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Alimony

What is a Varn Waiver?

Wednesday, December 10th, 2014

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If you are currently going through divorce in Georgia, or considering Georgia divorce, it is likely that you have become familiar with the phrase “Varn waiver.” Although you may have become familiar with this phrase either through research or through consultation with attorneys, the meaning behind this phrase may remain a mystery.

A Varn waiver simply refers to the waiver of alimony in divorce. Unlike child support, which may not be waived by the parties to a divorce action, the right to seek alimony may be waived by one or both parties to a divorce action. When one or both parties waives the right to seek alimony, the section of the Marital Settlement Agreement detailing this waiver is referred to as a Varn waiver. These waivers are referred to as Varn waivers, because the Georgia Supreme Court opinion that allows for such a waiver is Varn v. Varn, 242 Ga. 309 (1978).

It is important to fully contemplate the consequences of including such a waiver in a settlement agreement, because the inclusion of such a waiver will permanently waive the right of either party to receive alimony or to seek a modification of alimony should alimony be awarded. The inclusion or exclusion of a Varn waiver could have significant financial consequences, therefore it is advised that you contact one of Meriwether & Tharp’s knowledgeable divorce professionals if you have any questions regarding this matter.

Alimony in Georgia: How Much Does Length of Marriage Really Matter?

Wednesday, October 22nd, 2014

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Among the four parts of Georgia divorce, which include equitable division, alimony, child custody, and child support, alimony is probably the most popular subject by far. Although alimony is oft discussed, it is also likely the most misunderstood component of Georgia divorce.

The misconceptions regarding alimony include, among others, that alimony cannot be awarded to men, that alimony is a lifetime award in all cases, and that alimony cannot be terminated once awarded. Another very popular misconception about alimony is that the length of the marriage dictates the award of alimony. Put plainly, many believe that less alimony will be awarded for shorter marriages and more alimony will be awarded upon the dissolution of longer marriages. Although the length of marriage is one of the factors that Georgia courts use to determine the amount and duration of alimony, if alimony is awarded at all, this is only one of several factors. According to Georgia law:

“The following shall be considered in determining the amount of alimony, if any, to be awarded:

   (1) The standard of living established during the marriage;

   (2) The duration of the marriage;

   (3) The age and the physical and emotional condition of both parties;

   (4) The financial resources of each party;

   (5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;

   (6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;

   (7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and

   (8) Such other relevant factors as the court deems equitable and proper.”

O.C.G.A. § 19-6-5. As indicated by the above cited statutory law, in addition to the length of marriage, there are 7 other factors that a court is required to consider in determining the award of alimony. Thus, even in the case of a relatively short marriage, the presiding court may make a large award of alimony.

This contention is made clear in the case of Sprouse v. Sprouse, 285 Ga. 468 (2009). In this case, decided by the Georgia Supreme Court in 2009, the Supreme Court upheld a grant of 13 years of alimony, based on a marriage that lasted only two years. Although such an award for a marriage of only two years is extremely rare, at trial, the trial judge determined that since the total length of the couple’s relationship was 13 years, including time they were together prior to getting married, the court considered the award of alimony appropriated. The Supreme Court agreed.

This case is a prime example of why seeking the guidance and advice of a team of divorce professionals is necessary for anyone seeking to begin the divorce process in Georgia. Georgia family law is one of the most complex and fact driven areas of law, so only experienced Atlanta divorce attorneys, familiar with Georgia divorce law and tendencies of local judges, can accurately anticipate and prepare for how a court may rule.

How to Prove an Ex-Spouse’s Cohabitation in Alimony Dispute

Wednesday, April 23rd, 2014

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According to Georgia alimony law:

Subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of a spouse, 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.

O.C.G.A. § 19-6-19(b).

Put plainly, if your ex-spouse begins living with a new boyfriend or girlfriend after you have been order to pay alimony to him or her, you may ask the court to downwardly modify your alimony obligation or terminate it completely. Hurley v. Hurley, 249 Ga. 220 (1982). Despite their ability to seek a downward modification or termination of alimony pursuant to Georgia law, many obligated ex-spouses find it difficult if not impossible to prove to the court that their ex-spouse is cohabitation with a significant other.

Very rarely will an ex-spouse receiving alimony be willing to admit to cohabitation, because such an admission has the potential to negatively impact that amount of alimony received. Additionally, alimony recipients may go to great lengths to mask such relationships in an effort to thwart an obligated ex-spouse’s efforts to reduce alimony payment. With this being said, what is an obligated ex-spouse to do if he or she knows their ex-spouse is cohabitating with a lover but is unable to prove the relationship? Below is a list of questions and concerns for obligated ex-spouses to consider in deterring whether there is enough evidence to seek a modification of alimony based on the recipient’s cohabitation.

  • Does the cohabitating couple share a residence? How may this cohabitation be proven?  – Even if the residence is owned or paid for by one of the parties solely, there are other ways to prove a shared residence, such as the amount of time each party spends at the residence or the amount of food consumed at the residence. For instance, an increase I the amount of food purchased for consumption in the home may indicate the addition of another occupant.
  • Is the payment of utility or other household bills shared by the couple? If your ex-spouse’s new lover is responsible for paying certain household expenses, like utility bills, this fact points toward cohabitation.
  • How does your ex-spouse characterize his or her relationship? Does your ex represent the relationship as a committed or exclusive relationship?
  • Does your ex’s new boyfriend or girlfriend share parenting responsibilities with your ex?
  • Are there pictures of your ex and their paramour on social media sites that tend to prove the couple’s cohabitation?
  • Does you ex seem to have more cash on hand than normal? If so, this may point to the financial contribution of another person in his or her household.

Alimony Is Taxable To The Recipient

Tuesday, April 15th, 2014

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“Alimony is taxable to the recipient and deductible payor.” Upon the close of a divorce matter, many parties are either informed of this important fact orally or in the form of a letter or other written notice provided by their attorney. Although this important statement is recited to divorce litigants at the conclusion of their divorce, many parties, especially recipient of alimony, fail to adequately appreciate the gravity of this statement until he or she receives a hefty and unexpected tax bill from the IRS.

Alimony is taxable to the recipient. What this means practically is that those who receive alimony payments are required to pay income tax on any amount received at the end of the tax year. Because alimony is not income derived from employment, no federal tax is withheld from the income amount. Thus, at the end of the tax year, the recipient spouse is solely responsible for paying the tax assessed on the income received.

In order to avoid the potentially devastating situation of receiving a large and unexpected tax bill, alimony recipients should be sure to place aside a set amount of funds each month to be used to satisfy the taxes assessed against this income.  Additionally, alimony recipients should consult a financial advisor regarding developing a financial plan specifically designed to address post-divorce financial issues faced by alimony recipients.

The Four Parts of Georgia Divorce: Alimony

Tuesday, April 8th, 2014

In reviewing our series concerning the four parts of Georgia divorce it becomes obvious that there are several financial aspects of divorce.  As a result, many going through the divorce process may find it hard to distinguish alimony, child support and equitable division. Although all three may involve monthly or lump sum payments made by one spouse to the other, child support, alimony and equitable division all serve different purposes, and the rules regarding how each may be satisfied are regulated by different sections of Georgia law. Unlike child support, which is intended to provide for the maintenance and support of minor children, or equitable division of marital property, which is designed to ensure that each spouse receives a fair and equitable portion of marital property upon divorce, the purpose of alimony is to provide support to the spouse or ex-spouse who is in need of economic support during separation or post-divorce.

According to Georgia law, alimony is defined as an allowance made out of one spouse’s or ex-spouse’s separate estate for the support and maintenance of the other ex-spouse. O.C.G.A. 19-6-1. Although alimony is designed to provide support to the spouse or ex-spouse who is in need of economic support, an award of alimony will not be solely based on the needs of one spouse. The ability of the other spouse to pay alimony will be considered as well. Id.

Unlike child support, which generally must be awarded in every case involving minor children in need of support, the court presiding over a divorce matter is not required to make an award of alimony in every case. In determining whether an award of alimony is warranted in a particular case, the presiding court will consider, among others, the following factors:

1)    The cause of the parties’ separation. If one party proves that the separation between the spouses was a result of the other parties adultery or desertion, the culpable party will be barred from receiving alimony.

2)    The success of the divorce action. If the claim of alimony in incidental to a divorce action and the divorce is denied, the claim for alimony dissipates with the divorce action.

3)    The voluntary provision of support by one spouse to the other. If one spouse has already voluntarily agreed to support the other spouse consistent with that spouse’s needs, the recipient spouse will be barred from recovering additional support in the form of alimony unless the agreement between the spouses is invalid or the other spouse refuses to comply with the terms of the agreement.

4)    The grounds for divorce. If the divorce is granted on the ground of fraud, duress or any other grounds which attacks the validity of the marriage contract itself, alimony will not be awarded.

O.C.G.A. § 19-6-1; O.C.G.A. § 19-6-8; Clements v. Clements, 255 Ga. 714 (1986); Owens v. Owens, 247 Ga. 139 (1981); Davis v. Davis, 206 Ga. 559 (1950); Ridgeway v. Ridgeway, 224 Ga. 310 (1968); Walker v. Walker, 53 Ga.App. 769 (1936); York v. York, 202 Ga. 50 (1947).

If the presiding court determines alimony is warranted, the court must then determine the amount and duration of alimony. With regard to duration, Georgia courts may award both temporary and permanent alimony. Temporary alimony may be awarded to a needy spouse during the course of divorce proceedings to provide for that parties support during the couple’s separation. Once the divorce is final, the court may also award that spouse permanent alimony.    The term permanent alimony is misleading, because Georgia courts very rarely order alimony to continue for the lifetime of the recipient spouse, although they may. O.C.G.A. § 19-6-4; 19-6-9. Most often, Georgia courts order alimony to continue for more limited time periods, generally between 2 to 10 years.

In this event, the court will likely order alimony to be paid in monthly or bimonthly payments. Alternatively, depending on the financial resources and needs of the parties, the court may also order alimony to be paid out in a lump sum once the divorce is final. Johnson v. Johnson, 220 Ga. 461 (1964). With regard to amount, there is no formula or specific calculation used to determine how much alimony a spouse should receive. Instead, courts rely on Georgia’s alimony factors, which are listed below, to determine the amount of the alimony award.

1)    The standard of living established during the marriage;

2)    The duration of the marriage;

3)    The age and the physical and emotional condition of both parties;

4)    The financial resources of each party;

5)    Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;

6)    The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;

7)    The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and

8)    Such other relevant factors as the court deems equitable and proper.

O.C.G.A. § 19-6-5.

 

Failure to Pay Child Support and Alimony in Georgia

Monday, February 10th, 2014

In Georgia, upon the completion of a divorce, if the presiding judge determines that alimony or child support is warranted, the court will include an order to pay alimony and/or child support in the Final Order and Decree of Divorce. Once an order of the court has been issued concerning the payment of child support or alimony, the party who has been ordered to make those payments must comply or risk being subject to penalties. One of the most common penalties levied by a court in response to a failure to pay child support and alimony in Georgia is a contempt citation.

According to Georgia law, contempt is defined as the willful refusal of a party to comply with a court order. Crozier v. Crozier, 231 Ga. 468 (1973). Thus, for a court to find a parent in contempt, the court must find that 1) a judgment or order has been previously entered with the court concerning the issues and 2) the charged party is in noncompliance with that order. Kent v. Kent, 265 Ga. 211 (1995); In re K.D, 272 Ga.App. 803 (2005). Alternatively, because a parent or an ex-spouse must willfully disobey a court’s order to be found in contempt, if a parent or an ex-spouse shows that the non-payment is not willful he or she may successfully defend herself against a contempt action. Additionally, parent or ex-spouse who owes alimony or child support payments may also purge or rid themself of a contempt action by paying all sums due and owing or otherwise complying with the court’s order. Edwards v. Edwards, 224 Ga. 224 (1968).

Generally, the Superior Court that rendered the child support or alimony order has the exclusive authority to enforce that order through a contempt action. With this being said, if you have been awarded child support or alimony and your ex-spouse or co-parent has failed to comply with the court’s order, you must file a motion for contempt with the court that originally entered the initial child support or alimony order in order to initiate a contempt action. See Connell v. Connell, 222 Ga. 765 (1966).

Is Permanent Alimony Really Permanent in Georgia?

Thursday, December 19th, 2013

No, not necessarily. In fact, the title “permanent alimony” may be a tad misleading. According to Georgia law, alimony is defined as “an allowance out of one party’s estate, made for the support of the other party when living separately. It is either temporary or permanent.” O.C.G.A. § 19-6-1. This is where the title permanent is derived from. Essentially, the title is to differentiate it from temporary alimony. It does not necessarily mean that permanent alimony endures for the lifetime of the recipient spouse. In fact, alimony may be ordered by the presiding court to last for the lifetime of the recipient spouse, or it may be ordered to endure for a specific number of years, such as 5 or 10 years.

As Georgia divorce attorneys, we have noticed the recent trend is for Georgia courts not to order lifetime alimony, but to order alimony to endure for a number of years, usually in descending increments. For example, if a court orders 4 years of alimony, the court may order the obligated spouse to pay $1,000 per month for the first two years, $750 per month for the third year, and $500 per month for the last year. Although lifetime alimony is rare, it is still a possibility. But, even in situations where lifetime alimony is ordered, there are still circumstances under which permanent or lifetime alimony may be terminated. These circumstances include:

  • The death of either spouse
  • The remarriage of the recipient spouse
  • The cohabitation of the recipient spouse with a third party in a meretricious or romantic relationship

See O.C.G.A. §§ 19-6-5(b), 19-6-7 and 19-6-19(b).

 

Alimony Modification in Georgia – Live in Lover

Friday, December 13th, 2013

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.

Is Permanent or Life Time Alimony Unfair and Outdated?

Wednesday, November 6th, 2013

It is certain that Ari Schochet, a New Jersey man who has been sent to jail multiple times in the last two years for failing to pay court-ordered alimony resulting from his divorce from his wife of 17 years would answer in the affirmative. Schochet, who once worked as a portfolio manager earning $1 million a year, has been unemployed due to the decline in the economy almost consistently since his divorce. Despite his changed circumstances however, Schochet continues to be obligated to pay lifetime alimony to his ex-wife based on his former income. According to Schochet: “I paid it as long as I could.” But now however, due to his changed circumstances he is simply unable to meet this never ending obligation.

Like Georgia, New Jersey along with several other states look to the relative financial circumstances of each spouse, including income, earning power and other financial resources to determine whether alimony is appropriate, and if so the most appropriate amount. See O.C.G.A. § 19-6-1 et seq.  However, unlike in Georgia, in some states it is very hard, if not impossible to modify an award of alimony after it is rendered, even though the circumstances of the ex-spouses have changed. This is the situation that Schochet is dealing with in New Jersey. According to Georgia law though, alimony is modifiable for two main reasons: 1) due to the change in the income or financial status of either former spouse. See O.C.G.A. §§ 19-6-19 and 19-6-18. See also Douglas v. Cook, 266 Ga. 644 (1996) and 2) when the recipient spouse voluntarily cohabitates with a third party in a sexual or romantic relationship, and the obligated spouse seeks a modification of alimony as a result. O.C.G.A. § 19-6-19(a) and (b). See also Quillen v. Quillen, 265 Ga. 779 (1995).

Although fortunately in Georgia, alimony is modifiable, this fact still does not address the fundamental question of whether permanent or lifetime alimony is unfair or outdated. Because the circumstances of each family and each divorce are different, the equitable nature of lifetime alimony is something that must be determined on a case by case basis. With regard to whether lifetime alimony is outdated, even though Georgia law does not preclude lifetime or permanent alimony, in our experience as Georgia divorce attorneys, Georgia courts very rarely award lifetime alimony but prefer to award alimony for a certain specified number of years. Normally the alimony award is for a time sufficient to allow the receiving spouse to rehabilitate his or her financial situation post-divorce.

Hidden Costs of Georgia Divorce

Monday, October 14th, 2013

Attorney’s fees, expert testimony costs, home appraisal fees, alimony, child support, and property division. These are the costs that commonly come to mind for many when thinking about the potential costs of divorce in Georgia. However, there are few costs associated with divorce that are not generally thought of or even discussed until it is necessary to pay them. There are several potentially hidden costs of Georgia divorce, but there are three that are common to most divorce in Georgia: filing fees, service fees and Parenting Seminar fees. Below is information concerning each of these potential costs along with price ranges commonly associated with them.

Filing Fees

In every divorce case, unless special or extenuating circumstances apply, a filing fee must be paid to the Clerk of Court of the Superior Court in the county where the divorce action is filed. In Georgia, each county is allowed to set its own filling fee, but the fee must be within a certain range. Currently the average filing fee that must be paid to file for divorce in Georgia is between $200.00 and $220.00. Although some Court Clerks accept credit or debit cards, many do not. Thus, it is necessary to pay this fee either via money order, check, certified check or cash.

Service Fees

In addition to the filing fee, a service fee must also be paid. This fee is the cost to have your spouse served by the Sheriff’s department with the divorce papers. This fee is almost universally $50.00, if you have the divorce papers served by the Sheriff’s department. But there is another option. Divorce papers may also be served by private process servers, who are private individuals, granted permission by the court to serve service of process on individuals involved in divorce and other civil matters. Generally, if service is successfully made on the first attempt, the fee for private process servers is only slightly more than the Sheriff’s fee. However, if several attempts are necessary, the fees for private process servers increase, and may total to be upward of $100.00 or more.

Parenting Seminar Fees

Several counties in Georgia have established what are normally referred to as parenting seminars or seminars for divorcing parents. Generally, these seminars must be attended by both parties to a divorce in the divorce involved minor children. The seminars are educational, often focusing on the effects of divorce on the children involved. These courses are held several time a year, and must often be completed before the case may be resolved. The fees for parenting seminars generally tend to be from $25.00 to $50.00. Because the requirements and fees for parenting seminars range from county to county, it is important to either speak with a Georgia divorce attorney, or the Clerk of Court in your home county to learn the specific details on your county’s parenting seminar.