March 24, 2014

Celebrity Family Law Chronicles: Ludacris in Custody and Child Support Battle

Rapper Ludacris is currently in the midst of a legal battle in Georgia with the mother of his two month old daughter. Ludacris – I’m Hurtin’ For Cash Because Of Paul Walker’s Death, tmz.com, February 20, 2014. The mother of his child, who currently has custody of the child, is asking for $15,000 a month in child support. Ludacris has claimed that he cannot afford such exorbitant payments because the movie he was counting on for income is on hold due to the death of one of its stars, Paul Walker. He further testified that he only made $55,000 in 2013. After listening to the testimony, the Judge ordered Ludacris to pay $7,000 a month in child support on a temporary basis, while he reviews the financial documents in further detail.

Since that temporary ruling, Ludacris has filed a Petition with the court asking for primary custody of his daughter and asking the mother to pay him child support. Ludacris Gunning for Full Custody – Wants Child Support, tmz.com, February 23, 2014. He says that he is a “fit and capable parent” to this child and that he has always been “an active father” to his 12-year-old daughter.

In determining custody, the Judge will base his decision on the best interests of parties’ two-month-old child. There is no presumption that the mother should be awarded custody so the Judge will consider all the evidence in making a fair custody determination. Once custody is determined, the Judge will award child support accordingly. While Ludacris may be hurting financially right now due to the unforeseen circumstances surrounding his upcoming movie, it is unlikely the Judge will use his alleged $55,000 income to determine child support. Rather, the Judge will likely look at his earning pattern over the last few years to make a determination.

February 7, 2014

Child Support and Social Security Benefits in Georgia

In Georgia, social security payments received for a child’s benefit count toward the child support for that child and offset the amount owed by the obligor. Specifically, any social security benefits received by a child on the obligor’s account “shall be counted as child support payments and shall be applied against the final child support order to be paid by the obligor for the child.” OCGA §19-6-15(f)(3)(A).

In order to determine how much child support the obligor has to pay on top of the benefits received, one must calculate the presumptive amount of child support by first determining the parties’ gross monthly income, including social security benefits received (OCGA §19-6-15(1)(A)(xiii)). Then, the presumptive amount should be increased or decreased by deviations, if appropriate. If the final child support amount is greater than the social security benefits paid on behalf of the child, “the obligor shall be required to pay the amount exceeding the social security benefit as part of the final child support order in the case.” OCGA §19-6-15(f)(3)(B). Thus, the child is only entitled to the total child support amount from the worksheets, including social security benefits received.

If the final child support amount is equal to or less than the social security benefits paid on behalf of the child, “the child support responsibility of that parent shall have been met and no further child support shall be paid.” OCGA §19-6-15(f)(3)(C). This ensures the child will not receive more than the child support required under Georgia law. If the social security benefits received are greater than the final child support order, these benefits “shall be retained by the nonparent custodian or custodial parent for the child’s benefit and shall not be used as a reason for decreasing the final child support order or reducing arrearages.” OCGA §19-6-15(f)(3)(D).

October 7, 2013

How can I "correct" incorrect information in the Judge's Order?

This can be a complicated situation. If you have already had a trial, then the only way to “correct” the information would be to appeal the Judge’s order. You must then argue to the Court of Appeals that the trial court erred in calculating child support because it used the wrong financial data. Other possible steps to “correct” the information include a Motion for Reconsideration or Motion for New Trial. These Motions are very tricky and very fact specific, however, and the incorrect Motion can leave you in a bad situation. I recommend consulting with an experienced family law attorney to help guide you through this process.

If you already have an attorney, try to get clarification on what exactly happened at the trial court level, which resulted in the Order with incorrect information. In some situations, clients become dissatisfied with their lawyer and the results, even though the lawyer did an excellent job. The client may not know that the lawyer did a good job because of a failure to communicate, which results in a loss of trust. It may be worth it to pay another lawyer their consultation fee for a 2nd opinion on the original Order and the likelihood of a successful appeal.

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

July 19, 2013

Georgia Child Support - Gross Income is Not "Take Home Pay"

In Georgia, the first step in determining the proper amount of child support is to determine the gross incomes of both parents. Gross income is the amount a person makes before taxes, insurance, etc. are taken out – it is not the amount that a person brings home each week or month. In a recent child support modification case, the Geprgoa Supreme Court reversed a case in which the trial court used the father’s take home pay, rather than his gross income, to calculate child support. Williams v. Williams, S13A0238 (2013).

In that case, the father filed a petition for modification of child support, claiming he had lost his job. Following a hearing, the trial court found that the father had a gross monthly income of $3,400 and modified his child support accordingly. The mother appealed, arguing that “the finding of gross monthly income is clearly erroneous.” Id. Upon review of the record, the Georgia Supreme Court agreed with the mother.

It seems that, at the hearing, the father testified that he “brought home about $3,400 each month.” Id. Upon a request for clarification, the father testified that he was not speaking of his gross income, but rather was referring to the amount that he brought home each month. The father then confirmed in his testimony that his gross monthly income was closer to $5,000 per month. Id.

As a result, the Georgia Supreme Court held that “[t]he evidence contained in the record does not support – and, in fact, clearly contradicts – the finding of the trial court” regarding the father’s gross income. Id. As such, it must be reversed and remanded to the trial court for a proper calculation of gross monthly income to determine if the modification is warranted.

July 12, 2013

Life Insurance and Child Support in Georgia

Georgia law specifies exactly how child support is to be determined. There is a specific calculation that considers gross income, health insurance premiums, and extracurricular activities (among other things) to determine the noncustodial parent’s child support obligation. But what happens if one parent passes away before the children reach the age of majority? Georgia law addresses this issue by allowing for a life insurance provision in the child support order.

Specifically, in any Georgia child support case, “the court may include in the order of support provision for life insurance on the life of either parent or the lives of both parents for the benefit of the minor children. The court may order either parent or both parents to obtain and maintain the life insurance.” OCGA §19-6-34(a). The order for child support “shall not require maintenance of life insurance for a child's benefit after the child reaches the age of majority and shall not require that the proceeds of life insurance be available for the benefit of a child after the child reaches the age of majority.” OCGA §19-6-34(c). However, the court “may direct either or both parents to maintain life insurance for the benefit of a child who has not previously married or become emancipated, who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that maintenance of such life insurance for the benefit of the child shall not be required after a child attains 20 years of age.” OCGA §19-6-34(d).

The purpose of maintaining a life insurance policy is to cover a parent’s child support obligation in the event of that parent’s untimely death. If the parent who passes away were the child support payor, the policy would, presumably, cover the remaining child support obligation. If the parent who passes away were the custodial parent receiving the child support, this would also cover the remaining child support obligation, as the other parent would then become the custodial parent.

Often, divorce settlement agreements include a clause requiring both parents to maintain a life insurance policy of a specified amount listing the children as beneficiaries of that policy and the former spouse as Trustee of the insurance proceeds. Georgia law specifically allows parents “to enter into an agreement for the provision of life insurance that differs from or exceeds” the terms of the law. OCGA §19-6-34(e). Thus, parents can negotiate for whatever life insurance terms they desire, and include those terms in a settlement agreement.

June 24, 2013

Child Support and Visitation

In Georgia, the duty to pay child support has nothing to do with visitation. Thus, visitation cannot be withheld for failure to pay child support. Consider a situation where a final divorce decree awarded primary physical custody to the mother, with the father paying child support and receiving generous visitation with his children. If the father falls behind on his child support obligation, he is in contempt of the court order. The proper remedy for the mother is to file a Petition for Contempt against the father.

Often times, rather than filing a Petition for Contempt, the mother may seek to “retaliate” against the father for failing to pay child support by refusing him visitation with the children. This is not a recommended remedy, as it will result in the mother also being in contempt of the court order, and the father could file a Petition for Contempt against her for failing to abide by the visitation schedule.

Conversely, if your ex-spouse is refusing to honor the visitation terms of the final divorce decree, you cannot retaliate by refusing to pay child support. While it is certainly frustrating when your ex-spouse ignores or disobeys the terms of the court order, you will look much better to the court if you come in with your hands clean and are fulfilling your obligations under the order.

June 17, 2013

Georgia Child Support - Willful Unemployment or Underemployment

In determining a Georgia child support obligation, the first item to be determined is the gross incomes of both parents. In considering the evidence for gross income, the court will determine whether either parent is willfully unemployed or underemployed – meaning, whether either parent could reasonably be earning more money to contribute to child support. In making this determination, the court “shall ascertain the reasons for the parent’s occupational choices and assess the reasonableness of these choices in light of the parent’s responsibility to support his or her child and whether such choices benefit the child.” OCGA §19-6-15(f)(4)(D). A determination of willful or voluntary unemployment or underemployment “can be based on any intentional choice or act that affects a parent’s income,” not solely a parent’s intent to avoid or reduce child support payments. Id.

In making this determination, “the court may examine whether there is a substantial likelihood that the parent could, with reasonable effort, apply his or her education, skills or training to produce income.” Id. Georgia law lists several factors for the court to consider:

1. The parent’s past and present employment
2. The parent’s education and training
3. Whether unemployment or underemployment for the purpose of additional schooling or training is reasonable
4. A parent’s ownership of valuable assets and resources that appear inappropriate in light of the income claimed
5. The parent’s health and ability to work outside the home
6. The parent’s role as caretaker of a child of that parent, a disabled or seriously ill child or adult child, or any other relative, which eliminates or substantially reduces the ability of that parent to work outside the home

OCGA §19-6-15(f)(4)(D)(i-vi).

Consider the example of a parent who has a graduate degree and previously worked as CEO of a large corporation who has chosen to have a less stressful job working at a fast food restaurant. In applying the factors above, a Georgia court would likely conclude that this parent was voluntarily underemployed. Regardless of whether the intent was to reduce his/her child support obligation, the Court will likely require the parent to attempt to a job in line with his/her past employment and training.

May 27, 2013

Georgia Child Support - What is excluded from "gross income"?

In Georgia, the first step in determining a child support obligation is to “determine the monthly gross income of both the custodial parent and the noncustodial parent.” OCGA §19-6-15(b)(1). In a previous post, we discussed what is included as “gross income” for purposes of the child support calculation. There are also several categories of “income” that are excluded from the calculation. These exclusions are:

1. Child support payments received by either parent for the benefit of a child of another relationship. OCGA §19-6-15(f)(2)(A).

2. Benefits received from means-tested public assistance programs – Examples include PeachCare for Kids Program, Temporary Assistance for Needy Families Program, food stamps, supplemental security income, benefits received under Section 402(d) of the federal Social Security Act for disabled adult children of deceased disabled workers, and low income heating and energy assistance programs. OCGA §19-6-15(f)(2)(B).

3. Foster care payments paid by the Department of Human Services or a licensed child placing agency for providing foster care to a foster child in the custody of the Department of Human Services. OCGA §19-6-15(f)(2)(C).

4. A nonparent custodian’s gross income. OCGA §19-6-15(f)(2)(D).

While the items excluded from gross income are not as numerous or complicated as those included in gross income, it is usually worth it to have an experienced family law attorney review your child support worksheets to ensure that your gross income is reported properly. This will, in turn, help guarantee that you are paying or receiving the proper amount of child support.

May 24, 2013

Georgia Child Support - What is included in "gross income"?

In Georgia, the first step in determining a child support obligation is to “determine the monthly gross income of both the custodial parent and the noncustodial parent.” OCGA §19-6-15(b)(1). While this sounds fairly straightforward, calculating a parent’s gross income may be a complicated process as there are several categories of “income” that are included:

1. Attributable income – Includes salaries; commissions, fees and tips; income from self-employment; bonuses; overtime payments; severance pay; recurring income from pensions or retirement plans; interest income; dividend income; trust income; income from annuities; capital gains; disability or retirement benefits from SSA; workers’ compensation benefits; judgments recovered from civil actions; gifts of cash, or which can be converted to cash; prizes; lottery winnings; alimony or maintenance from other parties; assets used for the support of the family. OCGA §19-6-15(f)(1)(A).

2. Self-employment income – Refers to “income from, but not limited to, business operations, work as an independent contractor or consultant, sales of goods or services, and rental properties, less ordinary and reasonable expenses necessary to produce such income. Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership, limited liability company, or closely held corporation is defined as gross receipts minus ordinary and reasonable expenses required for self-employment or business operations.” OCGA §19-6-15(f)(1)(B).

3. Fringe benefits – Refers to income or “in kind” remuneration received by a parent in the course of employment that significantly reduce that parent’s personal living expenses. OCGA §19-6-15(f)(1)(C). Examples include a company car or housing.

4. Variable income – Includes commissions, bonuses, overtime pay, dividends, etc. are “averaged…over a reasonable period of time” and added to a parent’s salary to determine gross income. OCGA §19-6-15(f)(1)(D).

5. Military compensation and allowances – Includes base pay, drill pay, basic allowances for subsistence, whether paid directly or received in kind, and basic allowance for housing, whether paid directly or received in kind. OCGA §19-6-15(f)(1)(E).

If you or your spouse has a gross income that includes several of these categories, you will be best served to have an experienced family attorney help you with your child support calculation. This will ensure that you and your spouse are properly reporting your incomes, and that the proper amount of support is received for the children.

May 17, 2013

Duration of Child Support in Georgia

Family law attorneys deal with child support issues every day. A common question asked is: How long do I have to pay child support? Fortunately, Georgia law makes this clear. Specifically, the law says “[t]he duty to provide support for a minor child shall continue until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs.” OCGA §19-6-15(e). One caveat to this rule is that, in any child support order entered on or after July 1, 1992, the court “may direct either or both parents to provide financial assistance to a child who has not previously married or become emancipated, who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that such financial assistance shall not be required after a child attains 20 years of age.” Id. Presumably, this clause was added to cover a situation where a child turns 18 in August, but will still be attending high school and living in a parent’s home until the end of the school year, 10 months later.

Despite the language in the statute, parties can agree to a longer child support duration in their settlement agreement, if they choose to do so. For example, the parties could have a clause in their settlement agreement stating that one or both parties must pay for college. A court, however, is unable to require either or both parties to pay for college. Thus, if this is something that is important to you, make sure the language is in your settlement agreement because, if you go to court to try to make your spouse pay for a child's college expenses, you will be unsuccessful.