Atlanta Divorce Attorney Blog

Obtaining a passport for a minor can be overwhelming and complicated, especially when one of the parents is unavailable. One document that is needed to obtain a passport for a minor is a certified birth certificate. If the mother is the only parent on the birth certificate, then the father’s consent is not needed to obtain a passport. If both parents are listed on the birth certificate, both need to give consent, except in limited situations. This is where it can get complicated, particularly if the whereabouts of one parent are unknown, or if one parent is uncooperative. Information regarding obtaining passports for minors can be found here.

I highly recommend consulting with a local attorney who has experience with this particular issue to discuss the process in greater detail and help you obtain the necessary documentation.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

The answer to this question depends on whether you have his or her consent. If you are seeking to record your spouse’s conversations in the context of divorce, it is very likely that you will not obtain (or seek) their consent. So, let’s approach the question above with that in mind.

In Georgia, it is unlawful for “[a]ny person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place.” O.C.G.A. § 16-11-62 (a). However, “[n]othing in Code Section 16-11-62 shall prohibit a person from intercepting a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. “ O.C.G.A. §16-11-66 (a).

In other words, it is not lawful for you secretly record your spouse’s telephone conversation unless you have his or her consent, or you are an actual party to the telephone conversation (you are recording a telephone conversation between yourself and your spouse). Many individuals who are either considering divorce or those who are currently going through a divorce wish to secretly record their spouse’s telephone conversations in order to obtain evidence of an affair, or to obtain other evidence that they feel may be to their advantage during the divorce litigation. Don’t do it.

Not only will the “evidence” you obtain not be admissible in any court in Georgia, but you may also be criminally prosecuted for violating the above cited statutes. O.C.G.A. §16-11-67 and O.C.G.A. §16-11-69. In fact, violation of the law cited above constitutes a felony and, if you are convicted, you may be “punished by imprisonment for not less than one nor more than five years or a fine not to exceed $10,000.00, or both.” O.C.G.A. §16-11-69.

If you suspect that you spouse has, or is currently committing adultery, or if there is other information about your spouse that you believe will be beneficial to you in your divorce case, speak with your Georgia divorce attorney concerning tools such as the discovery process or the use of a private investigator. These tools will provide you and your attorney with helpful and legal means to discover useful information vital to your case.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

In Georgia domestic relations actions (ex: divorce, alimony, child support, child custody, legitimation), the superior courts have authority to issue a Standing Order. OCGA §19-1-1(a). This Standing Order governs the parties’ actions during the pendency of the case, and can also apply to agents, servants, and employees of the parties, and all others acting in concert with such parties. OCGA 19-1-1(b)(1).

Specifically, the standing order “[e]njoins and restrains the parties from unilaterally causing or permitting the minor child or children of the parties to be removed from the jurisdiction of the court without the permission of the court, except in an emergency which has been created by the other party to the action.” OCGA §19-1-1(b)(2). This clause ensures that one party cannot take the children away from the other party. Even if one party has sole custody, that party cannot take the children out of the county/city while the action is pending, without prior permission from the court.

In addition, the standing order “[e]njoins and restrains each party from doing or attempting to do or threatening to do any act which injures, maltreats, vilifies, molests, or harasses or which may, upon judicial determination, constitute threats, harassment, or stalking the adverse party or the child or children of the parties or any act which constitutes a violation of other civil or criminal laws of this state.” OCGA §19-1-1(b)(3). This clause attempts to interject some common decency throughout what could otherwise be a very acrimonious process.

Further, the standing order “[e]njoins and restrains each party from selling, encumbering, trading, contracting to sell, or otherwise disposing of or removing from the jurisdiction of the court, without the permission of the court, any of the property belonging to the parties except in the ordinary course of business or except in an emergency which has been created by the other party to the action.” OCGA §19-1-1(b)(4). This clause ensures that one party does not get rid of property or assets in an attempt to keep them away from the other party.

The Fulton County Standing Order can be found here.
The Forsyth County Standing Order can be found here.
The Cobb County Standing Order can be found here.

The short answer to this query is: Certainly. Now for the more detailed version…

Before you retain attorney, it is vital to ensure that not only will your attorney adequately represent you, but you must also ensure that you will be comfortable with and confident in the attorney you choose. Only then will your attorney/client relationship be successful. However, as is the case with many relationships, there may come a time that you are no longer comfortable with your representation, or you feel as if your current attorney no longer is serving your interests. In this case, it is totally acceptable to seek new counsel. Remember, the choice of who you want to represent you is your own. If you are currently in an unhappy attorney/client relationship, you may most definitely divorce your divorce attorney. However before you do, take a look at the following pieces of advice regarding when, how and even if you should end your relationship with your current attorney.

Communicate

If you find yourself dissatisfied with your current attorney, express your concerns to him or her and listen to your lawyer’s explanation. If you are not satisfied with your attorney’s explanation of if you continue to be dissatisfied with your attorney’s representation, you should then consider hiring a new lawyer.

Keep Records

Keep your own records and copies of documents in the event of a break. Although your attorney will either return your case documents to you or forward them to your new counsel, it is best to maintain copies of all of the documents that you provide your counsel, as well as all of the documents your attorney provides you with. If you do maintain copies of all of your case relevant documents, you may immediately provide your new attorney with this vital information without having to wait for your previous counsel to provide them. This will allow for a smoother transition and it will allow your new counsel to begin working on your case more efficiently and more effectively. Also, keep records of your communications with your attorney. Keeping a written record of all communications and requests between you and your attorney will help you down the line if there are any discrepancies or if it becomes necessary for you to petition the court for a change of attorney.

Try to work things out

You will often find that once you inform your current attorney of your concerns, he or she will do their best to work with you. In fact, working with your current attorney to solve any problems may best serve your interest because he or she is likely already intimately familiar with your case, and will be in the best position to handle your case going forward. But, if you come to realize that your lawyer simply is not the right fit for you, you are certainly better off ending a bad relationship than finishing the case with regrets.

Once you have made the decision to seek new counsel, communicate your decision to your current attorney. Once you have informed your attorney of your decision to seek alternative counsel, request that he or she seek permission from the court to withdraw from your case. Once this occurs, the new attorney of your choosing may file an entry of appearance or substitution of counsel in your case and continue your representation. When selecting your new attorney, remember that there is no such thing as a perfect lawyer or the best lawyer. You should seek an attorney who is best for your situation and an attorney who you can trust.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

As a counterpart to last week's Tips for Hiring a Georgia Divorce Attorney - Part 1, below are five more tips to help you choose the attorney who is right for you:

6. Ask the lawyer how they plan to proceed. Once you have explained your unique situation to the attorney with whom you are consulting, you should have them clarify how they will handle the case before you retain them. In other words, you should ask questions like: Who will be the primary attorney working on my case? What steps will they immediately take once you hire them? What path do they expect the case to take? If you are not comfortable with the path the attorney suggests, remember you are not obligated to hire an attorney simply because you have consulted with him or her. Continue your search until you find the right fit for you.

7. If it seems too good to be true, it probably is. Despite popular belief, most lawyers are honest. However, there are some who will say whatever a client wants to hear in order to retain that client. If a lawyer is guaranteeing you a result or telling you not to worry about how he will be paid right now, that is a big red flag.

8. Be organized. Remember, when you first speak with an attorney who is considering taking you on as a client, they know nothing about your case. Write down a brief summary of the facts in your case and bring relevant documents that may help that attorney better understand your case to the initial consultation. These are both things that you can do to help your attorney truly understand what is going on in your case.

9. Tell the truth. It sounds simple, but often divorce or other family law matters concern very sensitive or private facts and information that many do not feel comfortable sharing with their attorney. But remember, your attorney must know all facts that may be relevant to your case in order to provide you with adequate representation. Your attorney will only be able to help you if you are completely honest. When you speak with your attorney, your communication is protected by attorney-client privilege. That means everything you discuss with him or her is confidential. Be honest with your attorney up front so that he or she will know the correct action to take in your case. If the lawyer you would like to retain does not want to work with you after hearing the truth then they are not the right attorney for you anyway.

10. Make sure your lawyer focuses his or her practice on your area of law. When hiring an attorney, it is a good idea to make sure that your attorney focuses their practice on your area of law and has a track record to back that up. This is especially true when dealing with family law issues such as divorce, child custody, child support and alimony. Hiring an attorney who handles cases such as yours will increase the likelihood that you will be pleased with the result of your case.

While there are countless other things you can do in order to ensure you hire the best lawyer case, hopefully these tips are a helpful starting point.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

Choosing the right attorney to handle your Georgia divorce or other family law issue is overwhelming for some. With all of the options available, it may seem difficult or even impossible to determine which attorney would be best for you. In recognition of this, in Parts 1 and 2 of Tips for Hiring a Georgia Divorce Attorney, we have listed a few tips that we hope will help you choose the attorney who is right for you.

Most importantly, choose an attorney who is experienced in the practice of family law and who has a good reputation, both among clients as well as other professionals.

1. Educate yourself. One of the best ways to begin your search for an attorney is to do some research on websites such as LinkedIn, Avvo.com, Attorneys.com, Martindale-Hubbell, or the websites of your local or state bar association. These websites will not only provide you with the contact and background information of potential attorneys; they often offer reviews posted by former clients or business associates as well. Look for attorneys who have positive reviews, not just by former clients, but also by other professionals, because it is often essential for divorce attorneys to work with or consult other professionals during the divorce process. You want to ensure that your attorney will be able to work with others effectively on your behalf. Additionally, consulting friends or professional acquaintances is also a great way to ensure that the attorney you choose is experienced and will be committed to your case. Once you have identified an attorney you would like to consult, check out that attorney’s webpage. Most law firms have webpages that should provide the attorney’s biography as well as information concerning the attorney’s practice are and case history.

2. Remember, this is your choice. The choice of who you would like to represent you in your Georgia family law case is your own, and you are free to engage any attorney licensed to practice in the state of Georgia as long as that attorney does not have a conflict of interest. Do not hesitate to ask pointed questions to all of the attorneys you consult in order to be sure you choose the best attorney for your case.

3. Focus on your goals. Most family law cases, especially divorce, are ripe with emotion. Unfortunately, many people focus on their anger or frustration without thinking about where they want to be when the case is done. Identify your goals early on or ask each attorney you consult with to help you do that. This way you will save money, provide your attorney with direction and have something to work toward.

4. Expect superb customer service. Before you hire a Georgia divorce attorney, you should ask him or her how they will communicate with you. Although it is not reasonable to expect your attorney to be available every moment you need him or her, it is reasonable to expect a return telephone call or e-mail within 24 hours. It is best to discuss this aspect of your relationship up front rather than trying to deal with it once you have hired an attorney and a problem occurs. Additionally, once you have hired an attorney, he or she should be willing to explain things to you and work with you to come to the best resolution of your case, and at no point should your attorney be disrespectful or demeaning in any way.

5. Discuss fees and billing before you ask an attorney to begin working on your case. Before you ask any attorney to begin any work on your case, ask them for a written document that states what the costs will be, how often you will be billed, what your attorney’s hourly rate will be and what retainer or upfront fees are required. In all likelihood, the prospective attorney will ask you to review and sign an agreement that spells out exactly how fees and billing will be handled. But if not, be sure to request an explanation.

Check back soon for Part 2 of Tips for Hiring a Georgia Divorce Attorney.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

In family law cases, courts often have to find a balance between allowing a child to testify, and protecting that child from harm. In one recent Georgia case, following their divorce, parties shared joint legal custody of their son with the mother having primary physical custody. Galbreath v. Braley, A12A1115 (2012). A few months after the divorce, the mother filed a petition for modification of custody and for an emergency suspension of the father’s visitation rights, alleging that the father had molested a 13-year-old girl in the son’s presence. Id. at 2. The father sought to take a videotaped deposition of the allegedly molested child to present as evidence in the custody modification case. Id. The child’s parents filed a motion for protective order, objecting to the deposition and provided an affidavit of the child’s social worker specifically describing the severe harm to the child that could result if the deposition was allowed.

The trial court looked to case law from other states (as there is no Georgia case law on point) and performed a test balancing “the relevance and importance of the child’s testimony with the potential that the child will be harmed.” Id. at 3; Graham v. City of New York, 2010 U.S. Dist. LEXIS 78184, 2010 WL 3034618, *5(B)(2) (E.D.N.Y. 2010). In performing this balancing test, the trial court found that the child’s testimony was “relevant and highly important” to the father’s case, the potential harm to the child outweighed his interest in the testimony. Id. at 4. The trial court, thus, granted the protective order, completely prohibiting the deposition (rather than imposing restrictions on the deposition) and the father appealed. Id.

The Georgia Court of Appeals agreed with the father. In vacating the trial court’s order, the Court held that “Georgia ‘has a strong policy in favor of allowing a divorced parent continuing contact with his or her child so long as the parent has demonstrated the ability to act in the child’s best interest.’ Accordingly, Georgia courts ‘will not deny a parent all visitation rights absent exceptional circumstances in which there is reasonable probative evidence that the parent is morally unfit.’” Id. at 7, quoting Mitchum v. Manning, 304 Ga. App. 842, 843 (698 SE2d 360) (2010).

The Court found that the protective order “prevents and frustrates [the father’s] legitimate discovery requests.” Id. at 8. The Court, therefore, vacated the protective order and remanded the case to the trial court to reconsider whether and to what extent the deposition may go forward without exacerbating any harm to the child, specifically directing the trial court to consider allowing the deposition with reasonable restrictions as to the method – where the deposition can be held, who can be present, the length, etc. Id.

In this third installment in our series, High Profile Child Custody Battles, we discuss the matter of Halle Berry vs. Gabriel Aubry. It has been reported by several news outlets that the custody battle between Berry and Aubry may be coming to a close due to a recent ruling by the judge presiding over the matter. However, a recent event in the lives of Berry and Aubry may cause the judge to reconsider his decision. Before we get in to those details however, a brief rundown of the couple’s history may be in order.

Actress Halle Berry and Model Gabriel Aubry ended their four year relationship in 2010, after 4 years dating. During their relationship Nahla, their beautiful daughter who is now four, was born. Shortly after the couple parted ways in 2010, a custody dispute commenced between the couple. Recently Berry, who is now engaged to Actor Oliver Martinez, petitioned the court presiding over the custody matter for permission to move to France with her daughter so that they both could live there with Martinez. The reason Berry purportedly gave for the request was that she felt she and her daughter would be safer in France, as France has much stricter policies regarding paparazzi and privacy issues than does the United States.

Aubry, Nahla’s father, fought Berry’s petition and was ultimately successful. On November 9, 2012 the presiding judge in the matter issued a ruling prohibiting the actress from moving with Nahla to France. It is very likely that the court based its decision on the fact that moving Nahla to France would mean less time that Aubry could spend with her. Additionally, such a drastic move, which would distance the child from almost everyone and everything she has known her whole life, may have additional negative effects on the young girl. Although the judge’s ruling in this case is likely the most appropriate, recent events may cause the court to reconsider.

After Thanksgiving, it was reported by several news and media outlets that Aubry and Martinez, Berry’s new fiancée, were involved in a physical altercation on Thanksgiving Day. This altercation left both men in the hospital, with Aubry apparently suffering the more severe injuries. Although the details concerning the cause of the altercation are still unclear, Aubry was arrested and booked for battery and Berry sought and obtained an emergency temporary restraining order against the model. In light of this new event, it is likely that Berry will again petition the court to reexamine the couple’s custody arrangement, and Aubry’s recent behavior may indeed give the court reason to reconsider the current arrangement in order to protect Nahla’s safety and best interests.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

Engagement and marriage are very joyous times, and although no one ever anticipates the premature end of their marriage or engagement, the reality is that not all marriages or engagements continue happily ever after. One common question that individuals have regarding family law is what happens to the engagement rings if the marriage or the engagement does go awry. Who gets to keep the ring: the man who likely purchased it, or the woman who it was given to? Many courts throughout the nation have considered this very question, and those courts have reached varying decisions. Despite the differences, one major theme is present, engagement rings are gifts. The only real question is whether the gift will be viewed as a completed gift or as a conditional gift by the court.

Completed Gifts

Courts generally treat the engagement ring as a gift, from the donor (the person who gave the ring) to the donee (the person who received it). In order for a gift to be deemed a legally complete gift, three elements must be present: 1) the donor must intend to give the ring as a gift, 2) the donor must deliver the ring to the donee, and 3) the done must accept the ring. If the person to whom the ring was given can show all three elements, a court will consider the ring to be a gift to him or her.

Conditional Gifts

But the majority of courts also consider such a gift to be a conditional one. That means that, until some future event occurs, the gift is not final. If that event does not occur, the donor has the right to get the gift back.

Women who want to keep their engagement rings often argue that the condition needed to make the engagement ring a completed gift is simply the acceptance of the proposal of marriage, not the completion of the marriage ceremony. That way, if the engagement is broken, the ring remains her property.

But this argument often is not successful. The majority of courts find that the gift of an engagement ring contains an implied condition of marriage. Acceptance of the proposal is not the underlying "deal," the marriage is. Absent some other understanding or circumstance, for example, if the ring was given as a memento of a shared memory or experience or if the ring was given to celebrate a holiday or special occasion, most courts look at engagement rings as conditional gifts given in contemplation of marriage. However, as mentioned earlier, some states have come down on the opposite side of this fence, rejecting the conditional gift theory and declaring that an engagement ring is an unconditional, completed gift and that's that. Thus, it is important to seek the advice of a knowledgeable family law attorney in your state to determine what rights you have regarding an engagement ring, regardless of whether you are the donor or the donee.

After the Marriage

After the marriage has occurred, the question of who gets to keep the ring becomes much simpler. Upon marriage, the ring is considered the property of the recipient. Even if the ring could have been viewed by a court as conditional initially, the condition of marriage is now met. In most states, rings are also considered the separate property of the recipient, not marital property, because the gift was made prior to marriage. Only via an agreement, like a premarital or settlement agreement, may a donor obtain possession of the ring upon divorce.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

A few months ago, I saw an unfortunate case in which a father and his four children were being evicted from their home, which was awarded to the father in a divorce decree. The father had assumed that his ex-wife was keeping the mortgage current, and was not even aware that a foreclosure sale had taken place. He found out that the foreclosure had occurred when he was served with a dispossessory warrant. Three weeks later, he was forced to move his family out of their home.

Under Georgia law, after a foreclosure sale takes place, the new owner becomes the landlord of whoever is living in the house, and the occupant becomes a tenant at sufferance. As a tenant at sufferance, the occupant has no guarantees that he/she will be allowed to remain in the property, and could be subject to a dispossessory action by the new owner. Unless the defendant has a viable defense, in Georgia, a losing defendant in a dispossessory action faces the difficult task of moving out of the residence within seven days.

The first step to avoiding eviction is to understand your rights and responsibilities when you are awarded the marital residence in a divorce. Do not assume, as the unfortunate father above did, that “everything is fine” simply because you are not receiving any notices or phone calls from the bank. You have to take a proactive role in managing your home, including any mortgage payments, insurance requirements and tax obligations. It is often necessary to refinance the home, in order to have the non-participating spouse removed as a borrower; however, there are other options available that may be better suited to your specific situation. The best way to protect yourself is to consult an experienced family law attorney, who can explain the legal effects of your settlement agreement, and walk you through the processes necessary to protect your home.

By Savannah Murphy, Associate Attorney, Meriwether & Tharp, LLC