October 14, 2013

Can my ex-husband stop paying alimony if I moved in with my boyfriend for a very short period of time?

The answer will depend on what is in your final decree of divorce. If there is a provision that says alimony ends when you move in with a man in a meretricious relationship (a marriage-like situation), then your ex-husband's alimony obligation ended when you moved in with your boyfriend. It does not matter that this living situation did not last long. If you moved in with your boyfriend, no matter how short lived, your ex-husband’s alimony obligation is automatically over. No court order is needed for him to stop paying because your divorce decree specifically provides for this situation.

However, if your settlement agreement/final order of divorce only says the alimony obligation ends on death or remarriage (and he did not file a modification action and receive an order modifying his obligation), then your ex-husband is still required to pay alimony, including the time that you lived with your boyfriend. You can enforce his court ordered obligation through a contempt action.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

July 8, 2013

Alimony Factors in Georgia - How Does the Judge Decide?

As discussed in last week's post, "Alimony in Georgia," there is no formula for determining alimony in a Georgia divorce case. So how does a Judge decide whether alimony should be awarded and in what amount? Fortunately, Georgia law gives a list of factors that must be considered in determining the amount of alimony to be awarded, if any:

1. The standard of living established during the marriage
2. The duration of the marriage
3. The age and physical and emotional condition of both parties
4. The financial resources of each party
5. Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment
6. The 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
7. The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties
8. Such other relevant factors as the court deems equitable and proper

OCGA §19-6-5(a)(1)-(8).

Unlike child support, these factors serve merely as a guideline for Judges. A Judge must start with these factors and then use his/her discretion in determining the proper amount of alimony, if any. Two different Judges may view the same set of facts completely differently when it comes to alimony. As such, it is very important to have an experienced family law attorney representing you to help you navigate through the alimony arguments.

July 5, 2013

Alimony in Georgia

Alimony is a big issue to be discussed in many Georgia divorce cases. Unlike child support, which has a specific formula and is required in all cases involving children, alimony “is authorized, but is not required, to be awarded to either party in accordance with the needs of the party and the ability of the other party to pay.” OCGA §19-6-1(c). First, this means that alimony does not have to be awarded. Second, there is no formula used to find the “proper” amount of alimony in every case. It is a “needs vs. ability to pay” analysis. The judge will consider evidence of each party’s financial circumstances in making a determination of whether alimony should be awarded and, if so, how much. In addition, the court is required to “consider evidence of the conduct of each party toward the other.” Id. Since there is no prescribed formula, it is often difficult to predict how a judge will rule on the issue.

Despite the above, there is one “definite” when it comes to alimony. In Georgia, “[a] party shall not be entitled to alimony if it is established by a preponderance of the evidence that the separation between the parties was caused by that party’s adultery or desertion.” OCGA §19-6-1(b). In short, if you committed adultery, you will not get alimony no matter what your financial situation is.

February 1, 2013

Can Men Receive Alimony in Georgia?

The short answer to this question is: Absolutely. There is no mandate under Georgia law prohibiting men from receiving alimony as a result of a Georgia divorce. In fact, the law in Georgia is quite clear on this subject. Prior to April 4, 1979, the Official Code of Georgia was worded in such a way that prohibited men from being awarded alimony. So, prior to 1979, alimony was a remedy that only wives could seek upon a divorce.

However in 1979, Georgia’s laws granting alimony exclusively you the wife were held unconstitutional by the United State Supreme Court in the case of Orr v. Orr, 440 U.S. 268 (1979). In response to the Supreme Court’s ruling, Georgia’s legislature modified the section of the Georgia Code regarding alimony to read as follows:

(a) Permanent alimony may be granted in the following cases:
(1) In cases of divorce;
(2) In cases of voluntary separation; or
(3) Where one spouse, against the will of that spouse, is abandoned or driven off by the other spouse.
(b) A grant of permanent alimony may be enforced either by writ of fieri facias or by attachment for contempt.

O.C.G.A. § 19-6-4. As is evidenced by the gender neutral wording of this statute, Georgia’s law now requires that the principles of liability for alimony to apply equally to women as well as men.

As a young Georgia divorce attorney, I have found that it is not at all uncommon for a Georgia court to grant alimony to men in appropriate situations. Although many individuals maintain the stereotype that alimony is an award that should exclusively be awarded to women, the law of Georgia disagrees. If you are going through a divorce and are curious as to whether alimony may play a factor in your divorce action contact our Atlanta Divorce Team.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

December 12, 2012

Keeping Records of Alimony Payments After a Georgia Divorce

Alimony, also called spousal support or spousal maintenance, includes payments made by one spouse to the other for that spouse’s support following a divorce. Georgia courts are not required to grant alimony in every case, but alimony may be granted under certain circumstances. See our post entitled What is Alimony for more information regarding when a court is most likely to grant alimony.

Alimony payments are tax-deductible for the spouse making the payments and they constitute taxable income for the spouse receiving the payments. Thus, it is important for both parties, the recipient and the obligated spouse, to keep adequate records of the payments, as one spouse may dispute, or the IRS may challenge, the amounts that were actually paid or received. Without adequate documentation, the obligated spouse may lose the alimony tax deduction or be ordered to pay back support if the other spouse alleges that alimony was not paid. Because keeping records of alimony payments paid and received is so important, we have provided a list showing the documents that the spouse paying alimony should retain as well as the documents that the spouse receiving alimony should retain.

If you are currently making alimony payments to your ex-spouse, you should keep the following documents:

• A list of each payment that shows the date of each payment, the check number, and the address to which the check was sent;
• A copy of each check used for payment. These records should be kept in a safe place, like a fire proof safe or file cabinet. Be sure to note on each check the month for which the support is being paid; and,
• If you pay in cash, ensure that you get a receipt for each payment, signed by the recipient, and keep each receipt for your records. See our post entitled In what form should I make my child support or alimony payment? for details on why cash payments are not advisable.

Be sure to keep these records for at least three years from the date you file the tax returns deducting the payments.

If you are currently receiving alimony payments, you should keep a list that shows each alimony payment received. This list should include the following information:

• The date the payment was received;
• The amount received. Make a special note if the amount is less than the court ordered amount in the event that it is necessary to file a motion for contempt in your case;
• The check number, money order number, transaction number or other identifying information;
• The account number on which any check is written;
• The name of bank from which he check is drawn or money order issued;
• A copy of the check or money order; and,
• A copy of any signed receipt you provided your ex-spouse for any cash payments received.

By A. Latrese Martin, Assiciate Attorney, Meriwether & Tharp, LLC

May 28, 2012

More Frequently Asked Questions: Georgia Divorce

Question: How do I prevent my ex-spouse from stopping alimony payments?

Answer: If your ex-spouse has a Court Order to may alimony, and a condition has not occurred in the Order that would allow him to terminate the alimony payments (ex: remarriage), then you can file for contempt against your ex-spouse after he stops paying. There is nothing you can do before he stops paying because he has not violated any Order.

Question: Can my attorney of many years, who has seen my mental health records, represent my wife in our separation agreement?

Answer: There is likely a conflict of interest here, especially if your attorney knows information that may impact the divorce proceedings. You may waive this conflict if you would like but, depending on your situation, it may be best for each of you to have separate attorneys.

Question: I want to remove my name from the deed on the house, but how can I make sure that my spouse refinances to remove my name from the home equity loans?

Answer: In this situation, I recommend that the parties arrange to refinance all the loans at once. Both parties can show up to the closing and the quitclaim deed can be signed at the same time the refinance documents are signed. Otherwise, I would not recommend a person signing a quitclaim deed when they still have liability on the house.

February 10, 2012

Retroactive alimony modification not allowed in Georgia

The Supreme Court of Georgia recently heard a case addressing the issue of retroactive alimony modification in Georgia. Branham v. Branham, S11A1896 (2012). In that case, under their divorce decree, the husband was required to pay periodic alimony to the wife for 120 months “unless and until Wife dies, remarries, or cohabitates with someone else in a meretricious relationship,” and the wife was required to pay the monthly mortgage on the marital home that she was awarded. Id. Both parties quickly fell behind on these obligations. Id. The husband filed a contempt action against the wife for failing to pay the mortgage and also filed a separate action to cease his alimony obligation, alleging that the wife was cohabitating with someone in a meretricious relationship. Id. The wife subsequently filed a contempt action against the husband for his failure to pay alimony. Id. The trial court heard all three actions together and found both parties in contempt. Id. at 2. In addition, the trial court denied the husband’s motion to cease his alimony obligation, but reduced his obligation for past due alimony to zero. Id.

The wife appealed, contending that the trial court erred by retroactively reducing the husband’s alimony obligation and the Supreme Court of Georgia agreed. Id. The Court quoting long standing Georgia law in its holding: “Retroactive modification of an alimony obligation would vitiate the finality of the judgment obtained as to each past due installment…[A] judgment modifying an alimony obligation is effective no earlier than the date of the judgment.” Id. at 2-3, quoting Hendrix v. Stone, 261 Ga. 874, 875 (1992). In this case, the ruling that husband’s alimony arrearage be extinguished clearly violates this rule, as it modifies a past obligation (i.e. one that had already come due). Thus, the Supreme Court of Georgia reversed the ruling.

November 14, 2011

In Georgia, am I entitled to financial support after a divorce if I had an affair?

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.

September 12, 2011

Alimony modification in Georgia - cohabitation

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.

September 9, 2011

Alimony modification in Georgia - change in income and financial status

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.