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Failure to Pay Child Support is Downright Criminal

Sunday, August 24th, 2014

Many are aware that failure abide by a court order to pay child support comes with several consequences, including: contempt citation, garnishment, revocation of hunting, fishing and driver’s license, and passport denial. However, many parents may not be aware that failure to pay child support in the state of Georgia may also constitute a criminal offense, punishable by imprisonment.

Georgia statutory law regarding the criminal offense of non-support, formerly referred to as child abandonment, states in relevant part:

 “(a) A child abandoned by its father or mother shall be considered to be in a dependent condition when the father or mother does not furnish sufficient food, clothing, or shelter for the needs of the child. (b) If any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, he or she shall be guilty of a misdemeanor. Moreover, if any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, and leaves this state or if any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, after leaving this state, he or she shall be guilty of a felony punishable by imprisonment for not less than one nor more than three years. The felony shall be reducible to a misdemeanor. Any person, upon conviction of the third offense for violating this Code section, shall be guilty of a felony and shall be imprisoned for not less than one nor more than three years, which felony shall not be reducible to a misdemeanor. The husband and wife shall be competent witnesses in such cases to testify for or against the other.”

O.C.G.A. § 19-10-1(a)-(b). Although the above cited statute does not explicitly set out what constitutes willful and voluntary abandonment, Georgia case law interpreting this statue suggests that failure to pay court ordered child support may subject a non-custodial parent to prosecution pursuant to this statute. For example, in Carter v. State, 287 Ga. App. 463 (2007), father was ordered to pay child support in the amount of $114 per month. He failed to make those court ordered payments in April 2003, December 2003, April 2004, May 2004, July 2004, September 2004, October 2004, January 2005, March 2005, and August 2005. As a result, he was charged with and convicted of ten counts of misdemeanor child abandonment. On appeal, the Georgia Court of Appeals affirmed the trial courts judgment, because sufficient evidence was presented at trial indicating that the defendant failed to meet his obligation despite being employed and having the ability to pay. Id.

Criminal non-support is a serious offense, and as outlined in the above cited statute it may constitute either a misdemeanor or a felony. If convicted of misdemeanor abandonment, a parent may face up to 12 months in jail, a $1,000 fine, or both. O.C.G.A. §17-10-3. If convicted of felony abandonment, a parent may face up to three years of incarceration. O.C.G.A. § 19-10-1(b).

Although civil contempt actions are generally the preferred method for custodial parents to enforce child support orders in Georgia, a custodial parent wishing to initiate criminal proceedings against a non-custodial parent for failure to pay child support may contact their counties Solicitor’s Office or Prosecuting Attorney’s Office.

Is Life Insurance Marital or Separate Property?

Tuesday, August 19th, 2014

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In the case of Frankie Valli v. Randy Valli, the California Supreme Court answered the above stated question: life insurance is marital property (community property according to California law) if purchased with marital funds.

This issue was presented to the Supreme Court of California after Randy Valli appealed the trial court’s ruling in her divorce from Frankie Valli, lead singer of the critically acclaimed singing group the Four Seasons. Specifically, the issue on appeal was the trial court’s ruling regarding a $3.75 million life insurance policy purchased by the singer for the benefit of his wife. During the divorce proceeding, Randy Valli argued that she should retain the insurance policy as her own separate property because the policy named her as the sole owner and beneficiary. The trial court disagreed and held that the policy was community property because it was acquired during the marriage with funds from the couple’s joint bank account. The trial court went on to divided the policy between the spouses by awarding the policy to Frankie Valli and ordering him to buy out his wife’s half at its cash value, $182,500.

Randy Valli appealed the trial court’s decision, and the California Court of Appeals agreed with her argument. The appellate court reversed the lower court’s decision and held that the policy was Randy’s solely, because the policy was in her name alone. Frankie then sought redress from the Supreme Court of California, and in its May 15, 2014 opinion on the matter, the Supreme Court sided with Frankie and the trial court holding: “[…] we agree with the trial court’s characterization of the insurance police as community property.”

Although this matter was decided according to California law, which is distinct from Georgia divorce law in that Georgia is an equitable distribution state, not a community property state, it would not be surprising for a Georgia court to come to a similar conclusion based on similar facts. According to Georgia law, marital property is subject to equitable distribution between the spouses upon divorce. Property, whether real property, personal property, assets or income, is deemed marital if it was acquired by the spouses during the course of the marriage. Moore v. Moore, 249 Ga. 27 (1982). Thus, in a case similar to the Valli divorce, a Georgia court would likely find that a life insurance policy purchased during the marriage with funds from a couple’s joint bank account was marital property subject to division, regardless of which spouse was listed as the owner or beneficiary.

Professional Degrees are Not Subject to Division in Georgia Divorce

Sunday, August 17th, 2014

 

Obtaining a professional degree, such as a law degree, medical degree or a degree in accounting or business is an investment of both time and money. Like many other investments, professional degrees tend to benefit those who have invested the time and money to earn one in the form of better career opportunities and enhanced earning capacity. With that being said, if professional degrees may be viewed as investments, similar to investment accounts or investment property, the question may arise: “Are professional degrees subject to equitable division during divorce?”

In some states, the answer to the above question is an affirmative one. Professional degrees are viewed just like other forms of investment property and are subject to division upon divorce if deemed marital. However, Georgia is not one of those states. In Georgia, professional degrees are not subject to equitable division upon divorce. In a case specifically addressing this issue, the Supreme Court of Georgia held that professional degrees, such as medical degrees, were not subject to equitable division because “[t]heir value is too speculative to calculate, being simply the possibility of enhanced earnings they provide. That potential may never be realized for any number of reasons. [Professional degrees] have no exchange value or transferrable value on an open market, are personal to [the holder], terminate on his death, and cannot be assigned, sold, transferred or pledged.” Lowery v. Lowery, 262 Ga. 20 (1992).

Although a professional degree (or its value) may not be divisible upon divorce, it may impact an alimony determination. For example, if one spouse earned a professional degree during the course of the marriage, and the other spouse’s contributions to the marriage aided the degree seeking spouse in obtaining the degree, that spouse may be compensated for his or her contribution via alimony. Id. at 20 n.1.

 

Recognizing Rare Types of Divisible Property in Georgia Divorce

Saturday, August 16th, 2014

There are four main aspects of divorce in Georgia: child support, child custody, alimony and equitable distribution. In many divorce matters, equitable distribution, or the division of marital property upon divorce, is one of the most complex aspects of Georgia divorce. Equitable division is so complex, because before marital property may be fairly divided between spouses, potentially divisible property must first be identified, classified as either marital or separate, and valued.  Generally, couples find it easy to identify potentially divisible marital property, because such property often includes property such as: the marital home, vehicles, home goods and other real and personal property acquired during the marriage or with marital funds. However, homes and cars are not the extent of property that may be divided between divorcing spouses. There is a vast array of property, both tangible and intangible, that may be subject to equitable division during a Georgia divorce. Listed below are some types of property that may not be readily recognized as marital property subject to equitable distribution. This list is not exhaustive. Thus, if you are considering divorce and have questions regarding how your assets should be divided upon divorce, it is absolutely essential for you to consult with an Atlanta divorce attorney with the knowledge and skills necessary to identify potentially divisible marital property to ensure a fair divorce settlement.

 

Stocks and bonds

Mutual funds

Certificates of deposit

Money market accounts

Annuities

Life insurance policy cash values

Trusts

Security Deposits

Future Interests (Remainders)

Oil, Gas, and Mineral Interests

Intellectual Property, such as patents, copyrights, and contracts for royalties

Promissory Notes

Personal Injury awards for compensatory damages

Workers’ Compensation Awards

Pets

Business interests

Vacation clubs/Timeshares

Frequent flyer miles

Hotel Points

Season Tickets

Club memberships

 

 

Can Divorce Reduce my Social Security Retirement Benefits?

Sunday, August 3rd, 2014

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Many divorcés or soon to be divorcés who are familiar with the Social Security program or Social Security Retirement benefits may be aware that upon divorce, one ex-spouse may be entitled to receive retirement benefits stemming from the other ex-spouse’s work history. This also leads to the question: “Can divorce reduce my Social Security retirement benefits?” Fortunately for divorced individuals and those who are currently going through the divorce process in Georgia, the answer to this question is no.

If you and your ex-spouse were married for longer than ten years and paid into the Social Security Trust Fund, your ex-spouse may be able to receive Social Security Retirement benefits on your account when he or she reaches the age of 62. However, this is no way effects the amount of Social Security Retirement benefits you are entitled to upon your retirement. To learn more about Social Security Retirement benefits for divorced individuals, or for information concerning the amount of retirement benefits you may be entitled to receive once you retire, contact the Social Security Administration online or by phone at (800) 772-1213.

 

Do Non-Economic Contributions Matter in Georgia Equitable Division Cases?

Wednesday, July 30th, 2014

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Georgia law does not provide a formula when it comes to equitably dividing marital property upon divorce. Alternatively, Georgia law gives judges and juries discretion to determine what is a fair or equitable division of a couple’s marital property. In deciding equitable division cases, judges and juries rely on certain factors outlined in Georgia case law to determine how a couple’s property should be divided. These factors include, among others:

  • Each party’s contribution to the acquisition and maintenance of the marital property;
  • The purpose and intent of the parties regarding the ownership of the property;
  • The separate estate or non-marital property of each of the parties;
  • The length of the marriage;
  • Any prior marriage of either party; and,
  • The service contributed by each spouse to the family unit.

Stokes v. Stokes, 246 Ga. 765 (1980); See also Rooks v. Rooks, 252 Ga. 11 (1984) (concurring opinion)( “Stokes simply recognized that a spouse’s non-economic contributions to a marriage might be reflected in an ‘equitable division’ of property, notwithstanding the incidence of legal ownership,[…]”).

Thus, the question posed above can be answered in the affirmative. Yes, non-economic contributions, such as the service contributed by spouses to the family unit, do indeed matter in Georgia equitable division cases.

Effective Co-Parenting Post Divorce

Sunday, July 27th, 2014

Co-parenting can be a nightmare. Ineffective communication, residual resentment, lack of trust and differing parenting styles are just a sampling of the issues that make co-parenting post-divorce especially difficult. Although difficult, it is imperative for parents to learn to cooperate with each other post-divorce to further the best interests of their children. Below are three tips that may serve as a starting place for parents who desire to work together to co-parent more effectively.

Communicate Regularly. Lack of communication is one of the most common precursors to divorce. Thus, it is not uncommon for co-parents to have difficulty communicating post-divorce. If former spouses have trouble communicating directly, communication tools such as text messages, emails and online co-parenting tools like Our Family Wizard may facilitate effective communication between co-parents. Use of these tools also allows co-parents to keep records of communication in the event there is a later dispute between the parties.

Seek Professional Help. There are several resources available to those who are currently going through the divorce process as well as those whose divorces have been finalized. These resources include family counselors, individual therapists, and parenting coordinators. Taking advantage of such resources may help both parents work through personal and family issues that may be hampering the co-parenting relationship. As mentioned above, there are also online resources available such as Our Family Wizard and 2Houses.com that may be very helpful to co-parents by helping them keep track of communications, schedules, and appointments.

Avoid Litigation: Sometimes litigation is necessary, especially if it the only way to resolve disputed issues between the parties. However, if at all possible co-parents should avoid litigation and instead take advantage of alternatives to litigation such as mediation or settlement negotiations. If parents resort to seeking court intervention every time a dispute arises, resentment escalates, both parties become entrenched in their position and there is a risk the co-parenting may be damaged in the future. Additionally, resorting to litigation to resolve co-parenting issues may be financially damaging to both parties as child custody and child support matters are often lengthy and expensive endeavors.

Facebook May be to Blame in Some Divorces

Saturday, July 26th, 2014

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A research study lead by Russell Clayton, a doctoral student in the University Of Missouri School Of Journalism suggests that the popular social media site may be damaging to a user’s relationship status. According to the study, which is slated to be published in the Journal of Cyberpsychology, Behavior and Social Networking, people who tend to check Facebook status and updates on an hourly basis or more often are more likely to have Facebook related conflict with their spouses, fiancés, or other romantic partners.

Clayton’s study revealed that the more often a Facebook subscriber utilizes the site, the more likely he or she was to monitor their romantic partner’s activity on the site. Such heavy monitoring of their romantic partner’s Facebook activity in turn often leads to feelings of jealousy which then often result in negative outcomes for the relationship, such as infidelity, termination of the relationship or divorce. In a press release concerning his research and findings, Clayton offered the following advice regarding Facebook usage that may be particularly beneficial to married couples: “Cutting back to moderate, healthy levels of Facebook usage could help reduce conflict, particularly for newer couples who are still learning about each other.”

 

No-Fault Divorce Becoming Unpopular in Many States: Is Georgia Next?

Tuesday, July 22nd, 2014

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There are 13 grounds for divorce in Georgia, one of which is “irretrievably broken”, Georgia’s no-fault basis for divorce. Like in several other states, Georgia law did not always recognize this ground for divorce. Instead, to seek a divorce, the party initiating the divorce had to include fault based grounds for divorce, such as adultery or desertion, in his or her divorce petition, and that claim had to be proven to the court before a divorce would be granted. Over time, states began to make changes to divorce laws, and no-fault grounds for divorce were adopted universally. However, if legislation proposed in Oklahoma, North Carolina and Kansas is any indication, the consensus regarding the approval of no-fault divorce may be changing in the United States.

In each of the three states mentioned above, legislators have either recently, or in the immediate past, introduced legislation designed to either abolish no-fault divorce in that state or impose stricter limitations on divorce. In Oklahoma, a bill was introduced this year that sought to eliminate incompatibility, which is Oklahoma’s no-fault basis for divorce, as an available grounds for divorce in the state. Although that bill did not advance out of the state House of Representatives, another bill proposed by a state senator was successful after a Senate vote, and will likely be considered by the state’s House in the near future. This proposed legislation introduced a 90-day “cooling-down period” to the divorce process in Oklahoma. This “cooling down period” would occur immediately following the filing of a divorce petition, and is designed to be a reflective period for parties to consider if divorce is truly the option they wish to take.

Similar to Oklahoma, a state legislator in Kansas, has also introduced a proposed bill that would eliminate Kansas’s no-fault grounds for divorce. In North Carolina, there is no pending legislation aimed at eliminating no-fault divorce in the state, but in 2013 three state senators introduced a bill titled the “Healthy Marriage Act.” This bill aims to replace the existing one year waiting period for a divorce in North Carolina to a two year waiting period. The bills discussed above have yet to be enacted into law in these three state, but their proposal begs the question of whether no-fault divorce is on its way out in Georgia.

Not Paying Court Ordered Child Support? Your Licenses and Passport Could be at Risk

Sunday, July 20th, 2014

Failure to pay court ordered child support carries serious consequences in Georgia. In addition to being subject to an action for contempt, a mother or father obligated to pay child support who fails to honor this obligation may also be at risk of losing his or her driver’s license, fishing license, hunting license, and professional licenses.

Georgia law regarding the suspension of such licenses states:

“In any proceeding for enforcement of a judgment or order to pay child support, if the court is satisfied by competent proof that the respondent has accumulated support arrears equivalent to or greater than the current support due for 60 days and that the respondent is licensed to conduct a trade, business, profession, or occupation, licensed to hunt or fish, licensed to drive a motor vehicle, owns a motor vehicle which is registered in this state in his or her name, or is applying for the renewal or issuance of any such license or registration, the court may order the appropriate licensing or registering entity to suspend the license or registration or deny the application for such license and to inform the court of the actions it has taken pursuant to such proceedings. […]”

O.C.G.A. § 19-6-28.1(b).    

Not only may an obligated parent’s state issued licenses be revoked or suspended for failure to pay court ordered child support, an obligated parent’s passport may also be revoked. According 22 CFR Part 51.70 (a)(8), which a Federal regulation regarding the issuance and denial of passport applications, a person who has been certified to Passport Services by the U.S. Department of Health and Human Services (HHS) to be in arrears of child support payments in excess of $2,500, is ineligible to receive a U.S. passport.

Because the risks associated with the failure to pay court ordered child support are so great, it is advisable for any non-custodial parent obligated to pay child support who is unable to make timely child support payments to seek a modification of child support in lieu of ignoring their obligation.