Atlanta Divorce Attorney Blog

With the increasing publicity related to celebrities and their custody disputes (Usher, T.O., Mindy McCready and other artists we have posted about), an interesting question arises as to how judges in Georgia handle child support obligations when one parent makes a significantly higher income than the other parent. The purpose of child support is to provide the minor child with a lifestyle that reflects the income of both parents. What do you do when one parent makes ten times, twenty times, or even one hundred times more?

I recently attended a seminar where a panel of judges discussed this issue. A Gwinnet County judge indicated that lump sum child support might be appropriate. Lump sum child support is usually one large payment that, once paid, would completely resolve the parent’s obligation to pay child support in the future. The benefit to lump sum child support would be ensuring that the entire child support obligation until the minor child turns eighteen would have already been paid even if the high-income parent were to lose his or her job later. However, if the high income earning parent were to lose his or her job later, an argument could be made that the lump sum child support was inappropriate because that parent would have had to pay a lower child support payment if his or her income were lower.

A Cobb County judge suggested that another way to determine child support in high-income cases is to use percentages. By way of example, if the child support payment should be 15% of the parent’s net income, then it should not matter whether the 15% is applied to an income of $40,000.00 or $400,000.00 or $4,000,000.00. A Fulton County judge stated that her main concern in such cases is that the money is put to good use and be used for the minor child rather than going to the living expenses of the other parent. This Fulton County judge stated that, depending on the case, it may be in the best interest of the child to require that a certain sum be set for the minor child and defer accessibility to that fund so the custodial parent does not waste it. Another judge stated, however, that just because one parent earns a significantly higher income than the other does not mean that the child support obligation should be significantly higher as well. This judge wanted to prevent the situation where the custodial parent was essentially “winning the lottery” through child support and stated that a downward deviation is appropriate.

By Emily Yu, Associate Attorney, Meriwether & Tharp, LLC

The Supreme Court of Georgia recently heard a case regarding a self-executing modification in a final decree of divorce. Johnson v. Johnson, S11F1856 (2012). In that divorce case, the final decree of divorce awarded primary physical custody of the parties’ daughter to the mother, with supervised visitation to the father. Id. The parenting plan further provided that the father’s overnight visitation must be supervised by “a reasonable adult approved by [a therapist treating the child], until such time as [the therapist] determines that supervision is not necessary.” Id. Under the parenting plan, the therapist had the additional authority “to determine how supervised visitation should be phased out over time and when supervision may end.” Id. The father appealed, contending that the “provisions concerning the termination of the supervised visitation constituted an improper self-executing modification contingent on the determination of the therapist.” Id. at 2.

The Supreme Court of Georgia agreed with the father that the provision is an improper self-executing change of visitation because it allows for an automatic change in his visitation based on a future event, without any additional judicial scrutiny. Id. at 2-3. The Court held that “a self-executing change in custody/visitation that constitutes a material change, i.e. is one ‘that is allowable only upon a determination that it is in the best interests of the [child] at the time of the change,’ generally violates Georgia’s public policy founded on the best interests of the child.” Id. at 3. The responsibility for making this decision must be made by the court and cannot be delegated to another person or entity. Id. In this case, the provision regarding the change in the father’s visitation is considered a material change. Since, under this provision, it will occur automatically without any judicial scrutiny, “it is an invalid self-executing change of visitation” and must be stricken from the final divorce judgment. Id. at 4.

The Supreme Court of Georgia recently affirmed a divorce action where the husband was awarded primary physical custody of the children despite evidence of alleged family violence. Finklea v. Finklea, S11F1804 (2012). At the final hearing in that divorce case, the parties “each testified extensively about acts of family violence committed by the other spouse, which led to multiple police reports filed against each other.” Id. at 2. In its final judgment, the trial court said it was making its decision “[a]fter hearing testimony of the parties and considering all the evidence tendered at trial.” Id. Neither party asked for written findings of fact supporting the custody award. Id. The trial court ultimately awarded primary physical custody to the husband.

The wife appealed, alleging that “in awarding primary physical custody of the parties’ two children to Husband, the trial court abused its discretion in failing to cosider evidence of alleged family violence perpetrated by Husband against her." Id. at 1. The Supreme Court of Georgia disagreed, holding that, under the circumstances described above, the trial court did consider evidence of family violence presented at the final hearing. Id. at 3. In addition, the Court found no abuse of discretion in the trial court’s award of primary physical custody to the husband. The trial court exercised its discretion in awarding custody to one parent over the other and “[w]here there is any evidence to support the decision of the trial court, this Court cannot say there was an abuse of discretion.” Id. at 3, quoting Haskell v. Haskell, 286 Ga. 112, 112 (2009).

The Supreme Court of Georgia recently reversed a trial court’s decision in a custody modification case because the trial court erroneously relied on evidence from the temporary hearing in making its final custody determination. Vaughn v. Davis, S11A1950 (2012). In that case, the parties had been granted joint legal and physical custody of their children in their divorce action. Neither was required to pay child support to the other, but they were ordered to split the children’s expenses. Id. The mother later filed a motion for change of custody and child support. Id. At the temporary hearing at which both parties appeared pro se, the trial court entered a temporary order awarding primary physical custody to the father, with the visitation to the mother. The mother was also ordered to pay child support to the father. Id.

The mother retained an attorney prior to the final hearing in the case. At the final hearing, the trial court again granted primary physical custody to the father, with visitation for the mother. Id. at 2. After her motion for a new trial was denied, the mother appealed, contending “that the trial court erred by relying on evidence adduced at the temporary hearing.” Id.

The Supreme Court of Georgia agreed with the mother, citing a case from 2010 which held that “[t]he nature and quality of the evicence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing, and parties should ordinarily expect that only that evidence which their opponent sees fit to offer at the final, more formal hearing will be relied on to support the permanent custody award…Accordingly, we now hold that, absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.” Id. at 2-3, quoting Pace v. Pace, 287 Ga. 899, 901 (2010).

Here, it is clear that the trial court relied on evidence from the temporary hearing in reaching its final custody decision, and “there is no indication that the parties were notified in advance that this was going to happen.” Vaughn at 3. Thus, the trial court’s order must be reversed and remanded for further proceedings.

In Georgia, when spouses live in different counties, or if one spouse lives in Georgia and one lives out of state, there are specific rules which govern where the divorce action must be filed. Georgia law states that: “No court shall grant a divorce to any person who has not been a bone fide resident of this state for six months before the filing of the petition for divorce.” OCGA §19-5-2. An exception to this rule is that “a nonresident of this state may file a petition for divorce, in the county of the residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.” Id.

If both parties have resided in Georgia for more than six months, the Petitioner must file the divorce action in the county in which the Respondent resides, even if the Petitioner does not live in that county. So, if the Petitioner resides in Fulton County and the Respondent resides in Cobb County, the divorce action must be filed in Cobb County. If the Petitioner resides out of state and the Respondent has resided in Georgia for at least six months, the divorce action must be filed in the Georgia county in which the Respondent resides. If the Petitioner resides in Georgia and the Respondent resides out of state, the divorce action cannot be filed in Georgia but, rather, must be filed in the state in which the Respondent resides.

Atlanta divorce attorneys are often asked how pension plans are divided upon a divorce in Georgia. In general, pension plans are treated like any other property – if they accrued during the marriage, they are marital property subject to equitable division. Any portion that accrued prior to the marriage, however, is considered the separate property of that spouse.

Consider an example where a husband had a pension that began accruing in 1990, and the couple married in 1995 and divorced in 2005. In that situation, the wife would be entitled to an equitable portion of the pension that accrued from 1995 until 2005, but would not be entitled to anything from 1990 to 1995 as that portion would be the husband’s separate property.

Dividing pensions and other retirement accounts in a divorce can be complicated. Many companies have very specific regulations that must be followed and precise language that must be used in the divorce decree in order for the account to be divided. If you are dealing with one of these accounts in your divorce action, we recommend that you contact one of our Atlanta divorce attorneys for assistance to ensure a smooth division of these assets.

In Georgia, as well as around the world, conceiving a child with the use of assisted reproductive technologies can bring up and/or complicate custody issues in a divorce or other family law case. With the ongoing developments in medicine and the reproductive sciences, more couples turn to assisted reproductive technologies to conceive children. Medical and technical advances are providing new ways to become parents which have never been imagined by previous generations. As people turn to options like intrauterine insemination, in vitro fertilization, surrogacy, or freezing sperm, eggs, or embryos for future use, a host of legal questions arise as to ownership, possession and control. For example, does frozen sperm remain the property of the Father or, because it has been frozen and has an intended purpose, is the sperm transformed into property of the Father and Mother?

It is very important to have a written and detailed agreement documenting each party’s intentions prior to entering into any third-party assisted reproduction arrangement. While a couple may enter the process with intentions to stay married or to raise their children together, it is hard to predict whether a couple may separate or be divorced in the future. An agreement should contemplate what would occur in the event the couple separates or gets a divorce. Will someone keep the frozen embryos? Who will be responsible for the costs associated with storing the embryos until future use? For how long will they be stored?

This is just the beginning when it comes to the questions and scenarios that parties must consider prior to entering a third-party assisted reproduction arrangement. If you are considering assisted reproductive technologies or have already used assisted reproductive technologies and are now contemplating a divorce, please contact one of our Atlanta Divorce Attorneys.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

In these tough economic times, people are often looking for ways to save money. So it is not surprising that Georgia divorce attorneys are often asked if a person can obtain a divorce online, rather than hire an attorney and go through the court system.

In Georgia, you cannot get a divorce online. You can obtain the divorce paperwork online, but you must file it with the Superior Court, who will then grant your divorce after going through the required legal procedure. Some counties offer help with divorce filings and make it easier than others to file and obtain a divorce without an attorney. However, there are some aspects of a divorce case, particularly child custody and child support, that require specific legal documents (i.e. parenting plan, child support worksheets) that must be filled out correctly and completely before the court will grant the divorce, even if all issues are agreed upon. Thus, while there is certainly nothing wrong with negotiating issues in your divorce without the assistance of at attorney, it might actually save you time and money to hire an attorney to help you with the paperwork to ensure it is done correctly and that there will be no issues in having your divorce granted as expeditiously as possible.

Georgia divorce attorneys are often asked whether the filing of a divorce action means the parties are legally separated. This question often comes from people who are interested in starting to date other people during the pending divorce.

Please keep in mind that Georgia does not recognize legal separation. Therefore, nothing changes about your marital status until your final divorce decree has been signed by the Judge. Until you receive your final divorce decree, you are still married in the eyes of the law and sex with anyone who is not your spouse is considered adultery. Whether this adultery is considered to be the cause of your divorce is a different question. It is important to note, however, that the Judge can take your actions both before and during the pending divorce action into consideration in awarding alimony, custody, and equitable division of assets.

The Supreme Court of Georgia recently heard an appeal of a divorce case, which highlights the security, or risk (depending on which side you are on), of entering into a prenuptial agreement in Georgia. Sides v. Sides, S11F1140 (2011). In that case, the parties began dating in 1989 and, shortly thereafter, the Wife became pregnant. Id. Due to the great disparity in assets and income between the parties, they negotiated and signed a prenuptial agreement before marrying in 1990. Id. Under the agreement, “Wife would have been entitled to substantially more resources if the parties divorced after their twenty-year anniversary, and substantially less if the parties divorced prior to their twenty year anniversary.” Id. at 2. Nearly twenty years later, the Husband filed a Compliant for Divorce and Motion to Enforce the Prenuptial Agreement, which the trial court granted a mere 62 days prior to the couple’s twenty year anniversary, and the WIfe appealed. Id.

The Supreme Court of Georgia affirmed the enforcement of the prenuptial agreement. The Court first laid out the factors to be considered by the trial court in deciding the validity of the prenuptial agreement: “(1) [W]as the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) [I]s the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?” Id., quoting Scherer v. Scherer, 249 Ga. 635, 641 (3) (1982).

In this case, both attorneys “deposed that they would not have allowed their clients to enter the agreement without full financial disclosures being made,” and Wife was long aware of the “vast disparity” between their incomes. Id. at 3. Thus, the evidence supported that full financial disclosures were made prior to signing and the agreement was not unconscionable. In addition, the increase in Husband’s net worth was anticipated and, therefore, it was not a “change of circumstance that would make the enforcement of the agreement unfair and unreasonable.” Id. at 4. The trial court, thus, did not abuse its discretion in upholding the prenuptial agreement.

In Georgia, even in divorce cases with two fit parents, one parent will be awarded primary physical custody. In a recent divorce case with two fit parents, the trial court awarded primary physical custody of the parties’ two minor children to the Wife, and the Husband appealed. Rowden v. Rowden, S11F0812 (2011).

In affirming the trial court’s ruling, the Supreme Court of Georgia stated that: “In a contest between parents over the custody of a child [or children], the trial court has very broad discretion, looking always to the best interest of the child[ren], and may award the child[ren] to one even though the other may not be an unfit person to exercise custody or had not otherwise lost the right to custody.” Id. at 2, quoting LaFont v. Rouviere, 283 Ga. 60, 62 (2) (2008). Here, the trial court found that both parents were fit and spent quality time with the children. Id. at 3. However, “Husband did not have a concrete childcare plan for the children, nor did he engage his children in age-appropriate activities with other children that could have assisted in their social development. Wife, on the other hand, got the children involved in summer camps, lived near her own parents (who could help her with the children), and, unlike Husband, planned social events for the children such as birthday parties.” Id. The Supreme Court of Georgia therefore held that the evidence supported the trial court’s decision to award primary physical custody to the mother.

It is important to note that the trial court was not saying that the father was not a fit or good parent. Rather, it relied on the evidence above to tip the scales in favor of the mother for primary physical custody.

In Georgia, child support is calculated using the child support worksheets to obtain a presumptive child support amount, which can then be deviated from using several specified grounds. OCGA §19-6-15. One such deviation is the travel expenses deviation, which can be used to account for substantial travel costs incurred when the parents live in different cities or states. OCGA §19-6-15(i)(2)(F). In allowing this deviation, the court must consider “the circumstances of the respective parents as well as which parent moved and the reason for such move.” Id.

I recently attended a seminar where several Atlanta-based judges discussed this issue. The judges were consistent in stating that they would only grant this deviation for things that had been done in the past, not just things a party said he/she would do. For example, if an out of town parent previously only visited twice a year, it is unlikely that this parent would get a deviation for monthly travel expenses. In addition, the judges all agreed that if the distance between parents was great, they would be more likely to award travel expenses for fewer, longer visits (such as over winter break or summer) rather than short monthly visits, as this would be a better use of quality visitation time as well as travel expenses. Overall, the judges do not want to discourage visitation, but also do not want to encourage misuse of this deviation.

In Georgia, child support is calculated using the child support worksheets to obtain a presumptive child support amount, which can then be deviated from using several specified grounds. OCGA §19-6-15. One such deviation is the parenting time deviation which can apply “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.” OCGA §19-6-15(i)(2)(K)(i). The statute, however, gives no guidelines for what the deviation should be.

I recently attended a seminar where several Atlanta-based judges discussed this issue using the example of a child who resides with each parent equally. One Fulton county judge stated that, even with equally shared visitation, if one parent makes significantly more money than the other, some child support should be paid to the other parent. Another Judge agreed, with the caveat that if the higher wage earner was paying other expenses such as day care and/or medical, this should count toward support and, thus, it is possible that no child support would be paid to the other parent. Thus, since it is in the discretion of the judge, it is likely that the deviation will vary depending on your county and your judge. All of the Judges believed, however, that, in this situation, the calculation should start with the presumptive child support amount and go down from there, rather than assuming there should be no child support paid.

When celebrity family law cases make national news, clients often wonder how the case would turn out in Georgia. In a celebrity family law case currently gripping the headlines, Kim Kardashian and Kris Humphries are now battling over whether their 72-day marriage will end in divorce or annulment. Kim Kardashian ‘doesn’t want a battle’ with Kris Humphries: Source, by Jennifer Garcia, PEOPLE.com, December 2, 2011. Though Kardashian filed for divorce to end their marriage, Humphries has filed for an annulment on the grounds of fraud. If the parties obtain an annulment, it will be as if the marriage never happened.

In California, like in Georgia, fraud is grounds for an annulment. However, in both states, the fraud must be proven, not just alleged, or an annulment cannot be granted. Though there is speculation in the media about the fraud in this marriage, Humphries must come with facts, not just speculation in order to be granted an annulment. If the fraud cannot be proven, the marriage will end in divorce. The same would happen in Georgia. It will be interesting to see how this one turns out, and whether the divorce/annulment action lasts longer than the marriage itself.

With the holiday season upon us, many divorced parents in Georgia will look to their parenting plan for guidance on arranging their holiday schedules. Parenting plans are custody agreements that are submitted jointly or individually by each party in an action that involves child custody in Georgia. Except in those cases where emergency relief is necessary due to family violence, parenting plans are required in all actions in Georgia where child custody is at issue.

A parenting plan may be temporary until a final decree is entered, at which time a permanent parenting plan will go into effect. Under Georgia law, when considering either a joint plan or opposing plans of the parties, the court must make its determination based upon the best interest of the child. O.C.G.A. § 19-9-3. The court bases its determination on a number of factors including, but not limited to, the relationship that exists between each parent and the child, and the ability of each parent to provide the child with basic necessities. Id. at a(3).

Parenting plans require that both parties acknowledge and decide on a variety of issues. O.C.G.A. § 19-9-1. Holiday visitation is one such issue, and it can be difficult and emotional for parties to come to an agreement because it requires each party to agree to some holidays away from their children. It may never be easy to split time with your child and the other parent, but a successful parenting plan can alleviate tensions between the parties and allow each parent to enjoy time with their child.

If you need help creating a parenting plan, or seek to modify your existing parenting plan, please contact our Atlanta divorce attorneys to assist you in the process.

By Courtney Carpenter, Associate Attorney, Meriwether & Tharp LLC

The Georgia Court of Appeals recently heard a case addressing an alleged modification of a divorce decree in a contempt case. In that case, the parties had joint legal and physical custody of their children. Earle v. Earle, A11A1450 (2011). The father had final decision-making authority over extracurricular activities. Id. at 2. The father later filed a motion for contempt, alleging that the mother refused “to allow the daughter to participate in certain golf tournaments during her custodial time, and for continuing to use a golf instructor for the child that [the father] had previously fired.” Id. at 2-3. After a hearing, the court denied the father’s motion, holding that “the mother could use her custodial time with the children ‘in any way she deems appropriate.’” Id. at 3.

The father appealed, contending that “the trial court improperly modified the original divorce decree” by adding the new language above “which results in a material modification of the decree’s provision regarding his final decision making authority concerning the children’s extracurricular activities.” Id. at 4. The Georgia Court of Appeals disagreed with the father, stating that though a court cannot modify a divorce decree in a contempt order, it can interpret and clarify its own orders. Id. at 5. The Court held that, in this case, “the trial court did not impermissibly modify the earlier decree but instead clarified the extent as to which the father’s decision making as to children’s extracurricular activities could encroach upon the mother’s custodial time.” Id.

This case addresses an interesting issue that can come up post-divorce. If you have final decision making regarding extracurricular activities, it now seems that you must take your former spouse’s custodial time into consideration in scheduling these activities. After this case, one probably should not over schedule the children during the times in which they are in the custody of the other parent.

Georgia divorce lawyers are often asked how long an average divorce takes in this state. This is a difficult question to answer because there is not really an “average” divorce case. The length of time depends greatly on whether the parties are able to settle matters and, if not, what issues they are fighting about. Even cases with similar facts can be very different. For example, consider a case where both parties work, and have 2 children, a marital home, several joint accounts, and some separate property. Some parties with these facts are able to resolve everything fairly quickly and easily. Other parties with these same facts, however, may argue over every custody, child support, alimony and/or equitable division of assets. Even one contested issue can cause a divorce to drag on, especially if it is something about which both parties feel passionate.

The length of a divorce case can also depend on the County in which the divorce is filed because some courts are more back logged than others. Often, there is not much you can do about this issue.

In our experience, the average time range for a divorce in Georgia is 45 days for a completely uncontested divorce to about 3 years for a hotly contested divorce. However, as mentioned above, this time can vary greatly based upon the specific facts of your case.

In Georgia, a spouse who has an affair risks the affair playing a large role in the outcome of the divorce case, specifically with the issue of support. First and foremost, adultery is an absolute bar to alimony in Georgia. This means that the person who had the affair is not entitled to alimony, whether they need it or not, and will not be successful on a claim for alimony in court.

On the other hand, adultery does not impact child support as this support belongs to the child, not the parent. Thus, anything relating to child support, such as daycare, medical, and extracurricular expenses for the children, will still be up for discussion and will be shared according to the child support worksheets. It should be noted, however, that adultery can affect child custody, which will determine who pays child support. If a parent has committed adultery in the presence of the children, this parent is acting contrary to the children’s best interests (the standard for determining custody in Georgia), which could result in that parent losing a custody battle and then having the obligation to pay child support.

The Supreme Court of Georgia recently heard a case dealing with supervised visitation that was to be phased out through a transition period. In Sigal v. Sigal, before filing for divorce, the mother first filed a petition for separate maintenance. Sigal v. Sigal, S11F0835 (2011). In the decree from that case, the mother was granted primary custody and the father’s visitation was required to be supervised as a result of his documented drug and alcohol abuse problems. Id. at 2. The mother subsequently filed for divorce and “asserted that all issues regarding custody, visitation and support of the children were fully adjudicated in the decree of separate maintenance.” Id. The father disagreed and sought “reasonable and fair unsupervised visitation” with the children. Id. After hearing testimony from both parties, the trial court orally announced its ruling, holding that the father could have unsupervised visitation provided that he took and passed a drug test within the next 45 days and provided that the unsupervised visitation be phased in over a three month transition period. Id. at 3-4.

For reasons unknown, the final divorce decree was not entered for several months, though the visitation provision was entered nunc pro tunc from the date of the hearing. (This means that the visitation provision went into effect as of the date of the hearing, rather than the date of the final divorce decree). Id. at 4-5. As a result, the three-month transition period had already expired by the time the final decree was entered. Id.

For this reason, the mother appealed, and the Supreme Court of Georgia reversed the trial court’s ruling. The Court held that “the nunc pro tunc action as to the gradual transition provision in the decree here did not serve to conform the decree to the truth or the justice of the situation as originally intended by the trial court.” Id. at 7. “Rather, it had the exact opposite effect by eliminating the truth and justice recognized by the trial court…regarding the need of these children for a gradual transition period from supervised to unsupervised visitation with their father.” Id. at 7-8. For this reason, the trial court abused its discretion in making the visitation provision nunc pro tunc.

A recent Georgia divorce case was appealed to the Supreme Court of Georgia due to payment of transcript costs. Kent v. Kent, S11F1035 (2011). In that case, before the trial began, the judge asked the parties who had requested the court reporter and who would be responsible for her salary. Id. The Wife’s attorney responded that he had requested the court reporter and would be responsible for her cost, but the Husband’s attorney remained silent. Id. at 1-2. Only after the trial and after the judge had left the bench did the Husband’s attorney state that he would not pay for the court reporter cost. Id. After receiving an unfavorable outcome to the case, the Husband’s attorney filed a motion “to require the court reporter to transcribe her notes and provide him with an official transcript of the trial” so he could use it on appeal, adding that he was not willing to pay the entire cost of the court reporter. Id at 2-3. The trial court denied the Husband’s motion, finding that his failure to participate in the takedown costs was intentional and he could not now “take advantage of his opponent by only agreeing to pay for the costs of the court reporter now that he is certain that he needs the transcript.” Id. at 4.

The Supreme Court of Georgia disagreed with the trial court, citing long standing Georgia law which holds that, if there is express refusal to participate in the costs of the court reporter, the opposing party cannot later “compel the reporter to transcribe his stenographic notes” even with an offer to pay for same. Id. at 7; quoting Harrington v. Harrington, 224 Ga. 305, 306 (1968). However, a “mere failure” to respond to inquiries about court reporter costs does not amount to an express refusal. Kent, at 7. The Supreme Court of Georgia justified this reasoning, explaining: “By placing this affirmative burden on the party seeking a forfeiture of the right of his opponent [to a transcript] we intend to avoid the possibility that a party will lose this important right by inadvertence or mistake.” Id. In this case, there was no express refusal but, rather, a failure to respond.

Though the Court was sympathetic to “the possible unfairness [to Wife] in this particular case,” it was not willing to replace the bright line rule with a “case-by-case inquiry into the losing party’s subjective intent based on its conduct.” Id. at 11. Parties in Wife’s situation could avoid a situation like this by ensuring that express refusal to pay by the opposing party is on the record.

In Georgia, child custody is determined using the “best interests of the child” standard. OCGA §19-9-3(a)(2). In custody cases where the child is under the age of 11, the court is not required to consider the child’s desires in determining which parent will have custody.

In custody cases where the child is 11, 12 or 13 years of age, “the judge shall consider the desires and educational needs of the child in determining which parent shall have custody.” OCGA §19-9-3(a)(6). The judge still has complete discretion in making the custody determination and, though he must consider the child’s desires, “the child’s desires shall not be controlling.” Id. The determination is still based upon best interests of the child and the child’s desires are a factor to be considered in making this determination.

In custody cases where the child is 14 years of age or older, “the child shall have the right to select the parent with whom he or she desires to live.” OCGA §19-9-3(a)(5). The custody selection made by a child in this age group “shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.” Id. Thus, the court will follow the election of the child, unless that election is not in the child’s best interest.

Georgia divorce attorneys are often asked whether a parent’s line of work can impact child custody. In Georgia, child custody is determined using the “best interests of the child” standard. OCGA §19-9-3(a)(2). In determining the best interests of the child, ”the judge may consider any relevant factor.” OCGA §19-9-3(a)(3). This means that anything and everything may impact a custody determination, including a parent’s employment. For example, if you are a truck driver traveling 5 days a week, then it is not practical for you to be the primary physical custodian because you are not home most of the time. This factor will be weighed with all other factors in the determination of custody.

In Georgia, the procedure for service of process (i.e. service of divorce papers) on a party to a divorce action is the same as in any civil action in this state. According to Georgia law, “Process shall be served by: (1) The sheriff of the county where the action is brought or where the defendant is found or by such sheriff’s deputy; (2) The marshal or sheriff of the court or by such official’s deputy; (3) Any citizen of the United States specially appointed by the court for that purpose; (4) A person who is not a party and is not younger than 18 years of age and has been appointed as a permanent process server by the court in which the action is brought; or (5) A certified process server under Code Section 9-11-4.1, provided that sheriff of the county for which process is to be served allows such servers to serve process in such county.” OCGA §9-11-4(c).

In divorces and other family law cases, it is often prudent to have a certified process server, rather than a marshal or sheriff, serve your spouse. A marshal or sheriff will be in uniform when serving the papers, while a certified process server is usually in plain clothes. If you are having your spouse served while he/she is at work, it will cause less of a scene for a plain-clothes person to give him/her a stack of papers rather than a uniformed officer. In addition, if your spouse is avoiding service, you can often direct a certified process server exactly where to go and when to give him the best chance of effecting service. You can even give him the make and model of your spouse’s car and a photograph of your spouse. Often, a sheriff and/or marshal is unable to give your case this extra attention that may be necessary to effect service. For the above reasons, though a certified process server is more expensive, it may be money well spent in your divorce case.

In a recent blog, we emphasized that, when going through a divorce in Georgia, it is important to understand how one holiday may mean more to one parent or family than another. This is particularly the case when it comes to religious holidays and how they are observed. Unless a spouse is particularly religious and strong in their faith, religion is not usually heavily emphasized in a divorce in Georgia. However, for some families, religion and celebrating religious holidays may be particularly important and the impact of religion on divorce must be considered.

For example, orthodox Jewish families may regularly observe the Saturday Sabbath which begins on Friday evenings and continues until Saturday evening. Some families do not use electricity or drive cars during the Sabbath. If this is the case, it is important to contemplate how telephone visitation with minor children will occur on Fridays and Saturdays and, if there is visitation scheduled, how the minor children will be transported to the other parent’s home. Spouses may also need to negotiate other aspects of such religious holidays like dietary restrictions or dress.

In cases where religion is important to one parent or the other, final decision making authority for religion or religious training may be a contentious point. It will be helpful to define what “religious training” means and whether it includes Catholic school, Sunday school, or regularly attending religious services. It is also important to determine what a more religious parent may expect from the other parent. Will both parties be required to observe dietary restrictions or dress provisions when the minor children are with each parent? When religion is an important factor in your divorce, it is better to spend the time having detailed and thorough conversations with the other parent so that clear provisions can be included in your Settlement Agreement.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

The Supreme Court of Georgia recently addressed a divorce case where separate property was erroneously classified as marital property and equitably divided. In that case, parties were married in 1993 and divorced in 2010. Highsmith v. Highsmith, S11F1052 (2011). In its final decree of divorce, the trial court classified some of the parties’ property as separate and some as marital. Specifically, the trial court classified an investment account in the Wife’s name as marital and subject to equitable division. Id. at 1-2. After the Wife’s motion for a new trial was denied, she appealed, alleging, “the trial court erred when it improperly designated her Scottrade account as marital property…” Id. at 3.

The Supreme Court of Georgia agreed with the Wife. The evidence from the divorce trial showed that the Wife had sold a house she owned prior to the marriage and put all of the proceeds in the Scottrade account at issue, which contained $300,000. Id. At the time of the trial, the balance of this account was $74,000, due, primarily, to the fact that she withdrew a large sum from this account and placed it into a joint account for real estate investment purposes during the marriage. Id.

The Georgia Supreme Court adamantly held that “the evidence showed Wife brought the account to the marriage.” Id. at 4. Thus, “[w]hatever as left in the account at the time the marriage ended was Wife’s separate property because no marital funds were placed into the account and its value, with the exception of Wife’s removal of $210,000, rose or fell with the market rather than being thr result of any labor or investment made by the Husband or the parties together during the marriage.” Id. at 4-5. The fact that a portion of this account was placed into a joint account during the marriage did not transform the remainder of that account into marital property.

When divorcing parents are trying to reach an agreement on holiday visitation, the holidays most often discussed are Thanksgiving, Christmas/Winter Break, Easter/Spring Break, Mother’s Day and Father’s Day. This is not an exhaustive list of holidays, however, and there may be some additional special days that you want to discuss when working out a visitation schedule.

For example, if your extended family has a yearly reunion on July 4 each year, it may be important for you to have the children with you on this date every year, or at least as often as possible. In addition, for those families who celebrate the Jewish High Holidays, it may be important to those parents to work out an arrangement to split the holidays each year, or for each parent to have time with the children on each holiday.

Every family is different, and a holiday that is not important to one family may be very important to another, and vice versa. If a certain day means a lot to you and/or your former spouse, make sure you work out the details and include them in your settlement agreement to minimize later disagreements.

A recently released 2009 report from the U.S. Census found that divorce rates vary by region, and are highest in the South, including Georgia. Highest Divorce Rates By State: New Data From ‘Marital Events of Americans: 2009’ Report, by Ashley Reich, The Huffington Post, August 25, 2011. According to this article analyzing the census report, divorce rates are highest in the southern states, and lowest in the Northeast. The national average is 9.2 divorces per 1,000 men and 9.7 divorces per 1,000 women. In the south (which includes Georgia), however, there are 10.2 divorces per 1,000 men and 11.1 divorces per 1,000 women. Id. The state with the highest divorce rate for men is Arkansas with 13.5 divorces per 1,000 men. Id. Alaska has the highest divorce rate for women, with 16.2 divorces per 1,000 women. Id.

According to Diana Elliott, a family demographer at the Census Bureau, “Divorce rates tend to be higher in the South because marriage rates are also higher in the south. In contrast, in the Northeast, first marriages tend to be delayed and the marriage rates are lower, meaning there are also fewer divorces.” Id.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar in Georgia if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. The October – December 2011 parenting seminar schedule for the 9th judicial district is as follows:

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

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

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

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

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

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

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

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

Our Atlanta divorce attorneys have recently learned of some interactive websites that may be helpful for parents sharing custody of their children in Georgia. In particular, these websites are a helpful resource for parents who are struggling to communicate effectively or just need help staying organized.

OurFamilyWizard.com, JointParents.com and ParentingTime.net offer a range of features such as a visitation calendar, an expense log, daily journal, photo sharing, and a messaging forum. Visitation calendars allow parents to easily see who has visitation and the children's schedule. The expense log tracks who incurred an expense, the type of expense, the other parent's share, and whether that expense has been paid. Journals, photo sharing, and messaging forums provide a space for parents to communicate to each other about their children's activities, progress in school, etc. All calendars, expenses, photos and messages can be kept and recorded for future reference and may be helpful if there is future litigation. Some of the websites, like OurFamilyWizard.com, provide free professional or third party accounts for attorneys, counselors, teachers, or grandparents.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

In Georgia, in addition to alimony being subject to modification due to a change in the income and financial status of either former spouse, cohabitation by the payee is also grounds for modification. Georgia law states “the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of a former spouse.” OCGA §19-6-19(b). Cohabitation is specifically defined as “dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person.” Id. Thus, for example, if an alimony payee/former wife is cohabitating with a new boyfriend, the payor/former husband may seek to modify and/or eliminate his alimony obligation under this law.

Though this is a fairly black and white rule, it should be noted that if the petitioner is unable to prove his/her case under these grounds, he/she “shall be liable for reasonable attorney’s fees incurred by the respondent for defense of the action.” Id. Thus, it is best to make sure your former spouse is actually cohabitating, and that you will be able to prove it, before bringing a modification action under this ground.

In Georgia, a judgment for permanent alimony for the support of a spouse “shall be subject to revision upon petition filed by either former spouse showing a change in the income and financial status of either former spouse.” OCGA §19-6-19(a). For example, if the alimony payor loses his job, he may seek a downward modification based upon his decrease in income. In addition, if the alimony payee suddenly receives a large sum of money, through inheritance for example, the payor may seek to modify based upon this change in financial status. Conversely, the payee may seek upward modification if the payor’s income increases or if the payee’s income decreases.

Like child support modifications, no petition for alimony modification may be filed “within a period of two years from the date of the final order on a previous petition by the same former spouse.” Id. It should also be noted that a petition for modification of alimony can only be filed in cases of “weekly, monthly, annual, or similar periodic payments.” OCGA §19-6-21. Lump sum alimony cannot be modified. Id.

Atlanta divorce attorneys are often asked about common law marriage. According to Georgia law, “no common-law marriage shall be entered into in this state on or after January 1, 1997.” OCGA §19-3-1.1. If a valid common-law marriage was entered into prior to January 1, 1997, it will continue to be recognized in Georgia. Id. There are three requirements for a valid common law marriage: the parties must be able to contract, must agree to live together as man and wife, and must consummate this agreement. Ga. Osteopathic Hosp. v. O’Neal, 198Ga. App 770, 778 (1991). In addition, “the fact of cohabitation is treated as essential, if not the main factor in establishing in this State a common-law marriage.” Fireman’s Fund Ins. Co. v. Smith, 151 Ga. App. 270, 271 (1979). If all of these requirements were met BEFORE January 1, 1997, the common-law marriage will likely be recoginzed in Georgia.

Parties to a valid common law marriage entered into prior to January 1, 1997 may obtain a divorce and ask the court to award alimony equitable distribution, and/or child support. After January 1, 1997, you must have a valid ceremonial marriage in order for the marriage to be recognized.

In Georgia, there are certain degrees of relationship within which marriage is prohibited. Specifically, marriage is prohibited between the following relationships: (1) Father and daughter or stepdaughter; (2) Mother and son or stepson; (3) Brother and sister of the whole blood or the half blood; (4) Grandparent or grandchild; (5) Aunt and nephew; and (6) Uncle and niece. OCGA §19-3-3(a). These marriages are forbidden whether the relation is by blood or marriage. Id. In addition to these marriages being “void from their inception,” a person who knowingly enters a marriage prohibited by this law “shall be punished by imprisonment for not less than one nor more than three years.” OCGA §19-3-3(a) and (b).

In addition, if there is another state that allows a marriage within the degrees prohibited in Georgia, such a marriage performed there will not be recognized in this state. The law clearly states that “[p]arties residing in this state may not evade any of the laws of this state as to marriage by going into another state for the solemnization of the marriage ceremony.” OCGA §19-3-43. Thus, the parties will not be entitled to any of the benefits of marriage in Georgia, including the ability to obtain a divorce.

In Georgia, same sex marriage is prohibited. Specifically, Georgia law states that it is “the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state.” OCGA §19-3-3.1(a). In addition, even if a same sex couple marries in a state that recognizes same sex marriage, such as New York, the marriage shall be void in Georgia. Thus, the parties will not be recognized as spouses in Georgia and will not be “entitled to the benefits of marriage,” which include the ability to obtain a divorce. OCGA §19-3-3.1(b). Georgia law further states that “the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such marriage.” Id. Georgia courts, therefore, will not get involved at all and, if a legal issue arises incident to the same sex relationship, it must be addressed in a state that recognizes same sex marriage, though the parties will have to overcome any jurisdictional hurdles in that state.

Before a person can get divorced, they must have a valid marriage. In Georgia, to constitute a valid marriage, there must be: (1) Parties able to contract; (2) An actual contract; and (3) Consummation according to law. OCGA §19-3-1. To be able to contract marriage, a person must: (1) Be of sound mind; (2) Be at least 18 years of age, or be 16 or 17 years of age with parental consent; (3) Have no living spouse of a previous unresolved marriage; and (4) Not be related to the prospective spouse by blood or marriage within the prohibited degrees. OCGA §19-3-2. To have an actual contract, the parties must have “actually contracted to be man and wife in the forms and with the solemnities required by law.” Pitts v. State, 147 Ga. 801, 803 (1918).

If any of these prerequisites is missing, the marriage is not valid in Georgia and the parties cannot be awarded equitable distribution of their assets or alimony. If you are unsure whether you have a valid marriage and are, therefore, able to obtain a divorce, contact a Georgia divorce or family law attorney to assist you.

Last week, I discussed the Gottschalk case, where the father appealed several aspects of the Georgia trial court’s order for supervised visitation. Gottschalk v. Gottschalk, A11A0565 (2011). As mentioned, several of the father’s allegations of error were based upon the trial court’s order prohibiting dissemination of the custody evaluation. After alleging that the trial court erred in prohibiting the parties from showing the custody evaluation to their expert witnesses, the father then contended that, “regardless of the language in the orders about the custody evaluator’s report, prohibiting [the father’s] expert from testifying about the report denied [the father] his due process rights,” because the guardian relied on the report in making custody recommendations. Id. at 18.

The Georgia Court of Appeals rejected this allegation, holding that the father “had notice that the custody evaluator’s report was not to be distributed without permission of the court,” and did not avail himself of the option to obtain the court’s permission that would have allowed him to use the report. Id. at 19. In addition, the mother did not have notice that this expert would be called and moved to exclude his testimony altogether, but the court allowed the father to call the witness. Id. at 20. Thus, his due process rights were not denied. As mentioned in the previous blog, if the father had obtained permission for his expert to review and testify to the custody evaluation, as he had done with other witnesses, his expert would have been able to testify about it and he would have nothing about which to complain.

The Georgia Court of Appeals recently upheld an order for supervised visitation, despite the father's allegations of 17 errors by the trial court. Gottschalk v. Gottschalk, A11A0565 (2011). In that case, the parties consented to joint legal and physical custody of their children in their divorce action, with detailed visitation provisions in the final decree. Id. at 3. About a year later, after the father’s arrest, the mother filed a petition seeking supervised visitation for the father. Id. The trial court appointed a custody evaluator, who was to write a report to be distributed ONLY to the court, guardian ad litem and the parties, except upon the court’s express permission otherwise. Id. at 4. During the hearing, the trial court discovered that the father’s expert witness had received a copy of the custody evaluation, and barred the expert from testifying about it since the father had not received express permission to disclose it to him. Id. at 7. The trial court ultimately granted the petition for supervised visitation, holding, with significant factual support, that the father’s “conduct was potentially dangerous for the children.” Id. at 9. After the father’s motion for a new trial was denied, he appealed.

Several of the father’s allegations of error were based upon the trial court’s order prohibiting dissemination of the custody evaluation. In one enumeration of error, he alleges “the trial court erred in interpreting the court’s prior orders as forbidding the parties from allowing their expert witnesses to review the custody evaluator’s report to testify about problems with the methodology used.” Id. at 17-18. The Georgia Court of Appeals disagreed, holding that the orders were “very clear that the report could be disseminated only to the parties, attorneys, and guardian unless otherwise allowed by the court,” and the language “is not susceptible to any other interpretation.” Id. The Court of Appeals also pointed out that parties consented to the order, and “both sides had previously sought and obtained permission to reveal the contents for the report to specific people.” Id. Thus, the Court was not at all sympathetic to this allegation. If the father had just gone through the proper procedure, his expert likely would have been permitted to review the report and testify about it.

It’s hard to believe that school is about to begin (or already has begun in some counties!) in Georgia. The start of school also means the start of after school and weekend activities. This time of year can be particularly stressful for parents who are going through, or have recently gone through, a divorce, as the family adjusts to visitation with the kids’ new, and likely busier, schedules.

If your divorce is final, your final divorce decree should lay out each parent’s rights as they relate to school and extracurricular activities. In Georgia, the final parenting plan must include language indicating that “both parents will have access to all of the children’s records and information, including but not limited to, education, health, extra-curricular activities, and religious communications.” Thus, even where one parent has primary physical custody, the other parent is also entitled to equal information about the child’s school and extra-curricular activities. If you think you may have an issue getting information from your spouse, it is prudent to contact the school and/or extra-curricular entity to ask them to send you the information directly. This will cut down on any miscommunication.

If your divorce is final, and there is no temporary order addressing custody and visitation in place, we recommend that you speak to your attorney about getting such an order in place, especially if you and your spouse are unable to come to an agreement. This will ensure that both parents get time with the children, and no one misses out on any important school or extracurricular events.

In Georgia, an important task to undertake after your divorce is revising your will to make sure it is in line with your intent. I recently read an article that described how Amy Winehouse’s revised will left everything to her parents and brother, rather than to her ex-husband. Amy Winehouse got her will right, by Karen Datko, July 27, 2011. English law states that divorce does not “undo the presumption that the natural inheritor is the spouse,” and “[e]ven in the presence of a will written pre-marriage which states otherwise the surviving spouse, or ex-spouse, will again be the natural inheritor.” Id. Thus, if she had not revised her will, her former spouse likely would have inherited everything.

This is not the case in Georgia. Under Georgia law, “all provisions of a will made prior to a testator’s final divorce or the annulment of the testator’s marriage in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator…” OCGA §53-4-49. Thus, if a person divorces and then dies without changing his/her will, the ex-spouse will not inherit under the language of the will, and the person next in line to inherit will do so (so long as that person is not a descendant of the ex-spouse who is not also a descendant of the testator). Keep in mind this statute only applies after the divorce is final. Even with this safeguard in place, however, it is still important to review your will after your divorce to make sure the terms are still in line with your intent. Many things in your life will have changed post-divorce so it is very possible that you would not want the next person in line to inherit – particularly if it is a friend or relative of your former spouse. I would recommend revising it to remove the former spouse, just so there is no ambiguity.

The Supreme Court of Georgia recently addressed a divorce case, which highlights what can happen when the final divorce decree is signed by the judge, but not filed in the clerk’s office. Maples v. Maples, S11F0919 (2011). In that case, the trial court signed a final decree of divorce on June 1, 2000, but the divorce decree was not filed with the clerk until August 1, 2002. Id. Meanwhile, the parties, believing they were already divorced, remarried each other on June 25, 2000. Id. Ten years later, the wife filed a complaint for divorce and the parties thereafter learned that their original divorce decree was not filed until two years after they had remarried. Id. Upon the wife’s motion, the trial court amended the judgment in the 2000 case “by entering an order nunc pro tunc to ensure that the order reflected the true judgment rendered by the court, i.e., that the parties were to be divorced on June 1, 2000. Id. ("Nunc pro tunc" basically means that the order is backdated.) The husband appealed the entry of the nunc pro tunc order, asserting that a nunc pro tunc order cannot be used to backdate the entry of a divorce decree. Id. at 2. (Presumably, he wanted the 2010 divorce case to just be dismissed.)

The Supreme Court of Georgia affirmed the trial court’s holding, “[e]very court has the inherent power – and it is the court’s duty – to correct its own records to make them speak the truth. [Cits.] Where based solely on the record, and without the necessity for the introduction of extrinsic evidence, the court may, on its own motion and without notice, enter such judgment and decree nunc pro tunc at a later date.” Id.; quoting Norman v. Ault, 287 Ga. 324, 330 (5) (695 SE2d 633) (2010), quoting Moore v. Moore, 229 Ga. 600, 601 (2) (193 SE2d 608) (1972), overruled on other grounds. Here, the judgment had already been rendered and the divorce decree signed by the judge. There was nothing else to be done other than file the decree. The Court ended its opinion by pointing out that “[e]ntry of the divorce decree nunc pro tunc to the date of the signing of the decree was advantageous to husband, as well as wife, because it accurately reflected his intention to re-enter the bond of marriage on June 25, 2000.” Maples, at 5-6.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar in Georgia if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. The August – September 2011 parenting seminar schedule for the 9th judicial district is as follows:

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

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

In this age of technology, visitation does not just include when you will physically see your children after going through a divorce in Georgia. Visitation also includes when and how you can communicate with your children during the times in which your former spouse has custody or visitation. For many parents this is a no brainer – the children can speak or otherwise communicate with the other parent as often as they would like. In more adversarial divorces, however, this is not always the case. For a while, it has been common practice in Georgia to include a clause for telephone visitation in a settlement agreement or final divorce decree.

Recently, family law attorneys have been recommending a clause for email visitation as well, once the children are age appropriate. This clause can be as simple stating that the children may communicate with the other parent via email, texting, or any other means of communication. We also recommend that there is language that the emails between parent and child be private and confidential, to cut down on the other parent reading or intercepting the emails. Again, for many parents, email visitation is not an issue. However, if you think that it may be an issue in your situation, be sure to ask for a clause in your settlement agreement or ask the judge to put a clause in your final divorce decree.

If your divorce is final in Georgia, your divorce decree will state who has legal and physical custody of the children. Legal custody deals with decision-making, and physical custody generally reflects with which parent the children will spend most of their time. Often, the major legal custody categories (health, education, religion, and extracurricular activities) are split between the parents, with one parent having final decision-making authority on two categories and the other parent having final decision-making authority on the other two. The divorce decree usually states that the parties both have access to all records and should try to work together but, if they cannot come to an agreement, the final decision-making authority kicks in.

Day-to-day decisions are handled differently, however. In Georgia, a final divorce decree is required to state: “Each parent shall make decisions regarding the day-to-day care of a child while that child is residing with that parent including any emergency decisions affecting the health or safety of a child.” Thus, if a child gets injured while in the custody of the parent who does not have final decision-making on health issues, that parent can still seek treatment for the child. Parents should use their common sense in situations such as this and keep the other parent informed of any major decisions made that affect the children.

When parents are going through, or have gone through, a divorce, one of the hardest adjustments is often learning how to work together to co-parent the children after child custody is determined. Co-parenting includes coordinating your schedules and those of the children, working together for visitation exchange, working out holidays, and making decisions regarding the children.

Sometimes, even something as simple as seeing the other person during a visitation exchange can be complicated. It may be difficult if one or both parents have animosity toward the other, or it may be awkward if a parent is remarried and the new spouse is there. If switching the children at a parent’s house results in an uncomfortable situation, consider switching the location, or possibly having another person present during the exchange. (Make sure this person will not exacerbate the situation!) Some parents meet at a designated store or shopping center. This takes away the opportunity for the parents to be completely alone together, and can lessen the awkwardness for both the parents and the children.

The Georgia Supreme Court recently upheld an alimony award for a Wife, despite the fact that the Husband was disabled and unemployed. In that case, the Husband was held in contempt of the parties’ divorce decree for failing to make alimony payments to the Wife. McDonald v. McDonald, S11F0112 (2011). Specifically, as alimony, the Husband was to keep the Wife on his health insurance for 24 months and make her car payment for 12 months. Id. at 3. The Husband appealed, arguing that “the trial court erred in awarding Wife alimony because she failed to show a need for alimony, he had no ability to pay alimony because he is disabled and unemployed, and Wife’s alleged misconduct and the short duration of the marriage made alimony inappropriate.” Id. at 3-4. The Supreme Court of Georgia disagreed with the Husband.

The Court held that the trial court was authorized to make the alimony award because Wife’s disability caused her to need the alimony, and Husband’s disability income, future earnings, and property awarded in the divorce would enable him to satisfy the alimony award. Id. at 4. Thus, the “need for alimony” and “ability to pay alimony” requirements were satisfied. Though Husband’s disability may make it more difficult for him, the Supreme Court of Georgia found that the evidence supported the award, and the trial court did not abuse its discretion in awarding alimony to the Wife. Id.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar in Georgia if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. The July 2011 parenting seminar schedule for the 9th judicial district is as follows:

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

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

The Supreme Court of Georgia recently reversed a trial court's decision regarding a restriction on overnight guests during a parent's visitation time. Ward v. Ward, S11A0437 (2011). In that case, the parties’ Final Judgment and Decree of Divorce awarded primary physical custody of the children to the father, with the mother receiving substantial visitation. Id. About a year after the divorce, the parties each filed modification actions and the divorce decree was amended to include a visitation provision providing that the mother “shall not have any overnight male guests while the minor children are present.” Id.

The mother appealed, arguing that the amended visitation provision was overbroad, and the Supreme Court of Georgia agreed. Id. at 2. Presumably, this provision was included to prohibit the mother from having a boyfriend spend the night, but the Court was moved by the mother’s argument that, as written, the provision “prohibits her from having her father, a brother, a new spouse, or even the children’s father spend the night at her house while the minor children are present.” Id. Generally, “a trial court has discretion to place restrictions on custodial parents’ behavior that will harm their children,” but here, the restriction prohibits the mother from having non-romantic male visitors, which were not shown to be harmful to the children. Id. at 3. Thus, the Supreme Court of Georgia held that the trial court abused its discretion in amending the divorce decree in this manner.

Provisions such as the one addressed in this case are fairly common in divorce decrees. A better way to write this provision would be that the mother shall not have any overnight male guest that is not related by blood or marriage while the minor children are present.

The Supreme Court of Georgia recently heard an appeal regarding final decision making authority in a Georgia divorce decree. Avren v. Garten, S11A0064 (2011). In that case, the parties were divorced, and the final order awarded the father final decision making authority for the child regarding health and medical issues. Id. at 2. The trial court subsequently found the mother in contempt for taking the parties’ minor child to counseling over the father's objection, and the mother appealed. Id.

The Supreme Court of Georgia disagreed with the mother’s assertion that the trial court abused its discretion in finding her in contempt. The Court specifically noted that “[m]other acknowledged at the contempt hearing that she had taken the child to a therapist that Father disapproved,” despite the fact that the father had final decision making authority on this issue. Id. at 3. These facts provided sufficient evidence “to support the trial court’s determination that Mother willfully disobeyed a prior court order” and, thus, the finding of contempt was upheld. Id.

The 9th Judicial District (Forsyth and Cherokee counties) recently added another June parenting seminar date:

Saturday, June 25, 2011, 10:00am – 2:00pm in Cumming at the Central Park Recreation Center (2300 Keith Bridge Road)

The cost of the seminar is $50.00 per person. There is no pre-registration and you must arrive 30 minutes early to register. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website. Check back for parenting seminar dates for July – September 2011.

The Supreme Court of Georgia often hears appeals of custody determinations, though the standard to overturn a trial court's ruling on this issue is very high. In a recent case, the parties’ Final Judgment and Decree of Divorce awarded the parties joint legal custody of their eight-year-old daughter, with the Wife receiving primary physical custody and the Husband receiving visitation. Reed v. Reed, S11A0085 (2011). The Husband appealed, challenging the trial court’s custody determination. Id.

The Supreme Court of Georgia disagreed with the Husband, emphasizing long standing Georgia law that, so long as the trial court used its discretion “to determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness,” the Court will not interfere. Id. at 1-2; OCGA §19-9-3(a)(2). The Court found that there was “ample evidence” to support the trial court’s custody award, specifically that “...Wife had served as primary caregiver since the child’s birth and had a strong, loving relationship with the child, and that Husband had on occasions both before and during the divorce proceedings exhibited conduct casting doubt on his trustworthiness, truthfulness, and judgment.” Reed, at 2. The Supreme Court of Georgia touched on the Husband’s argument that the trial court “failed to consider the Wife’s anticipated move to North Carolina,” but held that the trial court considered this fact and “did not find it dispositive with regard to the child’s best interests.” Id. Thus, the trial court did not abuse its discretion and the judgment was affirmed.

A question Georgia divorce attorneys are often asked is “Who pays for the divorce?” Generally, each party pays for their own attorney’s fees. However, there are safeguards in place to protect a spouse who has no access to marital assets from the spouse who is using these assets at his/her disposal. Georgia law specifically states that the grant of attorney’s fees shall be within the sound discretion of the trial court so long as the court considers the financial circumstances of both parties a part of its determination. OCGA §19-6-2(a)(1). The fees can be awarded in full, at the end of the divorce proceeding, or on account, which means the spouse ordered to pay the other’s fees must pay them as they become due. OCGA §19-6-2(a)(2). Attorney’s fees may be awarded at a temporary hearing, a final hearing, or both, if the financial circumstances warrant the awards. OCGA §19-6-2(b). Just as any other order, an award of attorney’s fees can be enforced by an action for contempt.

Consider a couple that is going through a divorce, and all the marital accounts are in the husband’s name. The wife cannot make any withdrawals from the marital accounts, or even sign checks, because her name is not on the accounts. Thus, she is likely unable to pay a retainer or to keep up with monthly attorney bills. In this situation, we would highly recommend that the wife make a motion for attorney’s fees, so that she may utilize the martial accounts and defend herself equitably in the divorce action.

With school getting out and summer upon us, it seems appropriate to discuss summer visitation. Whether you are currently going through a divorce, or have already gone through a divorce, summer visitation is something that you and your former spouse (or soon-to-be former spouse) should discuss. Camp and other extracurricular activities can often take up a lot of the children’s time, so it is important that you are on the same page about these activities and how they may impact visitation.

If your divorce is final, you are required to abide by your final divorce decree regarding vsummer visitation. Often, divorce decrees allow each parent to take the children on a vacation for up to two uninterrupted weeks, so long as each parent notifies the other of his/her intent. I recommend that you go back and read your divorce decree to make sure you are clear on your rights and obligations.

If you do not yet have a final divorce decree and there is no temporary order governing custody and visitation for the summer, I highly recommend that you seek to get a temporary agreement in place. There are several reasons for coming to a summer visitation arrangement sooner rather than later: (1) You can make travel plans, if necessary; (2) You can make arrangements for taking time off work or arranging child care/camp during the time you have the children; and (3) You can ensure that both parents will have some time with the children over the summer.

The Supreme Court of Georgia recently upheld an award of attorney’s fees based upon Wife’s conduct during the divorce litigation that caused the Husband to incur unnecessary attorney’s fees. Abt v. Abt, S11F0670 (2011). In that case, after a temporary hearing, the parties were awarded joint legal custody of their two children, with the Wife being named primary physical custodian. Id. Subsequently, the Wife’s boyfriend moved into the marital residence, and “the children revised their election of custodial parent several times, related in part to wife’s new boyfriend and his residence in the home.” Id. Just prior to the final trial, the wife moved for appointment of a guardian ad litem, and the trial was delayed so a guardian could be appointed “to address the custodial fluctuations of the children.” Id. After the final hearing, the trial court ordered the Wife to pay Husband $14,862.50 in attorney’s fees and the Wife appealed. Id. at 2.

The attorney’s fees were awarded pursuant to OCGA §9-15-14(b), which authorizes “an award of reasonable and necessary attorney fees upon a finding that an action or any part thereof lacked substantial justification, was interposed for delay or harassment, or an attorney or party unnecessarily expanded the proceeding by other improper conduct.” Id. at 3. The Supreme Court of Georgia held that the trial court did not abuse its discretion in the award of attorney’s fees to Husband, as the trial court found that the Wife’s actions during the divorce proceeding “caused the children to vacillate in their respective custodial elections and resulted in the necessity for the appointment of a guardian ad litem, the need to conduce emergency hearings, the entry of an order restraining wife from approaching husband’s residence or business location, and the overall expansion of litigation.” Id. at 4. These findings supported the trial court’s holding that wife’s actions unnecessarily expanded the litigation and, thus, there was no error in the award of attorney’s fees. Id.

The Supreme Court of Georgia recently held a Husband to the exact language in his divorce decree, even though it may cause him hardship. Greenwood v. Greenwood, S11A0611 (2011). In that case, the parties’ final judgment and decree of divorce awarded the marital residence to the Husband, and required him to “timely refinance the marital residence...so as to completely remove the Wife from any liability relating to the underlying mortgage.” Id. If the Husband did not refinance the mortgage by the deadline, he was required to immediately pay $10,000 to the Wife as a penalty. Id. at 2. After the Husband failed to refinance the mortgage and/or pay the penalty, the Wife filed a motion for contempt. Id. The trial court found the Husband in contempt, but converted the monetary penalty into a lien against the marital residence and stated in its order that, due to current market conditions, it would give the Husband a reasonable time to sell the house to remove Wife from the mortgage. Id. at 3.

The Wife appealed, alleging that the trial court improperly modified the divorce decree, and the Supreme Court of Georgia agreed. In general, “[w]hile the trial court has broad discretion to determine whether [a divorce] decree has been violated and has authority to interpret and clarify the decree, it does not have the power in a contempt proceeding to modify the terms of the…decree.” Id. at 4; quoting Dohn v. Dohn, 276 Ga. 826 (2003). Here, the Supreme Court of Georgia held that it was “clear that the trial court improperly modified the divorce decree by converting Husband’s penalty for failure to remove Wife from the mortgage by an explicitly-stated deadline into a lien on the marital residence.” Id. at 4. A lien “that may possibly be recouped at some indeterminate time in the future” is contrary to a monetary penalty which became due on October 2, 2009 and, thus, the Supreme Court of Georgia reversed this portion of the order. Id. at 5. Though the Court was sympathetic to the hardship the market may place on Husband, allowing him a reasonable time to sell was also an impermissible modification of the divorce decree. Id. at 6.

The Supreme Court of Georgia recently reversed a decision of the trial court in a divorce case, which made certain directives regarding the parties’ tax liability. Symms v. Symms, S10F1783 (2011). During the final hearing in that divorce case, there was testimony that “the parties had failed to report income from the [wife’s] photography business for the purpose of the assessment and payment of income tax.” Id. at 2. The trial court's final judgment and decree of divorce included several provisions addressing tax issues, including, but not limited to, ordering the parties to amend four years of income tax returns (for which the court specified exact dollar amounts to be used for income) and ordering that the parties be equally responsible for any tax liability and/or penalties. Id. The husband appealed, arguing, “the superior court exceeded its authority in ordering the filing of amended tax returns reflecting the legal determination of joint and several liability and the factual determinations of income.” Id. at 3.

The Supreme Court of Georgia agreed, stating generally “our State Courts are not authorized to impose income tax liability.” Id., quoting Blanchard v. Blanchard, 261 Ga. 11, 15 (1991). Specifically, the Court held that ordering the parties to be jointly and severally liable for any tax liability or penalties was “premature because of the Husband’s contested claim that he qualifies as an ‘innocent spouse’,” and that he is entitled to an IRS determination of his status as such. Id. at 3. In addition, the Court held that the dollar amounts that the trial court ordered be reported on the amendment of the previous tax returns were “either largely speculative…or blatant misrepresentations” with no accurate documentation backing them up. Id. at 4. Thus, the portion of the final judgment and decree of divorce related to the parties’ taxes could not stand.

The Supreme Court of Georgia recently upheld a monetary judgment against a third party in a divorce action. Huling v. Huling, S10F1591 (2011). In that case, the husband filed for divorce after 23 years of marriage. Husband’s father, sister, and two companies (“third-party plaintiffs”) were joined as indispensible parties after the wife alleged “marital property had been transferred to these parties in an attempt to defraud Wife of her claim to equitable division of such assets.” Id. After the jury charge conference in which counsel for husband and wife engaged in a “lengthy discussion” regarding the formal and content of the jury form, the jury returned a verdict finding that husband and the other joined parties (“appellants”) “had conspired to defraud Wife” and awarded her a substantial sum, entered jointly and severally against the appellants. Id. at 2. The appellants then appealed, contending that “the judgment against the third-party plaintiffs cannot stand because…an equitable division claim cannot be brought against a third party to the marriage, and,…a money judgment against a third party cannot be entered under such circumstances.” Id. at 3.

The Supreme Court of Georgia rejected this argument, holding that “any error in the judgment against the third-party plaintiffs was induced by appellants” and they cannot now complain about it. Id. at 4-5. Specifically, the Court pointed out that, in the jury charge conference, the Husband’s attorney stated that any judgment would be jointly and severally against all of the appellants, and that they all stood together. Id. at 4. The attorney for the third-party plaintiffs later agreed with this statement. Id. Thus, they cannot now complain about it and are held to the judgment against them.

It is extremely unlikely that this ruling will be extended to third parties in general, as it is wholly based upon the particular circumstances surrounding the charge conference.

The Supreme Court of Georgia recently clarified the meaning of "attends school" as it relates to child support obligations. Draughn v. Draughn, S10A1599 (2011). In that case, the parties’ divorce decree stated that the father was to pay child support until the child “reaches the age of eighteen…; provided that if [the child] becomes eighteen years old while enrolled in and attending a secondary school on a full time basis, then the child support shall continue for [said child] until he has graduated from secondary school or reaches the age of twenty, whichever comes first.” Id. Shortly before the child turned 18, he stopped attending private high school and enrolled in an online high school equivalency program, but he failed to complete the online program and did not graduate. Id. at 2. After the father subsequently stopped paying child support, the mother filed a motion for contempt.

An issue addressed by the Supreme Court of Georgia on appeal was whether online schooling satisfies the requirement that the child “attends” a secondary school. The trial court found that online classes were not considered to be “attending school”, but the Supreme Court of Georgia disagreed. (Interestingly, the trial court did not base its contempt judgment on this finding, but the Supreme Court of Georgia was concerned as to whether the trial court’s assertion was correct and, therefore, asked the parties to address the issue so it could rule.)

The Supreme Court of Georgia unequivocally held that “once a child enrolls in approved online courses in an effort to graduate from secondary school, his online attendance constitutes 'attending school' for purposes of extending child support beyond the child’s attainment of the age of majority.” Id. at 4-5. The Court based its ruling on the state government’s endorsement and regulation of online learning opportunities. In doing so, the Court is keeping up with the realities of the digital age and allowing children to participate in alternative forms of education.

The 9th Judicial District (Forsyth and Cherokee counties) recently revised its April – June 2011 parenting seminar schedule as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, April 21, 5:00pm – 9:00pm; Thursday, May 5, 5:00pm – 9:00pm; Thursday, May 19, 5:00pm – 9:00pm; Thursday, June 2, 5:00pm – 9:00pm; Thursday, June 16, 5:00pm – 9:00pm
• Dahlonega (North Georgia College and State University, Continuing Education Bldg., Highway 60) –Tuesday, April 19, 9:00am – 1:00pm; Tuesday, May 17, 9:00am – 1:00pm; Wednesday, June 1, 9:00am – 1:00pm
• Blairsville (Haralson Civic Center, 165 Welborn Street) –Monday, May 9, 1:00pm – 5:00pm; Monday, June 6, 1:00pm – 5:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, May 11, 1:00pm – 5:00pm; Wednesday, June 8, 1:00pm – 5:00pm
• Cumming (Hampton Park Library, 5345 Settingdown Road) – Wednesday, April 20, 4:00pm – 8:00pm
• Cumming (Sharon Forks Library, 2820 Old Atlanta Road) – Monday, May 16, 4:00pm – 8:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, April 25, 1:00pm – 5:00pm; Monday, May 23, 1:00pm – 5:00pm; Monday, June 13, 1:00pm – 5:00pm
• Canton (RT Jones Memorial Library, 116 Brown Industrial Parkway) – Saturday, April 30, 10:00am – 2:00pm; Saturday, May 21, 10:00am – 2:00pm; Saturday, June 11, 10:00am – 2:00pm

The cost of the seminar is currently $50.00 per person. There is no pre-registration and you must arrive 30 minutes early to register. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

The Georgia Supreme Court recently clarified two issues surrounding the child support deviation for life insurance. Simmons v. Simmons, S10F1818 (2011). In Simmons v. Simmons, the parties were divorced and the Final Judgment and Decree of Divorce ordered the husband, among other things, “to maintain $150,000 in insurance on his life for the benefit of the child and establish a trust in which to place any proceeds.” Id. at 1. The husband appealed several portions of the Final Judgment and Decree of Divorce to the Georgia Supreme Court including the life insurance provision, arguing that the amount in which he is required to maintain a life insurance policy exceeds his cumulative child support obligation. Id. at 6.

The Georgia Supreme Court disagreed with the husband, holding that the statute addressing life insurance “does not limit the value of any such insurance to the future child support obligation of the parent,” but, rather, “is within the trial court’s discretion.” Id. at 6-7. The Georgia Supreme Court found no abuse of discretion by the trial court. Thus, any life insurance policy value may be acceptable as long as it can be supported by the evidence.

The husband also unsuccessfully argued that the trial court “failed to consider the cost of the life insurance in calculating his child support obligation.” Id. at 7. In dismissing this argument, the Georgia Supreme Court stated that although the statute provides that “[t]he amount of the premium for such life insurance may be considered as a deviation to the presumptive amount of child support,” the deviation is not required and the trial court did not abuse it’s discretion in declining to consider the deviation. Id.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The eighth factor to be considered is “[s]uch other relevant factors as the court deems equitable and proper.” OCGA §19-6-5(a)(8). Much like the “nonspecific deviation” category in the child support guidelines, this factor is included to cover specific situations that may not have been contemplated by the Legislature. All of the factors under this statute help the court to determine the need of one party for alimony versus the ability of the other party to pay alimony. Every divorcing couple’s situation is unique so as long as any “other relevant factor” helps the determination of this analysis, the court will likely consider it.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The seventh factor to be considered is “[t]he condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties.” OCGA §19-6-5(a)(7). This factor considers the financial position each party will be in after the divorce. In general, the greater the separate estate of each party, the less need there is for alimony. However, there is also a greater ability to pay alimony if a party has separate assets from which he/she can draw income. In regard to considering a spouse’s earning capacity post-divorce, the Georgia Supreme Court has stated: “Certainly a wife who has training and skills which could be used to command good earnings but which were not used, because the husband prohibited her from working, will find years later that she has lost her formerly competitive position in the labor market.” Moon v. Moon, 237 Ga. 635, 636 (1976). In a situation such as this, alimony may be awarded to allow the wife time to become competitive in the labor market again.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The sixth factor to be considered is “[t]he contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.” OCGA §19-6-5(a)(6). This factor considers non-monetary contributions to the marriage, and may apply in situations where one parent stayed at home with the children while the other parent worked. A non-monetary contribution may be being available to take the children to doctor's appointments, or staying home with them so that day care is not necessary. In addition, it may apply where one spouse sacrificed earning potential to devote time and energy to the home and family, and to support the other spouse’s career. Moon v. Moon, 237 Ga. 635 (1976).

Under Georgia law, both parties in a divorce are required to attend a parenting seminar in Georgia if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. The revised March 2011 parenting seminar schedule and partial April – June 2011 parenting seminar schedule for the 9th judicial district is as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) –Thursday, March 31, 5:00pm – 9:00pm; Thursday, April 7, 5:00pm – 9:00pm; Thursday, April 21, 5:00pm – 9:00pm; Thursday, May 5, 5:00pm – 9:00pm; Thursday, May 19, 5:00pm – 9:00pm; Thursday June 2, 5:00pm – 9:00pm; Thursday, June 16, 5:00pm – 9:00pm

• Dahlonega (North Georgia College and State University, Continuing Education Bldg., Highway 60) – Monday, March 28, 9:00am – 1:00pm; Tuesday, April 19, 9:00am – 1:00pm; Tuesday, May 17, 9:00am – 1:00pm; Wednesday, June 1, 9:00am – 1:00pm

• Blairsville (Haralson Civic Center, 165 Welborn Street) – Monday, April 4, 1:00pm – 5:00pm; Monday, May 9, 1:00pm – 5:00pm; Monday, June 6, 1:00pm – 5:00pm

• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, April 13, 1:00pm – 5:00pm; Wednesday, May 11, 1:00pm – 5:00pm; Wednesday, June 8, 1:00pm – 5:00pm

• Cumming (Hampton Park Library, 5345 Settingdown Road) – Wednesday, April 20, 4:00pm – 8:00pm

• Cumming (Sharon Forks Library, 2820 Old Atlanta Road) – Monday, May 16, 4:00pm – 8:00pm

Additional dates during this time period will be forthcoming. The cost of the seminar is currently $50.00 per person. There is no pre-registration. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The fifth factor to be considered is “[t]he time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment.” OCGA §19-6-5(a)(5). This factor often applies where you have a spouse who stayed at home with the children during the marriage and, thus, did not have a traditional job. In this situation, for example, that spouse may not have the computer skills necessary to obtain employment, especially if he/she has been out of the workforce for an extended time. The judge may, therefore, award alimony for a period of time that would allow that spouse to acquire the skills necessary to obtain “appropriate employment.” The idea here is that, once that spouse has the training or education required, he/she should then be able to obtain appropriate employment and support himself/herself without alimony.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The fourth factor to be considered is “[t]he financial resources of each party.” OCGA §19-6-5(a)(4). “Financial resources” is a very broad term that includes all assets of the parties, specifically, but not limited to, property and associated expenses, income, debts, retirement benefits, and military benefits. See generally Weiner v. Weiner, 219 Ga. 44 (1963); Kosikowski v. Kosikowski, 240 Ga. 381 (1977); Stumpf v. Stumpf, 249 Ga. 759 (1982). Again, this factor helps the fact finder determine need vs. ability to pay alimony – the greater the financial resources, the less the need for alimony. Conversely, the greater the financial resources, the greater the ability to pay alimony.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The third factor to be considered is “[t]he age and the physical and emotional condition of both parties.” OCGA §19-6-5(a)(3). The age and condition of each of the parties plays into the “need vs. ability to pay” alimony analysis. A party who is elderly and/or has a medical condition requiring extensive treatment, for example, certainly has an argument for the need for alimony. However, that same party, when placed on the other side of the alimony equation, may use this age and condition to allege that he/she has a very limited ability to pay alimony.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The second factor to be considered is “[t]he duration of the marriage.” OCGA §19-6-5(a)(2). In general, if alimony is awarded, the longer the marriage, the longer a spouse will pay alimony. Though the judge will take all of the factors into consideration, a twenty-year marriage is more likely to result in an alimony award than a 5-year marriage. However, it is important to keep in mind that if there is neither a need for the alimony on the part of one party nor the ability to pay by the other party, even the demise of a 30-year marriage may result in no alimony.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The first factor to be considered is “[t]he standard of living established during the marriage.” OCGA §19-6-5(a)(1). The Supreme Court of Georgia has held and reaffirmed that the judge and/or jury may consider “the social standing and luxuries of life which the spouse had been enjoying and would have continued to enjoy had there been no separation.” Bodrey v. Bodrey, 246 Ga. 122, 123 (1980); McNally v. McNally, 223 Ga. 246, 248 (1976). Thus, for example, if the parties lived an extravagant, luxurious lifestyle when married due to the high income of the husband, this lifestyle would be considered in awarding alimony to the wife, especially if she could not otherwise retain that same social standing.

Any case in Georgia involving child custody must have a formal parenting plan incorporated into the final decree. OCGA §19-9-1. In addition to the general acknowledgments discussed in the previous blog, there are also several specific things that must be included in the parenting plan:

(A) Where and when a child will be in each parent’s physical care, designating where the child will spend each day of the year;

(B) How holidays, birthdays, vacations, school breaks, and other special occasions will be spent with each parent including the time of day that each event will begin and end;

(C) Transportation arrangements including how the child will be exchanged between the parents, the location of the exchange, how the transportation costs will be paid, and any other matter relating to the child spending time with each parent;

(D) Whether supervision will be needed for any parenting time and, if so, the particulars of the supervision;

(E) An allocation of decision-making authority to one or both of the parents with regard to the child's education, health, extracurricular activities, and religious upbringing, and if the parents agree the matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution; and

(F) What, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child and the other parent's right to access education, health, extracurricular activity, and religious information regarding the child.

OCGA §19-9-1(b)(2)(A)-(F). These items give specific guidance to parents as to all the details surrounding custody and visitation in an effort to eliminate confusion or disagreements.

Ideally, the parents will work together to come up with a parenting plan that addresses their unique situation. However, if the parents are unable to agree, each party shall file a proposed parenting plan with the judge, who will make the ultimate decision considering both proposals and the best interests of the child. OCGA §19-9-1(c).

Any case in Georgia involving child custody must have a formal parenting plan incorporated into the final decree. OCGA §19-9-1. There are several requirements for the mandated parenting plans. The parenting plan MUST include:

(A) A recognition that a close and continuing parent-child relationship and continuity in the child's life will be in the child's best interest;

(B) A recognition that the child's needs will change and grow as the child matures and demonstrate that the parents will make an effort to parent that takes this issue into account so that future modifications to the parenting plan are minimized;

(C) A recognition that a parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with such parent; and

(D) That both parents will have access to all of the child's records and information, including, but not limited to, education, health, extracurricular activities, and religious communications.

OCGA §19-9-1(b)(1)(A)-(D). These acknowledgements force the parents to think through how they will work together in the broader sense to raise their children. These statements must appear in any settlement agreement and/or final judgment and decree. To ensure compliance, it is recommended that the wording of the statute be followed very closely, if not exactly.

The Supreme Court of Georgia recently made an interesting, if not surprising, ruling, denying a parenting time deviation in a joint custody case. Willis v. Willis, S10F1357 (January 24, 2010). In that divorce case, the parties were awarded joint legal and physical custody of their only child, with physical custody alternating weekly. Id. The trial court designated the husband as the non-custodial parent “[s]olely for purposes of calculating child support.” Id. After considering the parties’ incomes and the wife’s payment of the child’s health insurance premiums, the court ordered the husband “to pay monthly child support of $961 to Wife and to divide evenly with Wife the child’s uninsured health-care expenses.” Id. at 2.

The husband appealed, claiming, “the trial court abused its discretion and unjustly enriched Wife” when it did not give him a parenting time deviation, given the joint physical custody. Id. The Supreme Court of Georgia agreed with the trial court that in order to grant a deviation, the trial court “must find that the application of the presumptive amount of child support would be unjust or inappropriate and that the best interest of the child for whom support is being determined will be served by deviation from the presumptive amount of child support.” Id. at 4, OCGA 19-6-15(c)(2)(E)(iii). The Court found no abuse of discretion in the trial court’s holding that the presumptive amount of child support was not excessive or inadequate, nor did it unjustly enrich the wife, and that a downward deviation would not be in the best interests of the child. Id. at 4.

This case shows that a parenting time deviation is not presumed just because of a shared custody arrangement. There are certain findings necessary for the court to grant this deviation and, without those findings, the deviation will not be granted. This case might ultimately make it a little more difficult for a parent to get a parenting time deviation, but it is not impossible as long as you present the proper evidence to the court – the presumptive amount of child support is unjust or inappropriate, and the child’s best interest will be served by the deviation.

Today in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the brewing custody battle between Halle Berry and Gabriel Aubry. Berry and Aubry have a daughter, Nahla, together, though they were never married. After they broke up last year, it appeared that they were amicably and informally sharing custody of Nahla, but this arrangement has recently transformed into a bitter custody battle. Aubry filed a petition to establish paternity and to have a formal custody arrangement, signaling that the parties are no longer able to work the arrangement out on their own.

According to People Magazine, Berry has stated that she has “'serious concerns' about Nahla’s well-being while in Aubry’s care,” and Aubry has denied these allegations. In a custody battle such as this, courts almost always appoint a Guardian ad Litem to assist in determining custody and it is likely a Guardian will be appointed in this case if the parties are unable to reach a settlement through mediation or otherwise. A Guardian ad Litem represents the child, and conducts interviews with the parties and other people with direct knowledge of the situation to piece through the various allegations. Upon completion of a thorough evaluation, the Guardian will make a custody recommendation to the court that is guided by the child’s best interest.

Unfortunately, even with a Guardian ad Litem, in a bitter custody battle such as this one, the allegations can get ugly (they already have here) and the child often gets dragged into the middle. Berry and Aubry both say they have Nahla’s best interest at heart but it remains to be seen if they will keep her best interest, rather than their anger toward each other, in the forefront of the custody battle.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The final deviation category under the statute is nonspecific deviation. OCGA §19-6-15(i)(3).

The nonspecific deviation category is a catch-all deviation, included to cover specific situations that may not have been contemplated by the Legislature. Specifically, the statute says that a deviation “may be appropriate for reasons in addition to those established under this subsection.” Id. Every family situation is unique and what applies in one family may not apply in another. This deviation gives a parent the ability to ask for a deviation for any reason, but the deviation may only be granted “when the court or the jury finds it is in the best interest of the child.” Id.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The tenth deviation category under the statute is parenting time. OCGA §19-6-15(i)(2)(K).

Generally, the Georgia child support guidelines are “based upon expenditures for a child in intact households.” OCGA §19-6-15(i)(2)(K)(i). Since, after a divorce, a child is spending time in two households, the presumptive amount of child support may not be appropriate. The court may order a parenting time deviation “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.” Id. If the child resides with both parents equally, for example, the parent designated as the non-custodial parent may request a downward deviation in his/her child support obligation so that he/she has sufficient funds to spend on the child during the extended time the child is residing with him/her.

It should be noted that a claim for a parenting time deviation may only be between the custodial and non-custodial parent, not any third parties. OCGA §19-6-15(i)(2)(K)(iii).

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. DeKalb County (Avondale Estates, Chamblee, Decatur, Doraville, Lithonia, and Stone Mountain) offers its Seminar for Divorcing Parents at the Dekalb County Courthouse Judicial Tower. The 2011 schedule is as follows:

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

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

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

The cost of the seminar is currently $30.00 per person. Dates and time are subject to change so please check the DeKalb County Seminar for Divorcing Parents website for the most up to date information and for online registration under the divorce tab.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar in Georgia if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Gwinnett County (Buford, Dacula, Duluth, Lawrenceville, Lilburn, Norcross, Snellville, and Suwanee) offers its Parenting Seminar at the Gwinnett Justice and Administration Center, 75 Langley Drive, Lawrenceville, Georgia 30045. The seminars are held in Conference Room A West Wing on the second floor. The 2011 schedule is as follows:

Thursday morning seminars from 9:00am – 1:00pm: February 3, February 10, February 24, March 3, March 10, March 24, April 7, April 14, April 28, May 5, May 26, June 2, June 9, June 23, July 7, July 14, July 28, August 4, August 11, August 25, September 1, September 8, September 22, October 6, October 13, October 27, November 3, November 10, December 1, December 8

Thursday evening seminars from 5:00pm – 9:00pm: February 17, March 17, April 21, May 19, June 16, July 21, August 18, September 15, October 20, November 17, December 15

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.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar in Georgia if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Cobb County (Acworth, Austell, Kennesaw, Marietta, Powder Springs and Smyrna) offers its Divorcing Parents Seminar at the Cobb County Superior Court Building (Building D; 6th floor jury assembly room), 30 Waddell Street, Marietta, GA 30090.

Cobb County offers a four-hour Thursday morning seminar or two two-hour Monday evening sessions. You must take either one Thursday morning seminar or two Monday evening seminars. The 2011 schedule is as follows:

Thursday morning classes (8:30am – 1:00pm): February 3, February 17, March 3, March 17, April 7, April 21, May 5, May 19, June 2, June 16, July 7, July 21, August 4, August 18, September 1, September 15, October 6, October 20, November 3, November 17, December 1, December 15

Monday evening classes (7:00pm – 9:00pm): February 7 AND February 21, March 14 AND March 21, April 11 AND April 18, May 9 AND May 16, June 13 AND June 20, July 11 AND July 18, August 8 AND August 15, September 12 AND September 19, October 10 AND October 17, November 14 AND November 21, December 12 AND December 19

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.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar in Georgia if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. The January – March 2011 parenting seminar schedule for the 9th judicial district is as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, February 3, 5:00pm – 9:00pm; Thursday, February 17, 5:00pm – 9:00pm; Thursday, March 3, 5:00pm – 9:00pm; Thursday, March 17, 5:00pm – 9:00pm; Thursday, March 31, 5:00pm – 9:00pm
• Dahlonega (North Georgia College and State University, Continuing Education Bldg., Highway 60) – Tuesday February 22, 9:00am – 1:00pm; Monday, March 28, 9:00am – 1:00pm
• Blairsville (Haralson Civic Center, 165 Welborn Street) – Monday, February 7, 1:00pm – 5:00pm; Monday, March 7, 1:00pm – 5:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, February 9, 1:00pm – 5:00pm; Wednesday, March 9, 1:00pm – 5:00pm
• Woodstock (Woodstock Public Library, 7735 Main Street) – Saturday, January 29, 10:00am – 2:00pm; Saturday, February 26, 10:0am – 2:00pm; Saturday, March 12, 10:00am – 2:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, February 28, 1:00pm – 5:00pm; Monday, March 21, 1:00pm – 5:00pm
• Cumming (First Baptist Church Cumming, Kids Town Building, 1597 Sawnee Drive) – Saturday, September 25, 10:00am – 2:00pm
• Dawsonville (Dawson County Library, 342 Allen Street) – Saturday, February 12, 10:30am – 2:30pm; Saturday, March 19, 10:30am – 2:30pm

The cost of the seminar is currently $50.00 per person. There is no pre-registration. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar in Georgia if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. The following is the 2011 parenting seminar schedule for Fulton County (Alpharetta, Atlanta, Johns Creek, Milton, Roswell):

• 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. 2011 dates – February 19, March 19, April 23, May 21, June 18, July 23, August 20, September 17, October 22, November 19, December 17

• Wednesday 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. 2011 dates – January 26, February 23, March 23, April 27, May 25, June 22, July 27, August 24, September 28, October 26, November 23, December 28

• Thursday evening seminar once per month from 4:00 p.m. to 8:00 p.m. at the Dorothy Benson Senior Multipurpose Complex located at 6500 Vernon Woods, Drive, Building B, Sandy Springs, Georgia. 2011 dates – February 3, March 3, April 7, May 5, June 2, July 7, August 4, September 8, October 6, November 3, December 1

Please note that both the South Fulton Service Center and the Dorothy Benson Senior Multipurpose Complex 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.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The tenth deviation category under the statute is extraordinary expenses. OCGA §19-6-15(i)(2)(J). Generally, child support is based upon “average child expenses for families given the parents’ combined adjusted income and number of children.” Id. The legislature recognized that expenses for children are highly variable and, thus, included this deviation so that these expenses may be considered on a case-by-case basis. Id. If extraordinary expenses are found, they “shall be prorated between the parents by assigning or deducting credit for actual payments” made for these extraordinary expenses. Id.

There are three types of extraordinary expenses that may be considered:

1. Extraordinary educational expenses – Includes tuition, room and board, lab fees, books, fees, and other reasonable and necessary expenses associated with education OCGA §19-6-15(i)(2)(J)(i). Expenses must be “appropriate to the parent’s financial abilities and to the lifestyle of the child if the parents and the child were living together.” Id.

2. Special expenses incurred for child rearing – Includes summer camp, music/art lessons, extracurricular activities. The basic child support obligation covers average amounts for these expenses, but “when these special expenses exceed 7 percent of the basic child support obligation, then the additional amount of special expenses shall be considered as a deviation to cover the full amount of the special expenses.” OCGA §19-6-15(i)(2)(J)(ii).

3. Extraordinary medical expenses – Includes medical expenses not covered by insurance that cause extreme economic hardship. OCGA §19-6-15(i)(2)(J)(iii).

Georgia courts can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The ninth deviation category under the statute is Permanency Plan or Foster Care Plan. OCGA §19-6-15(i)(2)(I). This deviation may be considered when the child is in foster care.

Under this deviation, when the child is in the legal custody of a public or private child protection or foster care agency, the court can consider a deviation “if the deviation will assist in accomplishing a permanency plan or foster care plan for the child that has a goal of returning the child to the parent or parents and the parent’s need to establish an adequate household or to otherwise adequately prepare herself or himself for the return of the child clearly justifies a deviation for this purpose.” Id. For example, consider a situation where a child is in the custody of a state agency, and the parent is diligently working two jobs so that he/she can attain a stable residence for the child. The parent may be able to make ends meet, attain a stable residence and accomplish the goals necessary for return of the child to his/her custody, but only if he/she received a downward deviation in child support. In this situation, the court would look at the big picture and end goal, and may grant the deviation under the circumstances.

Georgia courts can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The eighth deviation category under the statute is mortgage. OCGA §19-6-15(i)(2)(H). This deviation may be considered when the noncustodial parent/child support payor is providing a home for the child. Id.

Specifically, the court may consider a deviation where “the noncustodial parent is providing shelter, such as paying the mortgage of the home, or has provided a home at no cost to the custodial parent in which the child resides.” Id. For example, a noncustodial parent may own several properties, and allow the child and custodial parent to live in one of the properties in which the noncustodial parent does not live. Like many of the other deviations, in this situation, the parent is providing a benefit to the child in addition to his or her child support obligation and, therefore, may ask the court to pay less child support. With the mortgage deviation, the court may deviate by allocating the costs of the home between the parents, or decreasing the noncustodial parent’s child support obligation by “an amount equivalent to such [housing] costs." Id.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The seventh deviation category under the statute is alimony. OCGA §19-6-15(i)(2)(G). This deviation may be considered when a parent is paying court ordered alimony.

Under the child support statute, “actual payments of alimony shall not be considered as a deduction from gross income.” Id. Rather than treating these payments as a deduction, the legislature decided to consider them "as a deviation from the presumptive amount of child support.” Id. Thus, it is not automatic that a parent will get this deviation. Unlike most of the other deviations, the court or jury must make written findings of its consideration of alimony payments as a basis for deviation. This means there must be written findings in the final order supporting the deviation.

The language "actual payments" infers that the alimony payments must actually be made. A court order for alimony payments that is not being complied with will not be sufficient.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The sixth deviation category under the statute is travel expenses. OCGA §19-6-15(i)(2)(F). This deviation is included in the statute to cover a situation where the parents live in different cities or states and visitation related travel expenses are substantial for one or both parents.

If parents live in different cities or states, the logistics for visitation can be a little more complicated. If a plane flight is necessary, and the child is too young to fly alone, one parent must fly the child to and from visitation and, thus, there are round trip airline tickets on each end. Even if the distance can be travelled by car, gas has become increasingly expensive. If travel expenses for visitation are found to be substantial, “the court may order the allocation of such costs…by deviation from the presumptive amount of child support, taking into consideration the circumstances of the respective parents as well as which parent moved and the reason for such move.” Id. The court may be more likely to allow a deviation for a parent who moved due to a job or to be closer to family who could help with child care rather than a parent who moved away from his/her children to be closer to a new girlfriend/boyfriend.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The fifth deviation category under the statute is child and dependent care tax credit. OCGA §19-6-15(i)(2)(E). This deviation is included in the statute consider a deviation where “one of the parents is entitled to the Child and Dependent Care Tax Credit.” Id.

A “dependent” is defined as “[a] natural or legally adopted child of the taxpayer.” OCGA §48-7A-2(3). There is a specific schedule for the child and dependent care tax credit that is based upon income, and the tax credit is basically subtracted from the amount of taxes a person owes. OCGA §48-7A-3(b). A child can only be claimed as a dependent once. Thus, after a divorce, only one parent is entitled to this tax credit for each child. Generally, the parent who has primary physical custody is entitled to this credit, though the parties can negotiate this issue as part of their settlement discussions.

If a parent is entitled to this tax credit, the court “may deviate from the presumptive amount of child support in consideration of such credit.” OCGA §19-6-15(i)(2)(E).

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The fourth deviation category under the statute is life insurance. OCGA §19-6-15(i)(2)(D). This deviation is included in the statute to cover a situation in which “either parent has purchased life insurance on the life of either parent or the lives of both parents for the benefit of the child.” Id. The life insurance may be something the parents agreed upon in a settlement agreement, or it may be an order of the court.

This deviation is handled similarly to the “other health related insurance” deviation. If one parent has life insurance on either or both parents for the benefit of the child, the insurance premiums are an expense that parent is paying for the child’s benefit. That parent is, thus, paying child support and paying an additional amount in insurance premiums. The key here is that the life insurance must be on the life of either or both parents AND the child must be the beneficiary of the policy. In this situation, “the court may deviate from the presumptive amount of child support for the cost of such insurance by either adding or subtracting the amount of the premium.” Id.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The third deviation category under the statute is other health related insurance. OCGA §19-6-15(i)(2)(C). This deviation is included in the statute to cover a situation in which a parent “has vision or dental insurance available at a reasonable cost for the child.” Id.

If the non-custodial parent has vision and/or dental insurance for the child, the insurance premiums are an expense that parent is paying for the benefit of the child. That parent is, thus, paying child support and paying an additional amount in insurance premiums. For example, consider a situation in which the presumptive amount of child support is $800 per month, and the noncustodial parent is paying an additional $100 per month in vision/dental insurance premiums for the child. This parent is essentially paying $900 per month for the child. This parent may request a downward child support deviation to make up this difference.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The second deviation category under the statute is low income. OCGA §19-6-15(i)(2)(B). To obtain a deviation under this category, the parent “shall demonstrate no earning capacity or that his or her pro rata share of the presumptive amount of child support would create an extreme economic hardship for such parent.” OCGA §19-6-15(i)(2)(B)(i).

There are certain steps the court or jury must go through in considering a low-income deviation. First, the fact finder must “examine all attributable and excluded sources of income, assets and benefits available to the noncustodial parent” and ensure that the parent's expenses are justified and actually paid by that parent. OCGA §19-6-15(i)(2)(B)(ii). Then, the fact finder shall consider the income, assets, benefits and expenses of each parent, the hardship of a downward deviation on the custodial parent’s household, the needs of each parent and those of the children, and the ability of the noncustodial parent to pay child support. OCGA §19-6-15(i)(2)(B)(iii).

Even if a low-income deviation is granted, the minimum child support for one child “shall not be less than $100.00 per month” and this amount “shall be increased by at least $50.00 for each additional child.” OCGA §19-6-15(i)(2)(B)(v).

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The first deviation category under the statute is high income. OCGA §19-6-15(i)(2)(A). According to the statute, “parents are considered high-income parents if their combined adjusted income exceeds $30,000.00 per month.” Id. For parents who fall into this category, “the court shall set the basic child support obligation at the highest amount allowed by the child support obligation table.” Id. In addition, the court or jury has the option to consider an upward deviation to reach an appropriate award of child support “which is consistent with the best interest of the child.” Id.

In determining a property child support amount for parents who fall into this category, the court will likely consider the lifestyle in which the children lived before the divorce. There is no monetary cap to the child support for parents who fall into this category. The court is only limited by the best interest of the child and the ability of the custodial parent to provide basic necessities.

In Georgia, child support is calculated using both the mother’s and the father’s incomes. O.C.G.A. §19-6-15. Generally, the Court determines the annual gross incomes of both parties (or imputes what it believes the income should be based upon a party’s education and work experience) and runs those numbers through a child support calculator to determine the proper amount of child support. The amount of child support is presumptive and may be rebutted by either party, and court may deviate from the amount determined by the child support calculator. OCGA §19-6-15(i)(1)(A).

In deviating, the court must give primary consideration to the best interest of the child(ren) for whom support is being determined. Id. The court must specifically find “that an amount of child support other than the amount calculated is reasonably necessary to provide for the needs of the child for whom child support is being determined.” OCGA §19-6-15 (i)(1)(B). In addition, no deviation shall be made “which seriously impairs the ability of the custodial parent to maintain minimally adequate housing, food, and clothing for the child being supported by the order and to provide other basic necessities.” OCGA §19-6-15 (i)(1)(C).

There are eleven deviation categories, all of which will be explained further in future blogs: high income; low income; other health related insurance; life insurance; child and dependent care tax credit; travel expenses; alimony; mortgage; permanency plan or foster care plan; extraordinary expenses; parenting time; and nonspecific deviation.

The Supreme Court of Georgia recently heard an interesting case regarding self-executing child support provisions in a divorce settlement agreement. In Tanner v. Morris, the parties’ divorce settlement agreement gave the mother primary physical custody and stated that the father was to pay child support to the mother for the three minor children “for so long as each child shall remain in high school and while also living at home with Wife prior to beginning college or other secondary education.” Tanner v. Morris, S10A1227 at 2 (2010) (emphasis added).

Shortly after the divorce was final, the parties’ eldest child began living with the father, and the father ceased making child support payments for that child. Id. The middle child subsequently began living with the father, and the father thereafter ceased making child support payments for that child. Id. at 3. When the father refused the mother’s request for return of the middle child to her custody, the mother filed an action for contempt. Id. The trial court held that the father had child support arrearage for both children, but only held him in contempt for the support for the middle child, since the mother never requested return of the eldest child. Id. The father appealed.

The Supreme Court of Georgia found that the language “while also living at home with Wife” made the child support provision self-executing, meaning that the child support was modifiable without a new order from the court. Id. at 4. Since the Court has previously held self-executing provisions such as this one to be lawful, the Court held that “it was error for the trial court to hold [the father] in contempt for relying on the self-executing provision in the parties’ settlement agreement to reduce his child support obligation when he had [the mother’s] consent to allow the children to live with him." Id. Thus, the portion of the trial court’s judgment as to the arrearage for the eldest child was reversed. Id. at 5. The Court also vacated the arrearage amount for the middle child, holding that “the arrearage amount should be from the time [the father] lost [the mother’s] consent to keep the middle child, rather than the full amount awarded by the trial court." Id.

The Supreme Court of Georgia recently heard a case regarding whether property owned by a third party can be equitably divided in a divorce. In Armour v. Holcombe, the husband’s mother purchased a house during the parties’ marriage and allowed the parties to live there. Armour v. Holcombe, S10AF0946 (2010). A few years later, the husband’s mother deeded the property to the husband as a gift. Id. The husband refinanced the property and both he and his mother made payments on the debt. Id. In March 2005, the husband deeded the property back to his mother as he was facing financial difficulty. Id. Six months later, the wife filed for divorce and added the husband’s mother as a defendant, alleging that the deed “was executed to deprive Wife of her marital interest in the property.” Id. at 2.

Despite the trial court ordering the home sold and proceeds held in escrow pending the outcome of the litigation, the wife decided not to pursue the fraudulent conveyance issue at the divorce trial. Id. Nonetheless, the trial court instructed the jury that the sales proceeds were a marital asset subject to equitable division, and the jury awarded the wife approximately 2/3 of the proceeds. Id.

The husband’s mother appealed, arguing that the trial court erred because “there was no evidence that the property was a marital asset,” and the Georgia Supreme Court agreed. Id. The Court emphasized that the wife did not cite any case law regarding property owned by a third party being subject to equitable division, “nor should authority for such a ruling be expected.” Id. at 5. The Court adamantly held “[i]t would be highly disruptive to the transfer and ownership of property to allow a divorcing spouse to claim that property held by a third party is subject to equitable division in the divorce action based merely upon that spouse’s actions regarding the property during its prior ownership by the other spouse.” Id. at 5.

The Georgia Supreme Court mentioned that the wife may have had recourse with a fraudulent conveyance claim, but the wife “chose to abandon” this avenue. Id. at 7.

In this installment of An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to address the divorce of Charlie Sheen and Brooke Mueller. People magazine recently reported that the parties have each filed for divorce. Sheen is seeking joint legal and physical custody of their twin boys, and Mueller is seeking primary physical custody with visitation rights for Sheen.

Surprisingly, it appears that this divorce might not be as contested as one would imagine, given their history together. Apparently, while separated earlier this year, they entered into an agreement settling matters of child custody, child support and equitable division. It appears that spousal support may still be a contested issue. In addition, it appears that Sheen’s divorce filing differed from the purported agreement on the issue of custody.

If the parties do end up in court with a contested divorce, my guess, based upon their history, is that it won’t be pretty. Both parties have recently been in rehab for substance abuse – a fact the judge would seriously consider in awarding custody. In addition, Sheen was sentenced to domestic violence counseling stemming from their altercation over Christmas last year, and was recently hospitalized after an “incident” at the Plaza Hotel. Each party will likely drag the other through the mud in trying to prove to the judge that he or she should be awarded custody. If this case was in Georgia, the judge would hear all of the evidence and weigh many factors before awarding custody based on the best interests of the children standard.

If you are going through a divorce, or have recently gone through a divorce, the holidays can be a particularly difficult time. When you and your former spouse (or soon-to-be former spouse) have children together, this time of year can be even more challenging for everyone involved as the whole family will have to cope with spending holidays separately.

If your divorce is final, you are required to abide by your final divorce decree regarding who has the children for the holidays. If you do not yet have a final divorce decree and there is no temporary order governing custody and visitation for the holidays, I highly recommend that you seek to get an agreement in place. There are several reasons for coming to a holiday arrangement sooner rather than later: (1) You can make travel plans, if necessary; (2) You can make arrangements for taking time off work or getting child care during the time you have the children when they will be off school; (3) You can ensure that both parents will have some time with the children over the holidays; and (4) The children will know what to expect and may, therefore, be able to cope with the changes a little better.

In making an agreement, you may want to consider our sample holiday visitation ideas.

Final decision-making regarding children and religion can be an important issue for many parents going through a divorce. The Georgia Court of Appeals recently addressed this issue. In Greene v. Greene, the parties entered into a Settlement Agreement in their divorce action, which provided that the parties would have joint legal custody with the mother as the sole physical custodian. Greene v. Greene, A10A1463 (2010). In addition, the mother would have final decision-making authority on all matters related to religion. Id. The parties agreed that “the child would be raised in the Jewish faith, would attend Hebrew school, become Bat Mitzvah and follow other Jewish traditions." Id. at 4. After the father violated this provision of the Settlement Agreement, the mother filed a motion for contempt. The trial court granted the mother’s motion, and the father appealed.

On appeal the father admitted that, in spite of the agreement, he had taken the child to numerous Christian churches, shared Christian prayers with the child, read the Bible to the child, played Christian music for the child, gave the child Christian books and DVDs, and told the child that she was “Jewish on the outside and Christian on the inside.” Id. The father acknowledged that he knew the Settlement Agreement gave the mother final decision making authority on religion, but contended that the trial court’s ruling “restricted his freedom to share his religious beliefs with his child.” Id. at 2.

The Georgia Court of Appeals disagreed with the father. The Court held that when the Settlement Agreement is “clear, unambiguous, and capable of only one interpretation as written, the provision’s plain meaning must be strictly enforced.” Id. at 5, quoting Page v. Baylard, 281 Ga. 586, 587 (1) (642 SE2d 14) (2007). In affirming the trial court’s ruling, the Court said “the Settlement Agreement is clear that Wife had the right to make the final decisions about the child’s religious upbringing, and the trial court correctly concluded that the Agreement governs.” Id. at 5.

The Supreme Court of Georgia recently reinstated a bright line rule regarding a party retaining the benefits of a Georgia divorce decree that that same party is challenging. In Thompson v. Thompson, the Husband challenged the Final Judgment and Decree of Divorce, alleging that the trial court erred in its equitable division award by dividing funds and property that were his non-marital assets. Thompson v. Thompson, S10F1231 (2010). The trial court denied the husband’s motions for new trial, clarification, and reconsideration, holding that “he had availed himself of the benefits of the final order” and was, thereby, prohibited from challenging it. Id. The husband subsequently appealed the denial of his motions.

In affirming the trial court’s ruling, Supreme Court of Georgia followed long-standing principles of Georgia law. Specifically, the Court held that “one who has accepted benefits such as spousal support or equitable division of property under a divorce decree is estopped from seeking to set aside that decree without first returning the benefits.” Id. at 3. Thus, if you want to dispute a Final Judgment and Decree of Divorce in Georgia, you must either not accept any support or equitable division from that award, or you must return any portion of the award that you have accepted, before initiating any challenge.

The Court clarified that a party “may collect an award of child support and still repudiate a final judgment, as those benefits belong to the child.” Id. at 3-4.

In Georgia, there is a difference between the evidence that can be presented in a temporary hearing versus a final hearing in a divorce case. In Pace v. Pace, after a temporary hearing at which both parties testified, the husband was awarded physical custody of the children and the parties were awarded legal custody. Pace v. Pace, S10F0843 (2010). About a year later, a final hearing was held, at which both parties and multiple witnesses testified, and a Final Judgment and Decree of Divorce was entered, awarding permanent physical and legal custody of the children to the husband. Id. The wife appealed after being denied a new trial.

In its review, the Georgia Supreme Court noted that “the trial court relied substantially on testimony adduced at the temporary hearing in making its determination on permanent custody,” that the parties were not on notice that this testimony would be considered for permanent custody, and that the trial court relied on its “memory and notes” rather than a transcript in reaching its decision. Id. at 2.

The Georgia Supreme Court held that the trial court erred in its reliance on evidence from the temporary hearing because an award of temporary custody “differ[s] in its nature and purpose from an award of temporary custody”. Id. at 3, quoting Foster v. Foster, 230 Ga. 658, 660 (1973). Further, temporary orders and final orders are not governed by the same rules of law. Pace, at 3. In a temporary hearing, only the parties and one additional witness for each side may testify. Uniform Superior Court Rule 24.5(A). In addition, minor children cannot testify at temporary hearings. Id. at (B). These rules do not apply at a final hearing. Thus, stated the Court, “the nature and quality of the evidence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing…” Pace, at 4. The Georgia Supreme Court held that “absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.” Id. at 5.

Atlanta divorce attorneys are often asked whether a party has to pay alimony or child support when the order requiring alimony/child support has been appealed. The Georgia Supreme Court recently clarified this issue. Robinson v. Robinson, S10A0929 (2010). In Robinson v. Robinson, there was an August 2007 temporary order in the divorce case requiring, among other things, that the husband pay the wife $3,000 per month in temporary alimony. Id. In November 2008, a Final Judgment and Decree of Divorce was entered in the case, providing lump sum permanent alimony to the wife, but no periodic/monthly alimony. Id. at 2. The Georgia Supreme Court denied the husband’s appeal of this award, and remittitur was entered in July 2009. Id. ("Remittitur" means that the appellate court's order goes back to the trial court for final order consistent with the appellate court's decision.) Shortly thereafter, the wife filed a motion for contempt alleging that the husband had not fully paid alimony in June, July and August 2009, while the husband’s appeal was pending. Id. at 3. The trial court found that the husband was not in contempt, and reasoned that the wife was not entitled to periodic alimony under the Final Judgment and Decree, that the Final Judgment and Decree was essentially affirmed by the denial of the husband’s appeal, and that the ruling that no periodic alimony would be due was effective as of the date of the Final Judgment and Decree (November 2008). Id. at 4.

The issue presented to the Georgia Supreme Court on the wife’s appeal was whether permanent awards in a Final Judgment and Decree of Divorce take effect as of the date of the remittitur, or whether they relate back to the date of the Final Judgment and Decree. Id. at 5. In reversing the trial court’s decision as to the alimony issue, the Georgia Supreme Court clarified previously confusing and contradicting precedent on this issue. Specifically, the Court held that “a temporary award continues in effect until the entry of the remittitur in the trial court, and it is from that date forward that any permanent award in a final judgment and decree of divorce has effect.” Id. at 11. Thus, the award does not relate back to the date of the FInal Judgment and Decree of Divorce.

In addition, the Court held that any payments of temporary alimony should not offset lump sum alimony because “temporary alimony is different in character and purpose from an award of permanent alimony because it is intended to meet the exigencies arising out of the domestic crisis of a pending proceeding for divorce.” Id. at 10.

In Georgia, parties in a divorce may request temporary alimony, pending a final judgment in the divorce case. OCGA §19-6-3(a). Often during a divorce action, one party is unemployed and/or left with no access to martial funds with which to pay for his/her attorney’s fees. The temporary alimony awarded can help that party pay attorney’s fees or other expenses incurred during the pendency of the divorce action.

Under Georgia law, temporary alimony will be awarded “as the condition of the parties and the facts of the case may justify.” Id. In determining whether temporary alimony is warranted, “the judge shall consider the peculiar necessities created for each party by the pending litigation and any evidence of a separate estate owned by either party.” OCGA §19-6-3(b). If the party seeking temporary alimony has an ample separate estate with which to pay fees and other expenses, the judge may refuse to award temporary alimony. Id. Thus, temporary alimony is based upon need.

It should be noted that, if temporary alimony is awarded, this does not necessarily mean that the judge will award permanent alimony. Nor does the denial of temporary alimony necessarily mean that permanent alimony will be denied.

This week in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the recent separation of Courteney Cox and David Arquette. After 11 years of marriage and one child together, the couple announced that they were on a “trial separation.” People Magazine, October 25, 2010. In their statement, they said “…[w]e remain best friends and responsible parents to our daughter and we still love each other deeply. As we go though this process we are determined to use kindness and understanding to get through this together…”

However, since the announcement, Arquette does not seem to be using “kindness” in the process. He has gone on Howard Stern’s radio show to detail the reasons for the split and even publicly admitted to sleeping with another woman since he and Cox separated. We have yet to see if the couple will reconcile and, if not, how their divorce will play out, but it is likely that the sting of Arquette’s actions will have some bearing on the outcome.

Unlike Arquette, non-celebrities don’t usually have the ability to speak to media outlets about their divorces. However, spilling detailed relationship troubles to everyone you know and rubbing your spouse’s face in your post-separation activities, such as Arquette has done, will likely make for a more bitter and litigious divorce, which, in turn, will cost both parties more money. As a colleague of mine always says, one thing that can drive up the cost of a divorce is emotion. There is simply no reason to make an emotional process even more difficult for you, your spouse, or your children.

This week in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the well-publicized divorce of Tiger Woods and Elin Nordegren. The scandal surrounding Tiger’s multiple extramarital affairs began around Thanksgiving 2009. For the next several months, it seemed like women with whom he had affairs were coming out of the woodwork and speaking to the media each week. Throughout what must have been a gut wrenching time for Nordegren, she remained tactful, continuing her life as privately as possible, and did not thwart the relationship between Woods and their children.

A lesson to take from Nordegren is, no matter what your spouse has put you through and how angry you are at him/her, put your children first. At a time when she could have easily badmouthed Woods in the media and to their children, possibly ruining their relationship with him, she remained discreet. She only spoke to the media once and, even then, she called Woods a good father and refused to share details of the previous 10 months. Due to her actions, the children will likely have a positive relationship with both of their parents despite the hurt and anger that may exist between the parents.

In this weekly installment of An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I will discuss the ongoing divorce action of the owner of the Los Angeles Dodgers. As you may have read in the New York Times or other news outlets, the owner of the Los Angeles Dodgers is going through a divorce, putting ownership of the Major League Baseball team in dispute. The key to this case is a post-nuptial agreement, of which there are two versions – one version gives the team to the husband/owner and the other version makes the parties joint owners of the team. The owner’s wife is asking that the agreement be thrown out and is alleging that the version giving complete ownership of the team to her husband was obtained fraudulently. If the agreement is thrown out, the team will be divided with the parties’ other assets under California’s community property law.

If this case was in Georgia and the agreement was invalidated, the team would be equitably divided. As explained in detail in previous blogs, equitable division does not necessarily mean equal. The judge would consider all the circumstances in deciding how (or if) to divide the team. Thus, the outcome of the case could be much different in Georgia than in it would be in California, where the parties would each receive 50% of the team. Closing arguments were recently completed and the judge now has 90 days to decide the fate of the parties and the Los Angeles Dodgers. It will be interesting to see how this one turns out.

The Georgia Supreme Court recently emphasized the importance of the specific language in a Georgia divorce settlement agreement. In that case, the parties jointly purchased a 27-acre tract of land during their marriage. Gonzalez v. Crocket, 287 Ga. 430 (2010). For financing purposes, they subdivided the property into a five-acre tract upon which the marital residence was built, and a 22-acre tract. Id. In the parties' divorce settlement agreement, the husband received the marital residence, which he was to refinance into his own name, and the wife was to quitclaim her interest in that marital residence to the husband. Id. at 431.

Several years later, the husband filed a Petition for Contempt against the wife for failing to quitclaim the 22-acre tract to him. Id. The trial court denied his petition, ruling that the settlement agreement did not address the 22-acre tract and it, therefore, remained jointly owned by the parties. Id.

The husband appealed, and Georgia Supreme Court agreed with the trial court, affirming a long standing rule that “title to property not described in a verdict or judgment is unaffected by the decree and remains titled in the name of the owners as before the decree was entered.” Id. at 432, citing Messaadi v. Messaadi, 282 Ga. 126, 127 (2007). The settlement agreement only mentioned “the marital residence” and did not even mention the other property. In addition, the parties treated the properties as separate during the marriage and subsequent to the divorce. Since the 22-acre tract was not specifically described in the divorce decree, even though it was adjacent to the property on which the marital residence was located, it remained the joint property of the parties and the wife was not obligated to quitclaim her interest to the husband. Id.

The Georgia Supreme Court recently upheld a short time frame for payment of lump sum alimony and property division awards in a divorce case. Wier v. Wier, 287 Ga. 443 (2010). In that case, the parties were married for nearly 20 years and, following a jury trial, the wife was awarded $200,000 as lump sum property division to be paid within 15 days, and $600,000 as lump sum alimony to be paid within 90 days. Id. The husband appealed, arguing, among other things, that he was unable to timely make the alimony and property division payments. Id.

The Georgia Supreme Court disagreed with the husband. The Court pointed out “the evidence showed that [husband] owns property valued at more than $1.6 million and his gross monthly income exceeds $16,600.” Id. Under long standing Georgia law, “a party can be required to sell or encumber property in order to pay equitable division and alimony awards.” Id.; Hollandsworth v. Hollandsworth, 242 Ga. 790 (1979). Emphasizing that the husband did not present any evidence of his inability to pay in a timely manner, the Georgia Supreme Court held that he can “sell or encumber his property, or take any other action he deems necessary, to comply with the trial court’s order.” Wier, 287 Ga. at 443.

Though child support is generally thought of as being paid in monthly installments, the Georgia Supreme Court recently affirmed a divorce decree which ordered a father to make one lump sum child support payment. Mullin v. Roy, S10F1120 (2010). In that case, shortly after the wife filed for divorce, the husband was arrested for possession of child pornography, lost his $80,000/year job, and began living off a $422,000 inheritance. Id. The husband pled guilty to the charges and was sentenced to five years in prison the day after the divorce trial. Id. at 2.

In its divorce decree, the trial court acknowledged husband’s argument that he will have decreased earning capacity due to his sex offender status upon being released from prison, and calculated child support by settling “on an amount halfway between husband’s and wife’s projections for his future earnings.” Id. Based on the husband’s guilty plea and impending sentence, as well as the dwindling amount that remained of his inheritance, the trial court ordered the husband to pay his entire child support obligation within 60 days. Id. at 3.

The husband appealed, arguing that the court did not have the authority to award lump sum child support. Id. The Georgia Supreme Court agreed, holding that the child support statute “explicitly authorizes trial courts to exercise discretion in setting the amount and timing of payment.” Id.; OCGA §19-6-15(c)(2)(B). Though child support is typically paid in monthly installments, “there is no indication that the 2007 version of the guidelines statute eliminated the longstanding discretion of trial courts to order lump-sum payment under appropriate circumstances.” Id.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law, the thirteenth of which is “[t]he marriage is irretrievably broken.” OCGA §19-5-3(13). A divorce under this ground is generally referred to as a no-fault divorce.

A marriage is irretrievably broken “where either or both parties are unable or refuse to cohabit and there are no prospects for reconciliation.” Harwell v. Harwell, 233 Ga. 89, 91 (1974). However, both parties do not need to agree that the marriage is irretrievably broken. The Supreme Court has held that “where one of the parties to a marriage refuses to cohabit with the other and testifies that the marriage is irretrievably broken, the fact that the other party maintains hope for reconciliation will not suppose a finding…that there are ‘prospects for reconciliation.’” McCoy v. McCoy, 236 Ga. 633, 634 (1976). Therefore, if one party requests a divorce on this ground and testifies that there is no chance of reconciliation, the other party cannot prevent the divorce simply by testifying that he/she believes they can reconcile.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law, the twelfth of which is “[h]abitual drug addiction.” OCGA §19-5-3(12).

“Habitual drug addiction” is defined in the statute as addiction to the following controlled substances: narcotic drugs, marijuana, or stimulant drugs, depressant drugs, or hallucinogenic drugs. OCGA 19-5-3(12); OCGA 16-13-2(a). There must be a pattern of drug use resulting the party's addiction to the controlled substance. The terms "habitual" and "addiction" imply that a one-time use of a controlled substance will not be sufficient to obtain a divorce under this ground.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The eleventh ground under the statute is “[i]ncurable mental illness.” OCGA §19-5-3(11).

There are three strict requirements necessary to obtain a divorce under this ground: (1) the mentally ill party must be adjudged to be mentally ill by the court or must be certified to be mentally ill by two physicians who have each personally examined the party; (2) the mentally ill party must have been in a mental institution or under continuous treatment for mental illness for at least two years preceding the filing of the divorce action; and (3) a chief executive officer of the institution and one physician appointed by the court must make a thorough examination of the party and certify under oath that it is their opinion “that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party’s mental health cannot be expected at any time during his life.” OCGA 19-5-3(11).

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. DeKalb County (Avondale Estates, Chamblee, Decatur, Doraville, Lithonia, and Stone Mountain) offers its Seminar for Divorcing Parents at three different locations in the county. All remaining 2010 seminars will take place in the 1st floor Jury Room of the Dekalb County Courthouse Judicial Tower, located at 556 N. McDonough Street, Decatur, Georgia. The schedule for the remainder of 2010 is as follows:

Friday, September 10, 9:30am – 1:30pm
Friday, September 24, 9:30am – 1:30pm
Monday, October 4, 5:00pm – 9:00pm
Friday, October 22, 9:30am – 1:30pm
Monday, November 8, 5:00pm – 9:00pm
Friday, November 19, 9:30am – 1:30pm
Monday, December 6, 5:00pm – 9:00pm
Friday, December 17, 9:30am – 1:30pm

The cost of the seminar is currently $30.00 per person. Dates and time are subject to change so please check the DeKalb County Seminar for Divorcing Parents website for the most up to date information and for online registration under the divorce tab.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The tenth ground under the statute is “[c]ruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health.” OCGA §19-5-3(10).

In order to obtain a divorce under this ground, the offending party must intend wound his/her spouse. Connor v. Connor, 212 Ga. 92, 94 (1955). It should be noted, however, that actual physical violence is not necessary. Slaughter v. Slaughter, 190 Ga. 229, 232 (1940). Generally, a party may not obtain a divorce under this ground based upon a single act of cruelty or violence, but if the single act is “accompanied by circumstances indicating a probability of repetition of similar conduct,” this may be sufficient. Phinzy v. Phinzy, 154 Ga. 199, 213 (1922). In addition, in certain instances, nagging and mental anguish have been held sufficient to obtain a divorce based upon cruel treatment. Womble v. Womble, 214 Ga. 438 (1958); Ross v. Ross, 169 Ga. 529 (1929).

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The ninth ground under the statute is “[h]abitual intoxication.” OCGA §19-5-3(9).

To obtain a divorce under this ground, it is not necessary for the Petitioner to prove that his or her spouse was continuously and constantly drunk during the marriage. Fuller v. Fuller, 108 Ga. 256 (1899). However, evidence that party “was ‘drunk’ or ‘under the influence of liquor’ on one occasion prior to the separation is wholly insufficient to sustain a divorce on the ground of habitual intoxication.” Stimpson v. Stimpson, 213 Ga. 235 (1957). Thus, there must be a pattern of drunkenness, but does not have to be a constant, unending situation.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Gwinnett County (Buford, Dacula, Duluth, Lawrenceville, Lilburn, Norcross, Snellville, and Suwanee) offers its Parenting Seminar at the Gwinnett Justice and Administration Center, 75 Langley Drive, Lawrenceville, Georgia 30045. The seminars are held in Conference Room A West Wing on the second floor. The schedule for the remainder of 2010 is as follows:

Weekday seminars from 9:00am – 1:00pm: September 2, September 9, September 23, October 7, October 14, October 28, November 4, November 10, December 2, December 9

Evening seminars from 5:00pm – 9:00pm: September 16, October 21, November 18, December 16

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.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The eighth ground under the statute is “[t]he conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer.” OCGA §19-5-3(8).

Turpitude, in its legal sense includes “everything done contrary to justice, honesty, modesty or good morals.” Holloway v. Holloway, 126 Ga. 459, 460 (1906), quoting Black’s Law Dict. It is a very broad definition that can include almost any crime. There are three elements that must be proven in order for a court to grant a divorce under this ground: (1) the commission of the offense involving moral turpitude; (2) the conviction for said offense; and (3) a sentence of two years or longer in a penal institution. Holloway, 126 Ga. at 460.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The seventh ground under the statute is “[w]illful and continued desertion by either of the parties for a term of one year.” OCGA §19-5-3(7).

Generally, desertion is “the voluntary separation of one of the marries parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other.” Cagle v. Cagle, 193 Ga. 34 (1961). There are three elements that must be proven in order for a court to grant a divorce on the ground of desertion: (1) the parties’ cohabitation ended; (2) the offending party intended to desert his/her spouse; and (3) the desertion lasted for a minimum of one year. Id. It should be noted that “the pardon of the convict does not destroy the right to a divorce” under this ground. Id. at 461.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Cobb County (Acworth, Austell, Kennesaw, Marietta, Powder Springs and Smyrna) offers its Divorcing Parents Seminar at the Cobb County Superior Court Building (Building D; 6th floor jury assembly room), 30 Waddell Street, Marietta, GA 30090.

Cobb County offers a four-hour weekday seminar (from 8:30 am to 1:00 pm) or two two-hour evening sessions (from 7:00 pm to 9:00 pm). The schedule for the remainder of 2010 is as follows:

Thursday morning classes (8:30am – 1:00pm): September 2, September 16, October 7, October 21, November 4, November 18, December 2, December 16

Monday evening classes (7:00pm – 9:00pm): September 13 AND 20, October 11 AND 18, November 8 AND 15, December 13 AND 20

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.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The sixth ground under the statute is “[a]dultery in either of the parties after marriage.” OCGA §19-5-3(6).

Generally, a married person commits adultery when he or she “voluntarily has sexual intercourse with a person other than his [or her] spouse.” OCGA §16-6-19; Owens v. Owens, 247 Ga. 139, 140 (1981). Adultery includes “extramarital homosexual, as well as heterosexual, relations.” Owens v. Owens, 247 Ga. 139, 140 (1981). It is difficult to prove adultery with direct evidence and, often, the party only has circumstantial evidence. In Georgia, “[a]dultery may be proved by circumstantial evidence, but such evidence must infer as a necessary conclusion that adultery was committed.” Johnson v. Johnson, 218 Ga. 28 (1962). If the evidence can lead to more than one interpretation, it is not sufficient to prove adultery. Id.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The fifth ground under the statute is “[p]regnancy of the wife by a man other than her husband, at the time of the marriage, unknown to the husband.” OCGA §19-5-3(5).

This ground is fairly straightforward, but all of the elements must be sufficiently proven. The Petitioner must prove that the wife was pregnant at the time of the marriage, that the child is not the husband’s biological child, and that the husband did not know that the wife was pregnant with someone else’s child. Since the party must prove that the child is not the husband’s biological child, there must be a paternity test and, thus, if the divorce is based solely on this ground, the parties will have to wait until after the child is born to obtain the divorce.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. All of the counties in this 9th judicial district work jointly to offer their seminar for divorcing parents throughout the judicial district.

The schedule for September 2010 is as follows:
• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, September 2, 5:00pm – 9:00pm; Thursday, September 16, 5:00pm – 9:00pm
• Dahlonega (North Georgia College and State University, Continuing Education Bldg., Highway 60) – Wednesday, September 8, 9:00am – 1:00pm
• Blairsville (Haralson Civic Center, 165 Welborn Street) – Monday, September 13, 9:00am – 1:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Tuesday, September 14, 1:00pm – 5:00pm
• Woodstock (Woodstock Public Library, 7735 Main Street) – Saturday, September 18, 10:00am – 2:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, September, 20 1:00pm – 5:00pm
• Cumming (First Baptist Church Cumming, Kids Town Building, 1597 Sawnee Drive) – Saturday, September 25, 10:00am – 2:00pm

The cost of the seminar is currently $50.00 per person. There is no pre-registration. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The fourth ground under the statute is “[f]orce, menace, duress, or fraud in obtaining the marriage.” OCGA §19-5-3(4).

The Supreme Court of Georgia held that duress includes “any conduct which overpowers the will and coerces or constrains the performance of an act which otherwise would not have been performed.” Bryant v. Bryant, 192 Ga. 114, 116 (1941) quoting Dorsey v. Bryans, 143 Ga. 186, 188. Menace is “any overt act of a threatening character, short of an actual assault.” Bryant v. Bryant, 192 Ga. 114, 116 (1941) quoting Cumming v. State, 99 Ga. 662, 665 (27 S.E. 177). Thus, to obtain a divorce under this ground, you must prove that you were forced into the marriage and that, without the force, you would not have gotten married.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The third ground under the statute is “[i]mpotency at the time of the marriage.” OCGA §19-5-3(3).

A party filing a Complaint for Divorce alleging impotency as a ground for the divorce must only allege that the impotency existed at the time of the marriage. Lovelace v. Lovelace, 179 Ga. 822, 830 (1934). The Petitioner does not have to allege that the Respondent knew of the impotency while she did not, nor that she “had not condoned the alleged impotency.” Id. Knowledge and condonation are potential affirmative defenses, which must be proved by the Respondent, and do not need to be alleged by the Petitioner in anticipation of these defenses. Id.

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Fulton County (Alpharetta, Atlanta, Johns Creek, Milton, Roswell) offers its Family in Transition seminar at three different locations in the county. The following is a list of locations and schedule of seminars for the rest of the year:

• 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. Remaining 2010 dates – September 18, October 16, November 13, and December 18.
• 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. Remaining 2010 dates – August 31, September 21, October 19, November 16, and December 21.
• Weekday evening seminar once per month from 4:00 p.m. to 8:00 p.m. at the Dorothy Benson Senior Multipurpose Complex located at 6500 Vernon Woods, Drive, Building B, Sandy Springs, Georgia. Remaining 2010 dates – September 9, October 7, November 4, and December 2.

Please note that both the South Fulton Service Center and the Dorothy Benson Senior Multipurpose Complex 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 Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The second ground under the statute is “[m]ental incapacity at the time of the marriage.” OCGA §19-5-3(2).

In Georgia, to have the mental capacity to be married, the party must be of sound mind and be at least 18 years of age (unless parental consent is provided). If either of these is lacking, the divorce can be based on the ground of mental incapacity so long as the incapacity is sufficiently proven.

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The first ground under the statute is “[i]ntermarriage by persons within the prohibited degrees of consanguinity or affinity.” OCGA §19-5-3(1).

In Georgia, the prohibited degrees of relation are father and daughter/stepdaughter, mother and son/stepson, brother and sister (whole or half), grandparent and grandchild, aunt and nephew, or uncle and niece. OCGA §19-3-3(a). These marriages are void from their inception. OCGA §19-3-3(b). It should be noted that if a person marries another person to whom he/she knows is related, by blood or marriage, within one of these prohibited degrees, that person is subject to imprisonment. OCGA §19-3-3(a).

Because these marriages are void from inception, with this ground a person may get an annulment or a divorce. However, “where children are born or are to be born as a result of the marriage,” an annulment cannot be granted and the parties must pursue divorce. OCGA §19-4-1.

When one thinks of custody and visitation in a divorce case, the first thing that most likely comes to mind is: “When will I see my children?” An important aspect of visitation is not only when you will see your children, but also when you will be able to speak to them during the times in which your former spouse has custody/visitation. For many parents this is a no brainer – the children can speak to the other parent as often as they would like. In more adversarial divorces, however, this is not always the case. Sometimes one parent may feel that the other parent calls too often, disrupting his/her visitation or custodial time, or calls at inopportune times, when the children are doing homework or asleep.

Our family law firm recommends putting a clause in your settlement agreement addressing telephone visitation. It can be as simple as stating that the children may call the other parent at any time, but the parents may only once per day. It may also address issues such as one parent eavesdropping while the child(ren) is speaking to the other parent.

If you are unable to settle your divorce case and you believe telephone visitation may be an issue with your former spouse, be sure to bring it up to the Judge so that he/she may rule on it in the Final Judgment and Decree of Divorce and your rights will be protected.

As Atlanta divorce attorneys, we are often confronted with questions from parents who want to know more about joint physical custody and legal custody of their children. In order to answer these questions, further investigation is usually required on our end to discover exactly what the parent means by “joint custody.”

In Georgia, there are two aspects to custody: legal custody and physical custody. Legal custody refers to which parent has the right to make decisions concerning the care and welfare of the child. Physical custody refers to where the child will live on a daily basis. Absent serious misconduct by one of the parties, it is nearly routine in Atlanta child custody and divorce cases for the parties to be awarded joint legal custody of the children. This means that both parties are entitled to be made aware of all issues affecting the children’s welfare and that the parties must confer in good faith to try to reach an agreement regarding any major decisions affecting the children. Where the parties are granted joint legal custody, the court will also designate a mechanism for settling any disagreements between the parents (mediation, tiebreaking authority, etc.).

Joint physical custody is a different matter altogether. Many parents use the term “joint custody” when referring to the concept of 50/50 physical custody—an arrangement where the child spends equal amounts of time with each parent. This type of arrangement is most often set up so that the parents alternate week long periods with the child. There are many benefits to this type of custody arrangement, including giving the child the opportunity to build ongoing and lasting bonds with each parent. From a financial standpoint, it may also eliminate the need for either party to pay child support. If the parents cannot agree regarding joint custody, the Court will order that custody be awarded based upon the best interests of the child or children. O.C.G.A. § 19-9-3.

The Supreme Court of Georgia recently made a ruling that has the potential to affect every member of the military going through a divorce and dividing assets. In Michel v. Michel, the parties were married from September 1995 to February 2002, and then remarried from September 2002 until June 2009. Michel v. Michel, 286 Ga. 892, 893 (2010). In the 2009 divorce action, the wife sought a portion of the husband’s military retirement benefits as equitable division. Id. The Cherokee County trial court denied the wife’s request, finding that the current marriage at issue was only seven years and, pursuant to a code section of the Uniformed Services Former Spouses’ Protection Act, it could not award the wife an equitable portion of these benefits since the marriage was not ten years or more. Id.

The wife appealed, alleging that the trial court erred in ruling that it had no authority to award her a portion of these benefits, and the Supreme Court of Georgia agreed. Id. The Court held that “the Former Spouses’ Protection Act affirmatively grants state courts the power to treat military retirement benefits as marital property that is subject to equitable division upon a divorce.” Id., citing 10 USC §1408 (c)(1); Mansell v. Mansell, 490 U.S. 581, 584 (1989).

In addressing the ten year marriage requirement, the Court held that the requirement “is simply a limitation on the direct payment” of funds from the Federal Government to the former spouse, and “it has no bearing on a state court’s authority to treat military retirement benefits as marital property subject to equitable division, even when a marriage lasted less than ten years.” Id. at 894.

Unfortunately, it can often take a long time to finalize a contested divorce in Georgia. Often, there are issues that need to be addressed sooner rather than later and, in those cases, a temporary hearing is held while the divorce action is pending. Issues addressed at a temporary hearing may be custody, visitation, child support, who will live in the marital home and who will pay bills while the divorce action is pending. The temporary order issued after the temporary hearing will direct the parties how to address these issues.

It is important to remember that a temporary hearing is, by it’s very name, temporary. The order issued after a temporary hearing will be a temporary order that will last only until a new temporary order addressing the same issues, or a final order in the divorce action. Though the judge may consider the temporary order and how it has been working in issuing his/her final order in the case, all issues may be re-litigated at a final hearing.

In divorce and other family law cases, it is very important to follow the letter of the law in filing pleadings with the court so that you do not miss out on any hearings or other notices. In a recent case, the husband filed a Complaint for Divorce and the wife, who had no attorney at the time, acknowledged service of the Complaint, but did not file an Answer or any other responsive pleading. Ellis v. Ellis, 286 Ga. 625 (2010). Shortly thereafter, the wife retained an attorney who filed an entry of appearance, but did not file any responsive pleading on the wife’s behalf. Id. The final hearing, of which the husband’s attorney provided notice to the wife’s attorney, was rescheduled, and the husband’s attorney agreed to inform the wife’s attorney of the rescheduled date for the final hearing. Id. The husband subsequently retained a new attorney who moved the trial court to enter a final judgment of divorce on the pleadings, without holding a final hearing. Id. After the trial court granted the husband’s motion and entered a final judgment of divorce, the wife filed a notice for new trial, alleging an agreement by the husband’s former attorney to provide notice of a final hearing date. Id. at 626. The superior court refused to grant wife a new trial, holding that the wife waived notice by failing to file any responsive pleading and any alleged agreement did not change this fact. Id.

Unfortunately for the wife, the Supreme Court of Georgia agreed with the superior court, as Georgia law is clear on this matter. OCGA §9-11-5(a) states: [T]he failure of a party to file pleadings in an action shall be deemed to be a waiver by him or her of all notices, including notices of time and place of trial and entry of judgment, and all service in the action, except service of pleadings asserting new or additional claims for relief. . . .”

Thus, in any divorce case, it is prudent to use the motto “better safe than sorry” so that you do not end up like the wife in this case. Even if you think you have an agreement with your spouse or his/her attorney, it is best to file all pleadings necessary with the court and look out for yourself.

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

Paternity testing during a divorce case is not extremely common, but this issue does arise. The Georgia Court of Appeals recently affirmed a trial court’s denial of a mother’s motion to compel paternity testing of her husband. Williamson v. Williamson, 302 Ga. App. 115 (2010). In that divorce case, the wife alleged that the child born during the marriage might not be the biological child of the father and requested paternity testing. Id. at 116. After a temporary hearing in which the parties were awarded joint legal custody, the wife’s attorney sent a letter to the husband’s attorney confirming the parties’ agreement that paternity was no longer an issue. Id. Subsequently, the wife retained a new attorney and filed a motion requesting a paternity test, which the husband opposed. Id. The child’s guardian ad litem testified that a paternity test would not be in the child’s best interest and the court denied the wife’s motion. Id.

In her appeal, the wife alleges “she is not precluded from contesting paternity.” Id. The Georgia Court of Appeals agreed with her, stating neither the purported agreement nor the temporary order determined the issue on a final basis as there was not yet a final order in the case. Id. at 177.

However, even the Georgia Court of Appeals held that the wife had the right to contest paternity, it agreed with the trial court’s denial of her motion, which was based on the “best interest of the child” standard. Id. The wife had a huge hurdle to overcome since “[a]ll children born in wedlock are deemed under law to be legitimate.” Id. Further, “[t]he public policy favoring the presumption of a child’s legitimacy is one of the most firmly-established and persuasive precepts known in law.” Id., quoting Baker v. Baker, 376 Ga. 778, 779 (1) (582 SE2d 102) (2003). In affirming the denial of the wife’s motion to compel paternity testing, the Court of Appeals followed established Georgia law and held, “…even when the child's legal father may not be the biological father, a mother who wishes to delegitimate her child is not automatically entitled to compel the legal father to submit to genetic paternity testing but must first come forward with evidence sufficient to show that delegitimating the child is in the child's best interest. The record in this case contains no such threshold showing.” Williamson, 302 Ga. App. at 118.

In this era of social networking websites such as Facebook and My Space, you can find out just about anything about anyone. You can find out their likes and dislikes, their friends, and what they like to do socially. Often, you can even see pictures to give you a snapshot into a particular person’s life. In general, if you value your privacy, you should be careful of what you post on these social networking sites. If you are involved in a family law case, you should be even more careful. Anything you post can, and likely will, be seen by the opposing party in your case and his/her attorney. If possible, this information will be used against you in your case. For example, if you are going through a divorce and are attempting to gain custody of your children, photos of you habitually drinking could be used against you to show that you are an unfit parent. If you are claiming you have no money to pay child support, photos of you with expensive cars, clothes, or jewelry, or on luxury vacations, will likely hinder your success in your case. It is best to assume that anything you post online will be seen by your adversary and act (and post!) accordingly.

The Supreme Court of Georgia recently affirmed a case from Gwinnett County Superior Court regarding relocation and child custody. Almon-Davis v. Davis, 286 Ga. 456 (2010). In that divorce case, both parties requested primary physical custody of their three minor sons. At the request of the husband, the court appointed a Guardian ad Litem (“GAL”) to investigate and make a custody recommendation. Id. at 457. After conducting his investigation, the GAL recommended that the father, who was living in Denver at the time, have primary physical custody, and the trial court entered a final judgment and decree of divorce to this effect. Id.

The mother appealed, contending “the trial court abused its discretion in adopting the GAL's report and recommendation… without considering the impact on the children of the Husband's out-of-state move.” Id. The Georiga Supreme Court disagreed, quoting a seminal relocation case, which states: “When exercising its discretion in relocation cases, as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test…[T]he primary consideration of the trial court in deciding custody matters must be directed to the best interests of the child involved, that all other rights are secondary, and that any determination of the best interests of the child must be made on a case-by-case basis. This analysis forbids the presumption that a relocating custodial parent will always lose custody and, conversely, forbids any presumption in favor of relocation.” Id., quoting Bodne v. Bodne, 277 Ga. 445 (2003). The Supreme Court of Georgia reviewed the transcript and found that the trial court’s consideration of the father’s move “in regard to the children’s welfare and its pragmatic consequences were pivotal” in its custody determinations. Almon-Davis at 458.

Thus, in relocation cases, there is not a presumption that someone will win or lose custody due to a party moving out of the city or state. The court will always look at the specific facts of the case and determine the best interests of the children involved.

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

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

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

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

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

Atlanta divorce attorneys are often asked about the form in which child support and/or alimony payments should be made (i.e. cash, check, money order). Obviously, if the order for support specifies the form in which the payments are to be made, then the payor is obligated to make the payments in that format. Often, however, the form of payment is not specified, and it is just up to the payor to ensure that the payee receives the amount due. Since divorce and/or support cases are often contentious, we highly recommend making support payments in a format that can be tracked, such as a check, rather than cash. Even if you are on good terms with your former spouse, we recommend paying with a check. There is a reason that you are no longer married to or in a relationship with the person who you are supporting, and there is always a chance that the your relationship could sour. If you paid your support in cash, there is no paper trail, which could be problematic if the payee alleges that you did not fulfill your support obligations. In these situations, it is always better to have the ability to show documents verifying your payments, if the need arises.

When presenting your divorce, custody modification, child support modification, or other family law case to the trial court, it is imperative that your Atlanta divorce attorney presents all relevant evidence in your case. The Supreme Court of Georgia recently denied an appeal by a father in a divorce case who attempted to present evidence in his appellate brief that he did not present at his hearing in front of the Dekalb County trial court. Bankston v. Lachman, 286 Ga. 459 (2010). In that divorce case, the trial court awarded primary physical custody of the parties’ two-year-old daughter to the mother and awarded visitation to the father “for four hours each weekend until the child begins kindergarten full time,” at which point overnight visitation would begin. Id. at 459. Though the father requested overnight visitation to begin immediately, the trial court denied his request, explaining that “it believed young children should not spend long periods and weekends with non-custodial parents…[b]ased on everything [the court] had read and talked to about child development experts…” Id. at 460.

The father appealed the trial court’s denial of additional visitation arguing that “the trial court is out of sync with current opinion about the need to establish a firm parental bond between a child and his or her non-custodial parent,” and referencing two models recommending “that children have more visitation time, including overnight visits, with non-custodial parents, beginning at an early age, and increasing as the child grows older.” Id. The Supreme Court of Georgia pointed out, however, “the record does not reflect that that these models were presented to the trial court; nor does it show that trial counsel made the argument which husband asserts on appeal.” Id. Thus, these arguments could not be relied upon on appeal. The father had to prove that the trial court abused its discretion in ruling on the evidence presented to it, and this the father could not do.

To formally initiate a divorce in Georgia, one party must file a Complaint for Divorce. This is a pleading filed with the trial court that formally asks the court to grant a divorce and requests that certain things be awarded to the filing party, such as child custody, child support, alimony, and equitable division of property. As Atlanta divorce attorneys, we are often asked whether it makes a difference for one party to file versus the other. Generally, it does not make a difference. The party who does not file the Complaint for Divorce has the opportunity to file an Answer to the Complaint and Counterclaim for Divorce requesting the same things as the filing party (ex: child custody, child support, alimony, equitable division of property). Thus, that party does not lose out on anything by not filing first.

However, the timing of the filing of the Complaint for Divorce may be important in some situations. For example, if you discover your spouse is having an affair and you wait awhile to file for divorce, the court could use this timing to find that the affair was not the cause of the divorce, which could allow the cheating spouse to suffer no repercussions from his/her behavior during the divorce action. Thus, it is important that you provide your Atlanta divorce attorney with as much information as possible about your unique situation so that he/she can assess whether the timing of filing the Complaint for Divorce could be advantageous for you.

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 dependent on the particular circumstances of the case. A major asset to be divided in many cases is the marital home. The options for equitably dividing the marital home are complicated by the declining real estate market.

If neither wants to nor can afford to remain in the marital home, an option is for the parties to put the house on the market. In this case, the parties can work together with an agent, or alternate, with one party being in charge of the sale for 6 months and then the other party being in charge for the next 6 months. Of course, this option presupposes that the house will sell in a reasonable period of time, which, in this market, may not be the case. During the time the house is on the market, the parties will continue to be responsible for mortgage payments, etc., and must work out who will live in the house and pay utilities.

Another option is for one party to keep the house and refinance to take the other party’s name off the loan(s). This seems simple enough, but the refinancing party must be able to take on the entire loan. Since all of the marital assets will be split incident to the divorce, each party will most likely end up with only half of what the parties had as a married couple. In addition, in the case of dual income families, the parties likely qualified for the mortgage with combined incomes. Both of these issues may make it difficult for the party who wants to remain in the house to qualify to put the entire loan amount into his/her name.

Finally, no matter which option the parties choose or the judge orders, there is the very real possibility that the house is worth less than the amount owed on it. In this situation, the parties may be faced with the possibility of having to come to the table with money upon the sale of the house, or possibly foreclosing.

Recently, the Georgia Court of Appeals heard a case where a divorce settlement agreement affected property in the estate of one of the parties after his death. In Frier v. Frier, the parties entered into a settlement agreement regarding distribution of their property, which notably stated that each party “shall have and receive any sums of money [in] their respective checking accounts, savings accounts, IRAs, retirement funds or accounts or other properties in their own individual names." Frier v. Frier, A09A1876; Frier v. Frier, A09A1877 (2010). The husband had previously established a 12 month certificate of deposit, which was payable to the wife upon his death. Id. at 2. After the execution of the settlement agreement but before the final divorce, the husband renewed the CD but did not change the wife as beneficiary. Id. The husband died shortly after the divorce was finalized and the wife alleged that, as beneficiary, she was entitled to the funds in the CD. Id.

Despite a challenge by the executor of the husband’s estate, who argued that the settlement agreement terminated the wife’s rights as a payable on death payee, the Georgia Court of Appeals held in favor of the wife. The Court stated that though the wife “relinquished the interest she may have had in the account by virtue of her marriage,” the settlement agreement language was not sufficiently broad so as to waive “her right to payment from the POD account as the death beneficiary specified by [the husband] when he created the account and so remaining on the day he died.” Id. at 4.

In this case, the facts are not clear whether the husband intended to remove his ex-wife as beneficiary. Either way, it is a lesson to those going through a divorce of how important it is to make sure your settlement agreement addresses all assets clearly and to check and/or change the beneficiaries of any accounts you may have to prevent unintended consequences.

In child support case, the court may order a parent, or both parents, to obtain and maintain a life insurance policy (or policies) for the benefit of the minor children. OCGA 19-6-34(a). The purpose of the policy is to cover a parent’s child support obligation if he or she passes away while the children are still minors. Under the child support guidelines, both parents have an obligation to support the minor children. Thus, the court often orders both parents to obtain policies because, if either parent passes away while the children are still minors, the other parent will bear the entire obligation to support the children. The parent or parents who pay the premium on the life insurance policy may receive a deviation to the presumptive amount of child support, if the court finds the amount of the premium to be reasonable and in the child’s best interest. OCGA 19-6-34(b). Parents can also agree to maintain life insurance policies for the benefit of the minor children in a settlement agreement. OCGA 19-6-34(e).

Recently, the Georgia Court of Appeals affirmed the enforcement of a divorce settlement agreement over the wife/mother's objection. In that case, the father filed for divorce and sought legal and physical custody of the parties’ children. Martinez v. Martinez, 301 Ga. App. 330 (2009). While the divorce proceedings remained pending, the father filed a motion to enforce a settlement agreement. He contended that the parties had reached the agreement wherein he would be the primary custodial parent and the mother would have visitation rights. Id. The trial court granted the father’s motion and entered a “Final Order on Custody and Visitation” in accordance with the terms of the settlement agreement. Id.

The mother appealed, alleging that the trial court erred in enforcing the settlement agreement “because she did not assent to the terms of the settlement and lacked capacity to contract at the time in question due to her medical condition,” and argued that the trial court “refused to receive any evidence from the parties” at the hearing on the father’s motion. Id. at 332. The mother’s allegations regarding evidence at the hearing, however, were disputed by the father and inconsistent with the trial court’s order on the motion. The Georgia Court of Appeals, therefore, affirmed, citing well established case law stating that “'[i]n order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings.'" Atwood v. Southeast Bedding Co., 236 Ga. App. 116 (1) (511 S.E.2d 232) (1999). Id. at 332-333. Further, "'where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.'" Enchanted Valley RV Park Resort v. Weese, 241 Ga. App. 415, 417 (1) (c) (526 SE2d 124) (1999). Id. Because there was no transcript or other evidence in the record on appeal, the Georgia Court of Appeals was bound to presume that the trial court was correct.

There are two kids of custody: physical custody and legal custody. Legal custody has to do with decision making regarding the children, and parents commonly share joint legal custody. Generally, with joint legal custody, day to day decisions are made by the parent with whom the children are at the time the decision is to be made. For example, if a mother has primary physical custody, but the children are with their father for the weekend, then the father is entitled to make the day to day decisions that are needed or desired during that weekend.

Decisions concerning education, health, religion and extracurricular activities are frequently treated differently. These decisions are generally considered “major decisions” which are to be discussed and agreed to by both parents. If the parents cannot agree, one parent gets ultimate decision making authority. For example, one parent could get final decision making authority for all major decisions, or the parents could split final decision making authority with one parent getting health and religion and the other parent getting education and extracurricular activities.

In discussing a visitation arrangement with your soon to be ex-spouse, it is important to address your child’s birthday. Unfortunately, following a divorce, many parents do not have a relationship that would allow them to celebrate the child’s birthday together so they have to somehow share this important day in their child’s life. One option is for the parents to alternate years, with one parent having the child on his/her birthday in even years and the other parent having the child on his/her birthday in odd years. Another option is to split the day between the parents. For example, the child could spend the night with one parent on the night before his/her birthday and stay with that parent through lunchtime. The other parent would then have the child for the afternoon and evening of his/her birthday. This way, each parent gets quality time with the child on his/her birthday to have a party or otherwise celebrate with them.

There are some health care expenses that are not covered by health insurance and the child support guidelines state that these uninsured health care expenses “shall be the responsibility of both parents.” OCGA 19-6-15(h)(3)(A). The final child support order must include provisions for payment of these expenses, but they are not to be used in calculating child support. Id. The child support guidelines require that “[t]he parents shall divide the uninsured health care expenses pro rata, unless otherwise specifically ordered by the court.” Id. This means that the parents are free to negotiate payment for the children’s uninsured health care expenses during settlement discussions, but if an agreement is reached to pay these expenses other than on a pro rata basis, this agreement MUST be included in the court’s Order in order for it to be valid and enforceable.

“Standard visitation” works well for some parents, but it may not be realistic for your family. In coming up with a visitation schedule with your spouse, it is important to consider the special circumstances in your family’s lives, such as the following:

Work commitments – Do you or does your spouse travel during the week? If so, weeknight visitation may not work for the travelling parent. Do you or does your spouse work late during the week? In this situation, an overnight during the week, rather than just dinner, may allow you to keep your work commitments while spending some quality time with your children during the week.

Children’s extracurricular activities – Do your children participate in extracurricular activities? Is it appropriate for parents to attend and watch the activity (ex: baseball practice, cheerleading practice)? Will you and your spouse both attend these activities or will you alternate? Perhaps the noncustodial parent can have dinner before or after the extracurricular activity to give him/her additional time. If the activities occur on weekends, you might be able to see your children at these activities even when it is not your weekend.

Holidays are special times for most families and one of the most difficult things for divorcing parents to come to terms with is the fact that they will not be spending all of the holidays with their children every year after the divorce. This can be difficult for the children as well as the parents so it is important to create a schedule where each parent has significant time with the children during the holidays.

The following is an example of a holiday visitation schedule that has worked for many parents:

In even numbered years, the Father has Thanksgiving and the second week of Christmas Vacation/Winter Break (beginning the afternoon of Christmas Day), while the Mother has Easter/Spring Break and the first week of Christmas Vacation/Winter Break (ending the afternoon of Christmas Day). In odd numbered years, the Father has Easter/Spring Break and the first week of Christmas Vacation/Winter Break (ending the afternoon of Christmas Day), while the Mother has Thanksgiving and the second week of Christmas Vacation/Winter Break (beginning the afternoon of Christmas Day). The Mother has Mother’s Day every year, and the Father has Father’s Day every year. Any holiday that falls on a Monday (i.e. Martin Luther King, Jr. Day, Memorial Day, Labor Day) will belong to the parent who has the children the preceding weekend.

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.

Continue reading "Documents to keep after your divorce is final" »

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.

Continue reading "Atlanta's Best Divorce Lawyer?" »

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).

Continue reading "What do I do if I am served with a Complaint for Divorce?" »

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: