Atlanta Divorce Attorney Blog

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" »