June 11, 2012

Refinancing a Mortgage Loan in Georgia After a Divorce

In Georgia, it often occurs that one party wishes to retain the marital home after a divorce. If the Husband and the Wife’s name are both on the mortgage loan documents as the borrowers, the question then becomes how to remove the name of the party relinquishing their interest in the home so that they are no longer liable for mortgage payments. Even in divorce situations, most lenders are unwilling to remove borrower’s names from loans because it leaves them less recourse in the event of a default or a foreclosure. To remove a party’s name in these situations, the loan either must be satisfied in full or the party wishing to retain the home must refinance.

When a home mortgage is refinanced, the existing mortgage is replaced by a new mortgage that has different terms. This process is frequently used to, among other things, achieve a better interest rate or consolidate debts. In a divorce situation where both party’s names are on the mortgage loan and one party is to retain the home, the party who is keeping the home is often required to refinance the mortgage into their name only. In today’s struggling real estate market, refinancing has become a problem due to the number of people who owe more on their home than it is worth. In these situations, a solution may be the Home Affordable Refinance Program (HARP).

HARP is a federally run program that allows eligible parties with mortgages owned or guaranteed by Fannie Mae or Freddie Mac to refinance their homes to a lower interest rate, even if they owe more on their mortgage loan than their home is worth. Eligibility requirements for borrowers wanting to utilize this program include, but may not be limited to: (1) zero missed payments in the last six months, (2) no more than one missed payment in the last twelve months, (3) a current loan-to-value ratio greater than 80%, and (4) no previous refinances under HARP. To determine if your current mortgage is owned or guaranteed by Fannie Mae or Freddie Mac, visit www.fanniemae.com/loanlookup and www.freddiemac.com/mymortgage.

If you are dealing with how to best address the issue of your marital home during a divorce, or are facing contempt action on a Final Judgment and Decree due to your inability to refinance the marital home, we recommend you contact one of our Atlanta Divorce Lawyers to assist you with this process.

By: Courtney H. Carpenter, Associate Attorney, Meriwether & Tharp, LLC

June 4, 2012

The continuing saga of enforcing a pre-nuptial agreement in Georgia

In the past, Georgia courts held that prenuptial agreements made in contemplation of divorce were invalid on the ground that they were contrary to public policy. Thankfully, this is no longer the case. See Scherer v. Scherer, 249 Ga. 635 (1982) overruling Reynolds v. Reynolds, 217 Ga. 234 (1961). Today, prenuptial agreements made in contemplation of divorce are regularly enforced by courts across the state. Though agreements in contemplation of divorce do not necessarily violate public policy, the distinction between agreements made in contemplation of divorce and agreements made in contemplation of marriage has continued.

Several recent cases have attempted to distinguish agreements made in contemplation of marriage from agreements made in contemplation of divorce. The former require attestation by two (2) witnesses under O.C.G.A. § 19-3-63, while the latter do not.

In Dove v. Dove, 285 Ga. 647, 647 (2009), the Court held that a prenuptial agreement settling alimony issues was a contract made in contemplation of divorce and only required the signature of one (1) witness. However, in Sullivan v. Sullivan, 268 Ga. 53 (2009), where an agreement set out property rights, defining each party’s respective estates without defining alimony or division of property in the event of divorce, the agreement was considered one made in contemplation of marriage and required the attestation of two (2) witnesses.

While O.C.G.A. § 19-3-63 requires that contracts made in contemplation of marriage must be attested to by at least two witnesses, this statute does not apply to prenuptial agreements made in contemplation of divorce. Lawrence v. Lawrence, 286 Ga. 309 (2009). In Lawrence, the trial court upheld a prenuptial agreement that was only witnessed by one person. The Wife appealed, claiming that O.C.G.A. § 19-3-63 required the signatures of two witnesses. The Supreme Court of Georgia affirmed the trial court’s decision and stated that an agreement that contemplates that the marriage may end by divorce or dissolution, rather than only death, is an agreement that is made in contemplation of divorce, not marriage. Lawrence at 311-312.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

June 1, 2012

Enforceability of a prenuptial agreement in Georgia

In Georgia, for a prenuptial agreement to be deemed enforceable it must pass a three-part test set forth in Scherer v. Scherer, 249 Ga. 635 (1982). This three-part test, as restated in Blige v. Blige, 283 Ga. 65, 67 (2008), reads as follows:

"[T]he party seeking enforcement bears the burden of proof to demonstrate that: (1) the antenuptial agreement was not the result of fraud, duress, mistake, misrepresentation, or nondisclosure of material facts; (2) the agreement is not unconscionable; and (3) taking into account all relevant facts and circumstances, including changes beyond the parties’ contemplation when the agreement was executed, enforcement of the antenuptial agreement would be neither unfair nor unreasonable."

The party seeking to enforce the pre-nupt carries the burden of demonstrating the above mentioned factors.

Under Adams v. Adams, 278 Ga. 521 (2004), to satisfy the first prong of the Scherer test, the enforcing party must show “a full and fair disclosure of the assets of the parties prior to the execution of the [antenuptial] agreement.” Courts have held that a failure to disclose yearly income may amount to the nondisclosure of a material fact. To avoid such problems courts have endorsed financial statements and statements of income as “the most effective method[s] of satisfying the . . . disclosure obligation in most circumstances.” Blige at 69, n.12.

Satisfying the second and third prongs of the Scherer test requires that the party seeking to enforce the pre-nup demonstrate that the agreement is not clearly unconscionable and that its enforcement would not be unfair.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

May 28, 2012

More Frequently Asked Questions: Georgia Divorce

Question: How do I prevent my ex-spouse from stopping alimony payments?

Answer: If your ex-spouse has a Court Order to may alimony, and a condition has not occurred in the Order that would allow him to terminate the alimony payments (ex: remarriage), then you can file for contempt against your ex-spouse after he stops paying. There is nothing you can do before he stops paying because he has not violated any Order.

Question: Can my attorney of many years, who has seen my mental health records, represent my wife in our separation agreement?

Answer: There is likely a conflict of interest here, especially if your attorney knows information that may impact the divorce proceedings. You may waive this conflict if you would like but, depending on your situation, it may be best for each of you to have separate attorneys.

Question: I want to remove my name from the deed on the house, but how can I make sure that my spouse refinances to remove my name from the home equity loans?

Answer: In this situation, I recommend that the parties arrange to refinance all the loans at once. Both parties can show up to the closing and the quitclaim deed can be signed at the same time the refinance documents are signed. Otherwise, I would not recommend a person signing a quitclaim deed when they still have liability on the house.

May 21, 2012

Service by Publication in Georgia

A problem sometimes faced by individuals in Georgia embroiled in either a divorce or a custody dispute with a spouse out of the state or country is how best to serve notice on the opposing party. The spouse’s whereabouts may be unknown, in which case simply hiring a process server won’t do the trick. However, in order to satisfy the due process clause of the United States Constitution, it is necessary for all parties to be given notice of a proceeding. For persons residing out of state, notice must be given in a manner calculated to give actual notice pursuant to either the laws of the state where service is to occur or the state where the proceeding is to occur.

One way of reaching those who either can’t or don’t want to be found is to make use of service by publication. According to O.C.G.A. § 9-11-4(f)(1)(A), personal service must be attempted before service by publication is proper. The Court in Gaddis v. Dyer Lumber Co., 168 Ga.App. 334, 335 (1983), stated “In order to justify service by publication where the address of the defendant is known, or believed to be known, generally it must be shown that service was attempted unsuccessfully at the defendant’s last known address and that personal service was proven impossible.”

The Court in Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1983), noted that because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts.

However, if the address of an opposing party is known, then according to O.C.G.A. § 9-11-4(f)(1)(A), the Petitioner must supply the exact address of the nonresident to the Clerk. If the Petitioner knows the address of the defendant but does not furnish it to the Clerk of Court for purposes of mailing the notice, the judgment could then be set aside for fraud. Stiles v. Stiles, 183 Ga. 199, 205 (1936).

If you are facing similar issues involving service on an out-of-state spouse, please contact one of our skilled Atlanta Divorce attorneys.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

May 18, 2012

Frequently Asked Questions: Georgia Divorce

Question: My wife left me and took our children with her. I have not seen them for three years. How can I find her to serve divorce papers and seek custody?

Answer: Some lawyers and most private investigators have access to databases that should be able to show where the other party is living. If you are trying to handle the divorce without the help of an attorney, you will likely need to hire a private investigator to find our where she is. Once you find where she is living, you can then personally serve her with the divorce papers to start the divorce process.

Question: Can I legally ask my husband for a separation but not have to leave my home?

Answer: Georgia does not recognize a “legal separation.” When you file for divorce, you assert in the pleadings that you are living in a “bona fide state of separation.” That simply means that you and your husband have not had marital relations (sex) since a certain date. There is an action for separate maintenance that can be filed in certain circumstances, but you should schedule a consultation with an Atlanta divorce lawyer to determine whether your specific situation would fall into this category.

Question: How do I get a divorce if my spouse won’t sign the papers, attend the classes, or follow through with any of the requirements?

Answer: If your spouse won’t cooperate, you may have to schedule the case for a final contested hearing. Before you attend this hearing, however, it is strongly recommended that you consult with an Atlanta divorce lawyer to make sure that you have prepared all your paperwork correctly for a final divorce. If your spouse does not attend a parenting class, some judges will still grant the divorce but may deny visitation to the offending spouse until he/she attends the class.

May 14, 2012

Divorce and Patents in Georgia

In a divorce in Georgia, the Court has the power to equitably divide property acquired by the labor of the parties during a divorce. For the most part, this means tangible items like houses, cars, retirement accounts, and bank accounts. But what does the Court do with intellectual property—how can they equitably divide an idea?

Georgia Courts have not specifically addressed whether a patent is a marital asset, but they have addressed intellectual property in the form of legal and medical degrees. In Lowery v. Lowery, 262 Ga. 20 (1992), the Supreme Court of Georgia held that the education and degree of the Husband were not akin to real property, and could not be valued as an asset upon divorce. The Court stated that the value of the intellectual property was “too speculative to calculate, being simply the possibility of enhanced earnings they provide. That potential may never be realized for any number of reasons.” The Court went on to state that a degree cannot be transferred and its value terminates upon the death of the Husband. However, unlike a non-transferable asset like education, patents can be sold and there is a thriving market in the sale of patents. Further, patents generate tangible (or otherwise valuable) assets—a patent was behind the creation of every piece of modern technology.

The distinction between a patent and a degree is that a patent is the property of the creator, and the right to intellectual property is one granted by the Constitution, thus it is the right of the creator to sell the patent as he or she chooses. Based on the constitutional granting of these rights, the Georgia courts could take the view that patents are non-marital assets, but include a patent’s potential when considering a party’s ability to pay alimony. Further, the income generated from a patent or intellectual property could be considered income, and a former spouse could receive an entitlement to a percentage of the income generated from the patent as an equitable division of property.

Again, the Supreme Court of Georgia has not addressed this issue in particular, but the Court may look to the case of Goldstein v. Goldstein, 262 Ga. 136 (1992) to determine the value of intellectual property. In Goldstein, the Supreme Court found that the income from an attorney’s contingent fee agreements was not a marital asset due to the fact that it was “nearly impossible” to determine the amount of work and expense that would go into generating income from intellectual property. This would mean that even if the Court determined that a former spouse was entitled to a percentage of the income generated from a patent, the income may never be realized.

The number of international patents filed in 2010 alone totaled more than 160,000, so although Georgia courts have determined that the value of intellectual property is speculative, it is clear that it is an issue that the court will soon have to address.

By Elizabeth Doak, Associate, Meriwether & Tharp, LLC

May 11, 2012

Exit Strategies: Atlanta Divorce and The Marital Home

In more than a few recent cases, the stumbling block to settling the case has been the marital home. As a result of the real estate market meltdown, Atlanta divorce attorneys have had to rethink how they structure agreements regarding real property. So what do you do in a case when neither party wants the marital home? It’s the proverbial hot potato no one wants to be left holding.

When clients are contemplating walking away from a home, our job as divorce attorneys is to eliminate or at least minimize a client’s loss when structuring an exit strategy. The first step in making this happen is to ensure the client has the information necessary to make an educated and informed decision. One of the key pieces of information is how much equity, if any, is in the property. Knowing whether the client would need to bring funds to the closing table if the property were sold allows us to immediately rule out certain options. Other critical facts clients need to be aware of include who is listed as a borrower on the mortgage, how far the mortgage is in arrears and both parties’ financial condition and employment plans.

Several possible alternatives clients may want to consider include bankruptcy, foreclosure, leasing, a short sale and a limited sale. Something I am seeing more often in divorce practice is parties choosing to “walk away” from a property. Although this is not a situation we encourage, in some cases foreclosure is the only option. While “walking away” may not be the best moral decision for some, it may make sense, at least from an economic perspective, to those parties who owe much more than the home is worth. If the parties agree to a foreclosure, the parties need to ensure that the possibility of a Deficiency Judgment is addressed.

Other alternatives to consider are leasing out the property until the market recovers or placing the home on the market in the hope of a short sale. A short sale may not be an option, however, since most lenders won’t even consider an offer on the property for less than the amount owed, unless the borrowers are at least several months behind on the mortgage.

In situations when parties are underwater or facing foreclosure on the marital residence, it is important to have an experienced divorce attorney. Regardless of the situation, an improperly drafted agreement could leave a person with a financial obligation in the divorce case that they cannot even bankrupt. The few hundred dollars a person might save by not having a lawyer draft the agreement can easily be lost if they draft a bad agreement. A knowledgeable attorney can work with you to craft the right agreement, to suit your specific needs and minimize any losses.

By Alyssa Vaughn, Associate, Meriwether & Tharp, LLC

May 7, 2012

Refinance of marital home after divorce in Georgia

One of the most complicated financial aspects of a divorce can be what happens to the marital home when both parties’ names are on the mortgage. Since one party will likely move out of the marital home after the divorce, that party will likely want his/her name off the mortgage so he/she can buy a new home. If the other party doesn’t refinance to take the moving party’s name off the mortgage, the moving party's rights are going to depend on what is in the settlement agreement or final order granting the divorce.

If the final divorce documents are silent as to the mortgage, then there may be nothing the moving party can do because there is nothing requiring a refinance. If the final divorce documents state, however, that the ex-spouse must refinance within so many days, and he has not refinanced within this time frame, then the moving party can file a Petition for Contempt against him to force him to refinance.

April 27, 2012

Are Personal Injury Settlements or Awards Considered Income for Purposes of Calculating Child Support in Georgia? - Part 3

In the first two parts of the discussion regarding personal injury awards in Georgia divorce cases, we examined whether personal injury awards were subject to equitable division. In part 3, we discuss how personal injury settlements and awards are handled when calculating child support in Georgia.

The first step when calculating child support in Georgia is to accurately determine the amount of each parent’s gross monthly income. So the question is, is a personal injury settlement or award included in gross income for purposes of calculating child support in Georgia? According to Georgia’s Child Support Statute, gross income is defined to specifically include personal injury awards as well as awards from other civil actions. OCGA § 19-6-15(f)(1)(a)(xvi). Nevertheless, even if a personal injury award is included in gross income, the statue allows a Court the authority in these types of situations to calculate gross income differently.

The frame of reference most often used in determining an individual’s gross monthly income is examining the parent’s income over the last year. For parents who have received certain types of settlements or awards, however, reviewing their income over the typical one year time period may result in the imposition of an inequitable child support obligation. Everyone loses when child support is set at an unsustainable amount and a parent is unable to meet their support obligation on an ongoing basis.

Fortunately, the legislature contemplated this potential inequity and crafted the Child Support Statute to allow for situations in which a parent’s sole income is from irregular payments or a single, lump-sum payment as a result of a personal injury suit. Under the law, when a parent has received such an award, the fact finder may permit gross income to be computed by averaging the amounts received over a reasonable period of time or permit a one-time lump-sum child support payment to be made of a percentage of the total award received. OCGA § 19-6-15(f)(1)(a)(xvi). If you have received an award or settlement as a result of a personal injury suit, an experienced Georgia family law attorney can assist you in determining the appropriate amount of child support in your particular situation.

By Alyssa Vaughn, Associate, Meriwether & Tharp, LLC

April 23, 2012

New Study Says Divorce Can Kill

According to an article on HuffingtonPost.com, a new study entitled “Divorce and Death” which appears in the journal Psychological Science shows that failed marriages can have the same negative effect on your life expectancy as smoking.

The study produced results indicating that the risk of death is 23% higher for those who have gone through a divorce than those that stayed married. Researchers were surprised as they did not believe life expectancy would drop to levels comparable with smokers, heavy drinkers and the obese.

Men are at a much higher risk of early death than their former wives. It appears that having a wife helps keep husbands alive as the women generally serve as caregivers, noticeably prolonging life expectancy. Companionship with a nurturing woman seems to delay the slide into the poor health that comes with old age.

Study authors made sure to clarify that the association between divorce and death is not causal, meaning that they do not believe that the moment someone files for divorce years are shaved off their life. Instead, the research shows that “there is something uniquely difficult about remaining separated or divorced that accelerates time of death.”

Researchers believe that things like the cumulative strain of being a single parent, financial stress associated with a divorce proceeding or an intense and exhausting conflict with an ex cause the stress which can then cause premature death. In a roundabout way, one spouse’s bad personality trait, such as a tendency to belittle or a penchant for negativity, can be responsible for both killing the marriage and, in the long run, for killing the ex.

If you are facing a stress-inducing divorce and need advice, please contact one of our skilled Atlanta Divorce attorneys.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

April 9, 2012

Divorce and social security benefits in Georgia

According to a recent article in the Wall Street Journal, elderly Americans may be missing out on potential source of extra money in their golden years: Social Security benefits from a former spouse. While the difference may not be enormous, it could be critically important to someone on a fixed income.

Though the issue is faced by both men and women, the fact that women typically earn less over their working lives means that they are more likely to be collecting less in benefits then they may be entitled to due to earnings of a former spouse. According to rules issued by the Social Security Administration, an individual is entitled to collect Social Security benefits according to one of three formulas: 1) based on his or her own earnings history; 2) 50% of his or her spouse or former spouse’s benefit if it is greater than their own; or 3) 100% of the former spouse’s benefit if the spouse is deceased.

There are a few stipulations in order for this to apply to divorced couples: 1) the marriage must have lasted 10 years or longer, and 2) the individual seeking a former spouse’s benefit must currently be unmarried, unless the second marriage occurred after the age of 60.

Here’s a good example of when a modification might be needed: your parents were married in the 1950s, your dad worked long, hard hours at the plant while your mom was busy at home raising the kids and working part-time when she had the chance. After years of marriage your parents decided to divorce and now face retirement. Your mother’s Social Security benefit comes to $800 per month while your dad’s stands at $2,000. Rather than continue collecting the $800, your mother is actually entitled to collect $1,000 per month if your dad is still alive and the full $2,000 if he is deceased.

As an added bonus, if the Social Security Administration determines a spouse is eligible for increased benefits, then that person will receive retroactive benefits going back six (6) months.

Source: “When a Divorce Pays Off,” by Ellen E. Schultz, published at WSJ.com.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

March 9, 2012

The challenge of divorce when one party resides in Georgia and the other resides out of the country: Part II

Of the four jurisdictional criteria mentioned in our previous post, a clear hierarchy exists. This hierarchy is a hallmark of the UCCJEA and says that in an initial custody determination priority is given to the home state jurisdiction. In other words, if the child involved in the custody dispute has a home state, only that state may make the initial custody determination, unless the home state declines to assert jurisdiction over the child custody dispute. See UCCJEA, National Conference of Commissioners on Uniform State Laws, Article 2, § 201, Comment, p. 24, (1998).

O.C.G.A. § 19-9-61 defines a home state as the state where the child lived with either both parents, one parent, or an individual assuming the role of a parent, for six (6) consecutive months immediately prior to filing. The six (6) month period must have been prior to the commencement of the action, and it includes periods of temporary absence by the child from his or her home state.

The second of the jurisdictional criteria, “Significant Connection,” is only reached if the home state declines to exercise jurisdiction. In such a case, a state may then have jurisdiction if it is deemed to have a significant connection with the child, meaning that there is (1) a significant connection between the child and the state and (2) substantial evidence regarding the child’s past, present or future care exists in the state.

The third of the jurisdictional criteria, “More Appropriate Forum,” is reached only if courts having home state jurisdiction or significant connection jurisdiction have declined to exercise that jurisdiction. Grounds for this include inconvenient forum or misconduct. Finally, the fourth of the jurisdictional criteria, “No Other State Jurisdiction” is reached only if no other state has exercised jurisdiction over the case or if the child is stateless.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

March 5, 2012

The challenge of divorce when one party resides in Georgia and the other resides out of the country: Part I

In Georgia, like other places around the country, living, working and raising families abroad is something that happens more now than ever before and carries with it unique challenges in terms of divorce and child custody disputes. Years ago, cases began cropping up where the courts of different countries fought over jurisdiction. To help resolve these conflicts, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was created.

Georgia’s version of the UCCJEA, found in O.C.G.A. § 19-9-40 et seq., exists to provide uniformity and avoid jurisdictional competition between courts in different states and different countries. The purpose of the UCCJEA is to reduce and resolve interstate conflicts in child custody determinations and to facilitate the determination of which state is the most appropriate forum in which to litigate child custody disputes. For the purposes of the UCCJEA, O.C.G.A. § 19-9-44(a) clearly states that courts are to treat foreign countries as if they are a State of the United States.

The UCCJEA establishes clear criteria under which a state can assert jurisdiction by not only prioritizing relevant criteria, but by also distinguishing between initial custody jurisdiction, modification of custody jurisdiction and temporary emergency jurisdiction. It does so for the purpose of discouraging multiple states from taking concurrent jurisdiction, a recurring problem that the UCCJEA has sought to solve. The four jurisdictional criteria contained in the UCCJEA are as follows: (1) Home State Jurisdiction; (2) Significant Connection Jurisdiction; (3) More Appropriate Forum Jurisdiction; and (4) No Other State Jurisdiction.

In the next post we’ll walk through these jurisdictional criteria and discuss the definitions of each.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

January 16, 2012

In Georgia, trial court cannot rely on evidence from temporary hearing in making final judgment

The Supreme Court of Georgia recently reversed a trial court’s decision in a custody modification case because the trial court erroneously relied on evidence from the temporary hearing in making its final custody determination. Vaughn v. Davis, S11A1950 (2012). In that case, the parties had been granted joint legal and physical custody of their children in their divorce action. Neither was required to pay child support to the other, but they were ordered to split the children’s expenses. Id. The mother later filed a motion for change of custody and child support. Id. At the temporary hearing at which both parties appeared pro se, the trial court entered a temporary order awarding primary physical custody to the father, with the visitation to the mother. The mother was also ordered to pay child support to the father. Id.

The mother retained an attorney prior to the final hearing in the case. At the final hearing, the trial court again granted primary physical custody to the father, with visitation for the mother. Id. at 2. After her motion for a new trial was denied, the mother appealed, contending “that the trial court erred by relying on evidence adduced at the temporary hearing.” Id.

The Supreme Court of Georgia agreed with the mother, citing a case from 2010 which held that “[t]he nature and quality of the evicence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing, and parties should ordinarily expect that only that evidence which their opponent sees fit to offer at the final, more formal hearing will be relied on to support the permanent custody award…Accordingly, we now hold that, absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.” Id. at 2-3, quoting Pace v. Pace, 287 Ga. 899, 901 (2010).

Here, it is clear that the trial court relied on evidence from the temporary hearing in reaching its final custody decision, and “there is no indication that the parties were notified in advance that this was going to happen.” Vaughn at 3. Thus, the trial court’s order must be reversed and remanded for further proceedings.

January 13, 2012

Residence requirements for divorce in Georgia

In Georgia, when spouses live in different counties, or if one spouse lives in Georgia and one lives out of state, there are specific rules which govern where the divorce action must be filed. Georgia law states that: “No court shall grant a divorce to any person who has not been a bone fide resident of this state for six months before the filing of the petition for divorce.” OCGA §19-5-2. An exception to this rule is that “a nonresident of this state may file a petition for divorce, in the county of the residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.” Id.

If both parties have resided in Georgia for more than six months, the Petitioner must file the divorce action in the county in which the Respondent resides, even if the Petitioner does not live in that county. So, if the Petitioner resides in Fulton County and the Respondent resides in Cobb County, the divorce action must be filed in Cobb County. If the Petitioner resides out of state and the Respondent has resided in Georgia for at least six months, the divorce action must be filed in the Georgia county in which the Respondent resides. If the Petitioner resides in Georgia and the Respondent resides out of state, the divorce action cannot be filed in Georgia but, rather, must be filed in the state in which the Respondent resides.

January 9, 2012

Pension plans and divorce in Georgia

Atlanta divorce attorneys are often asked how pension plans are divided upon a divorce in Georgia. In general, pension plans are treated like any other property – if they accrued during the marriage, they are marital property subject to equitable division. Any portion that accrued prior to the marriage, however, is considered the separate property of that spouse.

Consider an example where a husband had a pension that began accruing in 1990, and the couple married in 1995 and divorced in 2005. In that situation, the wife would be entitled to an equitable portion of the pension that accrued from 1995 until 2005, but would not be entitled to anything from 1990 to 1995 as that portion would be the husband’s separate property.

Dividing pensions and other retirement accounts in a divorce can be complicated. Many companies have very specific regulations that must be followed and precise language that must be used in the divorce decree in order for the account to be divided. If you are dealing with one of these accounts in your divorce action, we recommend that you contact one of our Atlanta divorce attorneys for assistance to ensure a smooth division of these assets.

January 2, 2012

Can I get a divorce online in Georgia?

In these tough economic times, people are often looking for ways to save money. So it is not surprising that Georgia divorce attorneys are often asked if a person can obtain a divorce online, rather than hire an attorney and go through the court system.

In Georgia, you cannot get a divorce online. You can obtain the divorce paperwork online, but you must file it with the Superior Court, who will then grant your divorce after going through the required legal procedure. Some counties offer help with divorce filings and make it easier than others to file and obtain a divorce without an attorney. However, there are some aspects of a divorce case, particularly child custody and child support, that require specific legal documents (i.e. parenting plan, child support worksheets) that must be filled out correctly and completely before the court will grant the divorce, even if all issues are agreed upon. Thus, while there is certainly nothing wrong with negotiating issues in your divorce without the assistance of at attorney, it might actually save you time and money to hire an attorney to help you with the paperwork to ensure it is done correctly and that there will be no issues in having your divorce granted as expeditiously as possible.

December 30, 2011

In Georgia, am I legally separated after I file my divorce action?

Georgia divorce attorneys are often asked whether the filing of a divorce action means the parties are legally separated. This question often comes from people who are interested in starting to date other people during the pending divorce.

Please keep in mind that Georgia does not recognize legal separation. Therefore, nothing changes about your marital status until your final divorce decree has been signed by the Judge. Until you receive your final divorce decree, you are still married in the eyes of the law and sex with anyone who is not your spouse is considered adultery. Whether this adultery is considered to be the cause of your divorce is a different question. It is important to note, however, that the Judge can take your actions both before and during the pending divorce action into consideration in awarding alimony, custody, and equitable division of assets.

December 26, 2011

Prenuptial agreement upheld in Georgia divorce case

The Supreme Court of Georgia recently heard an appeal of a divorce case, which highlights the security, or risk (depending on which side you are on), of entering into a prenuptial agreement in Georgia. Sides v. Sides, S11F1140 (2011). In that case, the parties began dating in 1989 and, shortly thereafter, the Wife became pregnant. Id. Due to the great disparity in assets and income between the parties, they negotiated and signed a prenuptial agreement before marrying in 1990. Id. Under the agreement, “Wife would have been entitled to substantially more resources if the parties divorced after their twenty-year anniversary, and substantially less if the parties divorced prior to their twenty year anniversary.” Id. at 2. Nearly twenty years later, the Husband filed a Compliant for Divorce and Motion to Enforce the Prenuptial Agreement, which the trial court granted a mere 62 days prior to the couple’s twenty year anniversary, and the WIfe appealed. Id.

The Supreme Court of Georgia affirmed the enforcement of the prenuptial agreement. The Court first laid out the factors to be considered by the trial court in deciding the validity of the prenuptial agreement: “(1) [W]as the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) [I]s the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?” Id., quoting Scherer v. Scherer, 249 Ga. 635, 641 (3) (1982).

In this case, both attorneys “deposed that they would not have allowed their clients to enter the agreement without full financial disclosures being made,” and Wife was long aware of the “vast disparity” between their incomes. Id. at 3. Thus, the evidence supported that full financial disclosures were made prior to signing and the agreement was not unconscionable. In addition, the increase in Husband’s net worth was anticipated and, therefore, it was not a “change of circumstance that would make the enforcement of the agreement unfair and unreasonable.” Id. at 4. The trial court, thus, did not abuse its discretion in upholding the prenuptial agreement.

November 18, 2011

How long does a divorce take in Georgia?

Georgia divorce lawyers are often asked how long an average divorce takes in this state. This is a difficult question to answer because there is not really an “average” divorce case. The length of time depends greatly on whether the parties are able to settle matters and, if not, what issues they are fighting about. Even cases with similar facts can be very different. For example, consider a case where both parties work, and have 2 children, a marital home, several joint accounts, and some separate property. Some parties with these facts are able to resolve everything fairly quickly and easily. Other parties with these same facts, however, may argue over every custody, child support, alimony and/or equitable division of assets. Even one contested issue can cause a divorce to drag on, especially if it is something about which both parties feel passionate.

The length of a divorce case can also depend on the County in which the divorce is filed because some courts are more back logged than others. Often, there is not much you can do about this issue.

In our experience, the average time range for a divorce in Georgia is 45 days for a completely uncontested divorce to about 3 years for a hotly contested divorce. However, as mentioned above, this time can vary greatly based upon the specific facts of your case.

November 14, 2011

In Georgia, am I entitled to financial support after a divorce if I had an affair?

In Georgia, a spouse who has an affair risks the affair playing a large role in the outcome of the divorce case, specifically with the issue of support. First and foremost, adultery is an absolute bar to alimony in Georgia. This means that the person who had the affair is not entitled to alimony, whether they need it or not, and will not be successful on a claim for alimony in court.

On the other hand, adultery does not impact child support as this support belongs to the child, not the parent. Thus, anything relating to child support, such as daycare, medical, and extracurricular expenses for the children, will still be up for discussion and will be shared according to the child support worksheets. It should be noted, however, that adultery can affect child custody, which will determine who pays child support. If a parent has committed adultery in the presence of the children, this parent is acting contrary to the children’s best interests (the standard for determining custody in Georgia), which could result in that parent losing a custody battle and then having the obligation to pay child support.

November 7, 2011

Georgia divorce case appealed over payment of transcript costs

A recent Georgia divorce case was appealed to the Supreme Court of Georgia due to payment of transcript costs. Kent v. Kent, S11F1035 (2011). In that case, before the trial began, the judge asked the parties who had requested the court reporter and who would be responsible for her salary. Id. The Wife’s attorney responded that he had requested the court reporter and would be responsible for her cost, but the Husband’s attorney remained silent. Id. at 1-2. Only after the trial and after the judge had left the bench did the Husband’s attorney state that he would not pay for the court reporter cost. Id. After receiving an unfavorable outcome to the case, the Husband’s attorney filed a motion “to require the court reporter to transcribe her notes and provide him with an official transcript of the trial” so he could use it on appeal, adding that he was not willing to pay the entire cost of the court reporter. Id at 2-3. The trial court denied the Husband’s motion, finding that his failure to participate in the takedown costs was intentional and he could not now “take advantage of his opponent by only agreeing to pay for the costs of the court reporter now that he is certain that he needs the transcript.” Id. at 4.

The Supreme Court of Georgia disagreed with the trial court, citing long standing Georgia law which holds that, if there is express refusal to participate in the costs of the court reporter, the opposing party cannot later “compel the reporter to transcribe his stenographic notes” even with an offer to pay for same. Id. at 7; quoting Harrington v. Harrington, 224 Ga. 305, 306 (1968). However, a “mere failure” to respond to inquiries about court reporter costs does not amount to an express refusal. Kent, at 7. The Supreme Court of Georgia justified this reasoning, explaining: “By placing this affirmative burden on the party seeking a forfeiture of the right of his opponent [to a transcript] we intend to avoid the possibility that a party will lose this important right by inadvertence or mistake.” Id. In this case, there was no express refusal but, rather, a failure to respond.

Though the Court was sympathetic to “the possible unfairness [to Wife] in this particular case,” it was not willing to replace the bright line rule with a “case-by-case inquiry into the losing party’s subjective intent based on its conduct.” Id. at 11. Parties in Wife’s situation could avoid a situation like this by ensuring that express refusal to pay by the opposing party is on the record.

October 21, 2011

Who can serve a Petition for Divorce in Georgia?

In Georgia, the procedure for service of process (i.e. service of divorce papers) on a party to a divorce action is the same as in any civil action in this state. According to Georgia law, “Process shall be served by: (1) The sheriff of the county where the action is brought or where the defendant is found or by such sheriff’s deputy; (2) The marshal or sheriff of the court or by such official’s deputy; (3) Any citizen of the United States specially appointed by the court for that purpose; (4) A person who is not a party and is not younger than 18 years of age and has been appointed as a permanent process server by the court in which the action is brought; or (5) A certified process server under Code Section 9-11-4.1, provided that sheriff of the county for which process is to be served allows such servers to serve process in such county.” OCGA §9-11-4(c).

In divorces and other family law cases, it is often prudent to have a certified process server, rather than a marshal or sheriff, serve your spouse. A marshal or sheriff will be in uniform when serving the papers, while a certified process server is usually in plain clothes. If you are having your spouse served while he/she is at work, it will cause less of a scene for a plain-clothes person to give him/her a stack of papers rather than a uniformed officer. In addition, if your spouse is avoiding service, you can often direct a certified process server exactly where to go and when to give him the best chance of effecting service. You can even give him the make and model of your spouse’s car and a photograph of your spouse. Often, a sheriff and/or marshal is unable to give your case this extra attention that may be necessary to effect service. For the above reasons, though a certified process server is more expensive, it may be money well spent in your divorce case.

September 2, 2011

How do I change my name after my Georgia divorce?

In Georgia, it is fairly simple to restore your maiden name after a divorce. Specifically, Georgia law states that “[i]n all divorce actions, a party may pray in his pleadings for the restoration of a maiden or prior name.” OCGA §19-5-16. This means that you can request the name change in your Complaint for Divorce, or in your Answer to your spouse’s Complaint for Divorce. If the divorce is granted, the Final Judgment and Decree of Divorce “shall specify and restore the party the name so prayed for in the pleadings.” Id. Thus, the trial court is required to grant the name change if it is properly requested.

July 29, 2011

Importance of revising your will after divorce in Georgia

In Georgia, an important task to undertake after your divorce is revising your will to make sure it is in line with your intent. I recently read an article that described how Amy Winehouse’s revised will left everything to her parents and brother, rather than to her ex-husband. Amy Winehouse got her will right, by Karen Datko, July 27, 2011. English law states that divorce does not “undo the presumption that the natural inheritor is the spouse,” and “[e]ven in the presence of a will written pre-marriage which states otherwise the surviving spouse, or ex-spouse, will again be the natural inheritor.” Id. Thus, if she had not revised her will, her former spouse likely would have inherited everything.

This is not the case in Georgia. Under Georgia law, “all provisions of a will made prior to a testator’s final divorce or the annulment of the testator’s marriage in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator…” OCGA §53-4-49. Thus, if a person divorces and then dies without changing his/her will, the ex-spouse will not inherit under the language of the will, and the person next in line to inherit will do so (so long as that person is not a descendant of the ex-spouse who is not also a descendant of the testator). Keep in mind this statute only applies after the divorce is final. Even with this safeguard in place, however, it is still important to review your will after your divorce to make sure the terms are still in line with your intent. Many things in your life will have changed post-divorce so it is very possible that you would not want the next person in line to inherit – particularly if it is a friend or relative of your former spouse. I would recommend revising it to remove the former spouse, just so there is no ambiguity.

July 25, 2011

What happens when a Georgia divorce decree is signed by the judge, but not timely filed with the clerk?

The Supreme Court of Georgia recently addressed a divorce case, which highlights what can happen when the final divorce decree is signed by the judge, but not filed in the clerk’s office. Maples v. Maples, S11F0919 (2011). In that case, the trial court signed a final decree of divorce on June 1, 2000, but the divorce decree was not filed with the clerk until August 1, 2002. Id. Meanwhile, the parties, believing they were already divorced, remarried each other on June 25, 2000. Id. Ten years later, the wife filed a complaint for divorce and the parties thereafter learned that their original divorce decree was not filed until two years after they had remarried. Id. Upon the wife’s motion, the trial court amended the judgment in the 2000 case “by entering an order nunc pro tunc to ensure that the order reflected the true judgment rendered by the court, i.e., that the parties were to be divorced on June 1, 2000. Id. ("Nunc pro tunc" basically means that the order is backdated.) The husband appealed the entry of the nunc pro tunc order, asserting that a nunc pro tunc order cannot be used to backdate the entry of a divorce decree. Id. at 2. (Presumably, he wanted the 2010 divorce case to just be dismissed.)

The Supreme Court of Georgia affirmed the trial court’s holding, “[e]very court has the inherent power – and it is the court’s duty – to correct its own records to make them speak the truth. [Cits.] Where based solely on the record, and without the necessity for the introduction of extrinsic evidence, the court may, on its own motion and without notice, enter such judgment and decree nunc pro tunc at a later date.” Id.; quoting Norman v. Ault, 287 Ga. 324, 330 (5) (695 SE2d 633) (2010), quoting Moore v. Moore, 229 Ga. 600, 601 (2) (193 SE2d 608) (1972), overruled on other grounds. Here, the judgment had already been rendered and the divorce decree signed by the judge. There was nothing else to be done other than file the decree. The Court ended its opinion by pointing out that “[e]ntry of the divorce decree nunc pro tunc to the date of the signing of the decree was advantageous to husband, as well as wife, because it accurately reflected his intention to re-enter the bond of marriage on June 25, 2000.” Maples, at 5-6.

November 26, 2010

An Atlanta Divorce Attorney's Thoughts on Celebrity Divorce - Charlie Sheen and Brooke Mueller

In this installment of An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to address the divorce of Charlie Sheen and Brooke Mueller. People magazine recently reported that the parties have each filed for divorce. Sheen is seeking joint legal and physical custody of their twin boys, and Mueller is seeking primary physical custody with visitation rights for Sheen.

Surprisingly, it appears that this divorce might not be as contested as one would imagine, given their history together. Apparently, while separated earlier this year, they entered into an agreement settling matters of child custody, child support and equitable division. It appears that spousal support may still be a contested issue. In addition, it appears that Sheen’s divorce filing differed from the purported agreement on the issue of custody.

If the parties do end up in court with a contested divorce, my guess, based upon their history, is that it won’t be pretty. Both parties have recently been in rehab for substance abuse – a fact the judge would seriously consider in awarding custody. In addition, Sheen was sentenced to domestic violence counseling stemming from their altercation over Christmas last year, and was recently hospitalized after an “incident” at the Plaza Hotel. Each party will likely drag the other through the mud in trying to prove to the judge that he or she should be awarded custody. If this case was in Georgia, the judge would hear all of the evidence and weigh many factors before awarding custody based on the best interests of the children standard.

November 12, 2010

Challenging your Georgia divorce decree? Don’t retain the benefits of that decree.

The Supreme Court of Georgia recently reinstated a bright line rule regarding a party retaining the benefits of a Georgia divorce decree that that same party is challenging. In Thompson v. Thompson, the Husband challenged the Final Judgment and Decree of Divorce, alleging that the trial court erred in its equitable division award by dividing funds and property that were his non-marital assets. Thompson v. Thompson, S10F1231 (2010). The trial court denied the husband’s motions for new trial, clarification, and reconsideration, holding that “he had availed himself of the benefits of the final order” and was, thereby, prohibited from challenging it. Id. The husband subsequently appealed the denial of his motions.

In affirming the trial court’s ruling, Supreme Court of Georgia followed long-standing principles of Georgia law. Specifically, the Court held that “one who has accepted benefits such as spousal support or equitable division of property under a divorce decree is estopped from seeking to set aside that decree without first returning the benefits.” Id. at 3. Thus, if you want to dispute a Final Judgment and Decree of Divorce in Georgia, you must either not accept any support or equitable division from that award, or you must return any portion of the award that you have accepted, before initiating any challenge.

The Court clarified that a party “may collect an award of child support and still repudiate a final judgment, as those benefits belong to the child.” Id. at 3-4.

October 29, 2010

An Atlanta Divorce Attorney's Thoughts on Celebrity Divorce - Courteney Cox and David Arquette

This week in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the recent separation of Courteney Cox and David Arquette. After 11 years of marriage and one child together, the couple announced that they were on a “trial separation.” People Magazine, October 25, 2010. In their statement, they said “…[w]e remain best friends and responsible parents to our daughter and we still love each other deeply. As we go though this process we are determined to use kindness and understanding to get through this together…”

However, since the announcement, Arquette does not seem to be using “kindness” in the process. He has gone on Howard Stern’s radio show to detail the reasons for the split and even publicly admitted to sleeping with another woman since he and Cox separated. We have yet to see if the couple will reconcile and, if not, how their divorce will play out, but it is likely that the sting of Arquette’s actions will have some bearing on the outcome.

Unlike Arquette, non-celebrities don’t usually have the ability to speak to media outlets about their divorces. However, spilling detailed relationship troubles to everyone you know and rubbing your spouse’s face in your post-separation activities, such as Arquette has done, will likely make for a more bitter and litigious divorce, which, in turn, will cost both parties more money. As a colleague of mine always says, one thing that can drive up the cost of a divorce is emotion. There is simply no reason to make an emotional process even more difficult for you, your spouse, or your children.

October 22, 2010

An Atlanta Divorce Attorney's Thoughts on Celebrity Divorce - Tiger Woods and Elin Nordegren

This week in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the well-publicized divorce of Tiger Woods and Elin Nordegren. The scandal surrounding Tiger’s multiple extramarital affairs began around Thanksgiving 2009. For the next several months, it seemed like women with whom he had affairs were coming out of the woodwork and speaking to the media each week. Throughout what must have been a gut wrenching time for Nordegren, she remained tactful, continuing her life as privately as possible, and did not thwart the relationship between Woods and their children.

A lesson to take from Nordegren is, no matter what your spouse has put you through and how angry you are at him/her, put your children first. At a time when she could have easily badmouthed Woods in the media and to their children, possibly ruining their relationship with him, she remained discreet. She only spoke to the media once and, even then, she called Woods a good father and refused to share details of the previous 10 months. Due to her actions, the children will likely have a positive relationship with both of their parents despite the hurt and anger that may exist between the parents.

October 15, 2010

An Atlanta Divorce Attorney's Thoughts on Celebrity Divorce - Owner of Los Angeles Dodgers

In this weekly installment of An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I will discuss the ongoing divorce action of the owner of the Los Angeles Dodgers. As you may have read in the New York Times or other news outlets, the owner of the Los Angeles Dodgers is going through a divorce, putting ownership of the Major League Baseball team in dispute. The key to this case is a post-nuptial agreement, of which there are two versions – one version gives the team to the husband/owner and the other version makes the parties joint owners of the team. The owner’s wife is asking that the agreement be thrown out and is alleging that the version giving complete ownership of the team to her husband was obtained fraudulently. If the agreement is thrown out, the team will be divided with the parties’ other assets under California’s community property law.

If this case was in Georgia and the agreement was invalidated, the team would be equitably divided. As explained in detail in previous blogs, equitable division does not necessarily mean equal. The judge would consider all the circumstances in deciding how (or if) to divide the team. Thus, the outcome of the case could be much different in Georgia than in it would be in California, where the parties would each receive 50% of the team. Closing arguments were recently completed and the judge now has 90 days to decide the fate of the parties and the Los Angeles Dodgers. It will be interesting to see how this one turns out.

October 11, 2010

Importance of specific language in Georgia divorce settlement agreement

The Georgia Supreme Court recently emphasized the importance of the specific language in a Georgia divorce settlement agreement. In that case, the parties jointly purchased a 27-acre tract of land during their marriage. Gonzalez v. Crocket, 287 Ga. 430 (2010). For financing purposes, they subdivided the property into a five-acre tract upon which the marital residence was built, and a 22-acre tract. Id. In the parties' divorce settlement agreement, the husband received the marital residence, which he was to refinance into his own name, and the wife was to quitclaim her interest in that marital residence to the husband. Id. at 431.

Several years later, the husband filed a Petition for Contempt against the wife for failing to quitclaim the 22-acre tract to him. Id. The trial court denied his petition, ruling that the settlement agreement did not address the 22-acre tract and it, therefore, remained jointly owned by the parties. Id.

The husband appealed, and Georgia Supreme Court agreed with the trial court, affirming a long standing rule that “title to property not described in a verdict or judgment is unaffected by the decree and remains titled in the name of the owners as before the decree was entered.” Id. at 432, citing Messaadi v. Messaadi, 282 Ga. 126, 127 (2007). The settlement agreement only mentioned “the marital residence” and did not even mention the other property. In addition, the parties treated the properties as separate during the marriage and subsequent to the divorce. Since the 22-acre tract was not specifically described in the divorce decree, even though it was adjacent to the property on which the marital residence was located, it remained the joint property of the parties and the wife was not obligated to quitclaim her interest to the husband. Id.

October 8, 2010

Georgia Supreme Court upholds short time period for lump sum alimony and property division payments in divorce case

The Georgia Supreme Court recently upheld a short time frame for payment of lump sum alimony and property division awards in a divorce case. Wier v. Wier, 287 Ga. 443 (2010). In that case, the parties were married for nearly 20 years and, following a jury trial, the wife was awarded $200,000 as lump sum property division to be paid within 15 days, and $600,000 as lump sum alimony to be paid within 90 days. Id. The husband appealed, arguing, among other things, that he was unable to timely make the alimony and property division payments. Id.

The Georgia Supreme Court disagreed with the husband. The Court pointed out “the evidence showed that [husband] owns property valued at more than $1.6 million and his gross monthly income exceeds $16,600.” Id. Under long standing Georgia law, “a party can be required to sell or encumber property in order to pay equitable division and alimony awards.” Id.; Hollandsworth v. Hollandsworth, 242 Ga. 790 (1979). Emphasizing that the husband did not present any evidence of his inability to pay in a timely manner, the Georgia Supreme Court held that he can “sell or encumber his property, or take any other action he deems necessary, to comply with the trial court’s order.” Wier, 287 Ga. at 443.

October 4, 2010

Georgia Supreme Court affirms lump sum child support payment in divorce case

Though child support is generally thought of as being paid in monthly installments, the Georgia Supreme Court recently affirmed a divorce decree which ordered a father to make one lump sum child support payment. Mullin v. Roy, S10F1120 (2010). In that case, shortly after the wife filed for divorce, the husband was arrested for possession of child pornography, lost his $80,000/year job, and began living off a $422,000 inheritance. Id. The husband pled guilty to the charges and was sentenced to five years in prison the day after the divorce trial. Id. at 2.

In its divorce decree, the trial court acknowledged husband’s argument that he will have decreased earning capacity due to his sex offender status upon being released from prison, and calculated child support by settling “on an amount halfway between husband’s and wife’s projections for his future earnings.” Id. Based on the husband’s guilty plea and impending sentence, as well as the dwindling amount that remained of his inheritance, the trial court ordered the husband to pay his entire child support obligation within 60 days. Id. at 3.

The husband appealed, arguing that the court did not have the authority to award lump sum child support. Id. The Georgia Supreme Court agreed, holding that the child support statute “explicitly authorizes trial courts to exercise discretion in setting the amount and timing of payment.” Id.; OCGA §19-6-15(c)(2)(B). Though child support is typically paid in monthly installments, “there is no indication that the 2007 version of the guidelines statute eliminated the longstanding discretion of trial courts to order lump-sum payment under appropriate circumstances.” Id.

October 1, 2010

Georgia Grounds for Divorce - Marriage is Irretrievably Broken

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law, the thirteenth of which is “[t]he marriage is irretrievably broken.” OCGA §19-5-3(13). A divorce under this ground is generally referred to as a no-fault divorce.

A marriage is irretrievably broken “where either or both parties are unable or refuse to cohabit and there are no prospects for reconciliation.” Harwell v. Harwell, 233 Ga. 89, 91 (1974). However, both parties do not need to agree that the marriage is irretrievably broken. The Supreme Court has held that “where one of the parties to a marriage refuses to cohabit with the other and testifies that the marriage is irretrievably broken, the fact that the other party maintains hope for reconciliation will not suppose a finding…that there are ‘prospects for reconciliation.’” McCoy v. McCoy, 236 Ga. 633, 634 (1976). Therefore, if one party requests a divorce on this ground and testifies that there is no chance of reconciliation, the other party cannot prevent the divorce simply by testifying that he/she believes they can reconcile.

September 27, 2010

Georgia Grounds for Divorce - Habitual Drug Addiction

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law, the twelfth of which is “[h]abitual drug addiction.” OCGA §19-5-3(12).

“Habitual drug addiction” is defined in the statute as addiction to the following controlled substances: narcotic drugs, marijuana, or stimulant drugs, depressant drugs, or hallucinogenic drugs. OCGA 19-5-3(12); OCGA 16-13-2(a). There must be a pattern of drug use resulting the party's addiction to the controlled substance. The terms "habitual" and "addiction" imply that a one-time use of a controlled substance will not be sufficient to obtain a divorce under this ground.

September 24, 2010

Georgia Grounds for Divorce - Incurable Mental Illness

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The eleventh ground under the statute is “[i]ncurable mental illness.” OCGA §19-5-3(11).

There are three strict requirements necessary to obtain a divorce under this ground: (1) the mentally ill party must be adjudged to be mentally ill by the court or must be certified to be mentally ill by two physicians who have each personally examined the party; (2) the mentally ill party must have been in a mental institution or under continuous treatment for mental illness for at least two years preceding the filing of the divorce action; and (3) a chief executive officer of the institution and one physician appointed by the court must make a thorough examination of the party and certify under oath that it is their opinion “that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party’s mental health cannot be expected at any time during his life.” OCGA 19-5-3(11).

September 22, 2010

DeKalb County Parenting Seminar Information

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. DeKalb County (Avondale Estates, Chamblee, Decatur, Doraville, Lithonia, and Stone Mountain) offers its Seminar for Divorcing Parents at three different locations in the county. All remaining 2010 seminars will take place in the 1st floor Jury Room of the Dekalb County Courthouse Judicial Tower, located at 556 N. McDonough Street, Decatur, Georgia. The schedule for the remainder of 2010 is as follows:

Friday, September 10, 9:30am – 1:30pm
Friday, September 24, 9:30am – 1:30pm
Monday, October 4, 5:00pm – 9:00pm
Friday, October 22, 9:30am – 1:30pm
Monday, November 8, 5:00pm – 9:00pm
Friday, November 19, 9:30am – 1:30pm
Monday, December 6, 5:00pm – 9:00pm
Friday, December 17, 9:30am – 1:30pm

The cost of the seminar is currently $30.00 per person. Dates and time are subject to change so please check the DeKalb County Seminar for Divorcing Parents website for the most up to date information and for online registration under the divorce tab.

September 20, 2010

Georgia Grounds for Divorce - Cruel Treatment

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The tenth ground under the statute is “[c]ruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health.” OCGA §19-5-3(10).

In order to obtain a divorce under this ground, the offending party must intend wound his/her spouse. Connor v. Connor, 212 Ga. 92, 94 (1955). It should be noted, however, that actual physical violence is not necessary. Slaughter v. Slaughter, 190 Ga. 229, 232 (1940). Generally, a party may not obtain a divorce under this ground based upon a single act of cruelty or violence, but if the single act is “accompanied by circumstances indicating a probability of repetition of similar conduct,” this may be sufficient. Phinzy v. Phinzy, 154 Ga. 199, 213 (1922). In addition, in certain instances, nagging and mental anguish have been held sufficient to obtain a divorce based upon cruel treatment. Womble v. Womble, 214 Ga. 438 (1958); Ross v. Ross, 169 Ga. 529 (1929).

September 17, 2010

Georgia Grounds for Divorce - Habitual Intoxication

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The ninth ground under the statute is “[h]abitual intoxication.” OCGA §19-5-3(9).

To obtain a divorce under this ground, it is not necessary for the Petitioner to prove that his or her spouse was continuously and constantly drunk during the marriage. Fuller v. Fuller, 108 Ga. 256 (1899). However, evidence that party “was ‘drunk’ or ‘under the influence of liquor’ on one occasion prior to the separation is wholly insufficient to sustain a divorce on the ground of habitual intoxication.” Stimpson v. Stimpson, 213 Ga. 235 (1957). Thus, there must be a pattern of drunkenness, but does not have to be a constant, unending situation.

September 15, 2010

Gwinnett County Parenting Seminar Information

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Gwinnett County (Buford, Dacula, Duluth, Lawrenceville, Lilburn, Norcross, Snellville, and Suwanee) offers its Parenting Seminar at the Gwinnett Justice and Administration Center, 75 Langley Drive, Lawrenceville, Georgia 30045. The seminars are held in Conference Room A West Wing on the second floor. The schedule for the remainder of 2010 is as follows:

Weekday seminars from 9:00am – 1:00pm: September 2, September 9, September 23, October 7, October 14, October 28, November 4, November 10, December 2, December 9

Evening seminars from 5:00pm – 9:00pm: September 16, October 21, November 18, December 16

The cost of the seminar is currently $30.00 per person and registration MUST be received prior to the day of the seminar. You can find additional information and register online for these seminars at the Gwinnett County Parenting Seminar website.

September 13, 2010

Atlanta Divorce Lawyer's Guide to Grounds for Divorce - Offense involving Moral Turpitude

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The eighth ground under the statute is “[t]he conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer.” OCGA §19-5-3(8).

Turpitude, in its legal sense includes “everything done contrary to justice, honesty, modesty or good morals.” Holloway v. Holloway, 126 Ga. 459, 460 (1906), quoting Black’s Law Dict. It is a very broad definition that can include almost any crime. There are three elements that must be proven in order for a court to grant a divorce under this ground: (1) the commission of the offense involving moral turpitude; (2) the conviction for said offense; and (3) a sentence of two years or longer in a penal institution. Holloway, 126 Ga. at 460.

September 10, 2010

Atlanta Divorce Lawyer's Guide to Grounds for Divorce - Desertion

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The seventh ground under the statute is “[w]illful and continued desertion by either of the parties for a term of one year.” OCGA §19-5-3(7).

Generally, desertion is “the voluntary separation of one of the marries parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other.” Cagle v. Cagle, 193 Ga. 34 (1961). There are three elements that must be proven in order for a court to grant a divorce on the ground of desertion: (1) the parties’ cohabitation ended; (2) the offending party intended to desert his/her spouse; and (3) the desertion lasted for a minimum of one year. Id. It should be noted that “the pardon of the convict does not destroy the right to a divorce” under this ground. Id. at 461.

September 8, 2010

Atlanta Divorce Lawyer's Guide to Cobb County Parenting Seminar

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Cobb County (Acworth, Austell, Kennesaw, Marietta, Powder Springs and Smyrna) offers its Divorcing Parents Seminar at the Cobb County Superior Court Building (Building D; 6th floor jury assembly room), 30 Waddell Street, Marietta, GA 30090.

Cobb County offers a four-hour weekday seminar (from 8:30 am to 1:00 pm) or two two-hour evening sessions (from 7:00 pm to 9:00 pm). The schedule for the remainder of 2010 is as follows:

Thursday morning classes (8:30am – 1:00pm): September 2, September 16, October 7, October 21, November 4, November 18, December 2, December 16

Monday evening classes (7:00pm – 9:00pm): September 13 AND 20, October 11 AND 18, November 8 AND 15, December 13 AND 20

The cost of the seminar is currently $30.00 per person. You can find additional information and register online for these seminars at the Cobb County Divorcing Parents Seminar website.

September 6, 2010

Atlanta Divorce Lawyer's Guide to Grounds for Divorce - Adultery

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The sixth ground under the statute is “[a]dultery in either of the parties after marriage.” OCGA §19-5-3(6).

Generally, a married person commits adultery when he or she “voluntarily has sexual intercourse with a person other than his [or her] spouse.” OCGA §16-6-19; Owens v. Owens, 247 Ga. 139, 140 (1981). Adultery includes “extramarital homosexual, as well as heterosexual, relations.” Owens v. Owens, 247 Ga. 139, 140 (1981). It is difficult to prove adultery with direct evidence and, often, the party only has circumstantial evidence. In Georgia, “[a]dultery may be proved by circumstantial evidence, but such evidence must infer as a necessary conclusion that adultery was committed.” Johnson v. Johnson, 218 Ga. 28 (1962). If the evidence can lead to more than one interpretation, it is not sufficient to prove adultery. Id.

September 3, 2010

Atlanta Divorce Lawyer's Guide to Grounds for Divorce - Pregnancy

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The fifth ground under the statute is “[p]regnancy of the wife by a man other than her husband, at the time of the marriage, unknown to the husband.” OCGA §19-5-3(5).

This ground is fairly straightforward, but all of the elements must be sufficiently proven. The Petitioner must prove that the wife was pregnant at the time of the marriage, that the child is not the husband’s biological child, and that the husband did not know that the wife was pregnant with someone else’s child. Since the party must prove that the child is not the husband’s biological child, there must be a paternity test and, thus, if the divorce is based solely on this ground, the parties will have to wait until after the child is born to obtain the divorce.

August 30, 2010

Atlanta Divorce Lawyer's Guide to Grounds for Divorce - Force, Menace, Duress or Fraud

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The fourth ground under the statute is “[f]orce, menace, duress, or fraud in obtaining the marriage.” OCGA §19-5-3(4).

The Supreme Court of Georgia held that duress includes “any conduct which overpowers the will and coerces or constrains the performance of an act which otherwise would not have been performed.” Bryant v. Bryant, 192 Ga. 114, 116 (1941) quoting Dorsey v. Bryans, 143 Ga. 186, 188. Menace is “any overt act of a threatening character, short of an actual assault.” Bryant v. Bryant, 192 Ga. 114, 116 (1941) quoting Cumming v. State, 99 Ga. 662, 665 (27 S.E. 177). Thus, to obtain a divorce under this ground, you must prove that you were forced into the marriage and that, without the force, you would not have gotten married.

August 27, 2010

Atlanta Divorce Lawyer's Guide to Grounds for Divorce - Impotency

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The third ground under the statute is “[i]mpotency at the time of the marriage.” OCGA §19-5-3(3).

A party filing a Complaint for Divorce alleging impotency as a ground for the divorce must only allege that the impotency existed at the time of the marriage. Lovelace v. Lovelace, 179 Ga. 822, 830 (1934). The Petitioner does not have to allege that the Respondent knew of the impotency while she did not, nor that she “had not condoned the alleged impotency.” Id. Knowledge and condonation are potential affirmative defenses, which must be proved by the Respondent, and do not need to be alleged by the Petitioner in anticipation of these defenses. Id.

August 25, 2010

Atlanta Divorce Lawyer's Guide to Fulton County Parenting Seminar

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Fulton County (Alpharetta, Atlanta, Johns Creek, Milton, Roswell) offers its Family in Transition seminar at three different locations in the county. The following is a list of locations and schedule of seminars for the rest of the year:

• Saturday morning seminar once per month from 9:00 a.m. to 1:00 p.m. at the Downtown Justice Center Building located at 160 Pryor Street, S.W., Courtroom G33, Atlanta, Georgia. Remaining 2010 dates – September 18, October 16, November 13, and December 18.
• Weekday morning seminar once per month from 9:00 a.m. to 1:00 p.m. at the South Fulton Service Center located at 5600 Stonewall Tell Road, College Park, Georgia in the auditorium. Remaining 2010 dates – August 31, September 21, October 19, November 16, and December 21.
• Weekday evening seminar once per month from 4:00 p.m. to 8:00 p.m. at the Dorothy Benson Senior Multipurpose Complex located at 6500 Vernon Woods, Drive, Building B, Sandy Springs, Georgia. Remaining 2010 dates – September 9, October 7, November 4, and December 2.

Please note that both the South Fulton Service Center and the Dorothy Benson Senior Multipurpose Complex locations require pre-registration. The cost of the seminar is currently $30.00 per person. You can find additional information about these seminars at Fulton County Families in Transition program website.

August 23, 2010

Atlanta Divorce Lawyer's Guide to Grounds for Divorce - Mental Incapacity

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The second ground under the statute is “[m]ental incapacity at the time of the marriage.” OCGA §19-5-3(2).

In Georgia, to have the mental capacity to be married, the party must be of sound mind and be at least 18 years of age (unless parental consent is provided). If either of these is lacking, the divorce can be based on the ground of mental incapacity so long as the incapacity is sufficiently proven.

August 20, 2010

Atlanta Divorce Lawyer's Guide to Grounds for Divorce - Intermarriage

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law. OCGA §19-5-3. The first ground under the statute is “[i]ntermarriage by persons within the prohibited degrees of consanguinity or affinity.” OCGA §19-5-3(1).

In Georgia, the prohibited degrees of relation are father and daughter/stepdaughter, mother and son/stepson, brother and sister (whole or half), grandparent and grandchild, aunt and nephew, or uncle and niece. OCGA §19-3-3(a). These marriages are void from their inception. OCGA §19-3-3(b). It should be noted that if a person marries another person to whom he/she knows is related, by blood or marriage, within one of these prohibited degrees, that person is subject to imprisonment. OCGA §19-3-3(a).

Because these marriages are void from inception, with this ground a person may get an annulment or a divorce. However, “where children are born or are to be born as a result of the marriage,” an annulment cannot be granted and the parties must pursue divorce. OCGA §19-4-1.

August 5, 2010

Responsive pleading required to get notice of final divorce hearing

In divorce and other family law cases, it is very important to follow the letter of the law in filing pleadings with the court so that you do not miss out on any hearings or other notices. In a recent case, the husband filed a Complaint for Divorce and the wife, who had no attorney at the time, acknowledged service of the Complaint, but did not file an Answer or any other responsive pleading. Ellis v. Ellis, 286 Ga. 625 (2010). Shortly thereafter, the wife retained an attorney who filed an entry of appearance, but did not file any responsive pleading on the wife’s behalf. Id. The final hearing, of which the husband’s attorney provided notice to the wife’s attorney, was rescheduled, and the husband’s attorney agreed to inform the wife’s attorney of the rescheduled date for the final hearing. Id. The husband subsequently retained a new attorney who moved the trial court to enter a final judgment of divorce on the pleadings, without holding a final hearing. Id. After the trial court granted the husband’s motion and entered a final judgment of divorce, the wife filed a notice for new trial, alleging an agreement by the husband’s former attorney to provide notice of a final hearing date. Id. at 626. The superior court refused to grant wife a new trial, holding that the wife waived notice by failing to file any responsive pleading and any alleged agreement did not change this fact. Id.

Unfortunately for the wife, the Supreme Court of Georgia agreed with the superior court, as Georgia law is clear on this matter. OCGA §9-11-5(a) states: [T]he failure of a party to file pleadings in an action shall be deemed to be a waiver by him or her of all notices, including notices of time and place of trial and entry of judgment, and all service in the action, except service of pleadings asserting new or additional claims for relief. . . .”

Thus, in any divorce case, it is prudent to use the motto “better safe than sorry” so that you do not end up like the wife in this case. Even if you think you have an agreement with your spouse or his/her attorney, it is best to file all pleadings necessary with the court and look out for yourself.

August 3, 2010

How should we tell our children about the divorce?

As Atlanta divorce attorneys, we are often asked about the right way to tell children that you and your spouse are getting a divorce. A divorce is a very difficult process to go through and, often times, it is toughest on the children who may struggle to understand why their family is changing, and may feel like their family is falling apart. Generally, there is no “right” way to tell the children, as every family is different and the reasons for the divorce can vary greatly. The important thing is to make the children understand that, though you and your spouse are separating, you both love them and will always be there for them. Depending on the ages of your children, it may also be helpful for the children to understand how the future will work – when they will see the parent who is moving out, who will take them to school, where they will live, etc. However you and your spouse choose to break the news to the children, do not let the conversation turn into finger pointing or bashing the other person. This will only make the whole process more difficult on the children, and will make for a much more acrimonious divorce.

July 20, 2010

What to bring to your first meeting with an Atlanta divorce attorney

Your first meeting with an Atlanta divorce attorney will be a time for your attorney to gather information about your case. There are several documents you should bring with you to this meeting so that the attorney can learn as much as possible.

Account statements - Bring the most recent statement for any accounts that are in your name, your spouse’s name (if it is available to you), and your joint names. This includes statements for checking/savings accounts, investment accounts, retirement accounts, credit cards, and stock options. These statements will give your attorney a good idea of the assets that will be equitably divided between your and your spouse.

Bills – Bring the most recent statement for each bill that is paid by you and/or your spouse. This includes utility bills, mortgage statements, insurance statements, medical expenses, car payments, children’s expenses and credit card statements. These documents will help in alimony/child support negotiations, and will help determine who should pay these expenses while the divorce is pending and thereafter.

Income – Bring your most recent paystub and that of your spouse (if you have access to it). In addition, bring tax returns for the previous 3 years. Income plays a large role in most divorces so it is important that your attorney has a clear picture of this issue.

In general, bring everything to your first meeting with an attorney that you think is important to your case. Once the attorney has all the information, he/she can work with you to manage your expectations about your divorce and determine the appropriate steps to take to reach a positive outcome in your case.

July 6, 2010

Who files for divorce in Georgia and does it matter?

To formally initiate a divorce in Georgia, one party must file a Complaint for Divorce. This is a pleading filed with the trial court that formally asks the court to grant a divorce and requests that certain things be awarded to the filing party, such as child custody, child support, alimony, and equitable division of property. As Atlanta divorce attorneys, we are often asked whether it makes a difference for one party to file versus the other. Generally, it does not make a difference. The party who does not file the Complaint for Divorce has the opportunity to file an Answer to the Complaint and Counterclaim for Divorce requesting the same things as the filing party (ex: child custody, child support, alimony, equitable division of property). Thus, that party does not lose out on anything by not filing first.

However, the timing of the filing of the Complaint for Divorce may be important in some situations. For example, if you discover your spouse is having an affair and you wait awhile to file for divorce, the court could use this timing to find that the affair was not the cause of the divorce, which could allow the cheating spouse to suffer no repercussions from his/her behavior during the divorce action. Thus, it is important that you provide your Atlanta divorce attorney with as much information as possible about your unique situation so that he/she can assess whether the timing of filing the Complaint for Divorce could be advantageous for you.

June 29, 2010

Equitable Division and the Declining Real Estate Market

As we have discussed on previous blogs, Georgia is an equitable distribution state, which means that a division of marital assets does not have to be equal, but merely a fair division of property dependent on the particular circumstances of the case. A major asset to be divided in many cases is the marital home. The options for equitably dividing the marital home are complicated by the declining real estate market.

If neither wants to nor can afford to remain in the marital home, an option is for the parties to put the house on the market. In this case, the parties can work together with an agent, or alternate, with one party being in charge of the sale for 6 months and then the other party being in charge for the next 6 months. Of course, this option presupposes that the house will sell in a reasonable period of time, which, in this market, may not be the case. During the time the house is on the market, the parties will continue to be responsible for mortgage payments, etc., and must work out who will live in the house and pay utilities.

Another option is for one party to keep the house and refinance to take the other party’s name off the loan(s). This seems simple enough, but the refinancing party must be able to take on the entire loan. Since all of the marital assets will be split incident to the divorce, each party will most likely end up with only half of what the parties had as a married couple. In addition, in the case of dual income families, the parties likely qualified for the mortgage with combined incomes. Both of these issues may make it difficult for the party who wants to remain in the house to qualify to put the entire loan amount into his/her name.

Finally, no matter which option the parties choose or the judge orders, there is the very real possibility that the house is worth less than the amount owed on it. In this situation, the parties may be faced with the possibility of having to come to the table with money upon the sale of the house, or possibly foreclosing.

May 22, 2009

Georgia’s Family Law Conference 2009

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.

March 25, 2009

How can I prove my spouse’s adultery?

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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March 4, 2009

In Georgia, is using a do-it-yourself web site for an Uncontested Divorce a Waste of Money?

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.

February 9, 2009

Joint Debt and Divorce in Georgia

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.

January 23, 2009

Documents to keep after your divorce is final

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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January 22, 2009

Atlanta's Best Divorce Lawyer?

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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January 20, 2009

What do I do if I am served with a Complaint for Divorce?

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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November 17, 2008

What Happens in a Divorce in Georgia?

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.

September 8, 2008

How long must I live in Georgia before I can file for divorce?

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.

September 4, 2008

How long do I have to wait before my divorce will be finalized in Georgia?

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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