The Meriwether & Tharp Divorce Attorney Blog

Return to the Blog Home Page

Divorce

Is Jail an Appropriate Remedy for Failure to Pay Child Support?

Tuesday, May 19th, 2015

In Georgia, as well as in several other states, one way a state can enforce a court’s directing a non-custodial parent to pay child support is to incarcerate that non-custodial parent for failure to pay. In fact, not only can states and courts enforce child support order by jailing the offending non-custodial parent, but the Federal government may also levy criminal charges against a non-custodial parent who fails to pay child support.

Although incarceration is an available remedy for the failure of a non-custodial parent to pay child support, is it appropriate, and is it effective? In a recent article published by the The New York Times, many argue that although the “threat of jail [is] considered an effective incentive for people who are able but unwilling to pay,” sending non-custodial parents who are simply unable to pay to jail defeats the purpose.

Those who adopt this argument often rely on the fact that a non-custodial parent cannot pay child support while incarcerated and may lose his or her job as a result of that incarceration. Thus, this remedy is self-defeating. Those who advance this argument also contend that the reason many non-custodial parents find themselves in a situation where they are unable to pay child support is because the original child support orders obligated them to pay more than they were financial able to pay in the first place.

Although these arguments are sound, and may be applicable in some situations, there are many situations where a non-custodial parent, despite his or her ability to pay, simply refuses to do so. If that parent takes active measures to avoid paying child support, the question then is what should the court or the state do to ensure the best interest of the children effected are served. Although it may seem unsavory, the threat of jail is often a very effective tool to ensure that some non-custodial parents comply with their child support obligation.

Please note thought that if you are a non-custodial parent whose circumstances have changed, leaving you unable to pay child support as ordered by the court, there are steps you can take to reduce your child support obligation. One of those steps is seeking a downward modification of child support. For more information on who is eligible for such modifications and how to go about obtaining one, see our articles on child support and child support modification.

Divorce By Facebook?

Wednesday, May 6th, 2015

Stock image 13

Once a divorce Petitioner files all of the documents and pleadings required to initiate a divorce case in the court system, the next thing that must happen is that the Respondent (the Petitioner’s spouse) must be personally served with these documents. Personal service means that a sheriff, marshal, certified process server, or other person appointed by the court must personally deliver these documents directly to the Respondent. O.C.G.A. § 9-11-4. The purpose of the strict rules governing service of process is to ensure that the Respondent receives proper notice of the proceedings so that he/she has sufficient opportunity to respond and defend him/herself. In some divorce cases, the Respondent will agree to sign an Acknowledgment of Service, which is a document signed under oath attesting that he/she did, in fact, receive all of the required divorce documents. In other cases, however, the Respondent makes service of process as difficult as possible on the Petitioner, causing the Petitioner to look to other avenues to perfect service.

A recent example of this can be found in a divorce case out of New York, where a court recently found that Facebook is an acceptable way for a wife to serve her husband with the divorce papers. Divorce By Facebook: New York woman can file online, by Stephanie Gallman, cnn.com, April 6, 2015. In that case, the wife had been attempting to serve her husband for years, but she and her attorney haven’t been able to physically find him. She did speak to him by phone and was told, “he has no fixed address and no place of employment,” and further refused to cooperate with service. The wife’s attorney filed a motion for “service by alternate means,” asking for the ability to serve the husband via Facebook. After the wife sufficiently proved that the account belonged to her husband and that he consistently logged on to the account such that he would see the summons, the Judge granted the motion and allowed service by Facebook.

While this appears to start a slippery slope of alternate means of service, it is important to note a few facts in this case that likely had an impact on the Judge’s decision. First, the parties separated shortly after they were married and never lived together. Second, the parties had no children together. Third, the wife was not asking for any money or property from the husband – all she wanted was a divorce. The fact that there were not real issues over which to argue (i.e. child custody, child support, alimony, property division) may have made the Judge be a little more lenient that he otherwise would have been.

However, the Judge did say “the advent and ascendency of social media” make sites like Facebook the “next frontier” as “forums through which a summons can be delivered.” Those are pretty strong words and it will be interesting to see how this could trickle down to other courts in New York and around the country.

 

 

Ten Questions to ask before seeking Alimony

Saturday, May 2nd, 2015

Aside from child support, alimony is often one of the most hotly contested issues of divorce. In most cases however, the arguments basically boil down to how much the recipient spouse needs as support versus how much the obligated spouse is able to pay. Generally, the obligated spouse either argues that he or she doesn’t have sufficient financial resources to pay alimony or that the recipient spouse does not need spousal support due to that spouse’s independent resources of earning ability. Because the battle regarding alimony often revolves around the financial needs and resources of the respective parties, if you plan to seek alimony during your divorce process, it is important for you to consider the following questions. After considering the questions below the next essential step is to consult with a team of Atlanta Divorce Attorneys with experience negotiating alimony settlement and winning alimony awards at trial.

  1. How Much Money Do You Need To Live On Every Month? It is essential to make a budget and be able to accurately articulate how much financial support you will need going forward in order to successfully seek an award of alimony.
  1. Will you be Living With Someone or Getting Remarried Within the Next Few Years? If so, please note that in Georgia, alimony generally terminates upon the remarriage or cohabitation of the recipient spouse.
  1. How Much Can Your Spouse Realistically Afford to Pay You? If your spouse makes $5,000 per month, she cannot realistically afford to pay $4,500 per month in alimony.
  1. How Secure is Your Job, and how secure is your spouse’s job? Both questions relate to your spouse’s ability to pay going forward, and your potential financial need.
  1. How Will Alimony Affect Your Income Taxes? Alimony is treated as taxable income to the recipient. This is one aspect that many individuals going through the divorce process do not realize. Before entering into any agreement concerning alimony, be sure to consult an accountant or financial adviser regarding the tax implications.
  1. Will Your Alimony Award be For a Fixed Period of Time, or Will It Be Reviewable? In Georgia, it is not uncommon for couples to enter into agreement concerning alimony where both parties agree not to seek an upward or downward modification of alimony. It is important to consider this option, and whether such an agreement is the option for your circumstances.
  1. How are You Going to Secure Alimony? What if your former spouse dies before his or her alimony obligation is exhausted? Because it is highly unlikely that your ex-spouse will set aside money in his or her estate plan to satisfy alimony willingly, be sure to include a provision in any settlement agreement requiring your ex-spouse to maintain life insurance, naming you as a beneficiary and sufficient to cover the alimony obligation, while they are obligated to pay alimony.

No Fault Divorce in Georgia: The Pros and Cons

Saturday, April 25th, 2015

Stock Image 20

In Georgia, there are thirteen grounds for divorce. The thirteenth reason a couple may seek divorce in Georgia is that their marriage is “irretrievably broken.” What this means, basically, is that the couple is no longer able to continue in a marital relationship, and there is no hope the couple will reconcile. This thirteenth ground is Georgia’s “no-fault” ground for divorce. This means that if a couple seeks a divorce on this basis, neither party has to allege any wrongdoing on the part of the other spouse, but must simply show the court the marriage is broken beyond repair.

Many argue that because no fault must be alleged, no fault divorce allows for individuals to seek divorce too readily. Alternatively, others argue that no fault divorce allows for the expedient resolution of divorce matters, which is in the best interest of all involved, including any minor children. Below are some pros and cons of no fault divorce that any person seeking a divorce on this basis should consider before beginning the divorce process.

The Upside of No-Fault Divorce.

  • No-fault divorce allows for a shorter and more concise divorce process. This benefits parties because a shorter process means (hopefully) less contention between the parties, and less attorney’s fees and other related court costs parties will accrue.
  • There is no incentive for either party to fabricate, manufacture, or search for wrongdoing on the part of either spouse.
  • No-fault divorce allows for a more streamlined process, which saves judicial economy. What this means practically for litigants is that divorce cases do not have to linger on a court docket for years awaiting trial or evidentiary hearing.
  • Even if adultery the reason, or one of the reasons for the separation, both parties may maintain their privacy by seeking a no-fault divorce, instead of disclosing details of affair in open court.

The Downside of No-Fault Divorce.

  • Sometimes, advising the court of a party’s misbehavior can help the court come to the best conclusion regarding child custody and financial support obligations. If a no-fault divorce is sought, this information may not be brought to the court’s attention.
  • Allowing one or both parties to “have their day in court,” or inform the court of the circumstances surrounding their separation.
  • There is also an argument that no-fault divorce undermines the institution of marriage, because, it is believed by some, that no-fault divorces are too simple to obtain.

What is a Forensic Accountant, and do I Need One?

Sunday, April 19th, 2015

Stock Image 20

What is a Forensic Accountant?

A forensic accountant is an accountant who analyzes the bank accounts, financial records, assets, liabilities and spending habits of one or both spouses. This analysis may be undertaken for several reasons, like to determine if one spouse is hiding assets, or to determine a spouse’s true income or earning potential for the purposes of calculating child support or alimony. Once a forensic account makes findings regarding income and assets, he or she may also provide expert testimony at a final hearing or trial.

Should I hire Forensic Accountant for my Georgia divorce?

Are you concerned that your spouse is hiding assets or misappropriating marital funds? Do you believe your spouse’s income or earning potential is greater than what he or she claims of the Domestic Relations Financial Affidavit? Are you unsure how you will be able to prove you spouse’s income or assets for the purpose of equitable division, child support and alimony? If you answered one or all of these questions with a yes, then you should consider consulting a forensic accountant to assist with your divorce process. However, before you do so, it is essential that you seek the advice of an Atlanta divorce attorney first to determine if seeking the aid of a forensic accountant is indeed the best option to for your case.

Child Support – Unexpected “Necessary” Expenses

Saturday, April 11th, 2015

 

At times, it seems that expenses for one’s children are never ending. From extracurricular activities to camp and everything in between, expenses for one’s children seem to pop up on a daily basis. This can be especially apparent for divorced parents, as they may constantly have to ask for reimbursement for these expenses from the other parent, which can create awkwardness in an already delicate relationship. Most of the time these expenses have to be paid before a child can participate in a given activity. In that situation, the parents (hopefully) have already agreed on the child’s participation and how the expenses will be divided. But what happens if a child participates in something for which payment is not due until after the fact, and then a parent (or both parents) do not want to pay?

 Under Georgia law, each parent is liable to third parties “for the board and support and for all necessaries furnished to or for the benefit of the parties’ children.” O.C.G.A. § 19-6-13. This liability will remain until someone voluntarily pays the amount owed for board, support or other necessaries, or until there is a court order providing for payment or otherwise. Id.

 Consider a situation where a child has a condition that requires a long-term hospital stay. Consider further that insurance covers part of the expenses associated with this stay, but not all of them. The divorced parents disagree about who should be responsible for these out of pocket expenses and, as a result, the hospital bill does not get paid. It might be a situation where the divorce decree did not allocate expenses such as these, or it may be a situation where the decree did allocate the costs to one parent, but that parent refuses to pay. According to the Georgia law cited above, the hospital can sue both parents for the amount owed. If the divorce decree specifies how these expenses are to be allocated and one parent is just being difficult, that parent could additionally be held in contempt of the divorce decree. While this will not prevent the other parent from being dragged into the lawsuit by the hospital, he/she may have some solace knowing that, in the end, the other parent will get what he/she deserves.

 To prevent a situation such as this, make sure the child support language in your divorce decree is very thorough to cover any expected and unexpected expenses related to the children. If a specific expense is not addressed in the decree, try to work it out with your ex ahead of time so you can avoid being dragged into court.

Billionaires – They’re Just Like Us

Wednesday, April 8th, 2015

Stock Image 20

 

When you go through a divorce in Georgia, you have to resolve four main issues: equitable division of assets, child custody, child support, and alimony. Whether you are a millionaire, buried in debt, or somewhere in between, the general issues remain the same. For equitable division, it does not matter how many marital assets a couple has, or the value of those assets. Whatever the financial status, the assets will be divided equitably, according to the facts of the case. This is also true for alimony, which is based upon one party’s need and the other party’s ability to pay. O.C.G.A. § 19-6-1(c). Certainly, in some situations, one spouse’s ability to pay the alimony may be greater than in others, but the balancing test remains the same. For child support in Georgia, both party’s incomes are plugged into the child support worksheets along with other known expenses for the children. O.C.G.A. § 19-6-15. Deviations can be made for high income (more than $30,000/month) or low income but, again, the basic calculation works the same way. O.C.G.A. § 19-6-15(i)(2)(A) and (B).

As an example of the above, consider the pending divorce case of hedge fund billionaire Ken Griffin and his wife. Billionaire Ken Griffin’s wife wants $1 million a month in divorce, by Jillian Eugenios, CNN Money, February 24, 2015. The couple has been married for 12 years and has three young children together. Mrs, Griffin submitted a budget with her divorce filing which details the amount of money she needs each month and includes $160,000/month for hotels, $2,000/month for stationery, $14,000/month for food, and $300,000/month for a private jet. Overall, Mrs. Griffin says she needs $1 million a month for expenses for the children. Not surprisingly, Mr. Griffin has scoffed at these numbers, saying these expenses are not really for the children. In addition, the article states that Mrs. Griffin is worth $50 million on her own and, thus, Mr. Griffin is arguing that she can pay for her own monthly expenses.

If this case were in Georgia, the court would look at many factors in determining alimony, including the standard of living established during the marriage. O.C.G.A. § 19-6-5(a)(1). However, it would also look at the financial resources of each party. O.C.G.A. § 19-6-5(a)(4). In a situation such as this, the court may find that Mrs. Griffin does not need any alimony because she has sufficient financial resources of her own. On the other hand, a court may find that she does need some alimony to retain the standard of living the parties had prior to the divorce. As far as child support, if this case were in Georgia, the high-income deviation might kick in on both sides in this case. The noncustodial parent will be paying some amount of child support just as any other noncustodial parent would.

Even though this case deals with many more zeros that the typical divorce case, no one is above the law. If alimony is appropriate under the facts of the case, it will be awarded. If there are children of the marriage, some amount of child support will be awarded. The court will look at the facts of the case and make a determination, just as in any other divorce case.

Million Dollar Child Support

Thursday, April 2nd, 2015

As reported by CNBC and CNN Money, the estranged wife of Citadel LLC founder Ken Griffin is seeking a whopping $1 million per month child support award from the wealthy hedge fund manager. Specifically, according to Anne Dais Griffin, she is seeking the child support award to provide the couple’s three children with “the support to which they are accustomed and entitled under Illinois law.” From Anne Griffin’s perspective, the requested child support amount is based on an accounting of the couple’s child care expenses while they were married. However, Ken Griffin contends that Anne is seeking the hefty child support award to support her own spending habits.

Assuming $1 million per month is truly reflective of how much the couples spent each month to care for their children during the marriage, Anne may be justified is seeking this award. According to Illinois state law concerning the calculation of child support:

“(a) In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, a proceeding for child support following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, a proceeding for modification of a previous order for child support under Section 510 of this Act, or any proceeding authorized under Section 501 or 601 of this Act, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for the support of the child, without regard to marital misconduct. The duty of support owed to a child includes the obligation to provide for the reasonable and necessary educational, physical, mental and emotional health needs of the child. For purposes of this Section, the term “child” shall include any child under age 18 and any child under age 19 who is still attending high school.

(1) The Court shall determine the minimum amount of support by using the following guidelines:

Number of Children  Percent of Supporting Party’s Net Income

1                                              20%

2                                              28%

3                                              32%

4                                              40%

5                                              45%

6 or more                                50%

(2) The above guidelines shall be applied in each case unless the court finds that a deviation from the guidelines is appropriate after considering the best interest of the child in light of the evidence, including, but not limited to, one or more of the following relevant factors:

(a) the financial resources and needs of the child;

(b) the financial resources and needs of the custodial parent;

(c) the standard of living the child would have enjoyed had the marriage not been dissolved;

(d) the physical, mental, and emotional needs of the child;

(d-5) the educational needs of the child; and

(e) the financial resources and needs of the non-custodial parent.

If the court deviates from the guidelines, the court’s finding shall state the amount of support that would have been required under the guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines.”

750 ILCS 5/505 Sec. 505. Specifically, as highlighted in the Illinois law quoted above, in determining child support, the court may take into consideration the standard of living the child or children would have had if the divorcing parents stayed together.

It should be noted that Illinois law concerning child support is distinctly different from Georgia law concerning the calculation of child support. As can be seen above, presumptive child support amounts in Illinois are calculated according to the percentages set out in the chart above. On the other hand, child support in Georgia is calculated according to Georgia’s Child Support Calculator.  This is just one of the differences between child support laws in the various states. With this being said, it is extremely important to seek the advice of a team of experienced Atlanta child support attorneys if you are considering divorce or child support modification in Georgia

 

Thirteen Reasons to Divorce in Georgia: Part 13

Wednesday, April 1st, 2015

Stock Image 24

Wrapping up our blog series Georgia’s thirteen statutory grounds for divorce according to O.C.G.A. § 19-5-3, here is ground number thirteen.

Reason #13: Your marriage is irretrievably broken.

By far, the reason most commonly relied upon by spouses seeking divorce in Georgia is that the marriage is irretrievably broken. O.C.G.A. § 19-5-3 (13). This is so, because unlike with the other 12 reasons to divorce in Georgia, couples divorcing for this reason need not allege fault, wrongdoing or incapacity on the part of the other spouse.

An irretrievably broken marriage is defined by Georgia law as a marriage where “either or both parties are unable or refuse to cohabit, and there are no prospects for a reconciliation.” Harwell v. Harwell, 233 Ga. 89 (1974). Put another way, a marriage may be found by a court to be irretrievably broken where the parties are separated, or no longer living together, and there is no hope that the parties will resolve their marital difficulties and reunite. In many cases, both parties agree that the marriage is irretrievably broken and the divorce proceeds based on this grounds. However, it is possible for one party to oppose a divorce based on this thirteenth reason to seek divorce by alleging that there is hope for reconciliation by the parties. In fact, it is possible for a spouse to contest a divorce based on this grounds by alleging that the parties have resumed cohabitation or engaged in romantic or intimate relations post-separation.

Although seeking a no fault divorce, or a divorce based on a marriage being irretrievably broken, is relatively common in Georgia, as briefly discussed above, there are certain legal nuances concerning this reason to seek divorce in Georgia that require the skill and expertise of a Georgia divorce attorney. Thus, if you are seeking divorce due to your marriage being irretrievably broken, contact your Atlanta divorce team for more information on how you should proceed.

Thirteen Reasons to Divorce in Georgia: Part 12

Sunday, March 29th, 2015

Stock Image 20

Continuing our blog series Georgia’s thirteen statutory grounds for divorce according to O.C.G.A. § 19-5-3, here is ground number twelve.

Reason #12: Your spouse is addicted to drugs.

As discussed in the ninth installment of our series discussing the 13 reasons to divorce in Georgia, alcohol and substance abuse on the part of one spouse has the potential to seriously damage a marriage, and may have a disastrous impact on a family. As a result, not only is the habitual intoxication of one spouse a reason to seek divorce in Georgia, but the drug addiction of one spouse is also a reason to seek divorce in Georgia.

According to Georgia law, the “habitual drug addiction” of a spouse is a grounds for total divorce in Georgia. O.C.G.A. § 19-5-3(12). Specifically, a party seeking to obtain a divorce based on this twelfth grounds for divorce must show the other spouses’ addiction to one or more of the following controlled substances: narcotic drugs, marijuana, or stimulant drugs, depressant drugs, or hallucinogenic drugs. O.C.G.A. § 19-5-3(12); O.C.G.A. § 16-13-2(a). Similar to the ninth reason to seek divorce in Georgia, the statutory law allowing for divorce based on “habitual drug addiction” does not specify what rate of use qualifies as “habitual drug addiction.” However, Georgia case law addressing the application of O.C.G.A. § 19-5-3(9) (allowing for divorce based on habitual intoxication) may be consulted along with the plain meaning of the words “habitual” and “addiction” to conclude that a party seeking a divorce based on this basis must show a pattern of drug use by the other spouse to prevail.