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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.

Can A Stressful Marriage Lead To Early Death?

Saturday, July 19th, 2014

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There have been several recent studies about the health benefits marriage can have for a person.  Another recent study, however, has found that certain types of marriages can actually be detrimental to a person’s health. Study Says Stressful Marriages Can Lead To Early Death In Men, by Taryn Hillin, May 14, 2014, huffingtonpost.com. Specifically, the study, part of the Danish Longitudinal Study on Work, Unemployment and Health, found that a stressful marriage increases the risk of premature death in men.

The study followed nearly 10,000 participants, aged 36 to 52, for 11 years, tracking their health and surveying them about conflict and stressful situations in their lives.  At the end of the 11 years, a large portion of the participants had died.  By correlating the data collected, the researchers found that “men’s risk of death increased when in stressful marriages.”  Specifically, the men “who ‘always’ or ‘often’ experienced worries and demands from a partner had a higher mortality risk than those who ‘seldom’ had this experience.”  Those men who experienced similar worries and demands from other people (friends, family, etc.) did not have a higher mortality rate, indicating that it as the marriage and stress combined that produced the result.

The researchers suggested “skills in conflict management could help curb premature deaths associated with relationship stressors.” Thus, if you are in a high stress marriage, a conflict or stress management class will likely be of great benefit to both you and your spouse.  It may not rid your relationship of stress entirely, but it can help you learn how to deal with it in a healthy way.

Can A Judge Limit Facebook Activity During Georgia Divorce?

Wednesday, July 16th, 2014

As with many topics and questions concerning Georgia family law and Georgia divorce, the answer to the above posed question in not a simple one. As exhibited by a criminal case out New Jersey, a court can indeed limit the contact one party has with another during a pending legal action. In that case, a Hunterdon County, New Jersey Superior Court judge ordered a mother who plead guilty to a charge related to her attempt to kidnap her children to refrain from blogging about or mentioning her children or ex-husband on her Facebook page. Despite the court’s order, the mother continued to post about her children and ex-husband, and appealed the court’s order, claiming, among other things, that the order violated her right to free speech. In this case, the appellate court ruled that the Superior Court judge did indeed have the authority to order the mother not to mention her children or ex-husband on Facebook.

When it comes to divorce matters specifically, Georgia courts have similar authority. In fact, once a divorce is filed in Georgia, an order of the court called a Domestic Relations Standing Order is automatically put in place. Among other things, this order prohibits the parties from mistreating or interfering with each other. For example, Fulton County’s Automatic Domestic Standing Order states, in relevant part:

“Each party is hereby enjoined and restrained from doing, or attempting to do, or threatening to do, any act injuring, maltreating, vilifying, molesting, or harassing the adverse party or the child(ren) of the parties.”

This order not only applies to activity conducted in person, but also applies to online activity as well. As with any other court order, of one party violates the terms of this standing order, the court may find the offending party in contempt of court and penalize that party accordingly. Thus, when it comes to divorce actions in Georgia, a Georgia divorce court may not be able to preemptively limit a party’s Facebook or other online activity, a court may find a party in contempt of court for failure to abide by the terms of the court’s Automatic Domestic Standing Order.

Resolving Disputes About the Settlement Agreement

Wednesday, June 18th, 2014

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The majority of divorces are resolved pursuant to a settlement agreement.  This means that the parties negotiated all issues of the divorce and were able to come to an agreement that both parties could live with.  It does not mean that everyone is completely happy with the outcome, but they are likely happier than they would be if a Judge dictated the terms of the divorce.  Nonetheless, the parties have signed the agreement and are ready to abide by its terms.  But what happens if there is a dispute about whether a party is fully performing under the agreement?

If a party is in default under the agreement, the other party can file a Petition for Contempt, which will bring the alleged violation in front of the court in an effort to force the party to comply.  Punishment for contempt can range from license revocation to incarceration.  However, filing a Petition for Contempt is often not the best first step to address a violation of the settlement agreement.  Rather, the party should first reach out to the other party (through attorneys or directly, as appropriate) and attempt to resolve the matter without involving the courts.  Often, a disagreement about performance under the settlement agreement is caused by a miscommunication that could be easily resolved without costing both parties money with an unnecessary court battle. If negotiation does not work, however, a Petition for Contempt may be your only option.

If you think that your spouse is going to have a difficult time abiding by the terms of the settlement agreement, you could put language into the agreement addressing that very issue.  For example, the agreement could require the defaulting party to pay for all associated costs and attorney’s fees associated with the other party’s successful enforcement of the agreement.  This means that if one party defaults and the other party files an ultimately successful Petition for Contempt, the defaulting party is automatically required to pay attorney’s fees.

What Issues Should be Addressed in a Settlement Agreement Including Child Custody?

Thursday, June 12th, 2014

For divorcing parents, often the most important issue to work out is who will have custody of the children, and how visitation will work for the other parent.  Generally, when drafting a settlement agreement, the following custody issues should be addressed:

  1. Primary physical and legal custody
  2. Decision making authority
  3. How the parties will communicate regarding the children
  4. Weekly visitation
  5. Summer visitation
  6. Holiday visitation
  7. Telephone/email visitation

When reviewing a proposed settlement agreement, it is important to remember that every divorce is different, and every set of parents and children are different.  Therefore, after hitting the high points listed above, it will likely be necessary to modify or add to terms in the proposed agreement.  For example, you will want to ensure that the agreement provides for a visitation schedule for all holidays that are important to you.  While Easter may be very important to one family, a Jewish family will likely want to make sure Passover visitation is included.

In addition, if substance abuse is an issue in the divorce, a parent will want to make sure there is an alcohol/drugs clause in the agreement.  Also, if one parent travels a lot for work, the other parent may want a right of first refusal for visitation, rather than having the children stay with a babysitter.

If you and/or your spouse are working with attorneys in your divorce action, you will likely be shown a template settlement agreement as a starting point.  Remember this is just a first draft and it can be modified to suit the needs of your particular family.  It may be helpful to take some time by yourself to think about what is most important to you and really think through how you want to live your life after the divorce.  The more prepared each party is, the better negotiations will go.

 

 

 

 

 

 

 

 

 

 

 

No Retroactive Child Support in Georgia

Wednesday, June 4th, 2014

Many states embrace the concept of retroactive child support or “back child support,” but Georgia is not one of those states.  Although there are certain circumstances under which a custodial parent may recover some of the costs actually incurred caring for a minor child from the non-custodial parent, a Georgia court will not award a custodial parent a set monthly award for a past period of time during which a valid child support order was not in place. O.C.G.A. §19-6-15.

What this means practically for non-custodial parents is a court will not require a non-custodial parent to pay the custodial parent the amount of monthly support that he or she would have otherwise been required to pay from the date of the child’s birth to the present if a valid child support order was in place. For example:

Child was born in 2000. Mother did not seek and obtain a valid child support order against Father until 2013. In 2013, Father is ordered to pay Mother $500 per month in child support. Father must pay this monthly amount going forward. He will not be required to pay Mother $500 per month for the 13 years that elapsed prior to the entry of the child support order (or $78,000).

Georgia law does not recognize the concept of back child support, but it does not totally abandon custodial parents who have incurred considerable expenses caring for their children without the aid of the non-custodial parents. Once a prospective child support order is entered, a Georgia court may order the non-custodial parent to reimburse the custodial parent for a portion of the expenses incurred on half of the minor child or children.

Although this is very uncommon, if the custodial parent can prove the actual expenses incurred on behalf of the minor child (these may include pre-natal and post-birth expenses), a court may order the non-custodial parent to reimburse a portion of these expenses. Weaver v. Chester, 195 Ga. App. 471 (1990); Coxwell v. Matthews, 263 Ga. 444 (Ga., 1993); Smith v. Carter, 305 Ga. App. 479 (2010).

 

Impact of 401(k) Loans on Equitable Division in Georgia Divorce

Tuesday, June 3rd, 2014

Georgia is an equitable distribution or equitable division state, not a community property state. This means that upon divorce a couple’s marital property is divided equitable or fairly between the parties. Marital property does not simply include marital assets, such as the marital house, cars and bank accounts, but marital property also includes marital debts, like credit card debt and home loans.  With that being said, determining how to divide an account that may be simultaneously seen as both an asset and a debt may be extremely difficult.

When it comes to dividing 401(k) or other qualified retirement accounts that have outstanding loans against them, many parties are tempted to simply ignore the loan and proceed to divide or retain the retirement account as if there was no outstanding debt associated with it. This is a mistake. Failing to understand the impact of 401(k) loans on equitable division may result in both parties, especially the employee-spouse, suffering unintended financial hardship due to this mistake. For example:

Wife and Husband seek a divorce. The assets the couple must divide include a 401(k) held in Wife’s name. Wife has contributed $50,000 to the retirement account, but there is currently a $20,000 loan against the account. In the divorce, Husband and Wife agree to equally divide the retirement account. Upon their divorce, they have a QDRO prepared that reflects this agreement. The loan is not accounted for. Husband receives his $25,000 portion. However, Wife is only left with $5,000. Since the outstanding loan was not addressed, Wife is only left with the value of the retirement account, minus the loan. Additionally, she must ensure the loan is repaid to avoid penalties.

Although many couples intentionally choose to have one spouse bear the entire burden of a 401(k) loan, this is not the only option. In fact, there are several ways a property settlement could be structured to ensure both parties bear some responsibility for the outstanding loan, especially if the loan was used for the benefit of both spouses.

Using the above example, if the property agreement and QDRO addressed the loan, Husband’s portion could have been reduced by $10,000, making him accountable for half of the outstanding loan, instead of leaving Wife to bear the entire burden of the loan herself. Because there are some many intricacies associated with Georgia divorce and equitable division, it is absolutely necessary to engage the services of an experienced Atlanta divorce team who understand the complexities of Georgia property division and who have the financial know how to ensure a fair property division in divorce.

 

How Child Support Is Calculated In Georgia

Tuesday, May 20th, 2014

Child support in Georgia is calculated using the income shares model, which was adopted by the Georgia legislature in 2007. Prior to January 1, 2007, Georgia calculated child support based on the income of the non-custodial parent solely. Now that Georgia follows the income shares model, child support is calculated by taking into account each parent’s income to ultimately determine how much child support the noncustodial parent will be ordered to pay.

The first step in calculating child support in Georgia is to determine each parent’s presumptive child support obligation. In doing so, the gross income of each parent must be determined. For the purposes of child support calculation, gross income includes  salary, wages, commissions, self-employment income, bonuses, overtime pay, severance pay, pension and retirement income, interest income, dividend income, trust income, capital gains, Social Security disability payments, worker’s compensation benefits, unemployment benefits, judgments from personal injury claims or other civil cases, gifts, prizes, and any other sources of income.

Once each parent’s gross income is determined, both parent’s monthly income is added together to determine the combined monthly income earned by both parents. Georgia’s basic obligation table must then be consulted to determine the combined basic support obligation. The basic obligation table is a chart that corresponds basic child support obligations with combined monthly incomes. After consulting the basic obligation table and determine the combined basic child support obligation, that amount must be divided proportionally between the parents, depending on the percentage of each parent’s contribution to the combined income amount. For example:

Father makes $2,500 per month. Mother earns $7,500 per month. Father is the custodial parent. The couple’s combined monthly income is $10,000. According to the basic obligation table, the couple’s combined monthly child support obligation is $1,259.00 for one child. Because Mother makes 75% of the combined gross income and she is the non-custodial parent, she is obligated to pay to Father 75% of the combined child support obligation or $944.25.

After the basic child support obligation is determined for each parent, there are adjustments and deviations that may be made to the presumptive child support amount to account for certain special situations or other payments a parent is making on behalf of the minor child or children who will benefit from the child support obligation. For the convenience of both practitioners and litigants, the Georgia Child Support Commission offers a free child support calculator, commonly referred to as Georgia’s Child Support Worksheet, which will automatically calculate the non-custodial parent’s child support obligation once each parent’s gross income is imputed. This online calculator may be found at the Georgia Child Support Commission’s website.

It is important to only use the Georgia child support calculator when determining the presumptive child support amount or calculating the final child support amount in a Georgia divorce or family law matter. In fact, the Georgia Child Support Commission has a warning on its website concerning the use of unauthorized child support calculators commonly available on the internet:

“It has come to our attention that several websites are hosting “calculators” to estimate Georgia child support. Please be cautious if using these calculators. In a simple test, one calculator’s monthly support was off by $100, and another was off by $990!

We do wish to thank those whose web sites provide accurate information about Georgia child support and provide a link to the official calculators.”

– The Staff of the Georgia Child Support Commission

 

The Upside of Income Deduction Orders

Monday, May 12th, 2014

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In Georgia, income deduction orders, more commonly referred to as IDOs, are court order that require employers to withhold child support payments from the wages of the parent obligated to pay child support. Similar to several other states, all child support orders issued in Georgia after January 1, 1994 must order the immediate withholding of child support from the earnings of the obligated parent, unless the court finds or the parties agree that an IDO is not necessary in a particular case. See O.C.G.A. § 19-6-32.

Although the intent behind Georgia’s policy regarding income deduction orders is to speedy and efficient payment of child support, many non-custodial parents obligated to pay child support firmly income deduction orders because of the negative stereotype often associated with having child support payments directly withheld or garnished from wages.  Obligated parents should be aware however that despite the negative stereotype associated with IDOs, there are several upsides to having an IDO in place for the purpose of paying child support. For example, because income deduction orders require child support payments to be automatically withheld from the non-custodial parent’s paycheck by that parent’s employer:

  • Unnecessary contact between the non-custodial and custodial parents is eliminated

  • There is no concern that the payment will be forgotten or arrive late

  • There is no need for the non-custodial parent to manually deliver payments to the custodial parent via the mail or in-person

  • Both parties have a complete and accurate record of payments made maintained by an impartial third party source

  • The non-custodial parent has peace of mind knowing that his or her payments will be received by the custodial parent on time and in accordance with the court’s order

These are only a few examples of the advantages income deduction orders may have from a non-custodial parent’s point of view.