June 29, 2012

Judicially Hosted Settlement Conferences in Georgia

In some Georgia family law cases, the parties may request, or the Judge may order, a case to attend a Judicially Hosted Settlement Conference. A Judicially Hosted Settlement conference is like mediation, however, rather than using a mediator as a neutral party who will pass offers between the parties, a former Judge will serve in a neutral’s role. The Judge’s role is to help the parties agree on a settlement, but the parties are under no obligation to settle the case at the conference (just as parties are not obligated to settle a case at mediation). The conference can be utilized in lieu of mediation in some Georgia counties, and can always be utilized in addition to mediation.

The benefit of using a conference rather than mediation is that the Judge can assess the merits of the case and give the parties a guide as to how the Judge in their case will rule on the issues. The conference can be a “reality check” for both the parties and, for most cases, knowing how a Judge will rule makes the parties more eager to settle outside of the courtroom. However, the Judge’s opinion on the case is not a ruling and not binding on the parties, and the parties have the ability to agree on the outcome of the case, whether or not they agree with the Judge’s opinion. The entire process is confidential, and the parties are not under any obligation to settle. All in all, a Judicially Hosted Settlement Conference can be beneficial as it can be a cheaper and faster way to get your case resolved, and you can have a hand in determining the outcome.

By Elizabeth Doak, Associate, Meriwether & Tharp, LLC

May 21, 2012

Service by Publication in Georgia

A problem sometimes faced by individuals in Georgia embroiled in either a divorce or a custody dispute with a spouse out of the state or country is how best to serve notice on the opposing party. The spouse’s whereabouts may be unknown, in which case simply hiring a process server won’t do the trick. However, in order to satisfy the due process clause of the United States Constitution, it is necessary for all parties to be given notice of a proceeding. For persons residing out of state, notice must be given in a manner calculated to give actual notice pursuant to either the laws of the state where service is to occur or the state where the proceeding is to occur.

One way of reaching those who either can’t or don’t want to be found is to make use of service by publication. According to O.C.G.A. § 9-11-4(f)(1)(A), personal service must be attempted before service by publication is proper. The Court in Gaddis v. Dyer Lumber Co., 168 Ga.App. 334, 335 (1983), stated “In order to justify service by publication where the address of the defendant is known, or believed to be known, generally it must be shown that service was attempted unsuccessfully at the defendant’s last known address and that personal service was proven impossible.”

The Court in Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1983), noted that because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts.

However, if the address of an opposing party is known, then according to O.C.G.A. § 9-11-4(f)(1)(A), the Petitioner must supply the exact address of the nonresident to the Clerk. If the Petitioner knows the address of the defendant but does not furnish it to the Clerk of Court for purposes of mailing the notice, the judgment could then be set aside for fraud. Stiles v. Stiles, 183 Ga. 199, 205 (1936).

If you are facing similar issues involving service on an out-of-state spouse, please contact one of our skilled Atlanta Divorce attorneys.

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

May 18, 2012

Frequently Asked Questions: Georgia Divorce

Question: My wife left me and took our children with her. I have not seen them for three years. How can I find her to serve divorce papers and seek custody?

Answer: Some lawyers and most private investigators have access to databases that should be able to show where the other party is living. If you are trying to handle the divorce without the help of an attorney, you will likely need to hire a private investigator to find our where she is. Once you find where she is living, you can then personally serve her with the divorce papers to start the divorce process.

Question: Can I legally ask my husband for a separation but not have to leave my home?

Answer: Georgia does not recognize a “legal separation.” When you file for divorce, you assert in the pleadings that you are living in a “bona fide state of separation.” That simply means that you and your husband have not had marital relations (sex) since a certain date. There is an action for separate maintenance that can be filed in certain circumstances, but you should schedule a consultation with an Atlanta divorce lawyer to determine whether your specific situation would fall into this category.

Question: How do I get a divorce if my spouse won’t sign the papers, attend the classes, or follow through with any of the requirements?

Answer: If your spouse won’t cooperate, you may have to schedule the case for a final contested hearing. Before you attend this hearing, however, it is strongly recommended that you consult with an Atlanta divorce lawyer to make sure that you have prepared all your paperwork correctly for a final divorce. If your spouse does not attend a parenting class, some judges will still grant the divorce but may deny visitation to the offending spouse until he/she attends the class.

March 9, 2012

The challenge of divorce when one party resides in Georgia and the other resides out of the country: Part II

Of the four jurisdictional criteria mentioned in our previous post, a clear hierarchy exists. This hierarchy is a hallmark of the UCCJEA and says that in an initial custody determination priority is given to the home state jurisdiction. In other words, if the child involved in the custody dispute has a home state, only that state may make the initial custody determination, unless the home state declines to assert jurisdiction over the child custody dispute. See UCCJEA, National Conference of Commissioners on Uniform State Laws, Article 2, § 201, Comment, p. 24, (1998).

O.C.G.A. § 19-9-61 defines a home state as the state where the child lived with either both parents, one parent, or an individual assuming the role of a parent, for six (6) consecutive months immediately prior to filing. The six (6) month period must have been prior to the commencement of the action, and it includes periods of temporary absence by the child from his or her home state.

The second of the jurisdictional criteria, “Significant Connection,” is only reached if the home state declines to exercise jurisdiction. In such a case, a state may then have jurisdiction if it is deemed to have a significant connection with the child, meaning that there is (1) a significant connection between the child and the state and (2) substantial evidence regarding the child’s past, present or future care exists in the state.

The third of the jurisdictional criteria, “More Appropriate Forum,” is reached only if courts having home state jurisdiction or significant connection jurisdiction have declined to exercise that jurisdiction. Grounds for this include inconvenient forum or misconduct. Finally, the fourth of the jurisdictional criteria, “No Other State Jurisdiction” is reached only if no other state has exercised jurisdiction over the case or if the child is stateless.

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

March 5, 2012

The challenge of divorce when one party resides in Georgia and the other resides out of the country: Part I

In Georgia, like other places around the country, living, working and raising families abroad is something that happens more now than ever before and carries with it unique challenges in terms of divorce and child custody disputes. Years ago, cases began cropping up where the courts of different countries fought over jurisdiction. To help resolve these conflicts, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was created.

Georgia’s version of the UCCJEA, found in O.C.G.A. § 19-9-40 et seq., exists to provide uniformity and avoid jurisdictional competition between courts in different states and different countries. The purpose of the UCCJEA is to reduce and resolve interstate conflicts in child custody determinations and to facilitate the determination of which state is the most appropriate forum in which to litigate child custody disputes. For the purposes of the UCCJEA, O.C.G.A. § 19-9-44(a) clearly states that courts are to treat foreign countries as if they are a State of the United States.

The UCCJEA establishes clear criteria under which a state can assert jurisdiction by not only prioritizing relevant criteria, but by also distinguishing between initial custody jurisdiction, modification of custody jurisdiction and temporary emergency jurisdiction. It does so for the purpose of discouraging multiple states from taking concurrent jurisdiction, a recurring problem that the UCCJEA has sought to solve. The four jurisdictional criteria contained in the UCCJEA are as follows: (1) Home State Jurisdiction; (2) Significant Connection Jurisdiction; (3) More Appropriate Forum Jurisdiction; and (4) No Other State Jurisdiction.

In the next post we’ll walk through these jurisdictional criteria and discuss the definitions of each.

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

February 27, 2012

Can a Georgia divorce lawyer testify in murder case?

A recent article on ABAJournal.com recently reported how one Georgia court is currently wrestling with a tough a question: can a divorce attorney representing a murder defendant’s wife be made to testify in the husband’s criminal trial?

Superior Court Judge Gregory Adams of DeKalb County Superior Court must now rule on the issue after hearing arguments regarding a motion to quash a witness subpoena for the wife’s attorney Esther Panitch. Though any information gathered by Panitch for the purpose of providing legal advice to her client will remain confidential due to attorney-client privilege, the defense counsel argues Panitch possesses material information separate from her representation of the wife.

Precisely what that information is has yet to be revealed by the defense. The defense counsel said that he anticipates “calling her as a witness… because we think she has independent facts that may be important in the case,” adding: “There is a legitimate basis for this subpoena, and I want to hold out the possibility that we may need to call her.”

Panitch originally served as divorce attorney and now acts as an advisor to the wife, Ariela Neuman, for the murder trial of her husband, Hemy Zvi Neuman.

Her attorney and business partner, James R. Hodes, argued that Panitch does not have any relevant evidence concerning the murder case of her client’s husband and argued that subpoenaing her as a witness interferes with her ability to counsel her client effectively.

The case, currently in the middle of trial, revolves around a murder allegedly committed by Henry Neuman, a father of three, who is accused of killing Rusty Sneiderman on November 18, 2011, after Sneiderman dropped off his 2-year-old at Dunwoody Prep Pre-School. Investigators believe Neuman and Sneiderman’s wife may have been having an affair.

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

January 13, 2012

Residence requirements for divorce in Georgia

In Georgia, when spouses live in different counties, or if one spouse lives in Georgia and one lives out of state, there are specific rules which govern where the divorce action must be filed. Georgia law states that: “No court shall grant a divorce to any person who has not been a bone fide resident of this state for six months before the filing of the petition for divorce.” OCGA §19-5-2. An exception to this rule is that “a nonresident of this state may file a petition for divorce, in the county of the residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.” Id.

If both parties have resided in Georgia for more than six months, the Petitioner must file the divorce action in the county in which the Respondent resides, even if the Petitioner does not live in that county. So, if the Petitioner resides in Fulton County and the Respondent resides in Cobb County, the divorce action must be filed in Cobb County. If the Petitioner resides out of state and the Respondent has resided in Georgia for at least six months, the divorce action must be filed in the Georgia county in which the Respondent resides. If the Petitioner resides in Georgia and the Respondent resides out of state, the divorce action cannot be filed in Georgia but, rather, must be filed in the state in which the Respondent resides.

January 2, 2012

Can I get a divorce online in Georgia?

In these tough economic times, people are often looking for ways to save money. So it is not surprising that Georgia divorce attorneys are often asked if a person can obtain a divorce online, rather than hire an attorney and go through the court system.

In Georgia, you cannot get a divorce online. You can obtain the divorce paperwork online, but you must file it with the Superior Court, who will then grant your divorce after going through the required legal procedure. Some counties offer help with divorce filings and make it easier than others to file and obtain a divorce without an attorney. However, there are some aspects of a divorce case, particularly child custody and child support, that require specific legal documents (i.e. parenting plan, child support worksheets) that must be filled out correctly and completely before the court will grant the divorce, even if all issues are agreed upon. Thus, while there is certainly nothing wrong with negotiating issues in your divorce without the assistance of at attorney, it might actually save you time and money to hire an attorney to help you with the paperwork to ensure it is done correctly and that there will be no issues in having your divorce granted as expeditiously as possible.

December 30, 2011

In Georgia, am I legally separated after I file my divorce action?

Georgia divorce attorneys are often asked whether the filing of a divorce action means the parties are legally separated. This question often comes from people who are interested in starting to date other people during the pending divorce.

Please keep in mind that Georgia does not recognize legal separation. Therefore, nothing changes about your marital status until your final divorce decree has been signed by the Judge. Until you receive your final divorce decree, you are still married in the eyes of the law and sex with anyone who is not your spouse is considered adultery. Whether this adultery is considered to be the cause of your divorce is a different question. It is important to note, however, that the Judge can take your actions both before and during the pending divorce action into consideration in awarding alimony, custody, and equitable division of assets.

November 18, 2011

How long does a divorce take in Georgia?

Georgia divorce lawyers are often asked how long an average divorce takes in this state. This is a difficult question to answer because there is not really an “average” divorce case. The length of time depends greatly on whether the parties are able to settle matters and, if not, what issues they are fighting about. Even cases with similar facts can be very different. For example, consider a case where both parties work, and have 2 children, a marital home, several joint accounts, and some separate property. Some parties with these facts are able to resolve everything fairly quickly and easily. Other parties with these same facts, however, may argue over every custody, child support, alimony and/or equitable division of assets. Even one contested issue can cause a divorce to drag on, especially if it is something about which both parties feel passionate.

The length of a divorce case can also depend on the County in which the divorce is filed because some courts are more back logged than others. Often, there is not much you can do about this issue.

In our experience, the average time range for a divorce in Georgia is 45 days for a completely uncontested divorce to about 3 years for a hotly contested divorce. However, as mentioned above, this time can vary greatly based upon the specific facts of your case.