December 13, 2013

Alimony Modification in Georgia - Live in Lover

In Georgia, an alimony award can be modified under limited circumstances. One such circumstance is the “live-in lover” law. Under this law, “the voluntary cohabitation of such former spouse with a third party in a meretricious relationship” after the award of alimony has been entered shall be grounds to modify the alimony award. OCGA §19-6-19(b). While this sounds fairly straightforward, there are several elements that must be met.

First, the alimony payor must prove that his/her former spouse is continuously and openly cohabitating with another person. This means that they hold themselves out as living together – it is not secret or hidden. Second, the alimony payor must prove that the parties have a meretricious relationship. A meretricious relationship is one in which there is sexual intercourse. This is obviously much harder to prove without an admission. As an alternative to proof of sexual intercourse, the payor may prove that his/her former spouse shares expenses with his/her co-inhabitant. Hathcock v. Hathcock, 249 Ga. 74 (1982). In Hathcock, this was held to be sufficient proof of a meretricious relationship. Third, the alimony payor must prove that the cohabitation began subsequent to the alimony award.

Once the alimony payor has proven all elements listed above, it is in the Judge’s discretion whether to modify alimony. In addition, it is important to note that, if the alimony payor is unsuccessful on his/her petition to modify alimony under the live-in lover law, the payor “shall be liable for reasonable attorney’s fees incurred by the respondent for the defense of the action.” OCGA §19-6-19(b). Therefore, before you file, review your evidence with an experienced family law attorney to weigh your chance of a successful modification, or you may continue to pay alimony plus have the additional expense of your ex-spouse’s attorney’s fees.

February 11, 2013

Modification of Alimony in Georgia

In Georgia, an award of alimony can be modified under certain circumstances. Similar to child support, an award of alimony for the support of a spouse is “subject to revision upon petition filed by either former spouse showing a change in the income or financial status of either former spouse.” OCGA §19-6-19(a). For example, an alimony payor may seek a decrease in his/her obligation by showing a decrease in his income. Alternatively, an alimony payee may seek an increase in the payor’s obligation if the payor is suddenly making more money, or if the payee loses his/her job.

In addition to modification for financial change, Georgia law is clear that “the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former spouse.” OCGA §19-6-19(b). “Cohabitation” is further defined as “dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person.” Id. Thus, if an alimony payee begins living with a boyfriend or girlfriend, the payor can get a modification. The payor does still have to file a petition for modification and, if he/she cannot prove the cohabitation, he/she will be liable for the other party’s attorney’s fees in defending the modification action.

It should be noted that, under Georgia law, a party can only file a petition for modification of alimony “where a party has been ordered by the final judgment in an alimony or divorce and alimony action to pay permanent alimony in weekly, monthly, annual, or similar periodic payments and not where the former spouse of such party has been given an award from the corpus of the party's estate in lieu of such periodic payment.” OCGA §19-6-21.

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.

October 7, 2011

Waiver of alimony or child support modification must be clear and express

The Supreme Court of Georgia recently reversed a trial court’s ruling that a Husband had waived his right to seek a modification of his child support obligation below a specified floor. Dean v. Dean, S11A0739 (2011). In that case, the parties’ settlement agreement provided a monthly child support amount, but stated that “Husband’s child support payment would be recalculated soon after the start of each year” and that “[i]n no event shall the annual recalculation of Husband’s child support result in him paying less” that the original amount stated in the settlement agreement. Id. at 1-2.

After the Husband lost his job, he filed a petition for downward modification of child support. Id. at 2. The trial court held that the Husband did not waive his right to modify his child support obligation, but the obligation could not be reduced below the floor set by the settlement agreement. Id.

The Husband appealed and the Supreme Court of Georgia agreed, emphasizing the “straightforward rule that parties to an alimony [or child support] agreement may obtain modification unless the agreement expressly waives the right of modification by referring specifically to that right; the right to modification will be waived by agreement of the parties only in very clear waiver language which refers to the right of modification.” Id. at 1, citing Varn v. Varn, 242 Ga. 309, 311 (1978). Here, there was no express mention of a “waiver,” nor is there any “express reference to the right of alimony modification.” Id. at 3-4. Not allowing the Husband to modify below a certain floor was essentially unlawfully limiting his right to modify. The Supreme Court of Georgia, thus, found that this case required reversal.

September 12, 2011

Alimony modification in Georgia - cohabitation

In Georgia, in addition to alimony being subject to modification due to a change in the income and financial status of either former spouse, cohabitation by the payee is also grounds for modification. Georgia law states “the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of a former spouse.” OCGA §19-6-19(b). Cohabitation is specifically defined as “dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person.” Id. Thus, for example, if an alimony payee/former wife is cohabitating with a new boyfriend, the payor/former husband may seek to modify and/or eliminate his alimony obligation under this law.

Though this is a fairly black and white rule, it should be noted that if the petitioner is unable to prove his/her case under these grounds, he/she “shall be liable for reasonable attorney’s fees incurred by the respondent for defense of the action.” Id. Thus, it is best to make sure your former spouse is actually cohabitating, and that you will be able to prove it, before bringing a modification action under this ground.

September 9, 2011

Alimony modification in Georgia - change in income and financial status

In Georgia, a judgment for permanent alimony for the support of a spouse “shall be subject to revision upon petition filed by either former spouse showing a change in the income and financial status of either former spouse.” OCGA §19-6-19(a). For example, if the alimony payor loses his job, he may seek a downward modification based upon his decrease in income. In addition, if the alimony payee suddenly receives a large sum of money, through inheritance for example, the payor may seek to modify based upon this change in financial status. Conversely, the payee may seek upward modification if the payor’s income increases or if the payee’s income decreases.

Like child support modifications, no petition for alimony modification may be filed “within a period of two years from the date of the final order on a previous petition by the same former spouse.” Id. It should also be noted that a petition for modification of alimony can only be filed in cases of “weekly, monthly, annual, or similar periodic payments.” OCGA §19-6-21. Lump sum alimony cannot be modified. Id.

July 15, 2010

In what form should I make my child support or alimony payment?

Atlanta divorce attorneys are often asked about the form in which child support and/or alimony payments should be made (i.e. cash, check, money order). Obviously, if the order for support specifies the form in which the payments are to be made, then the payor is obligated to make the payments in that format. Often, however, the form of payment is not specified, and it is just up to the payor to ensure that the payee receives the amount due. Since divorce and/or support cases are often contentious, we highly recommend making support payments in a format that can be tracked, such as a check, rather than cash. Even if you are on good terms with your former spouse, we recommend paying with a check. There is a reason that you are no longer married to or in a relationship with the person who you are supporting, and there is always a chance that the your relationship could sour. If you paid your support in cash, there is no paper trail, which could be problematic if the payee alleges that you did not fulfill your support obligations. In these situations, it is always better to have the ability to show documents verifying your payments, if the need arises.

May 25, 2009

Cumming, Georgia Divorce: Alimony Modification, Permanent Alimony – Georgia Case Update

An interesting alimony modification case from Cumming, Georgia was recently reviewed (and affirmed) by the Georgia Supreme Court on April 28, 2009. See Crosby v. Lebert (S09A09). The facts in that case indicated that parties were divorced in December of 2005. The parties had entered into a settlement agreement in their Forsyth County divorce that required the Husband to make monthly installments on a Cadillac Escalade, but the payments were clearly defined as permanent periodic alimony, which "terminate upon remarriage of the party to whom the obligations are owed" under O.C.G.A. § 19-6-5 (b). Additionally, the Husband was required to pay the Wife’s health insurance, but these payments were considered periodic alimony payments as well. The Wife remarried in April of 2006 and the Husband informed her that she would be responsible for the remaining payments on the automobile and her own health insurance.

When the Wife protested, the Husband filed a Declaratory Judgment and moved for Summary Judgment. OCGA § 19-6-5 (b) states that "All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided." The Forsyth County divorce judge agreed with the Husband and the Wife became responsible for the remaining payments on the Escalade and her health insurance.

The Supreme Court affirmed the trial court’s ruling. The Wife argued that the Husband was supposed to “pay all monthly installment payments of Wife’s vehicle until the vehicle is paid in full” and he could therefore not stop his payments because of her remarriage. The rest of that provision , however, stated “…and shall do so in the form of permanent periodic alimony” (emphasis added). The Supreme Court found that the second half of the provision clearly showed the intent of the parties was to have it governed by OCGA § 19-6-5 (b).

November 29, 2008

Modification of Child Support and/or Alimony After the Loss of a Job in Georgia

With the state of the economy in the United States today, it is not uncommon to hear that more and more people are losing their jobs and having difficulty finding new jobs that pay as well as their previous ones. While this is obviously having a huge effect on our economy as a whole, it is also creating new difficulties with individual’s child support obligations.

If you find yourself in this type of position, it is important to learn what to do, and not to do. The biggest mistake we see people make is that they don’t do anything. They stop paying child support and do not file anything with the court seeking assistance with this type of situation. This is the quickest way to find yourself in a contempt action and facing possible jail time.

Instead, if you are no longer able to pay child support or alimony because of your changed financial status, you can and should file a modification action with the court. This is the only way to legally change your support obligation. The court will not honor any verbal agreements that you and your spouse may make.

Continue reading "Modification of Child Support and/or Alimony After the Loss of a Job in Georgia" »

November 26, 2008

Alimony Modification: Re-marriage and Georgia’s “Live-In” lover Statute

Although there are several grounds for ending alimony, one of the most common is that a party decides to remarry. In these types of cases, O.C.G.A. § 19-6-5(b) indicates that a prior award of alimony can be modified if you decide to get re-married, and the modification will result in terminating your former spouse’s alimony obligation. What many people find surprising, however, is that remarriage is not the exclusive defining test for ending alimony.

Much more common is that after a parties divorce, one of the parties decides to date and eventually decides, without getting remarried, to move into the same residence with their new significant other. The State of Georgia has enacted a law, which is commonly referred to as the “live-in” lover statute, which addresses this exact situation. According to O.C.G.A. § 19-6-19(b), if you and your significant other are living together and having sexual relations, then your former spouse can file for modification of alimony upon the ground that you and your significant other are living together in a meretricious relationship. Adding to the equation, the court will be under the assumption in this type of situation that your need for alimony has just decreased because you are now splitting financial responsibilities with this person.

When deciding whether you want to seek a modification under this type of situation, you need to keep in mind that the court will require that you submit proof of this meretricious relationship. In addition, you must always be mindful that if the judge decides after reviewing the petition and the evidence that your former spouse is not living in a meretricious relationship, then you would be responsible for paying all of your former spouse’s attorney’s fees incurred in defending the action in addition to being responsible for your own attorney’s fees.