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What If There Was No Divorce?

Wednesday, October 1st, 2014

Each year, hundreds of thousands of couples marry each year in the United States, and it is estimated that at some point nearly half of those marriages will end in divorce. With the national divorce rate estimated by some to be at approximately 50%, divorce has become a common place institution in the United State. Because divorce has become so common, it is hard to imagine our country without it, but as Georgia family law attorneys specializing in divorce, we take the time to wonder: What if there was no divorce?

One of the most patent effects would be the extinction of divorce attorneys. Of course, attorneys who handle other family law matters, such as child custody disputes, legitimation matters, paternity cases, family violence matters and adoptions would likely continue to thrive despite the absence of divorce. Practitioners who solely rely on divorce matters though would be out of business.

The wedding industry would likely also suffer decline if there was no divorce. Couples would likely think longer and harder about entering into a marriage if they knew there was no way to legally escape the marriage should it decline. It is possible that more couples would delay marriage or forgo it all together and opt to cohabitate instead. This delay or decline in the number of couples who actually marry would also likely increase the number of children born to unmarried couples. In turn, many states would experience an increase in paternity and legitimation actions. Additionally, an increase in the number of cohabitating couples may also broaden the acceptance and recognition of palimony actions throughout the U.S.

Another, more unsavory result of the lack of divorce could possibly be increased traffic on discreet dating sites that cater to married individuals, such as Ashley Madison.com. This site currently boasts quite a few members currently, but if individuals could no longer dissolve failing marriages in divorce, they may seek to escape the marriage in other ways.

My Ex-Spouse Wants to Move to Another State With Our Child. Can He Do That?

Saturday, September 27th, 2014

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The brief answer to this question is: Although you cannot prevent your ex-spouse from relocating, you may be able to seek a modification of child custody to prevent your ex-spouse from relocating your child. Now for the more detailed response…

In cases where the custodial parent seeks to relocate with the child, the non-custodial parent may seek to modify custody in order to obtain primary physical custody of the child. As with initial child custody determinations in Georgia, in cases involving the relocation of the custodial parent, the primary consideration is the best interest of the child or children involved in the case. Because the best interests of a child vary depending on the circumstances of each case, there is no presumption that the relocating parent will always lose custody nor is there a presumption in favor of the relocating paren. See Weickert v. Weickert, 268 Ga. App 624 (2004); Bodne v. Bodne, 277 Ga. 445 (2003). Generally, in determining whether a child’s best interest will be served by a modification of custody or by remaining in the custody of the relocating parent, the court will consider and weigh the following factors:

  1. A child’s relationship with a non-custodial parent;
  2. The child’s ties to local schools and friend;
  3. The child’s age;
  4. The stress and instability of relocation and the corresponding benefits of consistency and stability for the child;
  5. Interests of the entire binuclear family, which consists of the household headed by the custodial parent as well as the household headed by the non-custodial parent;
  6. The custodial parent’s reason for relocating;
  7. The dynamics of the custodial parent’s new family unit; and,
  8. Any other relevant factors.

Bodne supra. Only if a court finds, after weighing the above listed factors, that a material change in the circumstances affecting the child would occur as a result of relocation will the court modify custody in favor of the parent protesting the relocation.

If you are a custodial parent currently considering relocation, or if you are a non-custodial parent concerned that your ex-spouse’s relocation will have a negative impact on your parenting time or relationship with your child, contact your Atlanta Divorce Team for advice on how to navigate a possible relocation with your child or a child custody modification action.

What is Parental Alienation?

Wednesday, September 24th, 2014

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Generally speaking, parental alienation involves one parent taking actions or making statements to his or her children designed to denigrate the other parent and diminish the children’s relationship with the other parent. Put plainly, parental alienation is exactly what it sounds like, actions taken by one parent to alienate the children from the other parent.

Parental alienation is recognizable in many forms. For example, a custodial parent interfering with or withholding parenting time from the non-custodial parent, one parent repeatedly making derogatory statements about the other parent to the children, and false child abuse allegations made by one parent in an attempt to sever ties between the children and the accused parent are all ways one parent may seek to alienate their children from the other parent. See Weickert v. Weickert, 268 Ga. App. 624 (2004), In re M.E., 265 Ga. App. 412 (2004), and Petry v. Romo, 249 Ga. App. 99 (2001).

Because Georgia courts recognize it is important for children to maintain a close relationship with both parents, even in the event of divorce, Georgia courts may modify child custody in cases where it is clear one parent is seeking to alienate the children from the other parent. According to Georgia law, when determining child custody, the court must consider the best interest of the child or children involved and award custody accordingly. One factor that the court must specifically take into consideration when determine custody is “[t]he willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.” O.C.G.A. § 19-9-3(a)(3)(N). Thus, for example, in a case where primary physical custody has been awarded to Father post-divorce, if Father continuously refuses to facilitate parenting time between Mother and Children, a Georgia court may find that the circumstances of the case are such that child custody should be modified and Mother should be awarded primary custody.

With the above in mind, if you are a victim of parental alienation, contact the knowledgeable attorneys of the Atlanta Divorce Team. We will be more than glad to walk you through your option to seek a child custody modification.

Who Is Generally Unhappier In A Marriage – Men or Women?

Saturday, September 20th, 2014

Everyone experiences periods of ups and downs in their marriage.  But which gender is more likely to be unhappy in their marriage? A new study called “Relationships in America” by The Austin Institute surveyed over 15,000 adults, seeking an answer to that very question.  New Study Says Women Are More Likely Than Men To Be Unhappy In Their Marriages, by Taryn Hillin, huffingtonpost.com, July 11, 2014.

The participants were asked varying questions about the ending of their relationships.  Looking at the results, the women appear unhappier in their marriages and also were more likely than men to make the decision to file for divorce. Specifically, when asked if they had thought about leaving their spouse in the last year, 20% of married women said yes.  Only 13% of married men answered this question in the affirmative.  For couples who were living together but not married, nearly 40% of the women thought about leaving compared to just over 25% of the men.

The participants were also asked about their perceptions of who wanted out of the marriage more.  The women’s perceptions were as follows: 55% thought the female wanted the divorce more, just over 20% felt that the spouses equally wanted the divorce, and 20% felt that the male wanted the divorce more.  The men’s perceptions were as follows: 42% thought that the female wanted the divorce more, 28% felt that the spouses equally wanted the divorce, and 29% felt that the male wanted the divorce more.  Interestingly, the results show that both parties to the relationship perceived that the female was unhappier and more driven to end the marriage.

 

Can You Be Held Responsible for Your Dead Ex-Spouse’s Debt?

Tuesday, September 16th, 2014

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One of the primary issues divorcing couples must work out is property division.  This includes both assets and debts. In both equitable division states (such as Georgia) and community property states, a final divorce decree will outline exactly how marital property is to be divided and how marital debts are to be allocated.  Community property states will divide all marital property and debts equally, but the divorce decree will still specify how it will be equally divided.

While a final divorce decree will protect you in court if your spouse is not making payments on a joint debt for which the divorce decree made him responsible, the creditor itself will not be appeased by the court order.  This is because the divorce decree is between you and your ex-spouse – the creditors do not sign off, nor are they a party to the agreement so they are not required to abide by it.  Thus, if your ex-spouse dies before he/she has fully satisfied a debt in both your names, the creditors are likely to come after you.   A dead ex-spouse’s debt can become your problem, by Jeanne Sahadi, money.cnn.com, June 25, 2014.

For example, consider a situation wherein you and your ex had a joint credit card for which he was responsible post-divorce, but he dies before he has paid it all off.  In that case, the credit card company will likely come after you for payment because your name is on the card as well.  If you don’t pay it, it could be detrimental to your credit.  You could try filing a claim against his estate, but this takes time so you will likely be forced to pay it in the interim so you don’t damage your credit.

There are a couple things you could try to do to lessen your risk:

  1. Request that your settlement agreement/divorce decree have a clause requiring the party responsible for the debt post-divorce to refinance the debt to remove the other spouse’s name.  Houses and cars can be refinanced. If your ex will not be able to qualify to refinance into his own name, consider taking on the debt yourself along with some additional assets to balance it out.  That way, payment of the debt will be in your control.  Not all debt can be refinanced this way but it is worth a try.
  2. Estate planning attorney Geoff Germane of Kirton McConkie suggests that, at the time of your divorce, “you could try to enter into what’s called a ‘novation’ or ‘accord and satisfaction’ with the creditor to erase your further liability for the debt.  This is essentially an agreement with the creditor that you are no longer responsible for the debt.

Though neither of these options is foolproof, they are certainly worth a try to reduce your risk of being later help responsible for a debt from which you assumed you were already safe.

Surrogacy May Complicate Divorce in Georgia

Wednesday, September 10th, 2014

It goes without saying that many couples begin the process of growing their family with the intention to remain married and raise their children together. However, it is often hard to predict whether a couple many divorce or separate in the future, or when that divorce such a divorce or separation may occur relative to the birth of a child. With this being said, a couple’s use of assisted reproductive technologies such as intrauterine insemination, in vitro fertilization, freezing sperm, eggs, or embryos for future use, or surrogacy may raise several legal questions and complications in the event of divorce. Surrogacy in particular has the potential to raise several legal complications due to questions surrounding the relationship of the child to the intended parents.

How should child custody be determined in a divorce case where the couple is expecting a child via surrogacy, and the child will likely not be born prior to the divorce being finalized? Does the genetic relationship between the intended parents and the child matter? If so, in traditional surrogacy cases, is the father automatically entitled to sole custody to the exclusion of the intended mother because he is the only intended parent with a biological connection to the child? Should the intended mother, who may have no biological connection to the child, be obligated to pay child support? Can the surrogate intervene in the divorce action to petition for custody rights? It is questions such as these that exhibit how surrogacy may potentially complicate Georgia divorce.

The questions posed above also exhibit why it is extremely important to have a written and detailed agreement documenting each party’s intentions prior to entering into a surrogacy arrangement or any type of third-party assisted reproduction arrangement. Such an agreement should also contemplate what would occur in the event the intended parents separate or divorce.

If you are contemplating surrogacy, or if you have already taken advantage of other forms of assisted reproductive technologies and are now considering divorce, please contact a member of our Atlanta Divorce Team. We will provide you with the assistance and information you need to navigate the Georgia divorce process.

Number One Complaint Against Georgia Divorce Attorneys

Saturday, September 6th, 2014

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Choosing the right divorce attorney is one of the most important steps a potential divorce litigant can make to ensure the success their divorce case. Vetting a potential attorney’s legal experience and seeking information regarding his or her hourly rate are both effective methods to employ in choosing the right divorce attorney. But, there is one vital topic that many litigants often overlook when interviewing potential divorce attorneys: the attorney’s client communication policy.

Inquiring into an attorney’s policies regarding responding to client communication is vital, because a breakdown in communication between attorney and client often leads to misunderstandings and dissatisfaction. In fact, the number one complaint or dissatisfaction expressed by divorce clients is the failure of their divorce attorney to timely return telephone calls and emails. To avoid entering into an unhappy attorney-client relationship, anyone considering divorce in Georgia should ask the following questions of all potential divorce attorneys they interview:

  • Does your office have a written policy regarding client contact and communication?
  • How soon do you response to client telephone calls and emails?
  • How does your office schedule in person client meetings?
  • Do you respond to all client communication personally, or is support staff assigned to respond to certain communication?
  • Is it easier to reach you by telephone or email?
  • How does your office bill for client communication by telephone and email?

Failure to Pay Child Support in Georgia May Result in Termination of Parental Rights

Tuesday, September 2nd, 2014

In Georgia, failure to pay court ordered child support comes with a variety of penalties. Such penalties generally include:  contempt citations, suspension of driver’s, hunting and fishing licenses, denial of passport applications, and potentially incarceration. If these penalties seem severe, it is because they were designed in an effort to dissuade non-payment of child support. However, the above mentioned penalties pale in comparison to what may be considered the ultimate penalty for failure to pay court ordered child support: termination of parental rights.

Georgia statutory law states the following with respect to the termination of non-custodial parents’ parental rights for non-payment of child support:

(b) Except as provided in subsections (e) through (h) of Code Section 15-11-96, the court by order may terminate the parental rights of a parent with respect to the parent’s child if: […] (2) A decree has been entered by a court of competent jurisdiction of this or any other state ordering the parent, guardian, or other custodian to support the child, and the parent, guardian, or other custodian has wantonly and willfully failed to comply with the order for a period of 12 months or longer.

O.C.G.A. § 15-11-94(b)(2).

The two most notable elements of this law are: 1) the non-payment must be “wanton and willful,” and 2) the non-payment must be in contravention of a court order to pay child support. According to the Georgia Court of Appeals, “wanton and willful” is defined as “without reasonable excuse, with a conscious disregard for duty, willingly, voluntarily, and intentionally.” In re H.B. and K.B., 174 Ga. App. 435 (1985). Thus, for example, if a parent’s non-payment is due to being laid off from his or her employment, such non-payment is not “wanton and willful.” In re S.G.T., 175 Ga. App. 475 (1985). With regard to the second element, a non-custodial parent’s parental rights may not be terminated due to failure to pay child support if no court order was ever issued obligating that parent to pay child support. Uniroyal Goodrich Tire, Co. et al. v. Adams et al., 221 Ga. App. 705 (1996).

With the above in mind, termination of parental rights is often only sought in the most severe cases of abandonment and non-support.

 

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.