determine whether to award alimony and the duration of alimony in a case. First, if one of the parties has committed adultery or has abandoned their spouse during his or her marriage, then the judge most likely will not grant alimony in a case according to O.C.G.A. § 19-6-1(b). Also, the judge will take into account the financial needs of the parties and the ability of one of the parties to pay alimony to the other party according to O.C.G.A. § 19-6-1(c). If the parties make approximately the same amount of money per year, it is highly doubtful that the judge will award alimony to one of the parties in a divorce. Once the judge has heard all of the evidence, it is under his or her discretion whether to award alimony in a case. Just because the parties are getting divorced does not automatically mean that a judge will award alimony to one of the parties in the case.

In Georgia, a judge can award alimony on either a temporary or permanent basis. The difference between temporary and permanent alimony depends on whether the divorce is final. According to O.C.G.A. § 19-6-3(a), temporary alimony is awarded “when an action for divorce or permanent alimony is pending”. For one of the parties to receive temporary alimony, the parties must have a hearing in front of the judge according to O.C.G.A. § 19-6-3(a) and the judge will decide whether to award temporary alimony and the amount of alimony based on the financial needs of one of the parties and the facts of the case. If the judge allows temporary alimony, he or she will enter into an order requiring one party to pay alimony to the other party during the course of their divorce. Permanent alimony, however, is awarded when the parties’ divorce is final and the judge has executed the Final Judgment and Decree. People are often confused about the definition of permanent alimony because it does not mean that the one of the parties is required to pay alimony to his or her spouse for the remainder of his or her life.

In a divorce, it is common for the parties to have join debt. While there is a lot of focus on dividing up the assets of a marriage, often, not enough attention gets paid to dividing up the debt of a marriage.

A final divorce decree (or settlement incorporated into a final divorce decree) is a court order. Court orders regarding responsibility for payment of debts and liabilities are effective between you and your former spouse, but do not bind a joint creditor that you and your former spouse share. If you still maintain joint credit cards with your former spouse, the only sure way to protect yourself against liability for further charges is to cancel the credit card.

Your Decree should indicate which party is to assume responsibility for payment of certain debts or obligations. For example, if your former spouse is awarded the marital residence and is ordered to assume full responsibility for the payment of the mortgage (but fails to make the payment), the creditor will most likely look to you for the payment of the mortgage until such time as your former spouse removes your name from the mortgage.

Continue reading "Joint Debts and Divorce" »

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.

According to O.C.G.A. § 19-6-28.1(b), the licensing agencies in Georgia can revoke or suspend someone’s license if he or she is in arrears behind in paying child support for a period of more than sixty days. Not only can the Georgia Department of Driver Services suspend someone’s drivers license, but the person’s professional license, such as a license to practice medicine. A business license as well as hunting and fishing licenses can also be suspended. Also, if the non-paying parent applies for the license, the application can be denied based solely on the fact that he or she is in arrears with child support. Georgia is not the first state to implement such a drastic law to punish parents who are in arrears. For years, the states of Ohio, Tennessee, and Arizona, have suspended drivers licenses because someone owes back owed child support to their ex-spouse.

When this law comes into effect in July, there are going to be those who support the law and who oppose it. Some people may feel that it is unfair because if they don’t have a driver’s license, then they cannot get to work to earn the money to pay child support. Prior to revoking or suspending someone’s license, the court will notify the person who is in arrears. If he or she is able and willing to cooperate with the court to make their child support obligation current and to provide evidence to the court, then the court will consider this and may not revoke or suspend his or her license according to O.C.G.A. § 19-6-28.1(b). This law is meant only to punish those who do not plan on becoming current with their child support obligations. Once the court has contacted the person and has determined that he or she is not going to pay the back owed child support, then the court will enter into an order and contact the licensing agency for the person’s failure to pay child support. If the licensing agency revokes or suspends his or her license, then the licensing agency will contact the court according to O.C.G.A. §19-6-28.1(b).

Continue reading "Penalties for not paying child support in Georgia: License revocation" »

Over the years as divorce attorneys in Atlanta, we have received several calls from both women and men in which they want to file for divorce, but they are not sure where their spouse resides. In many cases, he or she has been separated from their spouses for years. Since they did not keep in touch with their spouse, they do not know where their spouse currently resides. There are several reasons why one of the spouses contacts our office for a divorce after so many years. One of the major reasons is miscommunication. When the spouses separated, one of the spouses believed that the other spouse filed for divorce even though they never received any paperwork from the court. Also, the parties may lead such busy lives that either one of the parties may have simply forgotten to file for divorce. There is usually some upcoming event, which causes one of the spouses to have to finally file for divorce. In some cases, one of the spouses is getting remarried and they need to be legally divorced prior to the date of their wedding.

Even though you may not be aware of your spouse’s whereabouts, a judge will still grant a divorce in Georgia, but in most cases, there is additional time and money involved. Before an attorney drafts any of the pleadings, you must provide as much personal information about your spouse, such as his or her last known address, his or her social security number, his or her full name, or his or her date of birth. The more information that you provide to your attorney, the more likely that your spouse can be located. Once you provide your spouse’s personal information to your attorney, they can perform a skip trace. In some cases, attorneys have access to public records databases where they can search for your spouse’s current address using his or her personal information. If your attorney does not have access to these databases, they can contact a third-party who can perform a skip trace for you. The third party company, however, does charge a fee to perform a skip trace on an individual. Also, the attorney or their staff can perform a postal trace in conjunction with the skip trace. When you perform a postal trace, a request is sent to the United States Postmaster in the city where your spouse last resided and the Postmaster will provide the attorney with the spouse’s last known address if it is available. The disadvantage of performing a postal trace is that if your spouse did not provide a forwarding address when he or she moved, then the Postmaster cannot provide the attorney with their new address.

Continue reading "How do I file for a divorce in Georgia when I do not know where my spouse lives?" »

According to Georgia law, alimony is defined as “an allowance out of one party’s estate made for the support of the other party when living separately”. O.C.G.A. § 19-6-1(a). In Georgia, alimony can be awarded to a party in a divorce in two different ways – lump sum alimony and periodic alimony.

Lump sum alimony, like it sounds, is when a party receives one large sum of money from the parties’ estate as alimony. On the other hand, periodic alimony is where a party receives periodic payments of alimony (usually on a monthly basis) over the course of a certain period of time. In addition to the obvious payout differences, there are several additional differences between the two types of alimony payments. First, lump sum alimony is not subject to future modifications by the court. O.C.G.A. § 19-6-2. Periodic alimony is subject to future modifications for so long as a party is continuing to receive alimony payments. Second, the two types of alimony can have different tax treatment as described in more detail in our prior blog discussion about the tax effects of alimony.

In addition, ignoring any tax implications, even the exact same amount of money awarded in lump sum alimony and periodic alimony are not necessarily worth the same amount of money. First, periodic alimony does not take into account a present day discount for money. In other words, a dollar today is worth more than a dollar a year from now. Second, once received, there are no future collection issues with lump sum alimony while periodic alimony is subject to collection concerns for years until it is paid in full. Third, periodic alimony is subject termination for various reasons (such as remarriage) as discussed in greater detail in our blog regarding remarriage and modification of alimony.

Once your divorce is final, we recommend that you keep certain documents, especially if you are receiving child support and alimony from your ex-spouse. Many people may feel like they need to destroy certain documents, such as the marriage license, because he or she may not want to keep things that remind him or her of their ex-spouse. It is very important to keep certain documents and records because you may unfortunately need them in the future, especially if your ex-spouse fails to pay his support obligations to both you and your children. Below is a brief list of the documents and records that we highly recommend that you keep after your divorce. We recommend keeping these documents in a firesafe security or file box. We do not, however, recommend that you keep any important documents in a safety deposit box. If something happens to you, your family may not be able to retrieve these documents from your safety deposit box.

1. Copies of checks and/or money orders:

If your ex-spouse is required to pay child support or alimony to you, it is very important that you make copies of these checks and/or money orders for your records. If your ex-spouse insists on paying you cash, however, we highly recommend that you give your spouse a receipt, which both you and your spouse sign. Receipt books only cost a couple of dollars and they could help you immensely in the future if you need to file an action with the court. If your ex-spouse makes the payments in cash, it is very difficult to prove to the court that he or she made these payments to you since there is usually no tangible evidence showing these payments were made.

Also, in addition to making copies of all checks and/or money orders, we highly recommend that you keep a log of all of the payments that you received. You can either keep the log on your computer or a notepad. Every month, you should make an entry in the log listing the amount of the payment, the check number, and the date received. If your spouse fails to make a payment, you should still make an entry, but you should put “no payment received”. It is so much easier to calculate how much money your spouse owes you when you have a tangible record of it. The downside to keeping detailed records on the computer is that you would lose these records if your hard drive crashes or your computer is lost or stolen – if you do please be sure to backup the file regularly and keep a backup copy offsite.

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A friend of mine recently asked me - who is the best divorce lawyer in Atlanta? While of course my ego wanted to say me, I thought better of it than giving that self-serving answer. As I pondered the question more and thought through the numerous divorce attorneys that I have dealt with struggling to find the best answer to that question, only more questions came to my mind.

The first question was - how do you measure what makes a great divorce attorney? Of course that question only lead to the next logical question of - what things do divorce attorneys actually do? Fortunately, I had a lot of knowledge in that area. Divorce attorneys meet with clients, opposing attorneys, judges, and juries. They write letters, motions, and briefs. They argue positions and advocate for clients. They research statutes and case law as well as facts underlying cases. They are required to review complex financial and businesses documents. They must have excellent negotiation skills. And they must have excellent advocacy skills for when negotiations fail. And the list (that probably any first year law student could name) goes on and on … and hardly served to answer the question.

So I tried a different approach, what traits are most important in handling a divorce case. So I thought through the numerous cases I have handled over the years looking for what common traits existed in each case. Certainly in some cases it helped my client being more aggressive. Yet in others, it helped be less aggressive. In some cases, it was better to stay diligent (if not tenacious) in researching the factual grounds in a case. In others it was better to lay back and avoid wasting attorney’s fees. In some cases clients needed a sympathetic and understanding approach. In others, they needed a tough approach with someone that strongly suggested what they should do (or stop doing). Again, I started to realize that the answer was not going to be found with this approach.

So I did what comes natural to an attorney – I started researching what others were writing on this subject. And I read and read and really did not find that anyone was saying much substantive on the subject. So much for that idea.

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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" »

Each person reacts differently when he or she is served with a Complaint for Divorce. Some people are shocked and rendered speechless while others may remain calm. The best advice that we can give to you is not to panic. As we mentioned in a previous blog, there are three ways that someone can be served with a Complaint for Divorce in Georgia. If you were personally served, you were either handed the Complaint and Summons from a Deputy from your county’s Sheriff Department or by a private process server, who is someone in plain clothes who is authorized by the court to serve the paperwork. You may also have received a package from your spouse’s attorney with a copy of the Complaint and Summons as well as an Acknowledgment of Service form. According to O.C.G.A. § 9-10-73, you can sign an Acknowledgment of Service form in front of a notary and you do not need to be served by the Sheriff or a private process server because you are waiving additional service.

Once service is effectuated on you, whether you are personally served or you acknowledged, it is important to know that the clock on your case starts running. Once you are served, we recommend that you contact an experienced family law attorney to explain the next steps in the divorce process. If you have children, we highly recommend retaining an attorney, such as the ones in our firm, to represent you. It is very important that you are aware of the upcoming deadlines and do not miss any of them. According to O.C.G.A. § 9-11-12(c), you have thirty days from the date on which you were served or acknowledged service to file an Answer with the Clerk of Court, which is basically a written response to your spouse’s Complaint for Divorce. It is important to calculate the date on which it is due and to keep track of this date on a calendar so you do not miss this important deadline. When you are preparing your Answer, you must respond to each individual paragraph in the Complaint. If you agree with one of the paragraphs of the Complaint, then you would put “admit”. If you disagree with one of the paragraphs, however, you would put “deny”. Also, you can file a counterclaim according to O.C.G.A. § 9-11-13(a).

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The procedure for obtaining a temporary protective order for family violence is unique compared to other court filings. The victim must go to the Superior Court in the county in which the Defendant resides to file a Petition alleging specific acts of family violence, as defined in O.C.G.A. §19-13-1. If the presiding Judge finds that probable cause exists to establish that family violence has occurred in the past and may occur in the future, the Court may issue a temporary ex parte Order to protect the victim from further acts of violence by requiring the Defendant to stay away from the victim. The Order may also include provisions concerning who will live in the home, who will have custody of any children, who will pay the bills, and provisions for support. The Defendant will then be served with the ex parte Order.

Within the next 30 days, the Court will schedule a hearing which both parties will attend. At the hearing, the victim must prove his/her allegations by a preponderance of the evidence and the Defendant will have a chance to present his/her defense. The victim should bring all evidence to the hearing, such as pictures of bruises, scratches or other injuries, doctor’s reports, audio recordings, and damaged property. If the family violence is proven by a preponderance of the evidence, the Order may be extended for a longer period of time. Also, the Court can address any concerns not addressed in the initial temporary order at this time including child support, spousal support, custody and visitation.

Unfortunately, we often get calls from prospective clients who have been victims of domestic violence (aka family violence) or who want a protective order against a spouse or former spouse. This relief can often be obtained through the Superior Courts of the State of Georgia. According to O.C.G.A. §19-13-1, “family violence” means the occurrence of a felony or commission of battery, simple batter, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass between past or present spouses, parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.

If you are have been the victim of family violence remember that there are resources available for victims of family violence. Also, when appropriate, you can and should consider obtaining a temporary protective order for your protection and the protection of your family.

Starting on January 1, 2007, the formula for calculating child support in Georgia changed drastically. For details, see our previous post on how to calculate child support in Georgia. In addition to the incomes of both parties and necessary expenses (i.e. health insurance and work related child care costs), the Court can consider several deviations in calculating the non-custodial parent’s child support obligation.

One deviation that has come up often since the implementation of the new child support guidelines is the Parenting Time Deviation. The child support obligation table at the beginning of the child support worksheets takes into account expenses in an intact household. Thus, according to Georgia law, this deviation is applicable “when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time as set forth in the order of visitation or when the child resides with both parents equally.” O.C.G.A. §19-6-15(i)(2)(K)(i).

The Parenting Time Deviation is in the Court’s discretion and the Court is required only to consider the best interests of the child in making its determination. Further, a Parenting Time Deviation cannot be awarded if it seriously impairs the ability of the custodial parent to provide basic necessities, such as housing, food and clothing, for the children.

We recently had a case where the Father/Non-Custodial Parent had visitation time with the minor child totaling approximately 159 days per year, which is greater than “standard” visitation time. In spite of the fact that his income was nearly 6 times that of the Mother, he received a Parenting Time Deviation. The court in Forsyth County essentially held that he would have increased expenses due to his increased visitation time for which he would need additional expendable income and, thus, found this deviation to be warranted.

Due to the recent enactment of the new child support guidelines, there is not yet significant precedent on how the Judges are handling the Parenting Time Deviation. What is clear, however, is that when arguing for or against this deviation, the most important consideration is the best interests of the children.

When going through a divorce in Georgia with minor children involved, there are two categories of custody that you must consider: legal custody and physical custody. Legal custody has to do with a parent’s rights and responsibilities to make major decisions concerning the child, including the child’s health care, education, extracurricular activities and religious training. Physical custody has to do with where the child is physically living.

It is very common to see joint legal custody in divorce cases because it allows both parents to have equal rights and responsibilities for major decisions which, in turn, provides both parents the opportunity to remain involved in their child’s upbringing. With joint legal custody, one parent may have final decision making authority over major decisions in the event the parents are unable to agree. Alternatively, the parents can split final decision making authority with, for example, one parent having final decision making authority over education and extracurricular activities and the other parent having final decision making authority over health care and religious upbringing.

In Georgia, it is not as common to see joint physical custody as it is to see joint legal custody. Joint physical custody means that the child has substantially equal time and contact with each parent. In some situations, due to a parent’s work schedule or a child’s extracurricular commitments, joint physical custody is not practical. Parents should work together to come up with a custody and visitation schedule that works best for their particular situation while at the same time furthers the best interests of their children. Parents who do choose joint physical custody must work well together and have good communication as this arrangement will necessarily require them to see each other more often and cooperate continuously for the benefit of the children.

It is important to keep in touch with your lawyer. Failure to do so can cost you your case and have dire consequences. In a recent Atlanta divorce, a client could not reach his lawyer, despite repeated phone calls, e-mails, letters, and a visit to his office. He tried to reach the court to find out if there was an upcoming hearing, but they would not talk to him because he was represented by an attorney. Unfortunately, a hearing was held in his absence, and his wife essentially received not only the entire marital estate, but also 21 years of alimony. Despite his efforts to reach his attorney and the refusal of the Court to communicate with him, the Supreme Court of Georgia would not overturn the result.

If you are reading this for the first time and have been having troubles reaching your lawyer, the first thing to remember is do not panic. In the vast majority of the cases, the lawyer is typically tied up in Court, depositions or mediations. A family law attorney is out of the office and in Court more than most other attorneys who focus on other areas of the law. An experienced divorce lawyer will have trained staff to monitor Court notices and deadlines to keep the client informed as to the status of their case. Before firing your lawyer, which will often cost you money when the new attorney has to be brought up to speed, you should take the following steps:

1) Call the office and ask to speak with the paralegal or legal assistant who has been working on your case. If you cannot reach him or her, leave a message.

2) Follow your voicemail up with an e-mail, fax, or letter asking for a simple status update.

3) If you do not get a call or return e-mail within 24 hours, call the office and ask for, at a minimum, a telephone appointment to either speak with the staff person on your file, or your attorney.

4) If you are unable to have at least a telephone appointment scheduled, then you need to send a letter to your law firm and put them on notice of your intent to seek representation elsewhere. Immediately begin searching for a new lawyer

On November 17, 2008, the Supreme Court upheld Judge Batchelor’s (Gwinnett Superior Court) decision in regards to the amount of child support and alimony awarded in the case. Although the case is generally unremarkable, it did re-emphasize a point that is often overlooked by individuals that are proceeding forward with divorce, child support, alimony and other family law types of matters.

In particular, the court held that: “The standard by which findings of fact are reviewed is the ‘any evidence’ rule, under which a finding by the trial court supported by any evidence must be upheld. Furthermore, in the absence of any mathematical formula, fact finders are given a wide latitude in fixing the amount of alimony and child support… under the evidence as disclosed by the record an all the facts and circumstances of the case.” The Supreme Court also noted that “this court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses.”

As I was reading the opinion, it reminded me that while attorneys are very well aware of these types of statements from the appellate courts in Georgia, most of our clients are not. In essence, what they mean is that the Supreme Court of Georgia and the Court of Appeals in Georgia rarely overturn trial court decisions on factual matters. Knowing this, and knowing that nearly all trials on family law matters come down to factual disputes, it emphasizes the point that if you want to prevail with your family law matter in Georgia, you must convince the fact finder of your factual allegations because they, in all likelihood, will be the sole determiner for the outcome of your case and you will not get a second bite at the apple.

In a contested divorce, the answer to this is simple – YES. Since it is a contested matter, a hearing before a judge or jury will be required in order for them to make a final decision regarding the division of assets, child support, child custody, alimony, etc. In an uncontested divorce, however, the answer is somewhat complex and confusing.

For an uncontested divorce, the following factors need to be reviewed when determining whether you need a final hearing: 1) the county in which your divorce is filed; 2) the judge assigned to your case; and 3) whether you and your spouse have children. Each of these factors provides an important role in answering this one simple question. According to O.C.G.A. § 19-5-10(a), there are two ways to finalize a divorce in Georgia once you and your spouse have entered into a settlement agreement. You can either attend a final hearing or by a “Motion for Judgment on the Pleadings”, which is an option available only to attorneys. If you and your spouse are representing yourselves in your divorce, you must have a final hearing.

It may seem unusual, but each judge in a certain county handles final divorce hearings very differently and not all of the judges in a particular county may allow a “Motion for Judgment on the Pleadings” to finalize a divorce. You can have two judges in a particular county and one of them accepts a “Motion for Judgment on the Pleadings” while the other judge requires a final hearing. Also, it is not uncommon for judges to accept a “Motion for Judgment on the Pleadings” only if the parties do not have any children under the age of 18. If you and your spouse have children, the judge will require a hearing to finalize your divorce.

Continue reading "Do I have to go to Court to finalize my divorce in Georgia? " »

If your spouse’s attorney serves you with Interrogatories, Requests for Production of Documents, and Requests for Admissions, the length of time to answer discovery is the same. According to O.C.G.A §§§ 9-11-33(a)(2), 9-11-34(b)(2), and 9-11-36(a)(2) respectively, you have thirty days from the date on the Certificate of Service to respond to your spouse’s discovery requests. If, however, you receive the discovery requests at the same time when you are served with the Complaint for Divorce, you have forty-five days to respond to the discovery requests. (Please note that there is an exception for this general rule in Fulton County (Atlanta, Alpharetta) related to initial discovery disclosures that must be made in thirty days).

Even though you may respond to the discovery requests, your answers to the Interrogatories or Requests for Production of Documents are generally not filed with the court. According to Uniform Superior Court Rule 5.2, the Certificate of Service is the only document that your attorney must file with the court. The Certificate of Service is a document that your attorney will prepare and sign, which lists the style of your case, the name and address of the opposing party or attorney (if he or she is represented by an attorney), the method of delivery (i.e. mail, fax, or e-mail), and the date on which it was sent to the court for filing. A copy of the Certificate of Service is sent to the opposing party along with the original discovery responses.

Our first in this series on child support analysis will focus on the impact of looking at BOTH parents’ incomes in determining child support, the major change in the 2007 child support guidelines in Georgia. This example will assume no deviation factors in its analysis.

Our example will look at a couple in Alpharetta, Georgia getting a divorce. The father currently makes $100,000 per year ($8,333 per month). The mother is currently a stay at home mom raising their two children and will be the primary physical custodian of the children after the divorce. Using Georgia’s Child Support Calculator, the father will pay $1,578 per month in child support for his two children.

But what happens if we changed our fact scenario just slightly and assumed that the mother was making a salary. For example, assume that the mother was making the following amounts per year:

$24,000 - Child support would be lowered to $1,454.12 per month.
$50,000 - Child support would be lowered to $1,356.73 per month.
$100,000 - Child support would be lowered to $1,194.00 per month.

As you can see, looking at both parents' incomes can have a substantial impact on the amount of child support under the new child support guidelines. For more information, see our previous post on How to Calculate Child Support in Georgia.

Although we strongly recommend seeking the advise of a Georgia divorce lawyer when you are wanting to learn more about certain legal situations you are facing in a divorce, we understand that some people want to learn as much as they can online. To help with your internet searches we wanted to provide you with some free resources for help researching the law in Georgia:

1. Laws that are passed in Georgia are statutes and become part of the 'Official Code of Georgia'. You will sometimes see references to Georgia law as the "OCGA". Lexis® currently allows for free access to Georgia's code. You can find Georgia Divorce Law by looking under Title 19.

2. After a law is passed, there often arises disagreements regarding the meaning of certain phrases within a law. These disagreements eventually go to court. In some cases, rulings of trial courts regarding the meanings of a statutes are challenged and either the Georgia Court of Appeals or the Supreme Court of Georgia makes a ruling regarding their interpretation of the meaning and application of various statutory language. While some of the most recent opinions of these courts can be found on their web sites, you may find it easier to search for Georgia divorce case law from LexisOne®. Please note this web site limit searchs to the last ten years of Georgia case law.

One final warning,the exact meaning of certain phrases in statutes and case law is often in dispute by even the best divorce lawyers if Georgia. While it is always a good idea to be as informed as possible, do not overlook the importance in seeking the advise of a Georgia divorce attorney prior to reaching any final conclusions or acting on the information you find in these sources.

This blog entry regarding tax issues related to a divorce is intended to alert you to issues to think about and provide some basic information. Before you sign any tax return or take any action with respect to your federal or state income returns, please review your situation with your current tax advisor.

Change of Mailing Address
You may officially notify the I.R.S. that you have changed your mailing address from the address used on your last tax return by filing I.R.S. Form 8822.

Alimony
Spousal support or alimony is taxable to the recipient and deductible from the income of the payor if all I.R.S. requirements are met. Lump sum alimony is not deductable. For more information see Divorced or Separated Individuals - IRS's Form 504.

Child Support
Child support payments are not deductible from the income of the payor or taxable to the recipient. For more information see Divorced or Separated Individuals - IRS's Form 504.

Dependency Exemption for Minor Children
Unless specifically addressed in your Decree, generally the custodial parent will be entitled to claim the dependency exemption for the minor children on his or her income tax return. The custodial parent may execute I.R.S. Form 8332, releasing the dependency exemption to the non-custodial parent. Release of Claim to Exemption
for Child of Divorced or Separated Parents - I.R.S. Form 8332.

Continue reading "Divorce and Taxes" »

If you and your former spouse were married for longer than ten (10) years and paid into the Social Security Trust Funds, you may be entitled to spouse's or survivor benefits on your former spouse's account upon reaching age 62, regardless of whether your former spouse has retired at that time. These benefits are provided by the federal government and are not usually addressed in a Decree.

The Social Security Administration advises contacting it three months in advance of your anticipated eligibility date. For survivor benefits, this could be as early as three months before turning age 60; for spouse's benefits, three months before turning age 62.

When applying for Social Security benefits, you should have your Social Security Number, Birth Certificate, Marriage Certificate and Final Decree, showing your marriage termination date. You may contact the Social Security Administration by phone at (800) 772-1213. Social Security laws are constantly changing, and your future benefits may be affected by those changes. To be sure of the exact benefits to which you are entitled, and your earliest eligibility to receive the benefits, contact the Social Security Administration directly.

In Georgia, your spouse generally has thirty days to respond to your discovery requests, such as interrogatories, request to produce documents, or request to admit. There are several key exceptions to this rule including: when discovery is filed with a complaint (in which case the deadline is generally forty-five days); when the requests are served by mail you have three additional days to respond under the mail rule; and the trial court can always shortened or lengthen the amount of time to respond in its discretion. Also, in Fulton County, there is an additional exception for the mandatory interrogatories and request to produce issued by the county that generally requires compliance within thirty days.

But what happens when someone fails to respond to the discovery responses? First, by failing to respond, a party can waive certain objections to discovery request. Second, the party that is seeking the responses can seek the court’s attention to force a response.

Seeking the court’s intervention in a discovery matter can be a rather lengthy process. Uniform Superior Court Rule 6.4(b) generally requires that you first make a good faith effort to obtain the discovery responses without the court’s intervention. Usually, this attempt is made in writing to provide for assurances that the other party understands the severity of your request and to provide you with documentary evidence that the attempt was made.

Continue reading "Georgia Divorce Discovery: Consequences for Failing to Respond" »

The divorce process is difficult for all parties involved. When someone is going through a divorce, he or she may feel that no one understands what they are going through emotionally. A divorce can be devastating on many different levels. Not only is someone losing their spouse and his or her best friend, but in most cases, he or she is losing his or her extended family and the lifestyle to which he or she has become accustomed. One of the spouses may feel like their entire world is falling apart and he or she has no one with whom they can share their feelings or to whom they can vent their anger. In some cases, one of the spouses may go to a counselor or therapist

When you are going through a divorce, who do you speak with when you feel that you have nowhere else to turn? The answer is quite simple. You need the support of both men and women who are experiencing the same emotions and feelings as you are. There are numerous divorce support groups throughout Atlanta. Most of these support groups are sponsored by an organization called DivorceCare and the groups are held at churches throughout Atlanta. Their meetings are two-fold. The first half, which lasts between 30 and 40 minutes, is a video seminar featuring top experts in the field, which discuss various issues and topics on divorce. The second half is a group meeting where they discuss both the video and what is happening in the lives of the group members. In addition, some of the DivorceCare locations also offer additional groups during the holidays since it can be an especially difficult period for someone going through a divorce.

According the Georgia Rules of Professional Conduct, a lawyer can represent only one of the spouses in a divorce. During the course of the divorce, if the one of the spouses remains unrepresented by a lawyer, the lawyer for the other spouse or their staff can still communicate with him or her, but under Rule 4.3 of the Georgia Rules of Professional Conduct, the attorney is unable to give the unrepresented spouse any legal advice. He or she can, however, give the unrepresented spouse information on procedural issues. If he or she has any questions that require legal advice, he or she will need to contact an attorney.

According to O.C.G.A. § 44-1-1, there are two types of property – real property and personal property. Real property or “realty” is defined by O.C.G.A. § 44-1-2 as not only the land, but any buildings attached to it. If the parties own a home, then the marital home is real property.

All other possessions that the parties own, such as furniture, televisions, and automobiles, are items of personal property. Personal property or “personalty” is defined by O.C.G.A § 44-1-3 as anything that is movable, has a value, and is not real property. Basically, it is anything that is not permanently attached to land.

One big national debate that is occurring is whether pets are personal property (like their furniture) or are not property at all (like children). Several states have created a new “quasi-property” definition for pets that handles their division more like children. Georgia, however, has not adopted a quasi-property status for pets and, as such, are currently considered just another item of personal property that the parties own. O.C.G.A. § 44-1-8. The practical effect is that a “best interest” of the children type of standard is not necessarily how a property division decision will be made by a court as it is in other states.

During a civil case, one of the party’s attorneys may suggest using one of the discovery procedures to obtain information from the opposing side. Discovery is especially useful in highly contested divorce cases because the opposing party will be required by law to disclose information to their spouse’s attorney. According to O.C.G.A. § 9-11-26(c), there are four types of discovery. Three of the discovery methods are written while the remaining one is done in person. The three written types of discovery are:

1. Interrogatories (see O.C.G.A. § 9-11-33): Interrogatories are questions that one spouse may ask to the other spouse requesting certain information. Most interrogatories request such things as names and addresses of certain witnesses vital to the case, employment history, and the names and addresses of anyone with whom the opposing spouse may have had sexual relations during the parties’ marriage. According to O.C.G.A. § 9-11-33(a)(1), each side is limited to only fifty interrogatories, including any subparts. Each of the parties’ attorneys can ask all fifty interrogatories at one time or he or she can split them up and ask them at different points throughout the discovery process.
2. Requests for Production of Documents (see O.C.G.A. § 9-11-34): Typically, when an attorney decides to send the opposing party a set of Interrogatories, he usually sends Requests for Production of Documents along with them. When an attorney would like to see a specific document, such as the spouse’s paystub, the parties’ tax return, bank statements, or cell phone records, he or she will ask the opposing attorney to give them a copy of these documents in the Request for Production of Documents. The reason that the Requests for Production of Documents are sent in conjunction with the Interrogatories is because the attorney may ask for copies of documents that he or she previously asked about in the Interrogatories. The attorney, however, is not required to do so. Unlike Interrogatories, there is no set limit on the number of Requests for Production of Documents the attorney may ask.
3. Requests for Admissions (see O.C.G.A. §9-11-36): Out of the four types of discovery, attorneys send Requests for Admissions the least. Requests for Admissions are basically statements that one party may ask to another party and he or she must admit or deny the statements under oath. An attorney may send Requests for Admissions to the other side if he or she wants the truth from the other side, such as if one party had sexual relations with someone other than his or her spouse during the marriage. Like Requests for Production of Documents, there is no limit on the number of Requests for Admissions that you can send to the opposing side during the discovery process.

Continue reading "Georgia’s Discovery Process in Divorce Cases " »

The first step in the divorce process is filing a Complaint for Divorce. This is the initial pleading in the case that sets forth all of the basic information, such as the opposing party’s address, date of the parties’ marriage, whether the parties have children, whether the parties own a home, etc. The Complaint for Divorce does not, however, tell how the assets and debts are to be divided, the amount of child support that the custodial parent is to receive or if the parties are going to sell their home. These issues will be resolved by the court at a future point in time if the parties are unable to reach a settlement agreement during the process of the divorce.

When you file the Complaint for Divorce, it is typically filed in the Superior Court for the county in which the opposing party resides. There are a few exceptions when it is filed in a different county. If the opposing party resides out of state, in certain circumstances you can file for divorce in the county in which you reside if you meet the residency requirements. When you file for divorce, the court charges a flat fee for filing your Complaint for Divorce. The State of Georgia does not have a set fee and filing fees do range from county to county. For example, Metropolitan Atlanta area filing fees for divorces currently range from $78.00 to $90.00. Also note, the filing fee, however, does not include the costs to have the Sheriff serve your spouse. If you wish to have your spouse served by the Sheriff, there is an additional fee of $25.00.

Once your divorce is filed with the court, you will receive a date-stamped copy of the Complaint for Divorce which shows the date and time on which it was filed. The date-stamped copy will also include a civil action file number, which is a unique number assigned to each divorce action and lets the parties know which judge has been assigned to a case. Of note, unless a county only has one judge serving on the Superior Court bench, the parties do not get to elect which judge is assigned to a particular case. Each county uses a different system for assigning judges based upon the civil action file number. Once the Complaint for Divorce is filed with the court, your spouse will have thirty days from the date on which he or she is served or acknowledges service to respond to the statements made in the Complaint for Divorce and they must file a written Answer with the court on or before this date.

Although child support is not deductible by a payee, alimony is generally deductible by the payer and must be included as income to the payee. While many attorneys provide this advice to their clients, there is one often overlooked exception to this alimony rule that should be carefully examined during a divorce case. In particular, if alimony payments decrease or terminate during the first three calendar years, you may accidently find yourself subject to the alimony recapture rule. If you are subject to this rule, you will have to include as income in the third year part of the alimony payments that you have previously deducted (and your former spouse can similarly deduct in the third year part of the alimony payments that were previously included as income). As pointed out by IRS publication 504:

“You are subject to the recapture rule in the third year if the alimony you pay in the third year decreases by more than $15,000 from the second year or the alimony you pay in the second and third years decreases significantly from the alimony you pay in the first year.”

If you are considering paying/receiving alimony as part of a divorce and think you may fall within this exception, we strongly urge you to seek the advice of a tax professional you trust to provide you guidance in this complex area.

For more information we recommend you start by reading IRS Publication 504 and consult with a tax professional.

On November 3, 2008, the Supreme Court of Georgia reached decision by a 4 to 3 vote, that held a party could seek a declaratory judgment as to his obligation for PAST due child support. Acevedo v. Kim f/k/a Acevedo, S08A0798 (11/3/08). While this decision is perhaps more important for lawyers handling cases to understand, it does emphasize some interesting legal principals.

Prior to discussing the case further, it is important to understand what a declaratory judgment is. A declaratory judgment is, among other things, a procedural mechanism litigants use to determine their “rights and obligations under a divorce decree that is unclear”. Acevedo. It is used to remove a party from the “risk of taking some future action that, without direction, would jeopardize his interest”. Acevedo.

The unique question before the Supreme Court in this matter was whether it was appropriate for to ask for a declaratory judgment for PAST due child support obligations. The majority opinion held that since there was a very real risk that he would be brought up on charges of contempt of court, “he needed direction from a judicial tribunal to remove the uncertainty regarding the consequences of his planned future actions.” A very strong dissent argued, however, that since the support at issue only involved previously owed arrearages, then “the logical consequence of this contrived construction would be the seeking of declaratory judgment as a defense to the payment of any found obligation or debt, thus spawning unnecessary and spurious litigation”. Acevedo.

While it remains to be seen what develops from this recent case, the close decision and unique construction of what is grounds for a declaratory judgment suggests that this will not be the last time we visit this issue in Georgia.

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 due to the volatile nature of divorce and the impact it has on children. See Uniform Superior Court Rule 24.8. The parties are not required to attend the seminar together - they can take it at separate locations and on different dates. Even though the content of the parenting seminar is basically the same throughout the state, each county manages its own parenting seminar program. Generally, the topics addressed are how to reduce stress for children during a divorce, visitation recommendations, financial obligations, conflict management, the changing parental roles during a divorce, stress indicators for children, and the needs and age appropriate expectations of children going through a divorce.

You can find more information for parenting seminars in Metropolitan Atlanta counties from our blog at:

• Cobb County
• DeKalb County
• Forsyth County
• Gwinnett County
• Fulton County

Continue reading "Atlanta Parenting Seminar Information" »

While we spend a lot of time in this blog talking about various divorce sub-topics in Georgia, most people coming into our office at the very beginning just want to know basically what is happens in a divorce in Georgia. While I think everyone know the obvious fact that a divorce ends a marriage, some of the major components are not as obvious.

From a big picture legal point of view, a divorce involves a division of marital assets and, when appropriate, an award of alimony. When children are involved, a divorce also resolves how custody and visitation with the children will be handled as well as determines the amount of child support that must be paid. While each of these issues can be fairly complex, a divorce really is as simple as making these basic determinations.

Procedurally, a divorce starts with the filing of a complaint which is then served upon the other spouse. From there, the spouse that was served with the notice of the lawsuit has thirty (30) days to file an answer (and possibly counterclaims). Once the answer is filed, the parties begin what is generally known as the discovery period where each party has the ability to ask written and oral questions to the other spouse (as well as third parties) about information related to the divorce action. Also, the discovery period allows each spouse to request that various documents be copied and turned over for their review.

At the conclusion of the discovery process, the Court generally entertains any motions by the parties and sets the case up for a final trial (either with or without a jury). Once the final trial occurs, the court then makes a final ruling addressing each of the legal points discussed above. Of course, at any point along the way, the parties are free to try and decide any or all of the issues themselves and there are various alternative dispute resolution mechanism in place to help the parties amicably resolve their differences.

Although generally you cannot deduct legal fees you have incurred in obtaining a divorce, there are several exceptions that you should consider talking with your tax professional about in more detail. In particular, you may be able to deduct fees paid for tax advice (subject to the 2% of adjusted gross income limit) you received in connection with the divorce, such as from appraisers, accountants and attorneys if you itemize deductions on Schedule A (Form 1040).

Interestingly, because alimony is considered income, you may also be able to deduct fees incurred in helping to obtain an alimony award.

In addition, certain legal fees you pay specifically for obtaining property, such as the cost of preparing and filing a deed in your name, may enable you to increase the basis of the property you receive.

One thing is clear, if you plan to try and deduct fees related to tax advise obtained during a divorce or fees incurred in obtaining alimony, you must make sure that your charges are clearly broken down in such a manner that you can determine charges that are deductible and charges that are not deductible.

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

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. They are currently offering seminars in:

• Cumming at the Forsyth County Library located at 585 Dahlonega Street, Cumming, GA 30040
• Canton at the R. T. Jones Memorial Library located at 116 Brown Industrial Parkway, Canton, GA 30114
• and in Blairsville, Clarkesville, Dahlonega, Ellijay, and Gainesville.

The cost of the seminar is currently $50.00 per person. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

There are several misconceptions about the award of alimony in a divorce case. Some people believe that if his or her spouse commits adultery during the marriage, then the judge assigned to their divorce case will automatically award alimony to the non-cheating spouse. Others think that the judge may also automatically award alimony if they have not worked during their marriage to raise a family and take care of the home.

According to O.C.G.A. § 19-6-1, the judge looks at two factors when determining child support – the needs of the party and the ability of the other party to pay alimony. While no one can foresee the future to know exactly what a judge will do in a particular case, Georgia divorce law does provide a list of more specific factors for a judge to consider when awarding alimony:

Continue reading "Georgia's factors for determining alimony" »

Many people assume that the mother automatically receives custody of the minor children in a divorce whether she is a fit or unfit parent and the father will never receive custody of the children. Contrary to what some people assume, the law is required to be gender neutral when evaluating custody.

In Georgia, the judge assigned to a divorce or modification action must make a determination of who should get custody based upon the broad concept of what is in the “minor child’s best interest.” When determining the best interest of the child, the judge will analyze a long list of factors in order to make his/her decision. The following are the list of factors for a judge to consider when awarding custody under Georgia family law:

(A) The love, affection, bonding, and emotional ties existing between each parent and the child;

(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;

Continue reading "Georgia Child Custody" »

Gwinnett County (Buford, Dacula, Duluth, Lawrenceville, Lilburn, Norcross, Snellville, and Suwanee) offers its Parenting Seminar in order to help parties involved in a divorce with minor children met their mandatory parenting time seminar at the Gwinnett Justice and Administration Center, 75 Langley Drive, Lawrenceville, Georgia 30045. Day seminars are held in conference room A West Wing. Evening seminars are held Jury assembly Room East Wing.

One unique fact about the Gwinnett seminars is they are offer either a four hour weekday seminar (from 9:00 am to 1:00 p.m.) or two two-hour evening sessions (from 6:00 p.m. to 8:00 p.m.). The cost of the seminar is currently $30.00 per person and registration MUST be received prior to the day of the seminar. You can find additional information and register online for these seminars at the Gwinnett County Parenting Seminar website.

Fulton County (Alpharetta, Atlanta, Johns Creek, Milton, Roswell) offers its Family in Transition seminar in order to help parties involved in a divorce with minor children met their mandatory parenting time seminar at three different locations in the county. Currently, it is offering a:

• Saturday morning seminar once per month from 9:00 a.m. to 1:00 p.m. at the Downtown Justice Center Building located at 160 Pryor Street, S.W., Courtroom G33, Atlanta, Georgia.
• Weekday morning seminar once per month from 9:00 a.m. to 1:00 p.m. at the South Fulton Service Center located at 5600 Stonewall Tell Road, College Park, Georgia in the auditorium.
• Weekday evening seminar once per month from 4:00 p.m. to 8:00 p.m. at the North Fulton Service Center located at 7741 Roswell Road, Atlanta, Georgia in the auditorium.

Please note that both the North and South service center locations require pre-registration. The cost of the seminar is currently $30.00 per person. You can find additional information about these seminars at Fulton County Families in Transition program website.

In the United States, property, assets, and debts are generally divided in one of two different ways during a divorce. In a community property state, each spouse is automatically entitled to one-half of the marital estate. In an equitable division state, each party receives an “equitable portion” of the marital estate but that does not necessarily mean that each party is entitled to exactly one-half of the estate. In the United States, there are nine community property states, which include Arizona and California, and the remaining states, such as Georgia, are equitable division states.

Prior to discussing Georgia’s equitable distribution of marital property further, it is important to first understand what is and is not marital property. Martial property is the real and personal property and assets acquired by the parties during the marriage. Moore v Moore, 249 Ga. 27 (1982). Marital property does NOT include a property that one party brought to the marriage or property that one acquired during the marriage by gift, inheritance, bequest, or devise unless the appreciation in the value of said property was caused by efforts of the other property during the marriage. Payson v Payson, 274 Ga. 231 (2001) and Bailey v Bailey, 250 Ga. 15 (1982). Of note, gifts between spouses of marital property remain marital property subject to equitable division. McArthur v McArthur, 256 Ga. 762 (1987).

In regards to what the court ultimately determines is marital property, the Supreme Court has reiterated as recently as October 27, 2008 that equitable division does not necessarily mean an equal division of property. Arkwright v. Arkwright, S08F1399 (2008). Instead, the court is given broad discretion to determine, based upon the facts in any given case, how the division of marital assets shall occur. Trial courts tend to exercise this broad discretion by looking at the various factors such as each party’s contribution to the acquisition and maintenance of the property, the purpose and intent of the parties regarding the ownership of the property, the duration of the marriage, any prior marriage of either party, the conduct of the parties during the marriage and as cause of divorce, and the contribution or service of each spouse to the family unit. Yates v Yates, 259 Ga. 131, Moore v Moore, 249 Ga. 27 (1982), Lowery v Lowery, 262 Ga 20 (1992), and Peters v Peters, 248 Ga. 4980 (1981).

Georgia is a “no-fault” divorce state, so you can get a divorce based solely on the grounds that the marriage is irretrievably broken. When a marriage is irretrievably broken, the parties are unable to work out the differences in their marriage and they feel that their only option is to file for divorce. The party that is filing for divorce is not blaming the other party for the break-up of their marriage and it is neither party’s fault that they are divorcing. In some cases, people may want the divorce over fairly quickly and/or feel it may upset their spouse and it could cause problems during the divorce process if they list anything except irretrievably broken as a grounds for divorce.

One of the disadvantages to claiming irreconcilable differences as the ground for divorce is that it may not encompass the real reason for the divorce. Even though a lot of the divorces end because of irreconcilable differences, there are some cases when it is the opposing party’s conduct or behavior that causes problems in the marriage. If someone decides to choose one of the “fault grounds” in Georgia, there are ten additional grounds for divorce that that they can choose from that are based on the past or present behavior of their spouse. These grounds fall into two separate categories – conduct at the time of marriage and conduct during the marriage, which are set forth below:

Continue reading "Grounds for a divorce in Georgia" »

Cobb County (Acworth, Austell, Kennesaw, Marietta, Powder Springs and Smyrna) offers its Divorcing Parents Seminar in order to help parties involved in a divorce with minor children met their mandatory parenting time seminar at the Cobb County Superior Court Building (Building D; 6th floor jury assembly room), 30 Waddle Street, Marietta, GA 30090.

Cobb County (like Gwinnett) also offer both a four hour weekday seminar (from 8:30 am to 1:00 p.m.) or two two-hour evening sessions (from 7:00 p.m. to 9:00 p.m.). The cost of the seminar is currently $30.00 per person. You can find additional information and register online for these seminars at the Cobb County Divorcing Parents Seminar website.

The Georgia Supreme Court issued an order today in Pineres v. George, S08A0773, which has several implications for Georgia law. First, it held that a trial judge has no authority in a contempt proceeding to modify the obligations imposed by a divorce decree. Second, the Georgia Supreme Court held that medical expenses constitute a form a child support.

Of note in this case, the modification being sought was in regards to the psychological expenses for the minor child and there had previously been a petition for modification of child support made less than two years ago. Because Georgia law prohibits a modification of child support less than two years after an order on a previous modification petition by the same spouse, it upheld an awarded of frivolous litigation fees under O.C.G.A. § 9-15-14 against the spouse that was now seeking to modify the amount of medical expenses that they had to pay.

In Georgia, there are three ways to properly serve your spouse with notice of your divorce. First, if you feel that your spouse will accept service of the Complaint, then we can mail the paperwork to your spouse and ask him or her to acknowledge service. According to O.C.G.A. § 9-10-73, your spouse can sign an Acknowledgment of Service form in front of a notary. By signing the Acknowledgment of Service form, your spouse is swearing under oath that he or she received a copy of the Complaint for Divorce. Your spouse would then send back the Acknowledgement of Service and it would be properly filed with the court.

According to O.C.G.A. § 9-11-4(c), there are two other options to serve your spouse – either by Sheriff or a private process server. We only recommend service in one of these manners if it appears unlikely your spouse will not acknowledge service because service of both the additional costs involved and the potential adverse reaction that they can cause. Unfortunately, when your spouse is unwilling to cooperate, these methods become required in order to advance your case.

If one of these two methods must be employed, we generally recommend service by the Sheriff. Currently, the Sheriff only charges $25.00 to serve a lawsuit making this option extremely cost effective when service must be perfected by an individual.

Unfortunately, some people will dodge service by Sheriff’s deputy or the Sheriff is unable to perfect service for some reason. In these types of cases, we recommend using a private process server to effectuate service. Depending on the county in which the divorce is filed, the process server is either permanently appointed or needs to be specially appointed. If the process server is permanently appointed by the Superior Court, then he or she can serve your spouse almost immediately because he or she has an Order from the Court allowing them to serve any party in any case that is filed in the Superior Court in that county. Most counties in Georgia, however, require process servers to be specially appointed. If the process server needs to be specially appointed, a Motion is filed with the Court and if the Motion meets with the Judge’s approval, he or she will sign an Order permitting service by that process server. Unfortunately, your spouse is unable to be served until the judge signs the Order. The costs for having a private process server vary from case to case and depending upon the efforts required to locate and serve a party so unfortunately there is not a set price for service.

DeKalb County (Avondale Estates, Chamblee, Decatur, Doraville, Lithonia, and Stone Mountain) offers its Seminar for Divorcing Parents at three different locations:

• The Callaway Building located at 120 West Trinity Place Room 311, Decatur, Georgia
• DeKalb County Courthouse Judicial Tower located at 556 N. McDonough St, 5th Floor Room “A”, Decatur, Georgia
• The Maloof Building located at 1300 Commerce Drive Decatur, Decatur, Georgia, in the Annex building

The seminars are held on:

• the first Wednesday of each month from 12:30 p.m. to 4:30 p.m.,
• the third Wednesday of each month from 9:30 a.m. to 1:30 p.m. and
• the fourth Friday of each month from 9:30 a.m. to 1:30 p.m.

According to O.C.G.A. 19-5-2, you must reside in the State of Georgia for a period of six (6) months before you can file for divorce. You would need to file the Complaint for divorce in the county in which your spouse resides.

If you live in the State of Georgia and your spouse resides out of state, you can still file for divorce in Georgia in the county in which you reside; however, your spouse would need to waive jurisdiction and venue in the state and county where he or she resides.

This is an often asked question that unfortunately, does not really have an answer. The reason for this is the delay for a divorce to occur in Georgia is not really a statutory delay. Technically, the proper answer is that Uniform Superior Court Rule 24.6(a) provides that the parties must wait a minimum of thirty-one days from the date of service (or date an acknowledgment of service is filed with the Court) prior to the Court being allowed to issue a decree of divorce. This technically correct answer is rarely the case in Georgia – especially in the metro Atlanta counties.

To better understand, it is important to understand what is required prior to a divorce being granted. Generally speaking, this means the parties must either agree to everything that is at issue in a divorce or have the court decide things for them through hearings and/or trials.

In regards to a settlement agreement, the biggest difficulty is the parties must reach an agreement on all issues pending in their divorce. While in an ideal world this sounds like (and generally is) the better way to handle a divorce, it is often difficult for two parties that are dealing with the numerous emotional and financial issues that surround a divorce to reach an agreement on everything. Of course, this entire process of presenting offers and counteroffers can become time consuming and often takes longer than the thirty day mandatory waiting period in Georgia because attorneys take time to careful draft and review proposals sent by each other and sometimes involve third party mediators to help facilitate negotiations. In addition, even once the parties agree, it may take weeks or even months for a judge to be able to review and finally approve a settlement agreement and final divorce depending upon his or her schedule and the volume of other cases that judge is handling.

Continue reading "How long do I have to wait before my divorce will be finalized in Georgia? " »