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Considering Divorce? 3 Reasons Why Divorce May be the Right Choice

Wednesday, January 28th, 2015

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If you are considering divorce in Georgia, you have likely come across many articles and web pages outlining several reasons why divorce may not be the answer. However, if you are currently considering divorce, and are unsure of what path to take, below are three reasons why divorce may indeed be the right choice.

1. Staying marriage may not be the best for the children. It is not uncommon for unhappily wed couples to remain married for the sake of the children. However, the belief that staying in a failing marriage is better for children than divorce may be misplaced. Although it is true that divorce takes a toll on both parents as well as children, witnessing and experiencing the breakdown of their parents’ marriage may be even more damaging to children. Depending on the circumstances, the constant tension and conflict may be worse for children than the distress of divorce.

2. Divorce could improve your health. A failing marriage, along with all the conflict and stress caused by it, is bad for your health. Research suggests that the resentment, chronic fighting, and distress resulting from a failing marriage may lead to health concerns such as sleeplessness, weakened immune system, and eating disorders, and even a shortened life span.

3. Divorce may be liberating. Often, the fear of being alone keeps many trapped in unhappy marriages. However, the longer a person stays in an unhappy and unfulfilling relationship, the longer he or she is denied the happiness and fulfillment of a loving relationship. Divorce is tough. Divorce is stressful. Divorce may also be liberating, because although it closes the door on one relationship, it opens the door to new and healthy relationships.

Equitable Division – Should You Ask For The House?

Tuesday, January 20th, 2015

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In many divorces, a highly fought over issue is who will get to keep the marital home. In Georgia, the marital home is subject to equitable division. This means that it is included in the split of all marital property/assets. For this reason, if one spouse keeps the home, the other spouse will usually get other marital assets to make the split equitable. But while many divorcing spouses are quick to say they want to stay in the home, there are many things to consider before asking for it as part of equitable division:

  1. Can you afford to stay in the house? – This is by far the most important consideration. As part of a divorce, your household income will decrease, sometimes dramatically. While there may be alimony and/or child support involved, this income will only continue for a limited period of time (depending on the details of your case). Not only will you have to be able to make the mortgage payment, there are other costs associated with home ownership such as homeowners insurance, utilities, general upkeep and unexpected repairs. It would be beneficial to make a spreadsheet of your monthly income and expenses to see what you can afford, before fighting tooth and nail to get the house in court or mediation. Going from two household incomes to one, or from one household income to none/looking for a job is often a substantial change and something you must consider before assuming the responsibility of the marital home on your own.
  2. Can you transfer the mortgage into your name? – Even if you compare monthly income and expenses and decide you can afford to stay in the home, your mortgage lender may feel differently. When you and your spouse applied for your mortgage on the marital home, the bank was likely considering two incomes. If you remain in the marital home after the divorce, your Final Decree of Divorce will most likely require you to refinance the mortgage on the marital home to remove your ex from liability on a home in which he/she is no longer living. Unless you were the primary breadwinner in your family, it can be difficult to refinance with a lower income. This is something you should explore with the bank before asking for the marital home in the divorce because you do not want to be stuck unable to refinance and, thus, in contempt of your divorce decree.
  3. Does it make sense to stay in the house? – It is also prudent to just take a step back and ask yourself if staying in the house makes practical sense. Often, divorcing couples are so caught up in the divorce process and “getting everything” that they may end up with something they don’t even want. Will your ex have primary physical custody of the kids? If so, staying in a huge house may not be necessary. Will staying in the house prevent you from emotionally moving on with your life? If so, moving may make the most sense for you.

After carefully considering the above, as well as anything else you deem important, it is possible that neither party wants nor can afford to keep the marital home after the divorce. In that case, the home will be sold (subject to certain conditions in the divorce decree) and the proceeds divided equitably between the parties.

Custodial Kidnapping

Wednesday, January 14th, 2015

Periodically, there are news stories about children who are “kidnapped” by their parents. Sometimes the parent fails to return the child at the end of his/her visitation time. Other times a parent may flee with the child during a pending divorce or custody battle in fear that he/she will lose custody. Whatever the motivation, a parent’s choice to run away with a child in contravention of a court order (including a standing order in a pending case) usually does not benefit that parent in terms of long term custody and will certainly harm the child emotionally. In a recent case bringing up this very issue, a woman in New Hampshire turned herself in ten years after fleeing with her eight year old daughter during a custody dispute. Fugitive Mom Arrested After Allegedly Kidnapping Daughter, by Associated Press, people.com, November 18, 2014. During a trial in 2004, the mother attempted to prove that her ex-husband had harmed their daughter and, when her attempt failed, she fled with her daughter to Central America.

 It is no coincidence that the mother waited ten years – the daughter is now 18 and no longer subject to the family court and/or parental custodial rights. Thus, the only thing that can happen now is the mother can be punished for her actions, and the mother’s lawyer said she is ready to go to trial on her custodial interference charge. The mother said the daughter is safe, though she did not give any information about her whereabouts. Obviously, the father now wants to be reunited with his daughter, but forging a relationship may be difficult. The daughter was 8 when she was taken and, thus, her father knows she was old enough to know what was going on. For that reason, he fears that “she has been told falsehoods and misstatements on the events of her youth.”

 Certainly, if you feel that someone is harming your child, you will want to do whatever is necessary to protect him/her. However, if the mother in this case truly felt that the father had harmed their daughter, she should have let the case run it’s course and, if the custody issue did not go her way, she could have consulted with an attorney about the possibility of a motion for new trial or appeal. Taking the law into your own hands is not a good idea when custody is involved. Most times, the offending parent will be punished by way of contempt, or by losing custody altogether. Even if you strongly dislike the other parent, your best hope is to trust the system and trust that the truth will come out.

 

My Child Support is Too High! What Should I Do?

Tuesday, January 13th, 2015

The brief answer to this question is to seek the help and advice of a knowledgeable Georgia child support attorney. Once you do, he or she will likely advise you that seeking a child support modification may be a viable option for you. A child support modification is a legal action that may be initiated to modify the terms of a prior court order establishing child support, such as a final divorce decree or a paternity order. A child support modification action may be initiated by either the parent obligated to pay child support, or the recipient parent. In order for a parent to seek and obtain a modification of child support, he or she must allege and show that there has been a change in the income or financial status of either parent or in the needs of the minor child or children. O.C.G.A. § 19-6-19(a).

Specifically, if you are an obligated parent who feels your current child support obligation is too high based on your current financial circumstances, seeking a child support modification may be the best course of action for you. Speak with an Atlanta Divorce Attorney today to determine if the change in your financial status qualifies you to seek a child support modification.

Should I Seek Alimony During my Georgia Divorce?

Tuesday, January 6th, 2015

“What about alimony?” As Georgia divorce attorneys, after speaking with a client or potential client concerning the different paths an individual may pursue during their Georgia divorce, the topic of alimony inevitably comes up. Most commonly, we are presented with the following question: “Should I seek alimony?” As with many issue concerning divorce and family law, the answer to this question largely depends on the facts and circumstances of each individual case. However, below are some factors that anyone wondering whether to seek alimony during their Georgia divorce should consider.

Standard of living. What standard of living did you enjoy during the marriage? Will you be able to maintain that standard of living post-divorce without the aid of spousal maintenance? If you feel that is would be difficult or impossible to maintain your current standard of living without alimony, you should consider seeking an award of alimony.

Duration of the marriage. How long were you and your spouse married? If your marriage was relatively short, seeking alimony may not be the best tactic to take during divorce. However, if your marriage lasted several years, seeking alimony may be advisable, especially if you came to depend on the support of your spouse during the marriage.

Physical and emotional condition. Do you suffer from a physical, mental or emotional condition that would make it hard for you to support yourself post-divorce? If so, seeking alimony may be the appropriate alternative to ensure your physical and emotional well being post-divorce.

Financial resources and financial condition. Are your personal or separate financial resources limited as opposed to your spouse’s? Would your spouse have the ability to pay alimony in the event a judge awarded you alimony? Generally, when making alimony determinations, judges often weigh one parties need versus the other party’s ability to pay. You have sufficient need, and your spouse has the ability to pay alimony, you should consider asking for alimony in your Petition for Divorce.

Employment. Are you employed? If not, how long would it take you to obtain the necessary education and training to become employed? Do you have the financial resources necessary to obtain the employment and training necessary to become employable? These questions should be considered in determine whether to seek alimony, because a judge may award rehabilitative alimony to give you the opportunity seek the education necessary to become employed.

Contribution to the marriage. Did you sacrifice your career or earning potential to support your spouse during marriage? If so, you should asking the judge presiding over your divorce to award alimony.

 

 

Should I Seek Child Support During my Georgia Divorce?

Sunday, January 4th, 2015

Just as many individuals considering divorce or currently going through the divorce process wonder whether to seek alimony, many also wonder whether to seek child support. Although in most cases there is no question that the custodial parent should seek child support from the non-custodial parent to allow the custodial parent to adequately meet the needs of the child or children involved. However, in situations where the economic resources and earning potential of each parent is relatively equal, some parents may wonder whether it is appropriate or even necessary to seek child support from the other parent.

Fortunately, Georgia law provides an answer for those parents wondering whether to seek child support, and that answer is: yes. In fact, according to Georgia law, parents really do not have the option to waive, or not seek, child support. Because child support is a right that belongs to the child, child support cannot be legally waived by a custodial parent on behalf of the child. Bisher v. Jones, 267 Ga.App. 389 (2004). What this means practically is that a custodial parent cannot choose not to seek child support, and a custodial parent may not agree for the non-custodial parent to pay no child support.

However, in situations where both parents have relatively equal incomes, or in cases where other circumstances may make it appropriate for the non-custodial parent to pay very little or no child support, certain child support deviations may be used to ensure an equitable result. For more information on how to determine the most appropriate child support calculation in your divorce case, speak with one of our child support attorneys at Meriwether & Tharp.

What Should We do with the 529 Plan?

Saturday, January 3rd, 2015

During divorce, 529 college savings accounts are often neglected because many divorcing parents assume that the asset belongs to their child. In fact, a 529 plan, although intended to benefit the child, is actually a marital asset that must be addressed during the divorce process. Addressing the ownership of a 529 college savings plan during divorce is important because the Participant, or the parent who is named as the owner or holder of the account, is the legal owner of the account, and may dispose of the accounts assets as he or she sees fit. Thus, if there is concern that the parent named as the participant may misuse the funds, there may be conflict concerning which parent should take ownership of the account. Below are several suggestions on how to address the issues concerning 529 plan and what safeguards may be instituted to ensure the 529 plan is used for its intended purpose.

  • Split the account. As mentioned above, 529 plans have just one owner. Although this is generally acceptable while a couple is married, when a couple divorces, allowing one parent to maintain control over a 529 plan, the non-account holding parent may have less of an incentive to contribute the account. However, if the account is split between divorcing parents, each parent will have a stake in their child’s education.
  • Freeze the account. Freezing a 529 plan has two main practical effects: 1) no more deposits may be made to the account, and 2) the money already in the account may only be used to fund the education of the designated child. Freezing a 529 account may be a workable solution for divorcing parents, because it prevents the participant parent from using plan assets for purposes other than funding the child’s college education, and it keeps the participant parent from using plan funds to fund the college education of a child from a new marriage.
  • Stipulate the use of 529 plan funds. Instead of splitting the plan, parents may also opt to stipulate or agree on how plan funds are to be used. Specifically, parents may include a clause in their Marital Settlement Agreement stating that 529 plan funds may only be used for their child’s college costs. Although such an agreement may not actually prevent one parent from abusing the plan funds, because the terms of Settlement Agreements are incorporated into Final Divorce Orders once divorces are finalized, if one parent does misuse 529 funds, the other parent may seek court intervention to enforce the Settlement Agreement.
  • Interested party statements. Most 529 plan have authorization forms that allow an “interested third-party” to receive regular statements and all notifications of changes to investments, sales, purchases and distributions from the account. In cases where the parents agree to allow one parent to maintain control over the 529 account, the other parent may keep track of how that parent is managing the account with interested party statements. Although this may not prevent abuse of account funds, the non-participant spouse will at least be aware of any abuse as soon as it occurs.
  • Specify successor owners. Upon divorce, the non-participant parent should be named as the successor participant. This is important, because if the participant-parent dies unexpectedly, the successor participant parent may immediately assumes ownership and control of the account.
  • Agree on future funding. Post-divorce, it is often unclear how ex-spouses will share their child’s college expenses. By outlining and agreeing on how much each parent will contribute to the plan post-divorce, questions concerning how parents will share college expenses will be resolved.

Determine what to do with any excess. One issue that is often overlooked is what to do with any money left over in the account once the child has completed his or her education. This may be the case because parent often assume that any funds in the account will be completely exhausted funding college expenses. But, what if money is left over? Marital Settlement Agreements should address how the parents will share or use any excess. Some options include using any excess to fund a sibling’s education or using the excess to fund a parent’s return to school.

Race and Child Custody

Friday, January 2nd, 2015

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Religion, education, extracurricular activities, and medical decisions – these are all common sources of contention between divorcing parents when it comes to deciding how disagreements between parents will be resolved post-divorce. But, what about issues concerning a child’s racial identity?

For example, an African American Mother and a White Father are divorcing. Mother and Father have agreed on all other issues of child custody, except issues concerning their child’s racial and cultural identity. Specifically, Mother and Father disagree on the types of cultural events to expose their child to, and on how to explain to their child her cultural heritage. Does this matter? Put plainly, does race and racial identity have any impact on child custody determinations in Georgia?

According to Georgia law, the duty of a judge presiding over a child custody case must make his or her determination with the child’s best interest in mind. In determining what custody arrangement will benefit the best interests of the child involved, the court may consider any relevant factor, including the following factors:

  1. The love, affection, bonding, and emotional ties existing between each parent and the child;
  2. The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and step-siblings and the residence of such other children;
  3. The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
  4. Each parent’s knowledge and familiarity of the child and the child’s needs;
  5. The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
  6. The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
  7. The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
  8. The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;
  9. The mental and physical health of each parent;
  10. Each parent’s involvement, or lack thereof, in the child’s education, social, and extracurricular activities;
  11. Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
  12. The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
  13. Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
  14. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationships between the child and the other parent, consistent with the best interest of the child;
  15. Any recommendation by court appointed custody evaluator or guardian ad litem;
  16. Any evidence of family violence or sexual, mental or physical child abuse or criminal history or either parent and
  17. Any evidence of substance abuse by either parent.

O.C.G.A. §§ 19-9-3(a)(3)(A)-(Q).

Notably, none of the factors listed above refer explicitly to race or the racial identity of the child involved. However, Georgia law does not confine a presiding judge to the factors listed above. The above listed factors are meant as a guide. Judges may consider all the circumstances of the case at hand in order to come to the correct child custody determination.

Although it goes without saying that a judge will in no case made a child custody determination solely on the basis of race or racial identity, and will definitely not give one parent preferential treatment simply because of that parent’s racial identity, a judge may consider what physiological or emotional impact a parent’s decisions concerning a child’s cultural exposure or racial identity will have on the child involved.

Your Atlanta Divorce Team understands that issues concerning child custody and divorce are often very sensitive and difficult to discuss. If you have questions about divorce, child custody or any other Georgia family law issue, please contact one of our compassionate and understanding family law professionals at Meriwether & Tharp for a confidential consultation.

Will I Lose Custody if I Move Out of State?

Wednesday, December 31st, 2014

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One of the first questions pondered by parents considering relocation out of state is if the relocation will cause the court to reconsider the current child custody arrangement. Specifically, custodial parents may wonder if they will lose custody of their child or children should they choose to relocate out of state for business or personal reasons.

Custodial parents should rest easy knowing that relocation is not an automatic grounds for child custody modification in Georgia. Put plainly, a custodial parent should not worry about automatically losing child custody due to relocation. However, this does not prevent a non-custodial parent from seeking a modification of child custody as a result of the custodial parent’s relocation. If a child custody modification action is initiated by a non-custodial parent, there will be no presumption that the relocating parent will lose custody, nor will there be a presumption that the relocating parent will maintain custody. See Weickert v. Weickert, 268 Ga. App 624 (2004); Bodne v. Bodne, 277 Ga. 445 (2003). As with all cases concerning the determination of child custody, the presiding court will consider the best interests of the child or children involved when making the child custody determination.

If you are a custodial parent concerned about maintaining custody of your child or children should you decide to relocate out of state, seek the counsel of a Georgia child custody attorney to help you protect your custodial rights.

What is a Divorce?

Tuesday, December 30th, 2014

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Divorce is a common occurrence in our society, and because of this many divorce attorneys may not deem it necessary to provide a definition of divorce or clients or potential clients. However, as Atlanta divorce attorneys, we feel that it is important for all who contact us with questions or concerns about the Georgia divorce process should leave with a good understanding of the divorce process, and the first step in explaining the divorce process is to define exactly what divorce is.

So, what exactly is a divorce? Well, a divorce is the legal dissolution of a marriage. When a couple marries, the legal effect of that marriage is that the couple enters into a binding contact – the marriage contract – that established certain rights and obligations between the spouses. These rights and obligations include monetary and property rights as well as legal obligations concerning the care and support of any children born into the marriage.

In order to end a marriage, or dissolve the marriage contract entered into by the spouses, a divorce is necessary. A divorce is a legal proceeding that terminates the marital contract and settles each parties respective claims regarding property division, alimony, child custody and child support. Once a couple is granted a divorce by a court, the legal relationship between spouses is severed.