Atlanta Divorce Attorney Blog

In a Georgia divorce action, “a party may pray in his pleadings for the restoration of a maiden or prior name.” OCGA §19-5-16. Once the divorce is granted, “the judgment or decree shall specify and restore to the party the name so prayed for in the pleadings.” Id. Thus, if a wife wants to change her name back to her maiden name, all she has to do is request the change in her Complaint for Divorce (or Answer and Counterclaim for Divorce), and her name will be changed in the Final Decree of Divorce. She can then take this Court Order to the Department of Motor Vehicles, Social Security Office, or passport office to have her name changed on the appropriate documents.

If the party fails to request the name change in the divorce pleadings, and the divorce is granted without name change, the party must then file a separate Petition for Name Change in the Superior Court. OCGA §19-12-1.

If the party in the divorce action desiring the name change has children, this does not affect whether the name change will be granted. However, that party may want to think hard about whether she wants her name to be different than that of her children. It should be noted that a child’s name cannot be changed as part of the divorce action but, rather, a request for change must be made in a different action. Thus, if desired, this must be done at a different time and the other parent must consent. OCGA §19-12-1. This process is, therefore, not as straightforward as that of a name change incident to a divorce.

Family law attorneys deal with child support issues every day. A common question asked is: How long do I have to pay child support? Fortunately, Georgia law makes this clear. Specifically, the law says “[t]he duty to provide support for a minor child shall continue until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs.” OCGA §19-6-15(e). One caveat to this rule is that, in any child support order entered on or after July 1, 1992, the court “may direct either or both 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. Presumably, this clause was added to cover a situation where a child turns 18 in August, but will still be attending high school and living in a parent’s home until the end of the school year, 10 months later.

Despite the language in the statute, parties can agree to a longer child support duration in their settlement agreement, if they choose to do so. For example, the parties could have a clause in their settlement agreement stating that one or both parties must pay for college. A court, however, is unable to require either or both parties to pay for college. Thus, if this is something that is important to you, make sure the language is in your settlement agreement because, if you go to court to try to make your spouse pay for a child's college expenses, you will be unsuccessful.

A person has two options to end a marriage in Georgia – annulment or divorce. An annulment is much harder to come by and may only be granted in the case of a marriage declared void by law. OCGA §19-4-1. In Georgia, “marriages of persons unable to contract, unwilling to contract, or fraudulently induced to contract shall be void.” OCGA §19-3-5(a). Thus, a person may get an annulment if he/she can prove the marriage is void for one of the above reasons. However, in the case of a spouse unwilling to conrtact or fraudulently induced into contract, a subsequent consent and ratification of the marriage, freely and voluntarily made, accompanied by cohabitation as husband and wife shall render the marriage valid.” OCGA §19-3-5(b). In that situation, an annulment would not be granted and the person’s only option for ending the marriage is divorce.

In addition, Georgia law is clear that an annulment may not be granted “in instances where children are born or are to be born as a result of the marriage.” OCGA §19-4-1.

If an annulment is granted, it “shall have the effect of a total divorce between the parties of a void marriage and shall return the parties thereto to their original status before marriage.” OCGA §19-4-5. The main difference is the parties will walk away as if the marriage never happened, as opposed to divorce where there may be equitable division and/or alimony.

Georgia is an equitable division state. This means that, upon a divorce, the property of the parties is divided equitably between them (though not necessarily equally). The exception to equitable division is separate property. In Georgia, “the separate property of each spouse shall remain the separate property of that spouse.” OCGA §19-3-9. Basically, this means that any separate property is not included in the marital estate and, thus, is not subject to equitable division.

Some examples of separate property include an inheritance, gifts, real property or bank accounts. One must be careful, however, to keep separate property separate, or it may convert into marital property subject to equitable division. Consider, for example, if a spouse inherits a large sum of money from a deceased relative. If the spouse puts the money into a separate account bearing only that spouse’s name and does not commingle the funds with marital funds, the account will continue to be treated as separate property, and that spouse would take the entire account upon divorce without any offset to the other spouse. However, if the spouse adds the inherited funds into a joint account in the names of both spouses, or opens a new account but adds the other spouse’s name to that account, he/she is treating the funds as marital, rather than separate, and they will likely be treated as marital upon divorce. In addition, if it is a separate account, but both spouses subsequently deposit funds into it, a portion of the account may be treated as separate and a portion treated as marital.

Separate property can be a complicated issue during a divorce, particularly if funds have been commingled. The calculation for figuring out how much is separate and how much is marital can be complex and, if not done correctly, can result in the entire asset being treated as marital and subject to equitable division. It is important that you speak to an experienced family law attorney if you are dealing with this issue in your divorce.

In Georgia, a person must be at least 18 years of age to legally marry. OCGA §19-3-2(a)(2). The one exception to this age requirement is that a 16 or 17 year old may get married in this state so long as he/she has the requisite parental consent. OCGA §19-3-2(b).

In cases where the parties applying for a marriage license are 16 or 17 years old, the parties must first submit proof of their ages. Proof may include “a birth certificate, driver's license, baptismal certificate, certificate of birth registration, selective service card, court record, passport, immigration papers, alien papers, citizenship papers, armed forces discharge papers, armed forces identification card, or hospital admission card containing the full name and date of birth.” OCGA §19-3-36. The parents or guardians of the underage applicants must then “appear in person before the judge and consent to the proposed marriage, provided that if physical presence because of illness or infirmity is impossible, an affidavit by the incapacitated parent or guardian along with an affidavit signed by a licensed attending physician stating that the parent or guardian is physically incapable of being present shall suffice.” OCGA §19-3-37(b).

Additionally, if the parents or guardians live in a different Georgia county than the applicants, they can appear before the court in the county in which they reside. OCGA §19-3-37(c)(1). If the parents or guardians live in a different state, they may appear before the judicial authority in their state. OCGA §19-3-37(c)(2). In either of these cases, “the parents or guardians shall obtain a certificate from the judge of the probate court or the proper judicial officer before whom they have appeared with the seal and title of the official appearing thereon, the certificate containing information to the effect that the parents or guardians appeared before the judge or judicial officer and consented to the proposed marriage.” OCGA §19-3-37(c)(3).

In Georgia, when considering whether to terminate a parent’s parental rights, one of the most important steps is giving that parent the full opportunity to present his/her case as to why his/her rights should not be terminated (assuming that parent wants to do so). A Georgia trial judge recently denied this right to a father in the case Hafer v. Lowry. Hafer v. Lowry, A12A2549 (2013).

In that case, the mother had sole custody of the child subsequent to the parties’ divorce. She later remarried, and the stepfather sought to adopt the child, to which the father vehemently objected. The stepfather claimed that the father’s rights should be terminated because, among other things, the father had failed to communicate with the child for over a year, and had not provided for the child as required in the divorce decree. Id. During the hearing, while the father’s attorney was presenting evidence, the judge interrupted him to stop presentation of the evidence and ruled that the father had lost his parental rights. Id. at 2. The father’s attorney objected, but the judge apparently disregarded the objection. Id.

The Court of Appeals agreed with the father and vacated the judge’s order granting the stepparent adoption and terminating his parental rights. Specifically, the Court of Appeals emphasized, “the fundamental idea of due process is notice and an opportunity to be heard.” Id.; quoting Gottschalk v. Gottschalk, 311 Ga. App. 304, 312 (2011). The Court held that “by foreclosing [the father’s] right to show cause why his parental rights should not be terminated, the trial court deprived him of a meaningful opportunity to be heard.” Hafer, at 4.

It does not matter if a party has a strong case, or if most of the evidence is against him. He still has a right to present all the evidence he has and to be fully heard on the matter. Otherwise, the ruling is contrary to due process and cannot stand.

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

An issue that periodically comes up in Georgia family law cases is a potential name change for a child affected by the action. Whether a divorce action where the mother is returning to her maiden name, or a legitimation action where the new legal father wants the child to have his last name, changing the last name of a child can be an issue to be decided in the case. The Court of Appeals of Georgia recently heard a case where a father sought to change the name of his child through his legitimation petition. Riggins v. Stirgus, A12A2512 (2013). In that case, the trial court granted the name change after hearing evidence of the father’s close relationship with the child, and the father testified that the name change would strengthen the father’s bond with the child and ensure that the child bonded with the father’s relatives. Id. at 3. In addition, the mother had remarried and taken her new husband’s name; thus, she no longer had the same last name as the child. Id.

Although the mother appealed, arguing that there was insufficient evidence showing that the name change was in the child’s best interest, the Court of Appeals affirmed the ruling. The Court held that the child’s best interest was considered, and seemed particularly moved by the fact that the mother and child no longer shared the same last name. Id. at 4.

Although the name change in this case was affirmed, it is important to note that a party must prove that the name change is in the child’s best interests. OCGA §19-7-22. Both parties can present evidence as to how the name change would impact the child’s interests and the court will make a decision accordingly.

In Georgia, whether a noncustodial parent has a right to see notes from their child’s counseling sessions depends on the language in the parties’ parenting plan. Often, a parenting plan gives both parents the right to medical records, regardless of who is listed as the custodial parent. However, sometimes only the custodial parent can view them, particularly when that parent has sole custody of the children.

I have seen some counselors take the position that their notes relating to the child on confidential to the child and will not share them with either parent, despite language in a parenting plan. I do not believe their position is correct legally, but I have seen them take that position and had to seek court intervention to get certain documents.

If access to these notes is something that is important to you, I highly recommend having an experienced divorce attorney drafting your parenting plan. This will ensure that you have the proper language included, so you don’t run into any issues down the road.

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

The Servicemember's Civil Relief Act (SCRA), an expansion and improvement of the former Soldiers' and Sailors' Civil Relief Act (SSCRA), can have an impact on Georgia divorce cases. See USC APPX. Sec. 522. The SCRA provides a wide range of protections for individuals entering the military, service members called to active duty in the military and deployed service members. The SCRA is intended to postpone or suspend certain civil obligations to enable service members to devote full attention to their military duty. A few examples of such obligations a service member may be protected against are: outstanding credit card debt, mortgage payments, pending trials, taxes, termination of leases.

Additionally, the SCRA also applies to divorce cases and to child custody actions where the absence of the military parent would materially impair his or her ability to prosecute or defend his or her rights to custody of a child. Derby v. Kim, 238 Ga. 429 (1977). In order to take advantage of the SCRA, the military service member must apply for or request a stay of the judicial proceedings. The service member must request a stay of judicial proceedings regardless of whether the service member is the plaintiff or defendant in the civil action. The SCRA requires that the service member request the stay of proceedings by making the statement that he or she is at the time actively in military service. Unless there is evidence that the servicemembers rights, as a litigant, will not be materially affected by a determination of the pending proceedings, it is mandatory that the application be granted. Parker v. Parker, 207 Ga. 588 (1951). Furthermore, it has been held by the Georgia Supreme Court that it is impossible for a wife to obtain alimony by cross-action against her service member husband without his waiver of the SCRA’s provisions, even where the husband has initiated the proceedings. Id.

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

If a child is born to a Husband and Wife during the marriage, the child's legal parents are the Husband and Wife. This is true regardless of whether the Husband is the biological father of the child. Thus, even if he is not the biological father of the child, the Husband still has rights regarding the child in the event of a divorce.

For example, if the Husband and Wife later were divorced and a parenting plan was put in place that set forth the Husband's custodial rights as a father, then the father could seek, and potentially be granted, primary custody of the child. If, however, the Parties set forth in their divorce decree that the Husband was not the father and did not set forth any custodial rights, then the ex-husband will not have much legal basis to seek custody. In this situation, I would recommend having a consultation with a local family law attorney.

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

When parents can’t agree on who should take care of the child after the divorce, a Judge will order, or the parties can consent to, a custody evaluation. The evaluation is done by a licensed psychologist and its purpose is to assist the Court in determining the best interests of the child pursuant to O.C.G.A. § 19-9-3. The following are some tips to help you prepare for a custody evaluation in Georgia:

Do not coach your child on what to say to the evaluator. The evaluator will pick up on this very quickly and it will not assist with your case.

Be on time.

Be polite and dress neatly.

Be honest and open, and do not get offended if the evaluator asks questions. Stop and think about each question, and if you do not understand feel free to ask the evaluator to re-phrase the question or clarify.

Make sure to have a list of people that you want the evaluator to talk to with phone numbers and e-mail addresses.

Keep in mind that the evaluator is looking for parenting skills like empathy, values, setting up boundaries and rules, your interactions with the child, and most importantly, your ability to co-parent.

Remember that your ex is also the mother or father of your child, and do not speak badly about them. You should keep in mind that you will have to work with this individual for the rest of your child’s life and that he or she is going to be involved with your child.

Do not involve your new spouse or new relationship in the evaluation to the extent possible. The evaluation should be about you and your child.

Do not make demands of the evaluator or expect immediate results. Evaluations can take a few months to complete so be patient and understanding.

If you have questions about a custody evaluation or about custody during a divorce, contact one of our Atlanta family law attorneys.

By Elizabeth Christen Doak, Associate Attorney, Meriwether & Tharp, LLC