February 18, 2013

Depositions in Georgia Family Law Cases

In Georgia, a party “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party…” OCGA §9-11-26(b)(1). In a family law cases, this means a party can obtain information about pretty much anything because almost every aspect of a person’s life is relevant.

A common method of obtaining discovery in a family law action is through a deposition. OCGA §9-11-30. In a deposition, one party asks oral questions to another person that must be answered under oath. Depositions may be taken of a party to the case, or of a non-party who may have information relevant to the case. The party seeking the deposition must “give reasonable notice to every other party to the action” so that all may be present at the deposition. OCGA §9-11-30(b)(1). Depositions must be recorded by stenographic means (i.e. by a court reporter), and may also be recorded by sound or sound and visual means. OCGA §9-11-30(b)(3).

In family law actions, depositions can be extremely beneficial because they allow a party to see the opposing party as they are answering questions. Facial expressions and tone of voice can be very telling, and will be particularly helpful if the deposition is videotaped and can be used as evidence during a hearing.

One downside to depositions is that they can be very costly. The person requesting the deposition must pay the costs of the court reporter and other recording means (if used). They are often lengthy and, thus, costly attorney’s fees also must be taken into consideration if a person is considering this method of discovery. In determining whether to take a deposition, a party should weigh the costs and benefits of doing so.

January 7, 2013

DIvorce Discovery - Domestic Relations Financial Affidavit

Though interrogatories and requests for production of documents are an important aspect of every divorce case, the starting point for discovery in all family law cases should be the Domestic Relations Financial Affidavit. Simply, a Domestic Relations Financial Affidavit (“DRFA”) is a form that requires full, sworn disclosure of a party’s income, net worth and financial condition.

The DRFA is important because it forces parties to think through all financial aspects of their case. Requiring a party to itemize monthly expenses can prove that one party has a need for alimony or an ability to pay it. It also forces the parties to take a good look at expenses for the children, which will be helpful in determining child support. Often, a party will even see unnecessary expenses that can be cut out. Money is often tight after a divorce, even if you are receiving alimony and/or child support, and cutting out extraneous expenses will most likely be helpful. Even if you are in a county that does not require a DRFA, the document will be helpful to you, and to your attorney, as it provides a snapshot of most of the issues that will be addressed in your divorce case.

When filling out a DRFA, double check that you are providing accurate information and be sure to keep any and all documents on which you based the information. The balance in a bank account may change often, for example, so make sure you save the bank statement upon which you based your DRFA number. Even though the DRFA itself does not ask for documents, you will likely be asked through a request for production of documents for any and all documents supporting the answers on your DRFA.

December 24, 2012

Divorce Discovery - Requests for Admissions

As stated in the blog entitled “Divorce Discovery – Interrogatories,” a party “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party…” OCGA §9-11-26(b)(1). In a divorce action, this means a party can obtain information about pretty much anything because almost every aspect of a person’s life is relevant to their divorce action.

Another method of obtaining discovery from your spouse in a divorce action is through requests for admissions. Requests for admissions basically ask a party to admit or deny a specific statement. OCGA §9-11-36(a). Like interrogatories and document requests, these requests require a response within 30 days. OCGA §9-11-36(a)(2). When used properly, requests for admission can be a very powerful discovery tool because, so long as the request is relevant, the party has to answer. For example, if you believe there is documentary evidence that your spouse is having an affair, you can ask your spouse to admit or deny that they are in a romantic relationship with a particular person. Your spouse will be forced to either admit the relationship, or deny it and risk committing perjury when the documentary evidence comes to light.

Anything admitted in response to these requests is “conclusively established” under Georgia law. OCGA §9-11-36(b). For this reason, requests for admissions combined with requests for production of documents (to your spouse or to a third party) can help you prove an affair, prove your spouse is hiding money/property or help to establish other facts that may be helpful in your divorce action.

December 21, 2012

Divorce Discovery - Requests for Production of Documents

As stated in the blog entitled “Divorce Discovery – Interrogatories,” a party “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party…” OCGA §9-11-26(b)(1). In a divorce action, this means a party can obtain information about pretty much anything because almost every aspect of a person’s life is relevant to their divorce action.

Another method of obtaining discovery from your spouse in a divorce action is through requests for production of documents. Through a request for production of documents, a party can request that his or her spouse “produce and permit the party making the request, or someone acting on his behalf, to inspect and copy any designated documents...” that are relevant to the divorce action “and which are in he possession, custody, or control of the party upon whom the request is served.” OCGA §9-11-34(a)(1). Like interrogatories, these requests require a response within 30 days. OCGA §9-11-34(b)(2). Practically speaking, what usually happens is that a party responds to the request by making copies of the requested documents and sending them to the requesting party. In any family law action, document requests will likely ask for bank records, pay stubs, tax returns, loan applications, retirement account statements, documents supporting children’s expenses, and monthly bills.

Like interrogatories, you can ask for more specific information. For example, if you think your spouse is having an affair, you can ask for all electronic communication or telephone records for a certain time period, or for this same type of communication between your spouse and a particular person. Unlike interrogatories, requests for production of documents are not limited in quantity.

Requests for Production of Documents can also be sent to nonparties. OCGA §9-11-34(c). Thus, requests can be sent to a bank for account statements, a cell phone provider for an itemized bill showing phone numbers, or an email provider for certain electronic communication.

Fulton County also has standard requests for production of documents that must be answered in every family law case. These document requests are a good starting point for any family law case because they cover the basic information needed. In general, document requests are a great way to obtain documentary evidence to support your spouse’s answers to his/her interrogatories. Therefore, if you ask a question in your interrogatories, make sure you have a corresponding document request to show evidence.

December 17, 2012

Divorce Discovery - Interrogatories

In general, a party “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party…” OCGA §9-11-26(b)(1). In a divorce action, this means a party can obtain information about pretty much anything because almost every aspect of a person’s life is relevant to their divorce action.

One method of obtaining discovery from your spouse in a divorce action is through interrogatories. Interrogatories are written questions that your spouse will have 30 days to answer and/or object to. OCGA §9-11-33(a). In any family law action, interrogatories will most likely ask about the party’s employment, education, current income, income history, property, insurance, children and their associated expenses, and health. In addition to this general information that is needed in nearly every family law case, you can ask more specific questions. For example, if you suspect that your spouse is having an affair, you can outright ask that question. Or you may prefer to ask your spouse to describe their relationship with a particular person. If you think your spouse is hiding money, you can ask for a list of all bank accounts in your spouse’s name, including account numbers. With interrogatories, pretty much anything goes and the questions must be answered under oath so, ideally, you will get the information you are looking for. The only restriction for interrogatories, other than they must be relevant to the pending action, is that you cannot ask more than 50 questions, including subparts.

Fulton County has standard interrogatories that must be answered in every family law case. These interrogatories are a good starting point for any family law case because they cover the basic information needed. Even if your case is not in Fulton County, you can use these interrogatories and add specific questions that apply to your particular case.

June 18, 2012

Calculating a Spouse's Interest in a Pension in a Georgia Divorce

The Supreme Court of Georgia recently heard an appeal of a divorce case where the wife alleged error in calculating her interest in the husband’s pension and setting the alimony amount. Hammond v. Hammond, S11F1978 (2012). In that divorce case, there were very few marital assets, the most significant of which was the husband’s pension, which was vested, but had not yet matured. Id. According to Georgia law, this specific pension could not be attached, subjected to process, or assigned. Id. Thus, the trial court was limited in the ways it could be utilized for equitable division purposes. After a hearing where extensive evidence was presented, the trial court equitably divided the marital assets including an alimony award to the wife of $750 per month for 24 months. In addition, with regard to the pension the trial court ordered the husband to pay the wife alimony “in the amount of $1,250 per month, starting the first month husband receives his monthly pension benefit.” Id. at 2.

The wife appealed, arguing “the trial court erred as a matter of law in determining the amount of the award of alimony pertaining to husband’s pension benefit because it bears no relation to the correct valuation of the pension.” Id. at 3. Specifically, the wife alleged that the trial court should have used the time rule formula to quantify the value of the pension rather than distributing it as alimony. However, the trial court chose to evaluate and distribute the pension as alimony at the wife’s urging and, according to the Supreme Court of Georgia, the wife cannot now complain of error induce by her own conduct. Id. Moreover, a trial court is “given wife latitude in fixing the amount of alimony and child support,” and the Court found no abuse of discretion here. Id.

The wife further alleged that the court erred in calculating the amount of alimony to be awarded from the pension. Generally, alimony is awarded in accordance with the needs of one party and the ability of the other party to pay. The trial court has great discretion within these parameters. The Supreme Court of Georgia rejected the wife’s argument here because there was evidence that the trial court considered several factors, including “the value of the pension, the overwhelming marital debt, husband’s contribution of inherited assets to the marriage, and wife’s recent promotion.” Id. at 5. Thus, the Court held that the trial court did not abuse its great discretion in setting the alimony amount from the pension.

April 16, 2012

Five Costly Divorce Mistakes

A recent article on forbes.com addressed five costly mistakes made during divorce proceedings. Divorcing Women: Don’t Make These Five Costly Mistakes, by Jeff Landers, forbes.com. Though the author specifically addressed his article to women, both men and women are equally capable of making these mistakes, which could cause a divorce to be more expensive and go on much longer.

Mistake #1 – Texting. It is important to be extremely careful about any texts, emails or other forms of digital communication sent or received as they can, and likely will, be scrutinized in hops that they can be used as evidence against you in your divorce case. According to the American Academy of Matrimonial Lawyers (“AAML”), there has been a sharp increase in the number of cases using evidence obtained from smart phones, including texts, over the past three years. In short, if something is written electronically, assume that your soon to be ex-spouse will see it.

Mistake #2 – Facebooking. Much like texts and emails, anything you put on your Facebook page, including status updates, pictures, and comments, can potentially be used against you in your divorce case. According to the AAML, there has also been an increase in evidence obtained from social networking websites over the past five years.

Mistake #3 – Dating. Many people going through a divorce make the mistake of dating before the divorce is finalized. Not only will this likely anger your spouse and likely make them more willing to fight you tooth and nail in the divorce action, but any money spent on your paramour could come back to bite you in the divorce proceedings.

Mistake #4 – Snooping. Depending on what state you live in, snooping on your spouse can get you in a lot of legal trouble. Though it may be tempting to access your spouse’s email, especially if you know his/her password, the article recommends that you consult with your divorce attorney first, to ensure you know your rights under Georgia law.

Mistake #5 – Shopping. The article also discourages shopping as a form of “feel good therapy” during your divorce. More often than not, trying to get back at your spouse by spending and or/ dissipating marital assets will only increase your debt and bring up another issue that needs to be addressed in relation to equitable division.

Making these mistakes may hurt your divorce case, but, if your spouse makes any of these mistakes, you may be able to use them to your advantage. It is important that you communicate with your Atlanta Divorce Attorney about all of these issues so that he/she can best use any available information to benefit your case.

December 3, 2008

Georgia Divorce Discovery: Consequences for Failing to Respond

In Georgia, your spouse generally has thirty days to respond to your discovery requests, such as interrogatories, request to produce documents, or request to admit. There are several key exceptions to this rule including: when discovery is filed with a complaint (in which case the deadline is generally forty-five days); when the requests are served by mail you have three additional days to respond under the mail rule; and the trial court can always shortened or lengthen the amount of time to respond in its discretion. Also, in Fulton County, there is an additional exception for the mandatory interrogatories and request to produce issued by the county that generally requires compliance within thirty days.

But what happens when someone fails to respond to the discovery responses? First, by failing to respond, a party can waive certain objections to discovery request. Second, the party that is seeking the responses can seek the court’s attention to force a response.

Seeking the court’s intervention in a discovery matter can be a rather lengthy process. Uniform Superior Court Rule 6.4(b) generally requires that you first make a good faith effort to obtain the discovery responses without the court’s intervention. Usually, this attempt is made in writing to provide for assurances that the other party understands the severity of your request and to provide you with documentary evidence that the attempt was made.

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November 24, 2008

Georgia’s Discovery Process in Divorce Cases

During a civil case, one of the party’s attorneys may suggest using one of the discovery procedures to obtain information from the opposing side. Discovery is especially useful in highly contested divorce cases because the opposing party will be required by law to disclose information to their spouse’s attorney. According to O.C.G.A. § 9-11-26(c), there are four types of discovery. Three of the discovery methods are written while the remaining one is done in person. The three written types of discovery are:

  1. Interrogatories (see O.C.G.A. § 9-11-33): Interrogatories are questions that one spouse may ask to the other spouse requesting certain information. Most interrogatories request such things as names and addresses of certain witnesses vital to the case, employment history, and the names and addresses of anyone with whom the opposing spouse may have had sexual relations during the parties’ marriage. According to O.C.G.A. § 9-11-33(a)(1), each side is limited to only fifty interrogatories, including any subparts. Each of the parties’ attorneys can ask all fifty interrogatories at one time or he or she can split them up and ask them at different points throughout the discovery process.
  2. Requests for Production of Documents (see O.C.G.A. § 9-11-34): Typically, when an attorney decides to send the opposing party a set of Interrogatories, he usually sends Requests for Production of Documents along with them. When an attorney would like to see a specific document, such as the spouse’s paystub, the parties’ tax return, bank statements, or cell phone records, he or she will ask the opposing attorney to give them a copy of these documents in the Request for Production of Documents. The reason that the Requests for Production of Documents are sent in conjunction with the Interrogatories is because the attorney may ask for copies of documents that he or she previously asked about in the Interrogatories. The attorney, however, is not required to do so. Unlike Interrogatories, there is no set limit on the number of Requests for Production of Documents the attorney may ask.
  3. Requests for Admissions (see O.C.G.A. §9-11-36): Out of the four types of discovery, attorneys send Requests for Admissions the least. Requests for Admissions are basically statements that one party may ask to another party and he or she must admit or deny the statements under oath. An attorney may send Requests for Admissions to the other side if he or she wants the truth from the other side, such as if one party had sexual relations with someone other than his or her spouse during the marriage. Like Requests for Production of Documents, there is no limit on the number of Requests for Admissions that you can send to the opposing side during the discovery process.

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