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Contested Divorce

Custody awarded to father in Georgia divorce case despite evidence of alleged family violence

Friday, January 20th, 2012

The Supreme Court of Georgia recently affirmed a divorce action where the husband was awarded primary physical custody of the children despite evidence of alleged family violence. Finklea v. Finklea, S11F1804 (2012). At the final hearing in that divorce case, the parties “each testified extensively about acts of family violence committed by the other spouse, which led to multiple police reports filed against each other.” Id. at 2. In its final judgment, the trial court said it was making its decision “[a]fter hearing testimony of the parties and considering all the evidence tendered at trial.” Id. Neither party asked for written findings of fact supporting the custody award. Id. The trial court ultimately awarded primary physical custody to the husband.

The wife appealed, alleging that “in awarding primary physical custody of the parties’ two children to Husband, the trial court abused its discretion in failing to consider evidence of alleged family violence perpetrated by Husband against her.” Id. at 1. The Supreme Court of Georgia disagreed, holding that, under the circumstances described above, the trial court did consider evidence of family violence presented at the final hearing. Id. at 3. In addition, the Court found no abuse of discretion in the trial court’s award of primary physical custody to the husband. The trial court exercised its discretion in awarding custody to one parent over the other and “[w]here there is any evidence to support the decision of the trial court, this Court cannot say there was an abuse of discretion.” Id. at 3, quoting Haskell v. Haskell, 286 Ga. 112, 112 (2009).

Prenuptial agreement upheld in Georgia divorce case

Monday, December 26th, 2011

The Supreme Court of Georgia recently heard an appeal of a divorce case, which highlights the security, or risk (depending on which side you are on), of entering into a prenuptial agreement in Georgia. Sides v. Sides, S11F1140 (2011). In that case, the parties began dating in 1989 and, shortly thereafter, the Wife became pregnant. Id. Due to the great disparity in assets and income between the parties, they negotiated and signed a prenuptial agreement before marrying in 1990. Id. Under the agreement, “Wife would have been entitled to substantially more resources if the parties divorced after their twenty-year anniversary, and substantially less if the parties divorced prior to their twenty year anniversary.” Id. at 2. Nearly twenty years later, the Husband filed a Compliant for Divorce and Motion to Enforce the Prenuptial Agreement, which the trial court granted a mere 62 days prior to the couple’s twenty year anniversary, and the Wife appealed. Id.

The Supreme Court of Georgia affirmed the enforcement of the prenuptial agreement. The Court first laid out the factors to be considered by the trial court in deciding the validity of the prenuptial agreement: “(1) [W]as the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) [I]s the agreement unconscionable?(3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?” Id., quoting Scherer v. Scherer, 249 Ga.635, 641 (3) (1982).

In this case, both attorneys “deposed that they would not have allowed their clients to enter the agreement without full financial disclosures being made,” and Wife was long aware of the “vast disparity” between their incomes. Id. at 3. Thus, the evidence supported that full financial disclosures were made prior to signing and the agreement was not unconscionable. In addition,the increase in Husband’s net worth was anticipated and, therefore, it was not a “change of circumstance that would make the enforcement of the agreement unfair and unreasonable.” Id. at4. The trial court, thus, did not abuse its discretion in upholding the prenuptial agreement.

Parenting plans in Georgia

Friday, November 25th, 2011

With the holiday season upon us, many divorced parents in Georgia will look to their parenting plan for guidance on arranging their holiday schedules. Parenting plans are custody agreements that are submitted jointly or individually by each party in an action that involves child custody in Georgia. Except in those cases where emergency relief is necessary due to family violence,parenting plans are required in all actions in Georgia where child custody is at issue.

A parenting plan may be temporary until a final decree is entered, at which time a permanent parenting plan will go into effect. Under Georgia law, when considering either a joint plan or opposing plans of the parties, the court must make its determination based upon the best interest of the child. O.C.G.A. § 19-9-3. The court bases its determination on a number of factors including, but not limited to, the relationship that exists between each parent and the child, and the ability of each parent to provide the child with basic necessities. Id. ata (3).

Parenting plans require that both parties acknowledge and decide on a variety of issues. O.C.G.A. § 19-9-1. Holiday visitation is one such issue, and it can be difficult and emotional for parties to come to an agreement because it requires each party to agree to some holidays away from their children. It may never be easy to split time with your child and the other parent, but a successful parenting plan can alleviate tensions between the parties and allow each parent to enjoy time with their child.

If you need help creating a parenting plan, or seek to modify your existing parenting plan, please contact our Atlanta divorce attorneys to assist you in the process.

By Courtney Carpenter, Associate Attorney, Meriwether & Tharp LLC

How long does a divorce take in Georgia?

Friday, November 18th, 2011

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.

An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce – Halle Berry and Gabriel Aubry

Friday, February 18th, 2011

Today in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the brewing custody battle between Halle Berry and Gabriel Aubry. Berry and Aubry have a daughter, Nahla, together, though they were never married. After they broke up last year, it appeared that they were amicably and informally sharing custody of Nahla, but this arrangement has recently transformed into a bitter custody battle. Aubry filed a petition to establish paternity and to have a formal custody arrangement, signaling that the parties are no longer able to work the arrangement out on their own.

According to People Magazine, Berry has stated that she has “’serious concerns’ about Nahla’s well-being while in Aubry’s care,” and Aubry has denied these allegations. In a custody battle such as this, courts almost always appoint a Guardian ad Litem to assist in determining custody and it is likely a Guardian will be appointed in this case if the parties are unable to reach a settlement through mediation or otherwise. A Guardian ad Litem represents the child, and conducts interviews with the parties and other people with direct knowledge of the situation to piece through the various allegations. Upon completion of a thorough evaluation, the Guardian will make a custody recommendation to the court that is guided by the child’s best interest.

Unfortunately, even with a Guardian ad Litem, in a bitter custody battle such as this one, the allegations can get ugly (they already have here) and the child often gets dragged into the middle.Berry and Aubry both say they have Nahla’s best interest at heart but it remains to be seen if they will keep her best interest, rather than their anger toward each other, in the forefront of the custody battle.

Equitable Division and Property Owned by Third Party

Monday, November 29th, 2010

The Supreme Court of Georgia recently heard a case regarding whether property owned by a third party can be equitably divided in a divorce. In Armour v. Holcombe, the husband’s mother purchased a house during the parties’ marriage and allowed the parties to live there. Armour v. Holcombe, S10AF0946 (2010). A few years later, the husband’s mother deeded the property to the husband as a gift. Id. The husband refinanced the property and both he and his mother made payments on the debt. Id. In March 2005, the husband deeded the property back to his mother as he was facing financial difficulty. Id. Six months later, the wife filed for divorce and added the husband’s mother as a defendant, alleging that the deed “was executed to deprive Wife of her marital interest in the property.” Id. at 2.

Despite the trial court ordering the home sold and proceeds held in escrow pending the outcome of the litigation, the wife decided not to pursue the fraudulent conveyance issue at the divorce trial. Id. Nonetheless, the trial court instructed the jury that the sales proceeds were a marital asset subject to equitable division, and the jury awarded the wife approximately 2/3 of the proceeds. Id.

The husband’s mother appealed, arguing that the trial court erred because “there was no evidence that the property was a marital asset,” and the Georgia Supreme Court agreed. Id. The Court emphasized that the wife did not cite any case law regarding property owned by a third party being subject to equitable division, “nor should authority for such a ruling be expected.”Id. at 5. The Court adamantly held “[i]t would be highly disruptive to the transfer and ownership of property to allow a divorcing spouse to claim that property held by a third party is subject to equitable division in the divorce action based merely upon that spouse’s actions regarding the property during its prior ownership by the other spouse.” Id. at 5.

The Georgia Supreme Court mentioned that the wife may have had recourse with a fraudulent conveyance claim, but the wife “chose to abandon” this avenue. Id. at 7.

Challenging your Georgia divorce decree? Don’t retain the benefits of that decree.

Friday, November 12th, 2010

The Supreme Court of Georgia recently reinstated a bright line rule regarding a party retaining the benefits of a Georgia divorce decree that that same party is challenging. In Thompson v.Thompson, the Husband challenged the Final Judgment and Decree of Divorce, alleging that the trial court erred in its equitable division award by dividing funds and property that were his non-marital assets. Thompson v. Thompson, S10F1231 (2010). The trial court denied the husband’s motions for new trial, clarification, and reconsideration, holding that “he had availed himself of the benefits of the final order” and was, thereby, prohibited from challenging it. Id. The husband subsequently appealed the denial of his motions.

In affirming the trial court’s ruling, Supreme Court of Georgia followed long-standing principles of Georgia law. Specifically, the Court held that “one who has accepted benefits such as spousal support or equitable division of property under a divorce decree is stopped from seeking to set aside that decree without first returning the benefits.” Id. at 3. Thus, if you want to dispute a Final Judgment and Decree of Divorce in Georgia, you must either not accept any support or equitable division from that award, or you must return any portion of the award that you have accepted, before initiating any challenge.

The Court clarified that a party “may collect an award of child support and still repudiate a final judgment, as those benefits belong to the child.” Id. at 3-4.

An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce – Courteney Cox and David Arquette

Friday, October 29th, 2010

This week in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the recent separation of Courteney Cox and David Arquette. After 11 years of marriage and one child together, the couple announced that they were on a “trial separation.” People Magazine, October 25, 2010. In their statement, they said “…[w]e remain best friends and responsible parents to our daughter and we still love each other deeply. As we go though this process we are determined to use kindness and understanding to get through this together…”

However, since the announcement, Arquette does not seem to be using “kindness” in the process. He has gone on Howard Stern’s radio show to detail the reasons for the split and even publicly admitted to sleeping with another woman since he and Cox separated. We have yet to see if the couple will reconcile and, if not, how their divorce will play out, but it is likely that the sting of Arquette’s actions will have some bearing on the outcome.

Unlike Arquette, non-celebrities don’t usually have the ability to speak to media outlets about their divorces. However, spilling detailed relationship troubles to everyone you know and rubbing your spouse’s face in your post-separation activities, such as Arquette has done, will likely make for a more bitter and litigious divorce, which, in turn, will cost both parties more money. As a colleague of mine always says, one thing that can drive up the cost of a divorce is emotion. There is simply no reason to make an emotional process even more difficult for you, your spouse, or your children.

An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce – Tiger Woods and Elin Nordegren

Friday, October 22nd, 2010

This week in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the well-publicized divorce of Tiger Woods and Elin Nordegren. The scandal surrounding Tiger’s multiple extramarital affairs began around Thanksgiving 2009. For the next several months, it seemed like women with whom he had affairs were coming out of the woodwork and speaking to the media each week. Throughout what must have been a gut wrenching time for Nordegren, she remained tactful, continuing her life as privately as possible, and did not thwart the relationship between Woods and their children.

A lesson to take from Nordegren is, no matter what your spouse has put you through and how angry you are at him/her, put your children first. At a time when she could have easily badmouthed Woods in the media and to their children, possibly ruining their relationship with him, she remained discreet. She only spoke to the media once and, even then, she called Woods a good father and refused to share details of the previous 10 months. Due to her actions, the children will likely have a positive relationship with both of their parents despite the hurt and anger that may exist between the parents.

An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce – Owner of Los Angeles Dodgers

Friday, October 15th, 2010

In this weekly installment of An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I will discuss the ongoing divorce action of the owner of the Los Angeles Dodgers. As you may have read in the New York Times or other news outlets, the owner of the Los Angeles Dodgers is going through a divorce,putting ownership of the Major League Baseball team in dispute. The key to this case is a post-nuptial agreement, of which there are two versions – one version gives the team to the husband/owner and the other version makes the parties joint owners of the team. The owner’s wife is asking that the agreement be thrown out and is alleging that the version giving complete ownership of the team to her husband was obtained fraudulently. If the agreement is thrown out, the team will be divided with the parties’ other assets under California’s community property law.

If this case was in Georgia and the agreement was invalidated, the team would be equitably divided. As explained in detail in previous blogs, equitable division does not necessarily mean equal. The judge would consider all the circumstances in deciding how (or if) to divide the team. Thus, the outcome of the case could be much different in Georgia than in it would be in California, where the parties would each receive50% of the team. Closing arguments were recently completed and the judge now has 90 days to decide the fate of the parties and the Los Angeles Dodgers. It will be interesting to see how this one turns out.