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How to Prove an Ex-Spouse’s Cohabitation in Alimony Dispute

Wednesday, April 23rd, 2014

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According to Georgia alimony law:

Subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of a spouse, the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former spouse.

O.C.G.A. § 19-6-19(b).

Put plainly, if your ex-spouse begins living with a new boyfriend or girlfriend after you have been order to pay alimony to him or her, you may ask the court to downwardly modify your alimony obligation or terminate it completely. Hurley v. Hurley, 249 Ga. 220 (1982). Despite their ability to seek a downward modification or termination of alimony pursuant to Georgia law, many obligated ex-spouses find it difficult if not impossible to prove to the court that their ex-spouse is cohabitation with a significant other.

Very rarely will an ex-spouse receiving alimony be willing to admit to cohabitation, because such an admission has the potential to negatively impact that amount of alimony received. Additionally, alimony recipients may go to great lengths to mask such relationships in an effort to thwart an obligated ex-spouse’s efforts to reduce alimony payment. With this being said, what is an obligated ex-spouse to do if he or she knows their ex-spouse is cohabitating with a lover but is unable to prove the relationship? Below is a list of questions and concerns for obligated ex-spouses to consider in deterring whether there is enough evidence to seek a modification of alimony based on the recipient’s cohabitation.

  • Does the cohabitating couple share a residence? How may this cohabitation be proven?  – Even if the residence is owned or paid for by one of the parties solely, there are other ways to prove a shared residence, such as the amount of time each party spends at the residence or the amount of food consumed at the residence. For instance, an increase I the amount of food purchased for consumption in the home may indicate the addition of another occupant.
  • Is the payment of utility or other household bills shared by the couple? If your ex-spouse’s new lover is responsible for paying certain household expenses, like utility bills, this fact points toward cohabitation.
  • How does your ex-spouse characterize his or her relationship? Does your ex represent the relationship as a committed or exclusive relationship?
  • Does your ex’s new boyfriend or girlfriend share parenting responsibilities with your ex?
  • Are there pictures of your ex and their paramour on social media sites that tend to prove the couple’s cohabitation?
  • Does you ex seem to have more cash on hand than normal? If so, this may point to the financial contribution of another person in his or her household.

Getting a Divorce? There’s an App for That

Tuesday, April 22nd, 2014

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In the increasingly technological society we live in, there seems to be an app for almost every activity from communicating with friends and family via video calls to investigating home values and sale prices. But, when the topic of divorce comes to mind, many do not consider how apps found on laptops, tablets or cell phones may prove extremely useful to the litigants in divorce and other domestic relations matters such as child support and child custody modifications. Below is a list of four apps, along with brief descriptions of each, that may make the divorce process less stressful for both parties involved.

Four Helpful Divorce Apps:

2houses – 2houses is an online co-parenting facilitator that may be accessed via a mobile app as well. This app was specifically designed to help separated or divorced parents communicate more easily and effectively concerning their children’s lives, parenting time schedules, school schedules and extracurricular activities. Some of the apps features include: the ability of both parents to edit and update a shared digital calendar, the ability to track shared expensesand the ability to exchange important information such as school  activities and assignments and medical details.

Divorce Log – Often, in matters involving alimony, child support or child custody disputes, litigants are advised to maintain a diary or log of all certain activities, such as payments received or dates of exercised parenting time. Divorce Log is an app designed to make such documentation easy for those involved in contested divorce actions or other contested family law matters. The app, which may be purchased for $4.99, is a calendar-based program that allows a party to log case relevant information in one place, and forward the compiled information directly to an email address (such as an attorney’s or ex-spouses email address).

iSplit Divorce – iSplit Divorce is an  app specifically designed for Apple mobile devices, such as iPads and iPhones. This app helps divorcing couples divide their marital assets and debts by allowing the couple to assign an icon and monetary value to each asset or debt subject to division. Once each asset or debt is assigned an icon and value, the app allows the users to move the icons between the parties prompting the program to automatically re-calculate the asset and debt distribution between the parties and the net value of the couple’s assets in real time. Once the users have arranged the icons such that a fair division has been achieved, the information may then be exported into a spreadsheet and shared with attorneys or financial advisors. Using this app may be easier and more user-friendly that utilizing marital balance sheets generated by certain attorneys.

Georgia’s Child Support Calculator Child Support Calculator – This app may provide divorcing parents a convenient way to investigate potential child support payments. Although this app allows users to estimate their potential child support payment according to their state’s guidelines, a more accurate estimate child support obligations may be obtained by completing the Child Support Calculator.

Divorce Hurts: Three Ways Divorce Harms Children

Monday, April 21st, 2014

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There is no question that divorce hurts. Anger, loneliness, betrayal, sadness, and a sense of loss are common emotions experienced by the husbands and wives who are parties to divorce actions. However, as many know, the pain of divorce is not only felt by the adult parties involved, but children in divorce actions are also negatively impacted. Often times, as parents become increasingly embroiled in the divorce process, the harm suffered by children as a result  may be overlooked until the underlying harm suffered begins to manifest itself in the form of behavioral or social issues.

If you are a parent considering divorce in Georgia, or if you are currently going through the Georgia divorce process, below are is a list of three ways your divorce may harm your children. Armed with this information, you may find it easier to address these issues with your children, either directly or via family therapy, to minimize the harm suffered by your children.

1. Loss of stability. Upsetting a child’s everyday routine has the potential to cause that child great insecurity. Having to leave the home, school, friends and other attachments that he or she has known all their life may result in the child feeling stripped of everything that has been meaningful in life. Although parents often look forward to the new beginning that accompanies divorce, parents should be mindful that their children may not be as enthusiastic about such changes.

2. The loss of a parent. Although divorce often does not involve the permanent removal of one parent from the life of the couple’s children, from the perspective of a child, divorce means losing a parent. One parent remains, while the other moves away. Even if the relocating parent remains relatively close, the child may still feel a sense of loss because that parent is no longer present in the household. With this being said, parents should reaffirm, as much as possible, the love that both parents share for the child. Additionally, consistent parenting time schedules should be developed and maintained to re-introduce an element of stability in the child’s life and assure the child that both parents will continue to play an active role in his or her life.

3. The loss of material things. It costs more to operate two households than it costs to operate one. Thus, it is often accompanied by a fall in socioeconomic status for both parents, and consequentially for children as well. It may be hard for a child to deal with the limitations that often accompany financial restrictions. For example, it may be hard for a child to understand why requests for material items such as toys or clothes were previously granted, but are now rejected post-divorce. In an effort to account for this change, children may resent their custodial parent, and blame him or her for the financial hardship experienced by the family.  Understanding, discussing and empathizing with your child’s feelings may help him or her overcome these feelings.

 

Celebrity Divorce Chronicles: Rhonda Adkins v. Trace Adkins

Thursday, April 17th, 2014

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According to both national and local Tennessee news media sources, country singer Trace Adkins and his wife of 16 years, Rhonda Adkins, are seeking a divorce. Rhonda Adkins initiated the divorce proceedings in March by filing a divorce petition in Williamson County, Tennessee. In her petition for divorce, Rhonda cited irreconcilable differences as the grounds for divorce. Irreconcilable differences is very similar to Georgia’s 13th grounds for divorce, irretrievably broken, because both are no-fault grounds for divorce. Thus, it is unclear whether Trace’s recent substance abuse precipitated the couple’s split.

In addition to requesting that their marriage be dissolved due to irreconcilable differences, Rhonda Adkins also requested primary physical custody of the couple’s three daughters, child support and alimony. Rhonda also requested to be named primary beneficiary of Trace’s life insurance policy, which is not an unusual request as this will ensure any awarded child support or alimony payments continue even in the event of Trace Adkins’s untimely death.  Rhonda Adkins also petitioned the court to order Trace to pay the legal fees that she incurs litigating the divorce. This request is also not unusual, especially in matters where the spouse seeking an award of attorney’s fees is also seeking alimony. Regardless of the requests made in the divorce petition, the issues of the case will ultimately be decided by a court or by an agreement entered into by both parties after mediation or some other alternative dispute resolution mechanism.

Who Should Keep the Marital Home Post-Divorce?

Wednesday, April 16th, 2014

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Unfortunately, there isn’t a“right” answer to the question of who should keep the marital home upon divorce. In fact, depending on the details of the particular case, it may be more advantageous for neither spouse to retain the marital home, but to instead sell the home and split the proceeds. Below is a list of factors that each spouse should consider before a decision is made regarding whether the home should be retained by one spouse post-divorce, and if so, by whom.

Does either spouse want the marital home? If neither spouse wishes to retain the marital home post-divorce, the best options are likely to sell the marital home or to seek to rent the marital home to a third party if selling the home will not yield a profit. Alternatively, if both spouses want to retain the marital home after divorce, extensive negotiation may be necessary to determine which spouse should retain the marital home. In the event the parties are not able to resolve the issue of who will retain the spouse, it may necessary to proceed to trial in order for a judge to make this determination. Situations where only one spouse wants to keep the home are generally the least difficult. In such situations, it is generally only necessary for the parties to determine how the other marital assets will be apportioned in order offset the value received by the party retaining the home.

Can either spouse afford the mortgage payments post-divorce? In determining which spouse should retain the marital home post-divorce another issue that should be considered is which spouse will be able to afford mortgage payments post-divorce. If the spouse who seeks to keep the home will not be able to handle the home’s mortgage, other alternatives should be considered such as selling the home or awarding it to the other spouse.

Can the spouse who wishes to retain the home able to refinance the mortgage into their name solely? In addition to being able to afford the mortgage payment, the spouse who wishes to retain the marital home post-divorce must also have the ability to refinance the home mortgage into his or her name solely. Often couple’s obtain home mortgages jointly, meaning that both spouses are jointly liable for the mortgage. Divorce does not sever this joint liability, thus if the spouse who retains the home fails to make timely payments the other spouse’s credit may suffer if the mortgage is not refinanced.

Are there any second mortgages or HELOCs? If there are second mortgages or home equity lines of credit that have been taken out against the marital home, not only must it be determined who will retain the home itself, but it must also be determined how the debt against the home will be apportioned. Often, the spouse who gives up the marital home will resist accepting any liability for the debt associated with it. Thus, the spouse who wishes to retain the marital residence must also be prepared to potentially take on all liabilities associated with the home as well.

Is there agreement regarding the home’s value? This is often a sticking point between spouses who have otherwise reached a decision concerning the disposition of the marital home post-divorce. Even if the home is not going to be sold, the value attributed to the home is important because it directly impacts the analysis that must be conducted to ensure that the marital assets are divided equitably.

If the home is sold, how will the proceeds be divided? Will the home sale proceeds be divided equally or will one spouse receive a greater of the proceeds? If the parties agree to sell the home, not only must the division of home sale proceeds be determined, but the home sale price must be agreed upon and a determination regarding how the costs associated with the sale will be apportioned must be made as well.

Alimony Is Taxable To The Recipient

Tuesday, April 15th, 2014

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“Alimony is taxable to the recipient and deductible payor.” Upon the close of a divorce matter, many parties are either informed of this important fact orally or in the form of a letter or other written notice provided by their attorney. Although this important statement is recited to divorce litigants at the conclusion of their divorce, many parties, especially recipient of alimony, fail to adequately appreciate the gravity of this statement until he or she receives a hefty and unexpected tax bill from the IRS.

Alimony is taxable to the recipient. What this means practically is that those who receive alimony payments are required to pay income tax on any amount received at the end of the tax year. Because alimony is not income derived from employment, no federal tax is withheld from the income amount. Thus, at the end of the tax year, the recipient spouse is solely responsible for paying the tax assessed on the income received.

In order to avoid the potentially devastating situation of receiving a large and unexpected tax bill, alimony recipients should be sure to place aside a set amount of funds each month to be used to satisfy the taxes assessed against this income.  Additionally, alimony recipients should consult a financial advisor regarding developing a financial plan specifically designed to address post-divorce financial issues faced by alimony recipients.

Is Divorce Good for the Economy?

Monday, April 14th, 2014

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Over the last three years, studies have shown that the U.S. divorce rate has been increasing steadily since it hit a 40 year low in 2009. In fact, as documented by the U.S. Census Bureau, the number of divorces in the United States rose sharply to around 2.4 million in 2012. In response to this increase in the national divorce rate, news outlets have recently reported that the recent rise in U.S. divorce rates may be an indicator that the nation’s economy is improving.

This assertion may be evidenced by the fact that couples who would otherwise seek divorce tend to remain married during times of economic downturn, due to economic instability, the lack of resources sufficient to maintain two separate households, and the cost associated with divorce. Once the economy begins to experience positive growth, unhappy couples go forward with the divorce plans that they previously put on hold. However, some experts propose that divorce may not only be a positive indicator of economic recovery, but  divorce may actually be a driving force behind economic recovery.

Specifically, divorce may have a direct positive impact on the economy by creating greater demand for housing (former spouses require two homes rather than one) and by placing more individuals in the work force (divorced women are more likely to be employed and work longer hours). Additionally, as un-married individuals tend to spend more for living expenses per year than married individuals, divorce may also result in more money being directly infused into the economy due to the increased spending of divorced individuals.

More Couples Opting for Extended Separation in Lieu of Divorce

Wednesday, April 9th, 2014

As Georgia divorce attorneys, we have seen firsthand the developing trend of couples opting for extended separation in lieu of divorce. In some instances, the desire to remain married, living in a state of separation, is the result indecisiveness regarding whether divorce is the correct path. In other instances, extended separation in lieu of divorce is utilized by those who do not wish to live in the same marital home as their spouse, but who do not wish to seek a divorce due to moral or religious reasons. However, in the overwhelming number of cases, the motivation to remain married is financial. There are many financial advantages to being married that may no longer be enjoyed by both spouses in the event of divorce, such as certain tax credits or deductions or one spouse’s health insurance coverage.  In fact, for older couples or couples where one spouse has a preexisting medical condition, health coverage alone may be the motivating factor for remaining in a perpetual state of separation. Additionally, it is not uncommon for couples to remain married until the spouse who needs health coverage is eligible for Medicare or until the spouse would qualify to receive a share of the other spouse’s Social Security payment upon divorce.

Although remaining married, yet separated, may be the best option for some couples, it is necessary for any couple considering this option to take certain steps to protect their legal  interests. First, if a couple decides to live in a state of extended separation, it is advisable that they initiate an action for Separate Maintenance. Georgia does not recognize the concept of legal separation, thus if the parties which to have their separated status recognized, they must do so by seeking an order of separate maintenance. This is especially important for spouses who need child support or alimony during the period of extended separation, as initiating a suit for separate maintenance is the only way to receive such awards absent initiating a divorce action. Additionally, couples seeking to live in an extended state of separation should also consider entering into a Post-nuptial or Separate Maintenance Agreement, settling issues such as child support, alimony, and estate matters.

The Four Parts of Georgia Divorce: Alimony

Tuesday, April 8th, 2014

In reviewing our series concerning the four parts of Georgia divorce it becomes obvious that there are several financial aspects of divorce.  As a result, many going through the divorce process may find it hard to distinguish alimony, child support and equitable division. Although all three may involve monthly or lump sum payments made by one spouse to the other, child support, alimony and equitable division all serve different purposes, and the rules regarding how each may be satisfied are regulated by different sections of Georgia law. Unlike child support, which is intended to provide for the maintenance and support of minor children, or equitable division of marital property, which is designed to ensure that each spouse receives a fair and equitable portion of marital property upon divorce, the purpose of alimony is to provide support to the spouse or ex-spouse who is in need of economic support during separation or post-divorce.

According to Georgia law, alimony is defined as an allowance made out of one spouse’s or ex-spouse’s separate estate for the support and maintenance of the other ex-spouse. O.C.G.A. 19-6-1. Although alimony is designed to provide support to the spouse or ex-spouse who is in need of economic support, an award of alimony will not be solely based on the needs of one spouse. The ability of the other spouse to pay alimony will be considered as well. Id.

Unlike child support, which generally must be awarded in every case involving minor children in need of support, the court presiding over a divorce matter is not required to make an award of alimony in every case. In determining whether an award of alimony is warranted in a particular case, the presiding court will consider, among others, the following factors:

1)    The cause of the parties’ separation. If one party proves that the separation between the spouses was a result of the other parties adultery or desertion, the culpable party will be barred from receiving alimony.

2)    The success of the divorce action. If the claim of alimony in incidental to a divorce action and the divorce is denied, the claim for alimony dissipates with the divorce action.

3)    The voluntary provision of support by one spouse to the other. If one spouse has already voluntarily agreed to support the other spouse consistent with that spouse’s needs, the recipient spouse will be barred from recovering additional support in the form of alimony unless the agreement between the spouses is invalid or the other spouse refuses to comply with the terms of the agreement.

4)    The grounds for divorce. If the divorce is granted on the ground of fraud, duress or any other grounds which attacks the validity of the marriage contract itself, alimony will not be awarded.

O.C.G.A. § 19-6-1; O.C.G.A. § 19-6-8; Clements v. Clements, 255 Ga. 714 (1986); Owens v. Owens, 247 Ga. 139 (1981); Davis v. Davis, 206 Ga. 559 (1950); Ridgeway v. Ridgeway, 224 Ga. 310 (1968); Walker v. Walker, 53 Ga.App. 769 (1936); York v. York, 202 Ga. 50 (1947).

If the presiding court determines alimony is warranted, the court must then determine the amount and duration of alimony. With regard to duration, Georgia courts may award both temporary and permanent alimony. Temporary alimony may be awarded to a needy spouse during the course of divorce proceedings to provide for that parties support during the couple’s separation. Once the divorce is final, the court may also award that spouse permanent alimony.    The term permanent alimony is misleading, because Georgia courts very rarely order alimony to continue for the lifetime of the recipient spouse, although they may. O.C.G.A. § 19-6-4; 19-6-9. Most often, Georgia courts order alimony to continue for more limited time periods, generally between 2 to 10 years.

In this event, the court will likely order alimony to be paid in monthly or bimonthly payments. Alternatively, depending on the financial resources and needs of the parties, the court may also order alimony to be paid out in a lump sum once the divorce is final. Johnson v. Johnson, 220 Ga. 461 (1964). With regard to amount, there is no formula or specific calculation used to determine how much alimony a spouse should receive. Instead, courts rely on Georgia’s alimony factors, which are listed below, to determine the amount of the alimony award.

1)    The standard of living established during the marriage;

2)    The duration of the marriage;

3)    The age and the physical and emotional condition of both parties;

4)    The financial resources of each party;

5)    Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;

6)    The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;

7)    The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and

8)    Such other relevant factors as the court deems equitable and proper.

O.C.G.A. § 19-6-5.

 

The Four Parts of Georgia Divorce: Child Support

Thursday, April 3rd, 2014

 

In our original post entitled “The Four Parts of Georgia Divorce,” we touched base on the purpose of child support in Georgia and how child support is calculated using Georgia’s child support worksheet. Below is a more detailed discussion of child support in Georgia, its purpose, the elements necessary for a successful claim for child support, and how it is calculated.

In Georgia, both parents are responsible for providing for the maintenance, protection and education of their minor children. Child support is a way to ensure that both parents continue to meet this responsibility even after divorce or the dissolution of their relationship. Child support may generally be defined as payments made by the non-custodial parent to the custodial parent on behalf of the minor child or children involved. Although paid to the custodial parent, child support is solely for the benefit of the child. Thus, child support payments should be used solely for the benefit of the child or children involved. Additionally, because child support belongs to the child or children involved, neither parent has the right to waive the payment or receipt of child support. O’Neil v. Williams, 232 Ga. 170 (1974).

Regarding child support, Georgia law also makes clear that minor children are not merely entitled to sustenance, but are entitled to support commensurate with their needs, limited only by the financial ability of the obligated parent. Harrison v. Harrison, 233 Ga. 483 (1989). Thus, child support may not only be used to provide for a child’s basic necessaities like food, clothing and shelter, but may also be used to provide for a child’s medical and dental services, education, transportation, insurance costs, special education costs, and counseling. Moody v. Moody, 224 Ga. 13 (1968); Maloof v. Maloof, 231 Ga. 811 (1974); Bateman v. Bateman, 224 Ga. 20 (1968); Harrison Supra and Clavin v. Clavin, 238 Ga. 421 (1977).

In order for one parent to make a valid claim for child support during divorce proceedings, the following elements must be met:

  1. There was a valid marriage between the parties;
  2. The husband and wife are now living in a bona fide state of separation;
  3. There are minor children as the issue of the marriage who have a legal claim for support; and
  4. The claim for child support is ancillary to a pending divorce suit or suit for separate maintenance.

O.C.G.A. §§ 19-5-5; 19-6-4 et seq. In matters where the parents have never been married to one another, another method of obtaining child support would be via a paternity suit. Bell v. Arnold, 248 Ga. 9 (1981).

Child support may either be determined by the judge or jury hearing a contested case, or by the agreement of the parties. If a judge or jury determines child support, they do so based on the presumptive amount of child support calculated using Georgia’ child support worksheet along with other factors that may either reduce or increase the presumptive amount of child support depending on the particular circumstances of the case. Couples who seek to mutually come to an agreement concerning child support must also seek the guidance of Georgia’s child support worksheet to help them determine an appropriate child support amount.

Georgia’s child support worksheet, along with instructions on how to complete the worksheet may be found by visiting the Georgia Child Support Commission webpage.