Atlanta Divorce Attorney Blog

Under the Georgia Child Support Guidelines, expenses for a child’s health insurance premiums are included in the child support calculation. OCGA §19-6-15(h). The total health insurance premium is prorated between the parents based upon their respective incomes on the child support worksheets. The health insurance premium gets added as an adjustment to the basic child support obligation as an “additional expense” on the Child Support Worksheets. OCGA 19-6-15(h)(2)(A). The total premium is then divided pro rata between the parents and the end result is that the payor gets credit toward his/her child support obligation for the amount paid. Thus, the child support obligation is lowered by the amount of the premium for which the other parent is responsible.

For example, if the father makes $40,000 per year and the mother makes $60,000 per year, and the health insurance premium is $100/month, the father will be responsible for $40 and the mother will be responsible for $60. If the father is the child support payor and he is the one paying the premiums, his child support obligation will be lowered by $60/month, which is the amount of the health insurance premium for which the mother is responsible.

An important issue for many parents is how payment for children’s extracurricular activities is handled in relation to child support. The Georgia Supreme Court recently addressed this issue in Turner v. Turner. Turner v. Turner¸ 285 Ga. 866 (2009). In that case, after nine years of marriage and two children, the parties divorced with the mother receiving primary custody of the children and the father obligated to pay child support. In addition to his child support obligation, the father was ordered to pay 2/3 of the children’s extracurricular activities. The father appealed, contending that he was “paying twice for the cost of extracurricular activities because such costs are included in the presumptive amount of child support.” Id. at 867.

The Georgia Supreme Court agreed, stating that “[t]he language of OCGA § 19-6-15 (i) (2) (J) (ii) makes clear that a portion of the basic child support obligation is intended to cover average amounts of special expenses for raising children, including the cost of extracurricular activities.” Id. The Court referred further to the child support statute, clarifying that if the trial court determines that the full amount of special expenses (which includes extracurricular activities) exceeds 7% of the basic child support obligation, the additional amount must be considered a deviation addressed on Schedule E of the Child Support Worksheets with specific findings as to why such deviation is necessary. Id. The Georgia Supreme Court stated that the way the trial court handled extracurricular activities, by including an additional provision in the final judgment and decree of divorce apportioning them, was improper under the current child support guidelines.

The treatment of extracurricular activities is an important concept to keep in mind. In looking at a requested deviation for these activities, the court is going to want and need justification for these activities, especially if the payor is claiming that these activities are unnecessary for the children.

As technology changes our world, it also changes our Child Support and Paternity laws here in Georgia. Typically, in a parent cannot waive their right to receive child support, nor can another be released from their obligation to pay child support in Georgia. Worthington v. Worthington , 250 Ga. 730, 731 (1) (301 SE2d 44) (1983); Dept. of Human Resources v. Mitchell , 232 Ga. App. 215, 216-217 (1) (501 SE2d 508) (1998). But, artificial insemination has created an exception to that law. The Supreme Court of Georgia has ruled that, in Georgia, biological paternity does not create a responsibility to provide support in cases of artificial insemination. Pruitt v. Lindsey, 261 Ga. 540, 541 (2), n. 2 (407 SE2d 750) (1991).

This issue was taken up again in Brown v. Gadson, 288 Ga. App. 323 (654 SE2d 179) (2007), and the Court of Appeals affirmed that artificial insemination does not create a responsibility to provide support, especially when the mother and sperm donor enter an agreement. This case had a slight twist because the agreement was made in Florida, and under Florida law, these agreements are valid and enforceable. Fla. Stat. § 742.14; see also Lamaritata v. Lucas, 823 S2d 316, 319 (Fla. App. 2002) (holding under the foregoing statute that “[a] person who provides sperm for a woman to conceive a child by artificial insemination is not a parent”).

If you are working on settling an Atlanta divorce with your spouse and trying to determine the amount of child support to pay, you need to keep in mind one key factor. The amount of child support in Georgia must be reasonable and if you are deviating from the presumptive amount in the child support worksheets, you have to be able to explain the reasons for the deviation to the Atlanta divorce judge. If you cannot, he or she will most likely reject your settlement. The reason is that the right of child support belongs to the child and cannot be waived by an agreement of the parents. Worthington v. Worthington , 250 Ga. 730, 731 (1) (301 SE2d 44) (1983); Dept. of Human Resources v. Mitchell , 232 Ga. App. 215, 216-217 (1) (501 SE2d 508) (1998).

An Atlanta Divorce Lawyer can help you make sure that your agreement with your spouse is one that the Court’s will accept. This will save you the pain and inconvenience of going to Court several times in the hopes that you have put together your paperwork in a manner that will be acceptable to your Atlanta Divorce Judge. Some attorneys, such as those at our Atlanta Divorce Law Firm will even offer a flat fee for this service.

On January 28, 2009, the Georgia Court of Appeals affirmed the decision of the Gwinnett County Juvenile Court regarding the modification of a temporary child support award in a deprivation case. In In the Interest of R.F. (A08A1683), a biological mother’s five children were found to be deprived and removed from her custody, and she was ordered to pay child support to the temporary custodians. She alleged that the trial court erred by treating her motion as one for modification of child support rather than a final child support order, ignoring statutory guidelines in determining the child support amount, and in refusing to modify the previous order.

The Court of Appeals rejected the mother’s argument that her petition was one for a final child support order. The Court questioned whether a juvenile court was the proper jurisdiction for a final child support order, but rested its holding on the fact that there had been no final disposition of the deprivation proceedings and, thus, there could be no final order.

The mother further contended that the trial court erred in treating funds from trust proceeds as her income for purposes of a child support determination. The Court of Appeals easily dismissed this argument, citing to O.C.G.A. §19-6-15(f)(1)(A)(x), which states that both trust income and gifts that consist of cash should be included in calculating gross income for child support purposes.

In addition, the Court of Appeals affirmed the trial court’s ruling in refusing to modify the child support amount. Interestingly, though the mother was trying to modify her support obligation downward, she argued that the substantial change warranting modification was the fact that the children had increased educational expenses. The Court simply stated that “the fact that the needs of the children have increased cannot serve as the basis for decreasing the amount of child support a parent is obligated to pay” and found no other basis for downward modification, based upon the evidence presented at trial.

On November 17, 2008, the Supreme Court of Georgia reaffirmed long standing case law that it will not set aside a trial court’s factual findings unless they are found to be clearly erroneous. In Vereen v. Vereen (S08F0736), the Husband in a Gwinnett County divorce action contended that the trial court failed to consider evidence in making its rulings on child support, alimony, attorney’s fees and a tax debt, and failed to enforce a temporary order in the case.

Specifically, the Husband alleged that the trial court erred in its determination of his income, determination that his age and health conditions did not affect his ability to pay child support, and allocation of responsibility for a $27,000 tax debt to him. The Supreme Court found that the trial court specifically considered extensive evidence on these issues including testimony from the Husband regarding his income and health, evidence regarding his payment of the mortgage and other bills, evidence of his major cash purchases, and evidence that the tax debt was his alone. Satisfied that the trial court did not err, the Supreme Court declined Husband’s request that the trial court’s Order be overturned.

The Husband further alleged that the trial court erred in failing to enforce a temporary order in the case. To this allegation of error, the Supreme Court simply states that “the record reflects no motion by Husband to hold Wife in contempt for having allegedly failed to comply with this order” and “[w]ithout a ruling from the trial court on this issue, there can be no finding of error.”

On November 13, 2008, the Georgia Court of Appeals issued a ruling in Kean v. Marshall (A08A0828) regarding the issue of proper jurisdiction for a child support modification action. The original child support Order was in Alabama, but the Mother sought to record and modify the Order in Georgia pursuant to the Uniform Interstate Family Support Act (UIFSA). The Mother filed her Petition in Henry County, Georgia, contending that the Father resided there and was, therefore, subject to jurisdiction. The trial court denied the Father’s motion to dismiss the action due to lack of jurisdiction and entered an Order modifying the child support amount.

The Court of Appeals reversed this ruling finding that the evidence reflected that the Father was domiciled in Alabama. The Court of Appeals placed emphasis on the fact that the Father “was registered to vote in Alabama, has always paid Alabama income taxes, has an Alabama driver’s license, and cares for his elderly father in Alabama.” There was also extensive evidence that the Father considered Alabama to be his home and intended to remain there, despite his military placement. Though the Mother argued that he resided in Georgia because he spent time there in the military and entered into an apartment lease while he was there, the Court of Appeals specifically found that the term “reside” does not mean “domiciled,” and that a person’s domicile is the place where the person resides with an intent to remain permanently or for an indefinite period of time. In reversing the trial court’s ruling, the Court of Appeals held that “[t]he proper focus is whether the record contained evidence that [the Father] took any action to change his residence from Alabama to Georgia, and the record is devoid of evidence showing any such action.”

Interestingly, in this case, the Order modifying child support was based upon an agreement by the parties with the Father reserving his right to appeal based on lack of jurisdiction.

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. § 19-6-28.1(b), the licensing agencies in Georgia can revoke or suspend someone’s license if he or she is in arrears behind in paying child support for a period of more than sixty days. Not only can the Georgia Department of Driver Services suspend someone’s drivers license, but the person’s professional license, such as a license to practice medicine. A business license as well as hunting and fishing licenses can also be suspended. Also, if the non-paying parent applies for the license, the application can be denied based solely on the fact that he or she is in arrears with child support. Georgia is not the first state to implement such a drastic law to punish parents who are in arrears. For years, the states of Ohio, Tennessee, and Arizona, have suspended drivers licenses because someone owes back owed child support to their ex-spouse.

When this law comes into effect in July, there are going to be those who support the law and who oppose it. Some people may feel that it is unfair because if they don’t have a driver’s license, then they cannot get to work to earn the money to pay child support. Prior to revoking or suspending someone’s license, the court will notify the person who is in arrears. If he or she is able and willing to cooperate with the court to make their child support obligation current and to provide evidence to the court, then the court will consider this and may not revoke or suspend his or her license according to O.C.G.A. § 19-6-28.1(b). This law is meant only to punish those who do not plan on becoming current with their child support obligations. Once the court has contacted the person and has determined that he or she is not going to pay the back owed child support, then the court will enter into an order and contact the licensing agency for the person’s failure to pay child support. If the licensing agency revokes or suspends his or her license, then the licensing agency will contact the court according to O.C.G.A. §19-6-28.1(b).

Continue reading "Penalties for not paying child support in Georgia: License revocation" »

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" »

Starting on January 1, 2007, the formula for calculating child support in Georgia changed drastically. For details, see our previous post on how to calculate child support in Georgia. In addition to the incomes of both parties and necessary expenses (i.e. health insurance and work related child care costs), the Court can consider several deviations in calculating the non-custodial parent’s child support obligation.

One deviation that has come up often since the implementation of the new child support guidelines is the Parenting Time Deviation. The child support obligation table at the beginning of the child support worksheets takes into account expenses in an intact household. Thus, according to Georgia law, this deviation is applicable “when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time as set forth in the order of visitation or when the child resides with both parents equally.” O.C.G.A. §19-6-15(i)(2)(K)(i).

The Parenting Time Deviation is in the Court’s discretion and the Court is required only to consider the best interests of the child in making its determination. Further, a Parenting Time Deviation cannot be awarded if it seriously impairs the ability of the custodial parent to provide basic necessities, such as housing, food and clothing, for the children.

We recently had a case where the Father/Non-Custodial Parent had visitation time with the minor child totaling approximately 159 days per year, which is greater than “standard” visitation time. In spite of the fact that his income was nearly 6 times that of the Mother, he received a Parenting Time Deviation. The court in Forsyth County essentially held that he would have increased expenses due to his increased visitation time for which he would need additional expendable income and, thus, found this deviation to be warranted.

Due to the recent enactment of the new child support guidelines, there is not yet significant precedent on how the Judges are handling the Parenting Time Deviation. What is clear, however, is that when arguing for or against this deviation, the most important consideration is the best interests of the children.

On November 17, 2008, the Supreme Court upheld Judge Batchelor’s (Gwinnett Superior Court) decision in regards to the amount of child support and alimony awarded in the case. Although the case is generally unremarkable, it did re-emphasize a point that is often overlooked by individuals that are proceeding forward with divorce, child support, alimony and other family law types of matters.

In particular, the court held that: “The standard by which findings of fact are reviewed is the ‘any evidence’ rule, under which a finding by the trial court supported by any evidence must be upheld. Furthermore, in the absence of any mathematical formula, fact finders are given a wide latitude in fixing the amount of alimony and child support… under the evidence as disclosed by the record an all the facts and circumstances of the case.” The Supreme Court also noted that “this court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses.”

As I was reading the opinion, it reminded me that while attorneys are very well aware of these types of statements from the appellate courts in Georgia, most of our clients are not. In essence, what they mean is that the Supreme Court of Georgia and the Court of Appeals in Georgia rarely overturn trial court decisions on factual matters. Knowing this, and knowing that nearly all trials on family law matters come down to factual disputes, it emphasizes the point that if you want to prevail with your family law matter in Georgia, you must convince the fact finder of your factual allegations because they, in all likelihood, will be the sole determiner for the outcome of your case and you will not get a second bite at the apple.

In Georgia, child support orders may be modified upon a showing of a substantial change in either parent’s income or financial status, or in the needs of the children. O.C.G.A. §19-6-15(k)(1). A substantial change could include the loss of a job, decrease in income, increase in income, increase in the medical needs of the children, increase in the educational needs of the children (i.e. private school, tutoring, etc.), or decrease in the needs of the children (i.e. child no longer needs day care). This substantial change must occur between the date of the divorce decree or previous child support action and the filing of the new petition for modification of child support.

Generally, you can only bring a child support modification action once every two years so keep this in mind when deciding whether or not to file a modification. The two year limitation does not apply from the date of your divorce decree, but rather from the date of your last modification. In other words, you could bring a modification action within a few months of your divorce decree, but you would have to wait two years after that modification action before you could come back to court again. There are three exceptions to this two year rule: (1) If the non-custodial parent has failed to exercise court ordered visitation; (2) if the non-custodial parent has exercised more visitation than provided in the court order; or (3) the modification action is based upon an involuntary loss of income. O.C.G.A. §19-6-15(k)(2)(A) – (C).

Any modification of these orders must be done prospectively. This means that the Court can only modify these orders from the date of the filing of a petition. The Court cannot retroactively modify court orders from the date of the substantial change.

Our first in this series on child support analysis will focus on the impact of looking at BOTH parents’ incomes in determining child support, the major change in the 2007 child support guidelines in Georgia. This example will assume no deviation factors in its analysis.

Our example will look at a couple in Alpharetta, Georgia getting a divorce. The father currently makes $100,000 per year ($8,333 per month). The mother is currently a stay at home mom raising their two children and will be the primary physical custodian of the children after the divorce. Using Georgia’s Child Support Calculator, the father will pay $1,578 per month in child support for his two children.

But what happens if we changed our fact scenario just slightly and assumed that the mother was making a salary. For example, assume that the mother was making the following amounts per year:

$24,000 - Child support would be lowered to $1,454.12 per month.
$50,000 - Child support would be lowered to $1,356.73 per month.
$100,000 - Child support would be lowered to $1,194.00 per month.

As you can see, looking at both parents' incomes can have a substantial impact on the amount of child support under the new child support guidelines. For more information, see our previous post on How to Calculate Child Support in Georgia.

On November 3, 2008, the Supreme Court of Georgia reached decision by a 4 to 3 vote, that held a party could seek a declaratory judgment as to his obligation for PAST due child support. Acevedo v. Kim f/k/a Acevedo, S08A0798 (11/3/08). While this decision is perhaps more important for lawyers handling cases to understand, it does emphasize some interesting legal principals.

Prior to discussing the case further, it is important to understand what a declaratory judgment is. A declaratory judgment is, among other things, a procedural mechanism litigants use to determine their “rights and obligations under a divorce decree that is unclear”. Acevedo. It is used to remove a party from the “risk of taking some future action that, without direction, would jeopardize his interest”. Acevedo.

The unique question before the Supreme Court in this matter was whether it was appropriate for to ask for a declaratory judgment for PAST due child support obligations. The majority opinion held that since there was a very real risk that he would be brought up on charges of contempt of court, “he needed direction from a judicial tribunal to remove the uncertainty regarding the consequences of his planned future actions.” A very strong dissent argued, however, that since the support at issue only involved previously owed arrearages, then “the logical consequence of this contrived construction would be the seeking of declaratory judgment as a defense to the payment of any found obligation or debt, thus spawning unnecessary and spurious litigation”. Acevedo.

While it remains to be seen what develops from this recent case, the close decision and unique construction of what is grounds for a declaratory judgment suggests that this will not be the last time we visit this issue in Georgia.

Starting on January 1, 2007, the formula for calculating child support in Georgia changed drastically. Up until that point, Georgia was one of the last remaining states that evaluated only the income of the non-custodial parent when it calculated child support. With the passage of a new law, Georgia changed ended its prior methodology and instead adopted an income-sharing approach to determine child support.

Under the new law, codified as O.C.G.A. § 19-6-15, both the Mother’s and the Father’s incomes are now used to calculate support. In summary, the court now determines what is the annual gross income of both parties (or imputes what it believes said income should be based upon a parties education and work experience) and runs those numbers through a support calculator to determine the amount of child support a non-custodial parents should pay. For your use in evaluating child support, here is a link to the official Georgia Child Support Calculator and Worksheets.

If you have ever started to use this calculator you will quickly find that determining each party’s annual gross income is not the end of the analysis for determining child support. In particular, O.C.G.A. 19-6-15(b)(8) has delineated eleven deviations that the court can take into account when calculating child support. These factors are:

1. High income;
2. Low income;
3. Health related insurance;
4. Child and dependent care tax credit;
5. Travel expenses;
6. Alimony;
7. Mortgage;
8. Permanency plan or foster care plan;
9. Extraordinary expenses;
10. Parenting time; and,
11. Nonspecific deviations.

The Georgia Supreme Court issued an order today in Pineres v. George, S08A0773, which has several implications for Georgia law. First, it held that a trial judge has no authority in a contempt proceeding to modify the obligations imposed by a divorce decree. Second, the Georgia Supreme Court held that medical expenses constitute a form a child support.

Of note in this case, the modification being sought was in regards to the psychological expenses for the minor child and there had previously been a petition for modification of child support made less than two years ago. Because Georgia law prohibits a modification of child support less than two years after an order on a previous modification petition by the same spouse, it upheld an awarded of frivolous litigation fees under O.C.G.A. § 9-15-14 against the spouse that was now seeking to modify the amount of medical expenses that they had to pay.