Atlanta Divorce Attorney Blog

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.

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.

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, 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, 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.

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.

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.

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.

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.

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.

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.

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).

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

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

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

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

On 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.”

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.

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? " »

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.

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 " »

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.

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" »

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.

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" »

Although there are several grounds for ending alimony, one of the most common is that a party decides to remarry. In these types of cases, O.C.G.A. § 19-6-5(b) indicates that a prior award of alimony can be modified if you decide to get re-married, and the modification will result in terminating your former spouse’s alimony obligation. What many people find surprising, however, is that remarriage is not the exclusive defining test for ending alimony.

Much more common is that after a parties divorce, one of the parties decides to date and eventually decides, without getting remarried, to move into the same residence with their new significant other. The State of Georgia has enacted a law, which is commonly referred to as the “live-in” lover statute, which addresses this exact situation. According to O.C.G.A. § 19-6-19(b), if you and your significant other are living together and having sexual relations, then your former spouse can file for modification of alimony upon the ground that you and your significant other are living together in a meretricious relationship. Adding to the equation, the court will be under the assumption in this type of situation that your need for alimony has just decreased because you are now splitting financial responsibilities with this person.

When deciding whether you want to seek a modification under this type of situation, you need to keep in mind that the court will require that you submit proof of this meretricious relationship. In addition, you must always be mindful that if the judge decides after reviewing the petition and the evidence that your former spouse is not living in a meretricious relationship, then you would be responsible for paying all of your former spouse’s attorney’s fees incurred in defending the action in addition to being responsible for your own attorney’s fees.

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.

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.

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" »