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Alimony in Georgia: How Much Does Length of Marriage Really Matter?

Wednesday, October 22nd, 2014

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Among the four parts of Georgia divorce, which include equitable division, alimony, child custody, and child support, alimony is probably the most popular subject by far. Although alimony is oft discussed, it is also likely the most misunderstood component of Georgia divorce.

The misconceptions regarding alimony include, among others, that alimony cannot be awarded to men, that alimony is a lifetime award in all cases, and that alimony cannot be terminated once awarded. Another very popular misconception about alimony is that the length of the marriage dictates the award of alimony. Put plainly, many believe that less alimony will be awarded for shorter marriages and more alimony will be awarded upon the dissolution of longer marriages. Although the length of marriage is one of the factors that Georgia courts use to determine the amount and duration of alimony, if alimony is awarded at all, this is only one of several factors. According to Georgia law:

“The following shall be considered in determining the amount of alimony, if any, to be awarded:

   (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. As indicated by the above cited statutory law, in addition to the length of marriage, there are 7 other factors that a court is required to consider in determining the award of alimony. Thus, even in the case of a relatively short marriage, the presiding court may make a large award of alimony.

This contention is made clear in the case of Sprouse v. Sprouse, 285 Ga. 468 (2009). In this case, decided by the Georgia Supreme Court in 2009, the Supreme Court upheld a grant of 13 years of alimony, based on a marriage that lasted only two years. Although such an award for a marriage of only two years is extremely rare, at trial, the trial judge determined that since the total length of the couple’s relationship was 13 years, including time they were together prior to getting married, the court considered the award of alimony appropriated. The Supreme Court agreed.

This case is a prime example of why seeking the guidance and advice of a team of divorce professionals is necessary for anyone seeking to begin the divorce process in Georgia. Georgia family law is one of the most complex and fact driven areas of law, so only experienced Atlanta divorce attorneys, familiar with Georgia divorce law and tendencies of local judges, can accurately anticipate and prepare for how a court may rule.

International Custody Battle In The Headlines

Sunday, October 19th, 2014

In a divorce case involving children, the final divorce decree will set out in detail the custodial rights of each parent.  This includes who has primary physical and/or legal custody, when the child will physically be with each parent (visitation), and which parent has final decision making authority.  The divorce decree will also detail other guidelines the parents must follow post-divorce, such as that a parent must notify the other if they are moving out of town and that a parent cannot take the children out of the country without the consent of the other parent.

A violation of this last guideline recently resulted in a United Airlines flight returning back to Washington Dulles International Airport at the request of the FBI.  Alleged international parent kidnapping diverts flight, by Katia Hetter, cnn.com, September 5, 2014. In that case, the mother was attempting to fly to Beijing with her child. Once the flight landed back at Dulles, federal law enforcement officers met the plane and took a mother into custody “on suspicion of committing an international parent kidnapping.”  Apparently, the mother and father had a recent custody agreement, which prohibited either party from travelling outside the United States with the child “without express written and notarized consent of the other party, provided in advance of the trip.” In an interview with law enforcement, the mother admitted violating this portion of the custody agreement.

Not only is this mother in contempt for violating a provision of her custody agreement, it is a federal crime for parents “to remove or attempt to remove a child from the United States, or retain a child outside the United States with intent to obstruct another parent’s custodial rights.” 18 U.S.C. § 1204.  At this point, the mother’s intent is not known, but it can probably be assumed that she was not going to take the child for a quick weekend to Beijing. Thus, now she will be the defendant in multiple court actions and has a serious chance of losing custody of her child.

Midlife Eating Disorders and Divorce

Wednesday, October 8th, 2014

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Divorce is often hard on both parties, both emotionally, mentally, physically and economically. The loss of a relationship, the economic consequences normally associated with divorce, and the stress that comes along with the divorce process can lead to myrid health and wellness concerns. Depression, anxiety, and stress related physical symptems are the wellness concerns most popularily linked to divorce. But, there is another wellness concern associated with divorce that may be surprising to most: eating diorders.

When one thinks of eating disorders, the thought that may immediately come to mind is that such disorders are only suffered by highschool or college aged individuals. However, it is not uncommon for men and women to experience such disorders in midlife after dealing with the stress and emotional strain caused by divorce. Many people who get divorced in midlife have not been on the dating scene inseveral years. So, loneliness or fear or rejection may lead to them to engage in unhealthy weight control practices to maintain what they view as an acceptable or more “marketable” appearance. Additionally, the feelings of chaos caused by divorce may also compell individuals to take control of, or order, one of the few areas of life they still feel as if they control, eating.

Because eating disorders are emotionally based, it is imperative for those suffereing with any form of eating disorder to seek professional help to deal not only with the disorder by also with the underlying emotional or stress related issue. If you or anyone you know has gone through a divorce or is currently going through the divorce process, and may be dealing with an eating disorder, contact the National Eating Disorders Association hotline at 1-800-931-2237 for more information and assistance.

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?