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Atlanta Divorce

Exit Strategies: Atlanta Divorce and The Marital Home

Friday, May 11th, 2012

In more than a few recent cases, the stumbling block to settling the case has been the marital home. As a result of the real estate market meltdown, Atlanta divorce attorneys have had to rethink how they structure agreements regarding real property. So what do you do in a case when neither party wants the marital home? It’s the proverbial hot potato no one wants to be left holding.

When clients are contemplating walking away from a home, our job as divorce attorneys is to eliminate or at least minimize a client’s loss when structuring an exit strategy. The first step in making this happen is to ensure the client has the information necessary to make an educated and informed decision. One of the key pieces of information is how much equity, if any, is in the property. Knowing whether the client would need to bring funds to the closing table if the property were sold allows us to immediately rule out certain options. Other critical facts clients need to be aware of include who is listed as a borrower on the mortgage, how far the mortgage is in arrears and both parties’ financial condition and employment plans.

Several possible alternatives clients may want to consider include bankruptcy, foreclosure, leasing, a short sale and a limited sale. Something I am seeing more often in divorce practice is parties choosing to “walk away” from a property. Although this is not a situation we encourage, in some cases foreclosure is the only option. While “walking away” may not be the best moral decision for some, it may make sense, at least from an economic perspective, to those parties who owe much more than the home is worth. If the parties agree to a foreclosure, the parties need to ensure that the possibility of a Deficiency Judgment is addressed.

Other alternatives to consider are leasing out the property until the market recovers or placing the home on the market in the hope of a short sale. A short sale may not be an option, however,since most lenders won’t even consider an offer on the property for less than the amount owed, unless the borrowers are at least several months behind on the mortgage.

In situations when parties are underwater or facing foreclosure on the marital residence, it is important to have an experienced divorce attorney. Regardless of the situation, an improperly drafted agreement could leave a person with a financial obligation in the divorce case that they cannot even bankrupt. The few hundred dollars a person might save by not having a lawyer draft the agreement can easily be lost if they draft a bad agreement. A knowledgeable attorney can work with you to craft the right agreement, to suit your specific needs and minimize any losses.

By Alyssa Vaughn, Associate, Meriwether & Tharp, LLC

Are Personal Injury Settlements or Awards Considered Income for Purposes of Calculating Child Support in Georgia? – Part 3

Friday, April 27th, 2012

In the first two parts of the discussion regarding personal injury awards in Georgia divorce cases, we examined whether personal injury awards were subject to equitable division. In part 3, we discuss how personal injury settlements and awards are handled when calculating child support in Georgia.

The first step when calculating child support in Georgia is to accurately determine the amount of each parent’s gross monthly income. So the question is, is a personal injury settlement or award included in gross income for purposes of calculating child support in Georgia? According to Georgia’s Child Support Statute, gross income is defined to specifically include personal injury awards as well as awards from other civil actions. OCGA § 19-6-15(f)(1)(a)(xvi). Nevertheless, even if a personal injury award is included in gross income, the statue allows a Court the authority in these types of situations to calculate gross income differently.

The frame of reference most often used in determining an individual’s gross monthly income is examining the parent’s income over the last year. For parents who have received certain types of settlements or awards, however, reviewing their income over the typical one year time period may result in the imposition of an inequitable child support obligation. Everyone loses when child support is set at an unsustainable amount and a parent is unable to meet their support obligation on an ongoing basis.

Fortunately, the legislature contemplated this potential inequity and crafted the Child Support Statute to allow for situations in which a parent’s sole income is from irregular payments or a single, lump-sum payment as a result of a personal injury suit. Under the law, when a parent has received such an award, the fact finder may permit gross income to be computed by averaging the amounts received over a reasonable period of time or permit a one-time lump-sum child support payment to be made of a percentage of the total award received. OCGA § 19-6-15(f)(1)(a)(xvi). If you have received an award or settlement as a result of a personal injury suit, an experienced Georgia family law attorney can assist you in determining the appropriate amount of child support in your particular situation.

By Alyssa Vaughn, Associate, Meriwether & Tharp, LLC

Five Costly Divorce Mistakes

Monday, April 16th, 2012

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.

Can smoking make you lose custody of your children?

Friday, April 13th, 2012

I recently read an interesting article about how a parent’s smoking may affect child custody. Smokers losing custody cases a growing trend, by Myra Fleischer, The Washington Times. According to the article, “states are increasingly factoring cigarette smoking in making decisions about who gets custody of minor children. An anti-tobacco advocacy group surveyed custody cases involving smoking found that many courts have issued orders prohibiting smoking in the presence of a child, or even within 24 hours before a child arrives in the home. The survey further found that no court has ever ruled that subjecting a child to tobacco smoke should be ignored in deciding custody.

In Georgia specifically, custody is awarded according to the best interest of the child standard, and the court can consider any factor in making that decision. Thus, it is well within the confines of Georgia law for a judge to consider smoking as a factor in determining custody. According to the article, there was a Georgia custody modification case in which the mother was addicting to smoking and, after the divorce, her child was found to have asthma. In reaching its decision, the Georgia court “found that the mother was smoking in the presence of her child, which it said implied that she had insufficient concern for her child.” This reason alone was enough to change custody.

This article further shows how anything and everything can come into play in a custody battle, especially if the parent is engaging in an activity that is harmful to the child. If you are a smoker and going through a custody fight, and are unable to break the habit, at the very least you should not smoke in the presence of the children or allow others to do so.

Gwinnett County Parenting Seminar Information – 2012

Friday, March 23rd, 2012

Under Georgia law, both parties in a divorce are required to attend a parenting seminar in Georgia if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Gwinnett County (Buford, Dacula, Duluth, Lawrenceville, Lilburn, Norcross, Snellville, and Suwanee) offers its Parenting Seminar at the Gwinnett Justice and Administration Center, 75 Langley Drive, Lawrenceville, Georgia 30045. The seminars are held in Conference Room A West Wing on the second floor. The 2012 schedule is as follows:

Thursday morning seminars from 9:00am – 1:00pm: April 5, April 12, April 26, May 3, May 10, May 31, June 14, June 28, July 5, July 12, July 26, August 2, August 9, August 23,September 6, September 13, September 27, October 4, October 11, October 25, November 1, November 8, November 29, December 6, December 13

Thursday evening seminars from 5:00pm – 9:00pm: April 19, May 24, June 21, July 19, August 16, September 20, October 18, November 15, December 20

The cost of the seminar is currently $30.00 per person and registration MUST be received prior to the day of the seminar, though payment can be made at the door. You can find additional information and register online for these seminars at the Gwinnett County Parenting Seminar website.

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

Friday, February 24th, 2012

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

Automatic Adjustments to Child Support Payments in Georgia

Monday, February 20th, 2012

In Georgia, child support payments are calculated to cover all the minor children in a household. However, when an older child reaches 18 years of age (aka “ages out”), the child support obligation changes to reflect the fewer number of minor children in the household. In a case that has been fully resolved, filing a Modification of Child Support is usually necessary to adjust the child support figure. For those currently going through a divorce and expecting their oldest child to age out in just a few months or years, can the parties agree for an automatic adjustment of child support to occur when the oldest child ages out? How do Judges in Georgia perceive such automatic adjustments in Settlement Agreements?

At a conference for matrimonial lawyers held by the Georgia State Bar, a few Judges responded to this exact question. All of the Judges on this panel, including a Judge from Cobb County, Fulton County, and Gwinnett County, all indicated that they would allow the automatic adjustments only if the change was foreseeable. For these Judges, this meant that the oldest child would age out within a matter of 6-8 months. If not within this time frame, these Judges all indicated that they would be unlikely to accept automatic adjustments and that filing a Modification of Child Support would be the proper procedure.

By Emily Yu, Associate Attorney, Meriwether & Tharp, LLC

The “In Love” Feeling and Extra-Marital Relationships During Your Georgia Divorce Case

Monday, February 13th, 2012

Extra-marital relationships that are occur during your divorce proceedings can have a huge impact on your divorce case in Georgia. I recently read a book called the Five Love Languages by Dr. Gary Chapman. Whether you are married, single, trying to figure out how to save your marriage, or figuring out why you are getting divorced, this is a highly recommended book that discusses the different ways people perceive and feel love as well as the different ways that people express love to their significant other (or future significant others as the case may be). Dr. Chapman discusses the “in love” feeling that couples experience. The “in love” period is one in which your significant other can do no wrong and one in which every day and every action revolves around your significant other. Decisions are made to best allow you and your significant other to be together. Waiting to see your significant other again can feel like an eternity. Many of us remember this feeling and can relate to the feeling and belief that “our love is unstoppable!”

As an Atlanta Divorce Attorney, I want to discuss this “in love” feeling you may have for someone other than your soon-to-be-ex. Clients who have found themselves in an extramarital relationship or very much looking forward to engaging in one will often hear our Atlanta Divorce Attorneys recommend that they not date until the divorce is final. We advise our clients this way for a number of reasons in addition to the obvious moral implications.

First, engaging in an extramarital relationship can have an adverse impact on your impending divorce case. If you are a spouse seeking alimony, adultery can bar your claim for alimony.Additionally, it can sometimes effect equitable division.

Second, we recommend that clients do not make decisions pertaining to your divorce while in the “in love” period. Too often clients feel so overly confident about their new relationship that they forget to think about the possibility that the new relationship may not last. The decisions made at this time tend to assume that the new significant other will be around to provide in the event that something does not go as planned in their divorce. For example, clients may not seek as much alimony thinking that they will marry their new significant other and will not need the alimony. Clients may also walk away from more of the marital estate than they should have to simply get the divorce over as quickly as possible so they can re-marry their new love. It is important not to let the “in-love” feeling cloud your judgment during the pendency of your divorce case.

Third, the difference between a less expensive divorce and a very expensive divorce tends to boil down to one thing: emotion. Infidelity, the idea of infidelity, even the possibility or appearance of infidelity is often enough to turn a relatively inexpensive divorce into a very expensive, highly contested case.

My last bit of advice is for this upcoming Valentine’s Day, please be mindful of these issues and use common sense when deciding whether to go out to dinner, send flowers, or send gifts to a new significant other if you are still married. Credit card statements and bank account statements can be subpoenaed. It is possible that you are being taped, recorded, or otherwise followed by a Private Investigator. If you have a new significant other and are currently in the middle of a divorce case, this Atlanta Divorce Attorney recommends that the celebration of your new love wait until after a Judge has signed your Final Judgment and Decree of Divorce!

By Emily Yu, Associate Attorney, Meriwether & Tharp, LLC

Georgia high income child support deviation

Friday, January 27th, 2012

With the increasing publicity related to celebrities and their custody disputes (Usher, T.O., Mindy McCready and other artists we have posted about), an interesting question arises as to how judges in Georgia handle child support obligations when one parent makes a significantly higher income than the other parent. The purpose of child support is to provide the minor child with a lifestyle that reflects the income of both parents. What do you do when one parent makes ten times, twenty times, or even one hundred times more?

I recently attended a seminar where a panel of judges discussed this issue. A Gwinnett County judge indicated that lump sum child support might be appropriate. Lump sum child support is usually one large payment that, once paid, would completely resolve the parent’s obligation to pay child support in the future. The benefit to lump sum child support would be ensuring that the entire child support obligation until the minor child turns eighteen would have already been paid even if the high-income parent were to lose his or her job later. However, if the high income earning parent were to lose his or her job later, an argument could be made that the lump sum child support was inappropriate because that parent would have had to pay a lower child support payment if his or her income were lower.

A Cobb County judge suggested that another way to determine child support in high-income cases is to use percentages. By way of example, if the child support payment should be 15% of the parent’s net income, then it should not matter whether the 15% is applied to an income of $40,000.00 or $400,000.00 or $4,000,000.00. A Fulton County judge stated that her main concern in such cases is that the money is put to good use and be used for the minor child rather than going to the living expenses of the other parent. This Fulton County judge stated that, depending on the case, it maybe in the best interest of the child to require that a certain sum be set for the minor child and defer accessibility to that fund so the custodial parent does not waste it. Another judge stated,however, that just because one parent earns a significantly higher income than the other does not mean that the child support obligation should be significantly higher as well. This judge wanted to prevent the situation where the custodial parent was essentially “winning the lottery” through child support and stated that a downward deviation is appropriate.

By Emily Yu, Associate Attorney, Meriwether & Tharp, LLC

Self-executing visitation provision in Georgia divorce held invalid

Monday, January 23rd, 2012

The Supreme Court of Georgia recently heard a case regarding a self-executing modification in a final decree of divorce. Johnson v. Johnson, S11F1856 (2012). In that divorce case, the final decree of divorce awarded primary physical custody of the parties’ daughter to the mother, with supervised visitation to the father. Id. The parenting plan further provided that the father’s overnight visitation must be supervised by “a reasonable adult approved by [a therapist treating the child], until such time as [the therapist] determines that supervision is not necessary.” Id. Under the parenting plan, the therapist had the additional authority “to determine how supervised visitation should be phased out over time and when supervision may end.”Id. The father appealed, contending that the “provisions concerning the termination of the supervised visitation constituted an improper self-executing modification contingent on the determination of the therapist.” Id. at 2.

The Supreme Court of Georgia agreed with the father that the provision is an improper self-executing change of visitation because it allows for an automatic change in his visitation based on a future event, without any additional judicial scrutiny. Id. at 2-3. The Court held that “a self-executing change in custody/visitation that constitutes a material change, i.e. is one‘that is allowable only upon a determination that it is in the best interests of the [child] at the time of the change,’ generally violates Georgia’s public policy founded on the best interests of the child.” Id. at 3. The responsibility for making this decision must be made by the court and cannot be delegated to another person or entity. Id. In this case, the provision regarding the change in the father’s visitation is considered a material change. Since, under this provision, it will occur automatically without any judicial scrutiny, “it is an invalid self-executing change of visitation” and must be stricken from the final divorce judgment. Id. at 4.