Atlanta Divorce Attorney Blog

This week brings the annual Family Law Institute for Georgia family law attorneys. During this three day seminar attorneys and judges get together and get to know each other in a casual environment, rather than the traditional adversarial role. One of the speakers on the first day, Judge Steve Jones from Athens, Georgia raised a particular concern about the fiscal year 2010 budget that I thought should be shared with the community at large. He noted that the fiscal year 2010 budget (as approved by the Georgia House of Representatives and Senate) provided for several major adjustments including an overall reduction in funding for Superior Courts by nearly five percent with significant reductions in senior judge usage, law clerks, operating expenses, and on and on. While I recognize that the current economic times mean that cuts are inevitably going to be required, this is a particularly alarming concern.

While these budget cuts are obviously going to negatively affect the Superior Court system, what is perhaps as alarming is that the number of cases going though our court system continues to substantially increase. According to the Georgia Administrative Office of the Courts, Planning and Research Division, the number of domestic relations cases, and the overall court docket, continues to increase – up over six percent since last year. As you can imagine, the decline in the economy has resulted in an increase in divorces (due to financial problems), parents seeking child support and alimony modifications, increased “deadbeat” parent cases, and of course more foreclosure confirmation and general debt collection cases.

So what does this mean to you? With increasing demand and less funding, I think it is fair to say that we will face greater court backlog, more crowded court calendars, and potentially even a decrease in the effectiveness and efficiency of the courts.

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.

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There are several do-it-yourself, uncontested divorce web sites for people to download forms to help them with their divorce in Georgia. We have had several people contact us recently about helping them finalize their divorce in Cherokee County. In each case they had paid an online, self-help web site to put together their forms to file for divorce. The couples had fortunately mediated their issues and entered a divorce agreement without hiring a Canton or Woodstock divorce lawyer. The problem arose when they went to the Judge to approve their uncontested divorce. Their Cherokee County divorce paperwork did not meet the requirements for the Court to approve their divorce, and the Court recommended that they hire a Canton, Georgia divorce lawyer to finalize their divorce.

In the end, they had to hire a Canton divorce attorney to get their uncontested divorce approved. So, to answer the question posed in the title of this blog, I would have to say that it depends on how much money they spent. On a positive note, the divorce paperwork they received from the web site allowed them to settle all of their issues on their own without the need for a divorce lawyer. From this perspective, the money they spent was probably worth it.

For the divorcing couple considering spending money on a self-help divorce web site, they need to consider whether the web site is familiar specifically with the rules of the County in which they are filing for a divorce. For the divorces in Cherokee County, I would suggest that if they spend the money on a divorce web site to try to settle their issues, they should take their divorce paperwork to a Canton or Woodstock divorce lawyer in Georgia to review the paperwork prior to submitting it to the Judge. The divorce lawyer can make sure that it meets the requirements of the Court. Otherwise, the divorcing couple may miss several days of work going to Court to get their divorce finalized. Moreover, it could delay the divorce being granted by months.

If you have been on your spouses’ health insurance policy during your marriage, you will most likely not be able to remain on the policy after the divorce. Conversely, if you have traditionally carried your spouse on your health insurance policy, you will most likely not be able to continue that coverage, even if you want to do so. This is because divorce is considered to be a qualifying event terminating coverage for a former spouse.

This does not mean that an unemployed spouse will be without health insurance coverage. A person who has been on his or her spouse’s health insurance policy may have the right to apply for health benefits through the former spouse’s current place of employment. Pursuant to COBRA legislation, non-employee spouses may be eligible for certain insurance coverage at group rates after the divorce is final. The insurance can continue up to 36 months, depending on your situation and the premiums should not exceed 105% of the current group rate.

However, a divorced spouse under the terms of a group insurance policy has only thirty (30) days from the date of the divorce to apply and pay for additional conversion policy for himself/herself and sixty (60) days from the date of the qualifying event, such as a divorce, to notify the health insurance administrator for purposes of continuation coverage. Only if you file within that time period will you be eligible for COBRA coverage. Please check with your former spouse or through their employer immediately, as federal statutes and deadlines may (and often do) change.

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.

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A friend of mine recently asked me - who is the best divorce lawyer in Atlanta? While of course my ego wanted to say me, I thought better of it than giving that self-serving answer. As I pondered the question more and thought through the numerous divorce attorneys that I have dealt with struggling to find the best answer to that question, only more questions came to my mind.

The first question was - how do you measure what makes a great divorce attorney? Of course that question only lead to the next logical question of - what things do divorce attorneys actually do? Fortunately, I had a lot of knowledge in that area. Divorce attorneys meet with clients, opposing attorneys, judges, and juries. They write letters, motions, and briefs. They argue positions and advocate for clients. They research statutes and case law as well as facts underlying cases. They are required to review complex financial and businesses documents. They must have excellent negotiation skills. And they must have excellent advocacy skills for when negotiations fail. And the list (that probably any first year law student could name) goes on and on … and hardly served to answer the question.

So I tried a different approach, what traits are most important in handling a divorce case. So I thought through the numerous cases I have handled over the years looking for what common traits existed in each case. Certainly in some cases it helped my client being more aggressive. Yet in others, it helped be less aggressive. In some cases, it was better to stay diligent (if not tenacious) in researching the factual grounds in a case. In others it was better to lay back and avoid wasting attorney’s fees. In some cases clients needed a sympathetic and understanding approach. In others, they needed a tough approach with someone that strongly suggested what they should do (or stop doing). Again, I started to realize that the answer was not going to be found with this approach.

So I did what comes natural to an attorney – I started researching what others were writing on this subject. And I read and read and really did not find that anyone was saying much substantive on the subject. So much for that idea.

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Each person reacts differently when he or she is served with a Complaint for Divorce. Some people are shocked and rendered speechless while others may remain calm. The best advice that we can give to you is not to panic. As we mentioned in a previous blog, there are three ways that someone can be served with a Complaint for Divorce in Georgia. If you were personally served, you were either handed the Complaint and Summons from a Deputy from your county’s Sheriff Department or by a private process server, who is someone in plain clothes who is authorized by the court to serve the paperwork. You may also have received a package from your spouse’s attorney with a copy of the Complaint and Summons as well as an Acknowledgment of Service form. According to O.C.G.A. § 9-10-73, you can sign an Acknowledgment of Service form in front of a notary and you do not need to be served by the Sheriff or a private process server because you are waiving additional service.

Once service is effectuated on you, whether you are personally served or you acknowledged, it is important to know that the clock on your case starts running. Once you are served, we recommend that you contact an experienced family law attorney to explain the next steps in the divorce process. If you have children, we highly recommend retaining an attorney, such as the ones in our firm, to represent you. It is very important that you are aware of the upcoming deadlines and do not miss any of them. According to O.C.G.A. § 9-11-12(c), you have thirty days from the date on which you were served or acknowledged service to file an Answer with the Clerk of Court, which is basically a written response to your spouse’s Complaint for Divorce. It is important to calculate the date on which it is due and to keep track of this date on a calendar so you do not miss this important deadline. When you are preparing your Answer, you must respond to each individual paragraph in the Complaint. If you agree with one of the paragraphs of the Complaint, then you would put “admit”. If you disagree with one of the paragraphs, however, you would put “deny”. Also, you can file a counterclaim according to O.C.G.A. § 9-11-13(a).

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While we spend a lot of time in this blog talking about various divorce sub-topics in Georgia, most people coming into our office at the very beginning just want to know basically what is happens in a divorce in Georgia. While I think everyone know the obvious fact that a divorce ends a marriage, some of the major components are not as obvious.

From a big picture legal point of view, a divorce involves a division of marital assets and, when appropriate, an award of alimony. When children are involved, a divorce also resolves how custody and visitation with the children will be handled as well as determines the amount of child support that must be paid. While each of these issues can be fairly complex, a divorce really is as simple as making these basic determinations.

Procedurally, a divorce starts with the filing of a complaint which is then served upon the other spouse. From there, the spouse that was served with the notice of the lawsuit has thirty (30) days to file an answer (and possibly counterclaims). Once the answer is filed, the parties begin what is generally known as the discovery period where each party has the ability to ask written and oral questions to the other spouse (as well as third parties) about information related to the divorce action. Also, the discovery period allows each spouse to request that various documents be copied and turned over for their review.

At the conclusion of the discovery process, the Court generally entertains any motions by the parties and sets the case up for a final trial (either with or without a jury). Once the final trial occurs, the court then makes a final ruling addressing each of the legal points discussed above. Of course, at any point along the way, the parties are free to try and decide any or all of the issues themselves and there are various alternative dispute resolution mechanism in place to help the parties amicably resolve their differences.

According to O.C.G.A. 19-5-2, you must reside in the State of Georgia for a period of six (6) months before you can file for divorce. You would need to file the Complaint for divorce in the county in which your spouse resides.

If you live in the State of Georgia and your spouse resides out of state, you can still file for divorce in Georgia in the county in which you reside; however, your spouse would need to waive jurisdiction and venue in the state and county where he or she resides.

This is an often asked question that unfortunately, does not really have an answer. The reason for this is the delay for a divorce to occur in Georgia is not really a statutory delay. Technically, the proper answer is that Uniform Superior Court Rule 24.6(a) provides that the parties must wait a minimum of thirty-one days from the date of service (or date an acknowledgment of service is filed with the Court) prior to the Court being allowed to issue a decree of divorce. This technically correct answer is rarely the case in Georgia – especially in the metro Atlanta counties.

To better understand, it is important to understand what is required prior to a divorce being granted. Generally speaking, this means the parties must either agree to everything that is at issue in a divorce or have the court decide things for them through hearings and/or trials.

In regards to a settlement agreement, the biggest difficulty is the parties must reach an agreement on all issues pending in their divorce. While in an ideal world this sounds like (and generally is) the better way to handle a divorce, it is often difficult for two parties that are dealing with the numerous emotional and financial issues that surround a divorce to reach an agreement on everything. Of course, this entire process of presenting offers and counteroffers can become time consuming and often takes longer than the thirty day mandatory waiting period in Georgia because attorneys take time to careful draft and review proposals sent by each other and sometimes involve third party mediators to help facilitate negotiations. In addition, even once the parties agree, it may take weeks or even months for a judge to be able to review and finally approve a settlement agreement and final divorce depending upon his or her schedule and the volume of other cases that judge is handling.

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