Atlanta Divorce Attorney Blog

Alimony award overturned due to husband’s inability to pay

Tue, 02 Feb 2010 14:30:43 -0600

The Georgia Supreme Court recently affirmed the Court of Appeals’ reversal of an alimony award as contrary to the evidence presented at trial. Coker v. Coker, 286 Ga. 20 (2009). The parties were married for approximately 24 years and had no children together. The only marital asset was a house. In addition, the husband had a separate asset, an interest in an LLC, which was worth approximately $100,000, but could not be converted to cash. Id. at 20, 21. The wife’s income was $45,000 and the husband’s income at the time of trial was $500/week, though the trial court determined his annual income to be $30,000. Id. Despite the husband’s meager income and assets, the trial court awarded the wife lump sum alimony in the amount of $36,500, which was to be paid within 3 months of the final decree of divorce. Id.

Generally, alimony is to be awarded based upon the needs of the party to whom it is awarded and the ability of the other party to pay. OCGA § 19-6-1 (c). In determining whether alimony should be awarded, and the amount thereof, the court looks at many factors, including the separate assets of each party and their earning capacities. OCGA § 19-6-1 (a). The Supreme Court acknowledged that the wife’s anticipated expenses justified her need for alimony, but stated that “the record is completely devoid of any evidence of Husband's ability to pay the trial court's lump sum alimony award.” Id. at 22. Without that evidence, the award must be reversed.

Jury demand stricken in Gwinnett county divorce

Tue, 26 Jan 2010 14:26:52 -0600

Recently, the Supreme Court of Georgia affirmed a Gwinnett Superior Court’s granting of a wife’s motion to strike the husband’s demand for a jury trial in the parties’ divorce action. In a divorce case, either party can demand a jury trial. Generally, “when a party makes a timely demand for a jury trial, the trial court cannot proceed without a jury unless the parties consent to a bench trial by a written stipulation filed with the court or an oral stipulation made in open court and entered in the record.” OCGA § 9-11-39 (a). One exception to this general rule is that “a party in a divorce case can, by [his] voluntary actions, impliedly waive a demand for a jury trial.” Matthews v. Matthews, 268 Ga. 863, 864 (2) (494 SE2d 325) (1998).

In Kauttner v. Kauttner, the wife filed for divorce and the husband requested a jury trial. Kautter v. Kautter, 286 Ga. 16 (2009). When the case was called for trial, the husband deliberately chose not to attend and instructed his attorney not to participate in the proceedings. As a result, the wife filed a motion to strike the jury demand. The Gwinnett Superior Court granted the wife’s motion and conducted a bench trial, and the husband appealed.

The Supreme Court of Georgia affirmed the granting of the motion to strike the husband’s demand for jury trial. The Court emphasized that the husband knew of the trial date and had no legitimate reason for not attending. Though the husband argued that by not attending he did not intend to waive the demand for jury trial, the Court stated that his actions were an implicit waiver and the trial court was authorized to strike his demand.

Child Support and Extracurricular Activities

Tue, 19 Jan 2010 14:10:24 -0600

An important issue for many parents is how payment for children’s extracurricular activities is handled in relation to child support. The Georgia Supreme Court recently addressed this issue in Turner v. Turner. Turner v. Turner¸ 285 Ga. 866 (2009). In that case, after nine years of marriage and two children, the parties divorced with the mother receiving primary custody of the children and the father obligated to pay child support. In addition to his child support obligation, the father was ordered to pay 2/3 of the children’s extracurricular activities. The father appealed, contending that he was “paying twice for the cost of extracurricular activities because such costs are included in the presumptive amount of child support.” Id. at 867.

The Georgia Supreme Court agreed, stating that “[t]he language of OCGA § 19-6-15 (i) (2) (J) (ii) makes clear that a portion of the basic child support obligation is intended to cover average amounts of special expenses for raising children, including the cost of extracurricular activities.” Id. The Court referred further to the child support statute, clarifying that if the trial court determines that the full amount of special expenses (which includes extracurricular activities) exceeds 7% of the basic child support obligation, the additional amount must be considered a deviation addressed on Schedule E of the Child Support Worksheets with specific findings as to why such deviation is necessary. Id. The Georgia Supreme Court stated that the way the trial court handled extracurricular activities, by including an additional provision in the final judgment and decree of divorce apportioning them, was improper under the current child support guidelines.

The treatment of extracurricular activities is an important concept to keep in mind. In looking at a requested deviation for these activities, the court is going to want and need justification for these activities, especially if the payor is claiming that these activities are unnecessary for the children.

Importance of unambiguous child support language

Tue, 12 Jan 2010 14:17:58 -0600

We recently represented a husband in a successful appeal of his dismissed child support modification action. The parties were divorced in 2007 and, according to the final judgment and decree of divorce, the wife was awarded primary custody of the 4 children and the husband was obligated to pay child support. Specifically, the final judgment and decree stated that child support would be “due and payable. . . until such time as the youngest minor child dies, marries, enters the military, attains the age of eighteen, or is otherwise emancipated, whichever first occurs; provided, however, that in the event that any of the minor children turn 18 years of age while still in high school, [Husband's] child support obligations shall continue for that child until such time as the child graduates from high school, but in no event to extend past the child's twentieth birthday.” (emphasis added) Grenevitch v. Grenevitch, S09A0320

When the parties’ eldest child turned 18 years old, the husband filed a Complaint for Modification of Child Support stating that his child support obligation should be modified downward accordingly. The trial court refused to give the husband an opportunity to present evidence of whether the child had turned 18 and graduated from high school and, rather, dismissed the modification action, finding no substantial change warranting a modification and awarded the wife attorney’s fees.

The Supreme Court of Georgia reversed the trial court’s ruling, thereby allowing the husband’s modification action to proceed. The Court looked at the plain language of the divorce decree and found no ambiguity, reasoning that the language shows that the parties contemplated a change in the husband’s child support obligation. Since the parties contemplated a change, the husband should have been able to present evidence showing that a change was warranted. This case shows the importance of the language in your divorce decree. The court is going to look at the actual language of the Order regardless of whether you or your spouse believes you have agreed to something else. If something is important to you, make sure it is in the Order and written very clearly so that it cannot be misinterpreted.

Jurisdiction over custody modification when parents live in different states

Tue, 05 Jan 2010 14:13:21 -0600

One of the most confusing aspects of child custody cases can be where the case should be filed when the parents live in different states. Generally, in regards to custody modification actions, the law limits a parent’s ability to terminate the continuing jurisdiction of the court that made the original custody determination in order to prevent the noncustodial parent from trying to use his or her “home jurisdiction advantage” to modify custody to the disadvantage of the custodial parent. There is, however, one exception to this general rule which provides that a Georgia court "has temporary emergency jurisdiction [to make a child custody determination] if the child is present in this state and . . . it is necessary in an emergency to protect the child because the child . . . is subjected to or threatened with mistreatment or abuse." O.C.G.A. §19-9-64(a).

The Georgia Court of Appeals recently addressed this issue in Taylor v. Curl (A09A0749). In that case, subsequent to the parties’ Jackson County divorce, the mother moved with the children to Florida and the father moved to Walker County. While the children were visiting the father, he filed a petition for temporary and emergency custody of his children in the Superior Court of Walker County, citing mistreatment and abuse of the children by their mother. The mother appealed arguing that Walker County was not the proper venue for the custody modification. The Court of Appeals affirmed the trial court’s ruling granting temporary custody to the father, thereby affirming jurisdiction. Since the father met the two requirements outlined in O.C.G.A. §19-9-64(a), the trial court properly exercised temporary, emergency jurisdiction.

Georgia Supreme Court reverses Order of Contempt entered by Atlanta trial court

Tue, 29 Dec 2009 14:07:09 -0600

On April 28, 2009, the Georgia Supreme Court reversed an Order of the Dekalb County Superior Court finding a wife in contempt of the equitable distribution portion of the parties’ divorce decree. Farris v. Farris (S09A0302). Following a November 13, 2007 bench trial, Judge Castellani made an oral ruling regarding equitable distribution of the parties’ assets, but did not formalize this ruling until over a month later. The divorce decree provided that the wife shall place the marital residence on the market and shall control all aspects of the listing and sale for six months. If the residence did not sell within six months, the husband would take over control of the listing and sale, and this process shall repeat every six months until the house sold. The parties were to equally split the proceeds from the sale and the house was not to be sold for less than $650,000.00.

After the oral ruling but before entry of the final decree of divorce, the husband offered to purchase the wife’s interest in the house for $325,000, but the wife rejected this offer. Shortly after the final decree was entered, the wife accepted an offer on the house from the parties’ daughter in the amount of $650,150, which the husband rejected. The wife then filed a motion to hold the husband in contempt for rejecting this offer and the husband filed a motion for contempt against the wife for rejecting his offer. The Judge found the wife in contempt.

The Georgia Supreme Court reversed, stating adamantly that the wife could not be held in contempt of the divorce decree because there was no divorce decree entered at the time of husband’s offer. “Before a person may be held in contempt for violating a court order, the order should inform him in definite terms as to the duties thereby imposed upon him, and the command must therefore be express rather than implied. [Cit.]" (Punctuation omitted.) Hall v. Nelson, 282 Ga. 441, 444 (3) (651 SE2d 72) (2007).” Simply put, an oral Order is not sufficient for contempt. A person is not bound by a divorce decree until it is in writing and entered by the court.

Premarital cohabitation considered in determining alimony

Mon, 21 Dec 2009 13:52:05 -0600

On June 1, 2009, the Georgia Supreme Court reaffirmed the great discretion of the trial courts in determining the amount and length of alimony. In Sprouse v. Sprouse (S09F0709), the parties entered into a common law marriage in Alabama in 1996, which was terminated by divorce in 2001. Subsequently, the parties resumed living together and married on March 5, 2005. Approximately two years later, the husband filed for divorce and, after a bench trial, the wife was awarded alimony for 13 years. The husband appealed, contending that the alimony award was excessive in amount and duration in light of the parties’ relatively short marriage. Specifically, the husband argued that the trial court abused its discretion in considering the entire length of time the parties had been together, rather than just the length of the marriage.

Unlike child support, there is no statutory formula for determining alimony. Rather, there are eight statutory factors that the Judge can consider in awarding the amount and length of alimony, if any. O.C.G.A. §19-6-5(a). http://www.atlantadivorceattorneyblog.com/2008/10/what_are_the_factors_in_determ.html#more Here, the Supreme Court found that the trial court had discretion to consider length of the parties’ entire relationship as a factor in determining alimony under O.C.G.A. §19-6-5(a)(8), a catch-all provision allowing the court to consider “such other relevant factors as the court deems equitable and proper.” Thus, the Georgia Supreme Court reaffirmed that “[i]n the absence of any mathematical formula, fact-finders are given a wide latitude in fixing the amount of alimony . . . and to this end they are to use their experience as enlightened persons in judging the amount necessary for support under the evidence as disclosed by the record and all the facts and circumstances of the case.” Arkwright v. Arkwright, 284 Ga. 545, 546 (2) (a) (668 SE2d 709) (2008).

How to Effectively Use Mediation to Settle with Your Contested Canton, Georgia Divorce – Part V

Mon, 07 Dec 2009 06:15:15 -0600

In part five of our ten part series on how to effectively use mediation in your contested divorce case, we will continue to examine steps to take to make sure you and your Atlanta divorce lawyer are ready for mediation. This blog will also work if you and your spouse plan on using mediation to settle your case without an Atlanta Divorce lawyer. In this blog, we go into how to handle yourself at mediation and what usually goes on at mediation.

Mediations typically start with an opening statement by either side. Most of the time, you should have your Atlanta divorce lawyer make the statement to keep it factually accurate and non-inflammatory. It does not do any good to increase the tension at the beginning of mediation. Avoid an opening statement full of vile accusations, conduct issues, and inaccuracies. This has no effect other than to sabotage mediation; when the whole purpose of mediation is to avoid that type of conflict.

After the parties have given opening statements, the mediators tend to meet privately with the parties in what is called a caucus. In the caucus session, the more inflammatory facts can be made known to the mediator; and can be communicated to your spouse in a much more pleasant and less hostile manner by the mediator - rather than the opposing side.

How to Effectively Use Mediation to Settle with Your Contested Canton Divorce – Part IV

Thu, 03 Dec 2009 06:16:57 -0600

In part four of our ten part series on how to effectively use mediation in your contested divorce case, we will continue to examine steps to take to make sure you and your Atlanta divorce lawyer are ready for mediation. This blog will also work if you and your spouse plan on using mediation to settle your case without an Atlanta Divorce lawyer. In this blog, we go into a the importance of prioritizing issues that are important to you.

Being prepared involves setting priorities. It is important that you understand at the outset, which are the most important goals to obtain through settlement. If primary physical custody of your children means more to you than anything else, you both need to be clear that this means that you might need to make certain financial concessions in order to obtain custody. Setting clear priorities before negotiation helps both you focus on what is most important to you, and allows your Atlanta divorce attorney to prepare your strategy.

If there have been any settlement negotiations before the mediation, you should outline them in a concise manner. Often the best way is by using a chart so that on one piece of paper each person’s position on each separate issue can be tracked. This will often help in two areas. First, your Atlanta divorce lawyer may see a trend or strategy in your spouse’s negotiation. Second, it will enable the mediator, who has no prior knowledge of the case, to look at what has occurred, the positions taken by you and your spouse, where there are agreements, where there are differences, and more importantly how different those differences are. This tells the mediator exactly where attention needs to be placed and where the time, energy and fort of the mediation need to be spent. It is a quick snapshot of what has transpired. Even more important, it is a road map of where mediation needs to go and, hopefully, how to get there.

How to Effectively Use Mediation to Settle with Your Atlanta Divorce – Part III

Mon, 16 Nov 2009 10:18:18 -0600

In part three of our ten part series on how to effectively use mediation in your contested divorce case, we will continue to examine steps to take to make sure you and your Atlanta divorce lawyer are ready for mediation. This blog will also work if you and your spouse plan on using mediation to settle your case without an Atlanta Divorce lawyer. In this blog, we go into a little more detail on the preparation necessary for an effective mediation in a contested divorce case.

Budget Accuracy. As Atlanta divorce lawyers, we find that one of the greatest problems in mediation is "inflated" or "deflated" budgets, which have absolutely no relation to reality or historical spending levels. If budgets represent actual numbers and historical levels of expenditures, mediation has a much greater chance of success. You want to avoid paying your Atlanta divorce lawyer an hourly rate to "haggle" over the accuracy of budget numbers. If you have not been the one who has taken care of the finances during the divorce, make sure that you have requested the information from your spouse to obtain the documents necessary to prepare an accurate budget. If he won’t turn them over, your Atlanta divorce lawyer can seek this information through formal discovery.

Have extra copies of all documents. Do not go to mediation with only one copy of a document that you intend to rely upon. Have multiple copies so that everyone can look at the same documents, can make notes on them, and go over those documents in the initial caucus. If you plan on making the extra copies yourself, make sure you tell your Atlanta divorce lawyer ahead of time.

How to Effectively Use Mediation to Settle with Your Atlanta Divorce – Part II

Tue, 13 Oct 2009 18:02:18 -0600

In part two of our ten part series on how to effectively use mediation, we will continue to examine steps to take to make sure you and your Atlanta divorce lawyer are ready for mediation. This blog will also work if you and your spouse plan on using mediation to settle your case without an Atlanta Divorce lawyer. This blog continues on the theme of the last blog, and that is BEING PREPARED.

Emotion - Being prepared does not just mean getting a handle on the financial situation. Once you and your Atlanta divorce lawyer are satisfied that you have a complete understanding of you and your spouses' assets and liabilities, you need to prepare yourself emotionally. This can take several forms. Often, you need to discuss your anger or depression with Atlanta divorce lawyer in order to be able to put those feelings aside and negotiate in your own best interest. You need to be able to swallow your pride and focus on the end result, rather than on your feelings of vindictiveness or pain.

You need to be prepared intellectually, regardless of whether your spouse is. This involves listening to your Atlanta divorce lawyer when he or she tells you what a realistic outcome would be in Court. Your Atlanta divorce lawyer is there to honestly assess the case for you so that you understand what might reasonably be won if your Atlanta divorce case went to trial. For example, if you are insistent that you receive alimony, but the facts of the case do not suggest that a court would be sympathetic to such a claim, then it is imperative that your Atlanta divorce lawyer go over this with you before negotiation begins so that, if the other side refuses to pay alimony, you do not feel that you have conceded a valuable right that you would have obtained through litigation.

Our Alpharetta Office has moved

Mon, 05 Oct 2009 14:57:02 -0600

We are excited to announce that effective October 5, 2009 we have moved our Alpharetta office location to 11475 Great Oaks Way; Suite 125; Alpharetta, GA 30022. Our phone numbers will remain the same - 678-879-9000.

How to Effectively Use Mediation to Settle your Atlanta Divorce – Part I

Thu, 01 Oct 2009 14:31:20 -0600

In part one of our ten part series on how to effectively use mediation, we will examine steps to take to make sure you and your Atlanta divorce lawyer are ready for mediation. This blog will also work if you and your spouse plan on using mediation to settle your case without an Atlanta Divorce lawyer. The first item that we will cover is BEING PREPARED.

Assets & Liabilities - It is essential that both you and your Atlanta divorce lawyer have a clear understanding of exactly what is in the marital state, a complete list of all of the assets and liabilities, current account balances, and current business evaluations, if applicable. Many Atlanta divorce lawyers like to use a "marital balance sheet," or “MBS.” This is a sheet (usually prepared in Microsoft Excel) that contains the assets and liabilities of the marriage. It is most helpful when you have documentation to support the numbers on the MBS. Then, if called upon, you can then prove any of the figures.

When you and your spouse do not have a clear picture of your assets and liabilities, respective incomes, needs, and what the custody issues are, mediation and negotiating will be wasted and bad feelings will be fostered because you and your spouse will not be talking about the same thing and you may end up arguing over issues which are really non-issues. Moreover, if you are paying the mediator and your Atlanta divorce lawyer by the hour, it is in your best financial interests to stay focused on mediating the core of your case, not peripheral issues.

Child & Spousal Support - You and your spouse should prepare an accurate budget, normally in the form of a Domestic Relations Financial Affidavit that sets out your basic needs. You should exchange all documents, such as bank and other account statements, pay stubs, tax returns, insurance plans, pension information, etc., that provide a complete picture of you and your spouse’s financial situation. This is relatively simple if you and your spouse are W-2 wage earners and own a house and a simple retirement plan.

It can be more difficult if there is significant separate property involved, complex compensation issues (e.g. stock options), or other complicated financial situations. Obviously, if you and your spouse have filed a financial statement recently in which you have signed under oath that all assets and liabilities have been disclosed on the statement, that document should be provided to both of you. If you have a more complicated estate, an Atlanta divorce lawyer can be invaluable, especially since more complicated marital estates are often laden with tax complications.

Providing the other side with this information before meeting can save time, especially if the Atlanta divorce lawyers can agree on the MBS ahead of time. Once the Atlanta divorce lawyers have the same information and can agree on such issues as income, the property at issue, and you and your spouse’s net worth, the chances of a successful settlement negotiation are tremendously heightened.

Communicating with your Atlanta Divorce Lawyer about fees in an Atlanta Divorce

Sun, 06 Sep 2009 13:11:12 -0600

In a highly contested Atlanta divorce, the costs can rise quickly. Since most contested Atlanta divorces involve situations that can change on a moment’s notice, Atlanta divorce lawyers often have to make quick decisions in order to protect a client’s interest. In certain situations, the Atlanta divorce lawyer has not had the opportunity to discuss the situation with the client ahead of time. In other situations, your Atlanta divorce lawyer may have had support staff working on your file behind the scenes to keep your case moving forward in a timely fashion.

What the above scenarios sometimes result in is a client receiving a bill that they do not understand and are hesitant to pay. In any scenario where you may have a question about a bill, you need to either call or meet with your Atlanta divorce lawyer to candidly speak with him or her about the bill. If you receive a bill that has some charges that appear high, do not call and say that the bill is too high. Contact your Atlanta divorce lawyer to ask him or her about the specific charges that you have questions concerning and why you have those questions. Often, there is a very reasonable explanation for the charges. Sometimes it is a simple billing error that the Atlanta divorce lawyer can quickly correct.

Aside from the obvious reasons why it is important to discuss the invoice with your lawyer, you do not want to lose trust in your lawyer. You may reach a point in your case where a very good settlement offer is made by your spouse. Your lawyer may tell you to take it because he or she knows you would never do better with the Judge you have in your case. If you do not trust your lawyer, you may reject the offer and try your case, only to receive a worse result in front of the Judge and potentially be open to attorney’s fees from your spouse for rejecting a good settlement offer.

One last note to make about communicating with your Atlanta divorce lawyer regarding fees is do not ignore an invoice that you cannot pay. If you are struggling with the invoice, immediately contact your Atlanta divorce lawyer and be honest. Tell him or her your situation and discuss what can be done to deal with the ongoing costs going forward. Pay whatever you can on the invoice as soon as possible and perhaps change your litigation strategy so that you do not spend your children’s college education in a contested divorce case.

Impact of declining Real Estate market on Cherokee County Divorces

Thu, 03 Sep 2009 06:14:13 -0600

With the ongoing real estate decline, couples involved in a Cherokee County divorce are finding that the most difficult piece of property to deal with in equitable distribution is the marital residence or a vacation home. At present, both parties find it impossible to refinance the existing mortgages before or after their Cherokee County divorce because of the real estate’s declining value. In addition, selling the real estate presents several major concerns considering that the property will most likely sit on the market for several months if not years. If you have hired a Cherokee County divorce lawyer, you can help him or her out by trying to resolve these issues with your spouse on your own:

1) Who will make the mortgage payments?

2) What if the party responsible for making the payments simply fails to make them?

3) Who is in charge of maintaining the property?

4) Where does the money come from for necessary repairs?

5) Who selects the real estate agent both initially and when the initial contract expires?

6) Who decides the appropriate sales price?

7) What if the parties have to come to the table with money?

8) What if the appraisal does not come in high enough to justify the purchase price?

If you are having problems reaching common grounds on these issues, your Cherokee County divorce lawyer should be able to help you. You can also explore two other options, including the short sale and a sale at a public auction.