Atlanta Divorce Attorney Blog

Simply put, joint custody means that both parents share equal input and/or spend equal amount of time with the child/children. Sole custody is essentially the opposite – when only one parent has the decision making power and the child or children live almost all of the time with that one parent. Custody is actually broken into two categories (physical and legal) and then labeled joint or sole within each category. Physical custody describes where a child lives most of the time and what parent will have visitation, whereas legal custody describes access to records and major decisions such as to schooling, religion, extracurricular activities and non-emergency health procedures.

It is most common to see joint custody in the category of legal custody. Joint legal custody means that both parents have input and should be involved in major decisions. Per O.C.G.A. § 19-9-1, (Georgia parenting plan law) there must be a designated tiebreaker or final decision maker if the parties cannot agree (usually the primary physical custodian). This prevents the parties from needing the Court’s intervention every time there is no agreement on any one issue.

In the category of physical custody, the parties must designate a primary physical custodian and typically do not label physical custody under the “sole vs. joint” designation. The primary physical custodian is the person the child/children live with most of the time and the noncustodial parent has visitation or parenting time. According to O.C.G.A. § 19-6-15 (Georgia child support law), even if the parties share equal amount of time with the child/children, the Court must still designate a primary custodian.

Continue reading "Child Custody: Joint Custody vs Sole Custody in Georgia" »

On January 29, 2009, the Georgia Court of Appeals reversed the decision of the trial court, which held that the Husband’s claim for indemnification under the divorce settlement agreement was barred by res judicata. In Stone v. Stone, (A08A2020), the parties separated on August 28, 2005 and the Husband filed for divorce shortly thereafter. During the pending divorce, the Wife obtained five cash advances from an equity line of credit on the marital home and used the money for her own personal expenses. The Wife disclosed this action prior to finalizing the divorce and the parties’ settlement agreement reflected that the Husband would retain the marital home, but that the Wife would be responsible for, indemnify and hold Husband harmless from any liability arising out of this debt.

After the trial court entered a final decree incorporating the terms of the settlement agreement, the Husband sued the Wife for indemnification on the equity line of credit. The trial court dismissed the action after the Wife argued that Husband’s claim was barred by the prior divorce action because it could have been resolved at that time. The Court of Appeals disagreed, stating that “the breach allegation was not – and could not have been – adjudicated in the divorce proceeding, which concluded when the parties settled the case…” The Court of Appeals did not reach the merits of the Husband’s claim, but reversed the trial court’s dismissal.

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.

If you are thinking about filing for divorce and you contact an attorney, one of the first questions they will ask you is whether your divorce is going to be contested or uncontested. Often, the answer to that question is not so simple.

Generally speaking, when we ask that question we are trying to determine whether you and your spouse have discussed some (or all) of the issues that may be involved in your divorce and how far apart the two of you have been in those discussions. If you and your spouse have worked out all of the issues, such as equitable division, alimony, and child support, prior to contacting an attorney, then your divorce will most likely be uncontested. From an attorney’s perspective, in an uncontested divorce, an attorney for one of the parties will draft a settlement agreement reflecting the agreement, both parties will review it, there will be minimal, if any, changes to the agreement, and then it will be ready for the parties to sign and file with the court.

A contested divorce, on the other hand, generally refers to a situation where you may not have spoken to your spouse about the issues in your divorce or that you have been unable to come to an agreement upon the terms of the settlement agreement. In this type of matter, your attorney will negotiate the terms of the settlement agreement (if possible) with your spouse or, if applicable, the opposing attorney. While certainly some of these types of cases ultimately lead to litigation and eventually a trial, it is important to understand that the vast majority of these “contested” cases result in the parties ultimately resolving their differences outside of a courtroom.

Sometimes, it is difficult to determine whether a divorce is uncontested or contested in the beginning and what may seem to be an uncontested divorce can ultimately turn out to be contested in the end. The key question is whether you perceive that you and your spouse can work things out over the course of a divorce, but whether you have already done so. Hopefully this blog gives you a little better idea of what an attorney is really asking when he/she asks if your divorce is contested or uncontested.