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.

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.

November 25, 2011

Parenting plans in Georgia

With the holiday season upon us, many divorced parents in Georgia will look to their parenting plan for guidance on arranging their holiday schedules. Parenting plans are custody agreements that are submitted jointly or individually by each party in an action that involves child custody in Georgia. Except in those cases where emergency relief is necessary due to family violence, parenting plans are required in all actions in Georgia where child custody is at issue.

A parenting plan may be temporary until a final decree is entered, at which time a permanent parenting plan will go into effect. Under Georgia law, when considering either a joint plan or opposing plans of the parties, the court must make its determination based upon the best interest of the child. O.C.G.A. § 19-9-3. The court bases its determination on a number of factors including, but not limited to, the relationship that exists between each parent and the child, and the ability of each parent to provide the child with basic necessities. Id. at a(3).

Parenting plans require that both parties acknowledge and decide on a variety of issues. O.C.G.A. § 19-9-1. Holiday visitation is one such issue, and it can be difficult and emotional for parties to come to an agreement because it requires each party to agree to some holidays away from their children. It may never be easy to split time with your child and the other parent, but a successful parenting plan can alleviate tensions between the parties and allow each parent to enjoy time with their child.

If you need help creating a parenting plan, or seek to modify your existing parenting plan, please contact our Atlanta divorce attorneys to assist you in the process.

By Courtney Carpenter, Associate Attorney, Meriwether & Tharp LLC

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.

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 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 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 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 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 1, 2010

Atlanta Divorce Lawyer's Guide to Forsyth and Cherokee 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. Forsyth County (Cumming) and Cherokee County (Ball Ground, Canton, and Woodstock) are part of the 9th judicial district. All of the counties in this 9th judicial district work jointly to offer their seminar for divorcing parents throughout the judicial district.

The schedule for September 2010 is as follows:
• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, September 2, 5:00pm – 9:00pm; Thursday, September 16, 5:00pm – 9:00pm
• Dahlonega (North Georgia College and State University, Continuing Education Bldg., Highway 60) – Wednesday, September 8, 9:00am – 1:00pm
• Blairsville (Haralson Civic Center, 165 Welborn Street) – Monday, September 13, 9:00am – 1:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Tuesday, September 14, 1:00pm – 5:00pm
• Woodstock (Woodstock Public Library, 7735 Main Street) – Saturday, September 18, 10:00am – 2:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, September, 20 1:00pm – 5:00pm
• Cumming (First Baptist Church Cumming, Kids Town Building, 1597 Sawnee Drive) – Saturday, September 25, 10:00am – 2:00pm

The cost of the seminar is currently $50.00 per person. There is no pre-registration. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

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 18, 2010

Telephone visitation

When one thinks of custody and visitation in a divorce case, the first thing that most likely comes to mind is: “When will I see my children?” An important aspect of visitation is not only when you will see your children, but also when you will be able to speak to them during the times in which your former spouse has custody/visitation. For many parents this is a no brainer – the children can speak to the other parent as often as they would like. In more adversarial divorces, however, this is not always the case. Sometimes one parent may feel that the other parent calls too often, disrupting his/her visitation or custodial time, or calls at inopportune times, when the children are doing homework or asleep.

Our family law firm recommends putting a clause in your settlement agreement addressing telephone visitation. It can be as simple as stating that the children may call the other parent at any time, but the parents may only once per day. It may also address issues such as one parent eavesdropping while the child(ren) is speaking to the other parent.

If you are unable to settle your divorce case and you believe telephone visitation may be an issue with your former spouse, be sure to bring it up to the Judge so that he/she may rule on it in the Final Judgment and Decree of Divorce and your rights will be protected.

August 17, 2010

Joint Physical Custody and Legal Custody in Atlanta Divorces

As Atlanta divorce attorneys, we are often confronted with questions from parents who want to know more about joint physical custody and legal custody of their children. In order to answer these questions, further investigation is usually required on our end to discover exactly what the parent means by “joint custody.”

In Georgia, there are two aspects to custody: legal custody and physical custody. Legal custody refers to which parent has the right to make decisions concerning the care and welfare of the child. Physical custody refers to where the child will live on a daily basis. Absent serious misconduct by one of the parties, it is nearly routine in Atlanta child custody and divorce cases for the parties to be awarded joint legal custody of the children. This means that both parties are entitled to be made aware of all issues affecting the children’s welfare and that the parties must confer in good faith to try to reach an agreement regarding any major decisions affecting the children. Where the parties are granted joint legal custody, the court will also designate a mechanism for settling any disagreements between the parents (mediation, tiebreaking authority, etc.).

Joint physical custody is a different matter altogether. Many parents use the term “joint custody” when referring to the concept of 50/50 physical custody—an arrangement where the child spends equal amounts of time with each parent. This type of arrangement is most often set up so that the parents alternate week long periods with the child. There are many benefits to this type of custody arrangement, including giving the child the opportunity to build ongoing and lasting bonds with each parent. From a financial standpoint, it may also eliminate the need for either party to pay child support. If the parents cannot agree regarding joint custody, the Court will order that custody be awarded based upon the best interests of the child or children. O.C.G.A. § 19-9-3.

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.

April 22, 2010

How long do I have to pay child support?

According to the child support guidelines, a parent has a duty to support a minor child “until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs.” OCGA 19-6-15(e). In addition, the court has the discretion to order a parent or parents “to provide financial assistance to a child who has not previously married or become emancipated, who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that such financial assistance shall not be required after a child attains 20 years of age.” Id. Thus, parents are required to support their children until the children reach 18 years of age, so long as the child is living, and not married or emancipated. However, the court has the option to extend the support obligation. For example, if a child turns 18 in March of his senior year of high school and continues to be enrolled in school, the court can require the child support to continue until the child graduates high school, but not past the age of 20. Parents have the option of including this extension in any settlement agreement as well.

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.

October 30, 2008

What is the difference between a contested and uncontested divorce?

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

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

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

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