May 31, 2013

License Revocation as Penalty for Nonpayment of Child Support in Georgia

In general, if a Georgia child support payor is found to be in contempt of the Court Order requiring him/her to pay child support, the court “shall have the power to subject the [him/her] to such terms and conditions as the court may deem proper to assure compliance with its orders and, in particular, shall have the power to punish the respondent who violates any order of the court.” OCGA §19-6-28(a).

One penalty option for child support contempt is license revocation. OCGA §19-6-28.1. According to Georgia law, if the Respondent/child support payor “has accumulated support arrears equivalent to or greater than the current support due for 60 days,” the following licenses may be suspended: license to conduct a trade, business, profession, or occupation; license to hunt or fish; license to drive a motor vehicle; and motor vehicle registration. OCGA §19-6-28.1(b). Specifically, the court can “order the appropriate licensing or registering entity to suspend the license or registration” or, if the person is applying for renewal/issuance of such license, the court can order that the application be denied. Id.

In order for the Respondent to prove that compliance with the child support order and to have the license revocation order lifted, he/she must submit to the licensing or registering entity “written proof of payment by cash or certified check, notice issued by the court, or notice from a child support receiver.” OCGA §19-6-28.1(c). Absent this proof, the party will not be able to get his/her license back.

January 14, 2013

May I File a Contempt Action in Response To My Ex-Spouse's Petition for Modification?

You most certainly can – if your spouse is in contempt. Although many are often confused by the law of Georgia on this matter, when faced with a petition for modification, a party may indeed initiate a contempt action as a counterclaim in response. Many are often confused on this point of Georgia law because, in Georgia, one may not file a child custody modification action in response to a contempt action. O.C.G.A. § 19-9-3. Additionally in Georgia, a trial court may not modify future child support or alimony payments or otherwise change the terms of the final decree of divorce during a contempt proceeding. See Arnold v. Arnold, 236 Ga. 594 (1976). However, one may definitely file a contempt action in response to a modification action. An example may be beneficial in illustrating this distinction.

Acceptable under Georgia Law:
Mother and Father are divorced. Father is ordered to pay mother child support and alimony. Father fails to make payments for two consecutive months. Father files a petition for modification of alimony. Mother responds by filing a motion for contempt as a result of father’s failure to make two support payments. Mother’s counterclaim for contempt is allowable.

Not acceptable under Georgia Law:
Mother and Father are divorced. Father is awarded primary physical custody of the couple’s minor child. Mother is awarded visitation with the minor child. Mother willfully refuses to return the child to father’s custody after her visitation period on three occasions. As a result, Father files a motion for contempt. In response, Mother files a petition to modify child custody. Mother’s modification petition is not an allowable counterclaim to Father’s contempt action.

The first example is totally acceptable under Georgia law. In fact, even if your ex-spouse files a petition to modify alimony in DeKalb County, for example, you may still respond by counterclaiming for contempt, even if your original divorce decree was entered in Fulton County. However, as with initiating a contempt action in any other situation, you must show that your ex-spouse willfully disobeyed the order of the court by failing to comply with your final divorce decree or child custody order in order to prevail. If you require assistance in responding to an alimony, child support, or child custody modification action, contact our Atlanta Family Law Team at Meriwether & Tharp.

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

July 23, 2012

Change to federal benefits could impact back owed child support

According to an article on Cleveland.com, an important change could soon have an unexpected impact relating to child support debts. The change has come about as an attempt to reduce money spent by the federal government mailing out paper checks. The Treasury Department has decided to start making government benefits payments electronically as of March 2013. This will put a stop to the paper checks that many rely on to shield a portion of their monthly income from states that attempt to collect back child support.

Starting in 2013 the Treasury Department will deposit all federal benefits directly into bank accounts or load them onto prepaid debit cards. These electronic payments are expected to save the government $1 billion over the next 10 years by not having to issue paper checks. Regardless of the chosen method, state governments will be allowed to reach the money. Currently states are only permitted to garnish 65% of the benefits an individual is entitled to before the money is disbursed. This same limit does not apply once the money has been distributed to an account or a prepaid debit card when the states can demand that banks freeze the funds.

States have long had the power to put a freeze on the bank accounts of those who owe child support. A relatively recent ruling by the Treasury Department permits states to freeze Social Security, disability and veterans’ benefits that appear in bank accounts. Once paper checks are eliminated some 275,000 people delinquent on child support could lose access to all of their income.

This presents huge problems for a certain segment of the population, typically poor men behind on their child support. There are many instances where these back payments are decades old or concern children who have long since grown up. Usually in these cases the bulk of the money owed is for interest and accumulated fees.

Of the money that is collected, most will go to state governments, not to the children of the men who are owed the money. The rationale is that the states should be allowed to keep this money as repayment for money they spent on providing welfare services for these children.

Though the goal is a good one, the method will likely produce complicated and even counterproductive effects. Many of the men on the receiving end of this new collection practice are already facing financial ruin in the form of eviction, foreclosure and inability to pay other bills. The figures are stark: among those owing $30,000 or more, three-fourths reported either no income or income of less than $10,000. By allowing states to seize federal benefits, these men may very well be left penniless.

Source: “Direct deposit and federal rule change could cost child-support debtors their only income,” by The Associated Press, published at Cleveland.com.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

July 13, 2012

Parental accountability courts may help parents behind on child support in Georgia

According to an article in the Atlanta Journal-Constitution, Georgia parents who are behind on their child support payments have reason to hope that they’ll see their children rather than the inside of a jail cell thanks to a new program started by courts across the state. “New court pushes fathers to make turnaround,” by Tammy Joyner, published at AJC.com.

The reason for the hope is the introduction of an innovative program in Georgia called parental accountability court. Thanks to the program, parents behind on child support payments can avoid jail and instead work at chipping away the money they owe while still getting to see their kids.

Parental accountability courts have been cropping up across the state. They are the product of a joint effort by Georgia’s Child Support Services department and various local court systems and are designed to offer an alternative to jail. Using resources that exist in the county, the courts address the specific problems facing delinquent parents that prevent them from making regular payments: unemployment, drug use, lack of transportation, etc.

In Georgia, the problem of late payment is massive; a recent report from the Department of Human Services showed that four out of every 10 parents paying child support are delinquent. The parent that’s behind on the payments can then wind up in jail for up to three months, costing the taxpayers $1,500 per month. Moreover, when they’re released they have the same problem as before, no job and no money with which to pay support. As a result, many constantly circulate between jail and court, costing taxpayers thousands while accomplishing little to help the children.

Of the programs that have been started across the state there appears to be real potential. In Hall County, the court’s first year of operation saw child support payments from non-custodial parents grow by $45,000. Simultaneously, the cost of incarcerating non-paying parents fell by $178,000 as the program helped people find work.

Parental accountability courts attempt to address the real problem behind delinquent payments, that many people are in need of jobs to pay the money they owe. Throwing them in jail when they don’t pay does little to solve the problem and that’s what Georgia appears to have recognized.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

June 15, 2012

Frequently Asked Questions: Georgia Child Support

Question: Can I get a wage garnishment for back child support on Georgia?

Answer: In Georgia, you cannot obtain a garnishment until you have a Court Order establishing that the other party does owe you back owed child support. Thus, in general, until you have obtained an Order on a Contempt action, you cannot do anything. Once you have an Order establishing the amount owed, then you can request the Court to issue the garnishment.

Question: Can a mother sue the biological father of her children for back child support?

Answer: In Georgia, you cannot sue for retroactive child support, unless there was a previous Court Order establishing that support was proper and establishing the amount of support. If a party wants child support, they must seek it right away. That party can then receive support from the time the Order is entered and going forward until the child turns eighteen.

May 28, 2012

More Frequently Asked Questions: Georgia Divorce

Question: How do I prevent my ex-spouse from stopping alimony payments?

Answer: If your ex-spouse has a Court Order to may alimony, and a condition has not occurred in the Order that would allow him to terminate the alimony payments (ex: remarriage), then you can file for contempt against your ex-spouse after he stops paying. There is nothing you can do before he stops paying because he has not violated any Order.

Question: Can my attorney of many years, who has seen my mental health records, represent my wife in our separation agreement?

Answer: There is likely a conflict of interest here, especially if your attorney knows information that may impact the divorce proceedings. You may waive this conflict if you would like but, depending on your situation, it may be best for each of you to have separate attorneys.

Question: I want to remove my name from the deed on the house, but how can I make sure that my spouse refinances to remove my name from the home equity loans?

Answer: In this situation, I recommend that the parties arrange to refinance all the loans at once. Both parties can show up to the closing and the quitclaim deed can be signed at the same time the refinance documents are signed. Otherwise, I would not recommend a person signing a quitclaim deed when they still have liability on the house.

May 7, 2012

Refinance of marital home after divorce in Georgia

One of the most complicated financial aspects of a divorce can be what happens to the marital home when both parties’ names are on the mortgage. Since one party will likely move out of the marital home after the divorce, that party will likely want his/her name off the mortgage so he/she can buy a new home. If the other party doesn’t refinance to take the moving party’s name off the mortgage, the moving party's rights are going to depend on what is in the settlement agreement or final order granting the divorce.

If the final divorce documents are silent as to the mortgage, then there may be nothing the moving party can do because there is nothing requiring a refinance. If the final divorce documents state, however, that the ex-spouse must refinance within so many days, and he has not refinanced within this time frame, then the moving party can file a Petition for Contempt against him to force him to refinance.

April 30, 2012

Incarceration for Failure to Pay Child Support in Georgia

In this economy, many fathers in Georgia, despite their best efforts to provide for their children, fall short of meeting their court ordered monthly child support obligation. Imagine for a moment that this has happened and Georgia Department of Human Services has filed an action against you, requesting your incarceration until you pay several thousand dollars in past due support. You are confident that the Judge will understand and you appear in Court ready to explain you situation. You tell the Court that you have been unemployed for months but just landed a new job, which will allow you to pay your current and past due support. You simply request time to bring your past due support current. The Judge disregards your predicament and issues an Order immediately incarcerating you. You spend the next several months in jail, without family or friends to help, unable to pay the past due amount. The practical result is that now you are unemployed, again, because the employer had to fire you. Despite putting yourself back in a position to pay child support, the Court has now eliminated that option for you.

In a Georgia contempt action, it is common practice to request the Court to incarcerate the non-paying party for willful and intentional underpayment or nonpayment of court ordered support. The situation I just described happened to five fathers in Georgia, who are now seeking to change the system. In March of 2011, these five fathers, represented by Southern Center for Human Rights, brought suit in the matter of Miller, et al. v. Deal, et al., Fulton County Superior Court Case, Civil Action File No. 2011-CV-198121. The suit challenges a Georgia law allowing Judges to incarcerate unrepresented parents in civil child support proceedings that have been brought against them by Georgia Department of Human Services.

On December 30, 2011, Judge Baxter granted the case class action status but the State has announced that it will be appealing this class action certification to the Supreme Court of Georgia. According to the Law Office for the Southern Center for Human Rights, “[i]n the past two years, Georgia has jailed over 3,500 unrepresented parents for child support debt in proceedings initiated by the State. Many of these parents are held for months – some for over a year – even though they have no money to pay and no way to earn money while in jail.” “Georgia Deprives Children as Indigent Parents Languish In Debtors’ Jail for Inability to Pay Child Support." Southern Center for Human Rights. Web. 03 Feb. 2012.

The case is pending appeal and it will be some time before we know what changes, if any, come about as of the result of this suit. So why does this matter? Is it right that indigent fathers are incarcerated sometimes for months or even longer without having had the benefit of legal counsel? The implications of the required changes to Georgia’s legal system if this suit is successful, are potentially far reaching. Georgia, like many states, is strapped for cash and given the sheer volume of these cases, the State will be forced to come up with the funding to provide counsel for these indigent parents.

By Alyssa Vaughn, Associate, Meriwether & Tharp, LLC

February 24, 2012

Responsibility for ex-spouse's medical debt after final divorce in Georgia

Georgia divorce attorneys are often asked whether a party will remain responsible for an ex-spouse’s personal medical debt after the divorce is final. There are two answers to this question. First, if the party signed a document with the medical provider agreeing to pay part of the bill, then yes, that party could still be liable after the divorce.

The second answer depends on what is in the divorce settlement agreement about debts listed and not listed. Many settlement agreements state that a party is solely liable for debts incurred by that party. However, if the medical provider sues you for the debt, and the settlement agreement lists your ex-spouse as being responsible for it, then you must file a third party lawsuit against your ex-spouse to pull him/her into the lawsuit as well. If your settlement agreement is clear enough, you may also want to file a contempt action against your ex-spouse for failing to pay the debt according to the settlement agreement.

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

February 10, 2012

Retroactive alimony modification not allowed in Georgia

The Supreme Court of Georgia recently heard a case addressing the issue of retroactive alimony modification in Georgia. Branham v. Branham, S11A1896 (2012). In that case, under their divorce decree, the husband was required to pay periodic alimony to the wife for 120 months “unless and until Wife dies, remarries, or cohabitates with someone else in a meretricious relationship,” and the wife was required to pay the monthly mortgage on the marital home that she was awarded. Id. Both parties quickly fell behind on these obligations. Id. The husband filed a contempt action against the wife for failing to pay the mortgage and also filed a separate action to cease his alimony obligation, alleging that the wife was cohabitating with someone in a meretricious relationship. Id. The wife subsequently filed a contempt action against the husband for his failure to pay alimony. Id. The trial court heard all three actions together and found both parties in contempt. Id. at 2. In addition, the trial court denied the husband’s motion to cease his alimony obligation, but reduced his obligation for past due alimony to zero. Id.

The wife appealed, contending that the trial court erred by retroactively reducing the husband’s alimony obligation and the Supreme Court of Georgia agreed. Id. The Court quoting long standing Georgia law in its holding: “Retroactive modification of an alimony obligation would vitiate the finality of the judgment obtained as to each past due installment…[A] judgment modifying an alimony obligation is effective no earlier than the date of the judgment.” Id. at 2-3, quoting Hendrix v. Stone, 261 Ga. 874, 875 (1992). In this case, the ruling that husband’s alimony arrearage be extinguished clearly violates this rule, as it modifies a past obligation (i.e. one that had already come due). Thus, the Supreme Court of Georgia reversed the ruling.