October 14, 2013

Can my ex-husband stop paying alimony if I moved in with my boyfriend for a very short period of time?

Posted by Patrick L. Meriwether On October 14, 2013 In: Alimony

The answer will depend on what is in your final decree of divorce. If there is a provision that says alimony ends when you move in with a man in a meretricious relationship (a marriage-like situation), then your ex-husband's alimony obligation ended when you moved in with your boyfriend. It does not matter that this living situation did not last long. If you moved in with your boyfriend, no matter how short lived, your ex-husband’s alimony obligation is automatically over. No court order is needed for him to stop paying because your divorce decree specifically provides for this situation.

However, if your settlement agreement/final order of divorce only says the alimony obligation ends on death or remarriage (and he did not file a modification action and receive an order modifying his obligation), then your ex-husband is still required to pay alimony, including the time that you lived with your boyfriend. You can enforce his court ordered obligation through a contempt action.

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

October 7, 2013

How can I "correct" incorrect information in the Judge's Order?

Posted by Patrick L. Meriwether On October 7, 2013 In: Child Support

This can be a complicated situation. If you have already had a trial, then the only way to “correct” the information would be to appeal the Judge’s order. You must then argue to the Court of Appeals that the trial court erred in calculating child support because it used the wrong financial data. Other possible steps to “correct” the information include a Motion for Reconsideration or Motion for New Trial. These Motions are very tricky and very fact specific, however, and the incorrect Motion can leave you in a bad situation. I recommend consulting with an experienced family law attorney to help guide you through this process.

If you already have an attorney, try to get clarification on what exactly happened at the trial court level, which resulted in the Order with incorrect information. In some situations, clients become dissatisfied with their lawyer and the results, even though the lawyer did an excellent job. The client may not know that the lawyer did a good job because of a failure to communicate, which results in a loss of trust. It may be worth it to pay another lawyer their consultation fee for a 2nd opinion on the original Order and the likelihood of a successful appeal.

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

September 30, 2013

My divorce attorney won't return my calls - What can I do?

Posted by Patrick L. Meriwether On September 30, 2013 In: Divorce

If your divorce attorney is not returning your calls, you need to take immediate steps to protect yourself. First, if your lawyer has staff, call and schedule an appointment with him or her. Ask his staff what is going on that he or she is not returning any calls (ask politely - you catch more flies with honey). Any number of things could have happened. For example, the attorney could have become extremely ill, but took measures to protect you with the Court system (a medical leave of absence).

If that does not work, you may want to consider obtaining another attorney. Contact the Court to see if they have their cases online so you can see the status of the case. You can also contact the Georgia Bar. They have an intervention program designed to help clients out when they have trouble reaching their lawyer.

I had two cases recently where the client lost touch with their attorney. In one case, the lawyer had been disbarred and never informed the client or the Court. The opposing party scheduled a hearing and had a trial without the client present. The Wife received everything she wanted. We were able to get that Judgment set aside, but, unfortunately, not without a huge financial cost in attorney's fees to the client.

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

June 21, 2013

Can my son's father stop me from moving out of state with our son?

Posted by Patrick L. Meriwether On June 21, 2013 In: Legitimation

The answer to this question depends on whether the father has ever legitimated the child. If the father has legitimated the child, custody and visitation rights (which would include the ability to move out of state with the child), will be governed by the Parenting Plan which would have been entered in the legitimation action.

If, however, the father has not legitimated the child, he has no rights whatsoever and there is nothing legally preventing you from leaving the state. The only way he can “legally” stop you from leaving on a short-term basis is by filing a legitimation action. Upon filing, you will be served with a standing order that states that neither party can leave the state with the minor child until further order of the court or agreement of the parties. If you are served with this notice, you can still go to the Court to ask for permission to leave the state on a temporary basis, pending the outcome of the legitimation action. It should be noted, however, that depending on the outcome of the legitimation action, you and the child might not be permitted to leave permanently.

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

June 14, 2013

In Georgia, at what age can a minor decide which parent to live with, without having to go back to court?

Posted by Patrick L. Meriwether On June 14, 2013 In: Child Custody

Until a child is of the age of majority (18 years), he/she cannot choose with whom to live, absent a court order. Consider the situation of a 17-year-old child who wants to begin living with her mother, rather than her father, who has custody.

That child can "elect" to live with her mother, but in order for that election to be enforceable, the parties have to revise their Parenting Plan and have it signed off by a Judge. This can all be done by consent, but it still has to be signed off on by a Judge to make it legally binding.

If the current Parenting Plan has the father as primary physical custodian and the father is OK with the child going to live with her mother, the mother is the one that is arguably taking a risk if the Parenting Plan is not legally changed. The reason is that the father could enforce the current Parenting Plan a month later and the mother would be in contempt for failing to abide by the custody arrangements. There may be other factors to be considered as well. If you are in a situation such as the one above, your best bet would be to have a consultation with a local family law attorney so that they can ask you all relevant questions and make a informed recommendation for you.

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

June 10, 2013

If my husband and I get a divorce, will I get 50% of our home if he purchased it before we were married?

Posted by Patrick L. Meriwether On June 10, 2013 In: Equitable Division

The short answer to this question is possibly, but 50% is not a guarantee under any set of circumstances. Georgia is an equitable division state, which means that assets are divided equitable, not necessarily equally. What is "equitable" depends upon the specific facts and circumstances of each case.

One of the factors to look at is how much in the way of marital funds have been put into the house, including mortgage payments. In other words, if he bought the house with no money down, but made all the mortgage payments while you were married, then you have an argument that all of the equity in the house is marital because he invested marital funds into the house. However, if he made a down payment on the house when he purchased it (before the marriage), the situation gets trickier. In that case, you would not be entitled to the portion he put down, but you may be entitled to an equitable portion of the remainder, assuming you could prove that the mortgage payments were made with marital funds. If you are in a situation requiring a potentially complicated calculation such as this one, I recommend consulting with an experienced family law attorney.

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

April 29, 2013

How can I obtain a passport for my child when I do not know where the father is or how to get in touch with him?

Posted by Patrick L. Meriwether On April 29, 2013 In: General Family Law

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

April 22, 2013

As a noncustodial parent in Georgia, do I have a right to see the notes from my child’s counseling sessions?

Posted by Patrick L. Meriwether On April 22, 2013 In: Child Custody

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

April 15, 2013

What rights does a man have if he was married to the mother of the child and his name is on the child’s birth certificate, but later finds out the child is not his?

Posted by Patrick L. Meriwether On April 15, 2013 In: Child Custody

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

April 8, 2013

My child’s mother left the state and left my child with her mother (the child’s grandmother). I am not allowed visitation. What can I do?

Posted by Patrick L. Meriwether On April 8, 2013 In: Legitimation

In this situation, the father should immediately file for Legitimation in the county of the residence of the child, and get an initial determination of custodial rights and parenting times. In Georgia, a father who is not married to the mother at the time of the child’s birth has no rights to the child unless and until he legitimates the child. O.C.G.A. § 19-7-25. This includes custody, visitation, and the right to make any decisions concerning the child.

When the legitimation case is resolved (whether by settlement or a trial), assuming the legitimation is granted, there will be a Parenting Plan that sets forth each party’s respective parenting times with the child. It will also set forth how major decisions about the child will be made. Until there is a Court Order, however, there is not much that can be done to force the situation. With a Court Order, however, I have seen the police enforce Parenting Plans, which could help with the situation described herein.

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