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Thirteen Reasons to Divorce in Georgia: Part 12

Sunday, March 29th, 2015

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Continuing our blog series Georgia’s thirteen statutory grounds for divorce according to O.C.G.A. § 19-5-3, here is ground number twelve.

Reason #12: Your spouse is addicted to drugs.

As discussed in the ninth installment of our series discussing the 13 reasons to divorce in Georgia, alcohol and substance abuse on the part of one spouse has the potential to seriously damage a marriage, and may have a disastrous impact on a family. As a result, not only is the habitual intoxication of one spouse a reason to seek divorce in Georgia, but the drug addiction of one spouse is also a reason to seek divorce in Georgia.

According to Georgia law, the “habitual drug addiction” of a spouse is a grounds for total divorce in Georgia. O.C.G.A. § 19-5-3(12). Specifically, a party seeking to obtain a divorce based on this twelfth grounds for divorce must show the other spouses’ addiction to one or more of the following controlled substances: narcotic drugs, marijuana, or stimulant drugs, depressant drugs, or hallucinogenic drugs. O.C.G.A. § 19-5-3(12); O.C.G.A. § 16-13-2(a). Similar to the ninth reason to seek divorce in Georgia, the statutory law allowing for divorce based on “habitual drug addiction” does not specify what rate of use qualifies as “habitual drug addiction.” However, Georgia case law addressing the application of O.C.G.A. § 19-5-3(9) (allowing for divorce based on habitual intoxication) may be consulted along with the plain meaning of the words “habitual” and “addiction” to conclude that a party seeking a divorce based on this basis must show a pattern of drug use by the other spouse to prevail.

 

Thirteen Reasons to Divorce in Georgia: Part 11

Saturday, March 28th, 2015

Continuing our blog series Georgia’s thirteen statutory grounds for divorce according to O.C.G.A. § 19-5-3, here is ground number eleven.

Reason #11: Your spouse has an incurable mental illness.

Unlike some of the other reasons to seek divorce in Georgia discussed in this series, this eleventh reason to seek divorce in Georgia is relatively straightforward and well defined by Georgia statutory law. Specifically, if your spouse suffers from an incurable mental illness, you may seek a divorce in Georgia according to O.C.G.A. § 19-5-3 (11). This section of Georgia law states:

“Incurable mental illness. No divorce shall be granted upon this ground unless the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party; and he has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and the superintendent or other chief executive officer of the institution and one competent physician appointed by the court, after a thorough examination, make a certified statement under oath that it is their opinion that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party’s mental health cannot be expected at any time during his life. Notice of the action must be served upon the guardian of the person of the mentally ill person and upon the superintendent or other chief executive officer of the institution in which the person is confined. In the event that there is no guardian of the person, then notice of the action shall be served upon a guardian ad litem, who shall be appointed by the court in which the divorce action is filed, and upon the superintendent or chief executive officer of the institution in which the person is confined. The guardian and superintendent shall be entitled to appear and be heard upon the issues. The status of the parties as to the support and maintenance of the mentally ill person shall not be altered in any way by the granting of the divorce.”

O.C.G.A. § 19-5-3 (11).

As alluded to in the statutory law cited above, the rationale behind this reason for divorce is that a spouse suffering from an incurable mental illness is not able to fully appreciate the nature of the marital relationship or the rights and responsibilities that come along with that relationship.  Thus, if your spouse suffers from an incurable mental illness, and you believe divorce may be the most appropriate plan of action, speak with an Atlanta Divorce Attorney to determine if the law allows for a divorce based on this grounds in your case.

Atlanta Reality Star Faces Federal Charges for not Paying Child Support

Thursday, March 26th, 2015

As discussed in our prior post concerning the consequence for failure to pay child support in Georgia, failing to pay court ordered child support is literally a criminal offense in certain instances. Not only is failure to pay child support a criminal offense according to Georgia law, but failure to pay child support may also be punishable as a federal criminal offense under certain circumstances.

An example of the use of federal criminal charges in response to the failure to pay child support is the case of reality star Steven Jordan, otherwise known as Stevie J. Stevie J, known for his role on VH1’s reality show Love & Hip Hop: Atlanta and for his work in the entertainment industry as a musical producer, owes over $1 million in child support according to the criminal complaint filed by the US Attorney’s Office. The criminal levied against the reality start is that he failed to pay over $10,000 in child support over a two year period. The alleged criminal activity amounts to a federal case because Stevie J, who resides in Georgia, failed to pay child support for his children who live in another state.  His children live with their mother in New York. Specifically, according to a press release issued by the US Attorney’s Office, US Attorneys allege that Stevie J has failed to pay over $1 million in child support over the last ten years, despite earning around $27,000 a month in his current role on the reality series.

Stevie J was arraigned in New York Federal Court in early February, and entered a plea of not guilty. Although it will likely be several months before this case is resolved, if Stevie J is convicted, he could face up to two years in prison.

Thirteen Reasons to Divorce in Georgia: Part 10

Tuesday, March 24th, 2015

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Continuing our blog series Georgia’s thirteen statutory grounds for divorce according to O.C.G.A. § 19-5-3, here is ground number ten.

Reason #10: Your spouse is physically or mentally abusive.

Abuse is never acceptable during a relationship, whether it be a marital relationship, or any other type of romantic relationship. Abuse is not only unacceptable when it is physical abuse, but all forms of abuse, including mental and emotional abuse are similarly intolerable. With this being said, one spouse’s physical or mental abuse is the tenth reason to seek divorce in Georgia. Specifically, in Georgia, one party may seek a divorce based on cruel treatment suffered at the hands of the other spouse. O.C.G.A. § 19-5-3(10).

Georgia law defines cruel treatment as consisting of “the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health.” O.C.G.A. § 19-5-3(10). As the definition suggests, it is not necessary for a spouse seeking a divorce on this grounds to show actual physical violence or abuse on the part of the offending spouse, but a divorce may be granted due to the mental or emotional abuse. Slaughter v. Slaughter, 190 Ga. 229, 232 (1940). In fact, Georgia case law suggests that a divorce may be granted due to one spouse’s infliction of mental anguish on the other spouse. Womble v. Womble, 214 Ga. 438 (1958); Ross v. Ross, 169 Ga. 529 (1929). However, to successfully prove that a divorce should be granted on this grounds, a petitioning spouse must show that the offending spouse intended to cause the mental or physical injury. Connor v. Connor, 212 Ga. 92, 94 (1955).

Thirteen Reasons to Divorce in Georgia: Part 9

Sunday, March 22nd, 2015

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Continuing our blog series Georgia’s thirteen statutory grounds for divorce according to O.C.G.A. § 19-5-3, here is ground number nine.

Reason #9: Your spouse is a drunk.

 Alcohol and substance abuse has the potential to cause many problems in the lives of individuals facing such addictions, such as physical, emotional, and legal difficulties. Not only do those living with such addictions suffer the potential consequences, but their families must also contend with any negative effects. Additionally, it is not uncommon for alcohol and substance abuse on the part of one spouse to result in marital issues stemming from the addiction, like financial strain, abandonment or infidelity.

Due to the damaging impact alcohol abuse may have on a marriage, the “habitual intoxication” of one spouse is the ninth reason to seek a Georgia divorce. O.C.G.A. § 19-5-3(9). Although the statutory law allowing for divorce based on this ground does not specifically define “habitual intoxication,” Georgia case law gives guidance on what a spouse seeking a divorce on this basis must show to prevail. To obtain a divorce due to the other spouse’s “habitual intoxication,” it is not necessary for the petitioning spouse to prove his or her spouse was continuously and constantly drunk during the marriage. Fuller v. Fuller, 108 Ga. 256 (1899). However, a petitioning spouse may not simply show that the other spouse was drunk or under the influence of alcohol once during the marriage. Stimpson v. Stimpson, 213 Ga. 235 (1957). To prevail in a divorce action based on the other spouse’s “habitual intoxication,” the spouse seeking divorce must essentially establish a pattern of drunkenness.

 

I Filed For Divorce, But I Changed My Mind – Now What?

Saturday, March 21st, 2015

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Some people file for divorce after months or years of counseling and trying hard to make the marriage work. Others file for divorce with no attempt to save the marriage. In either category, there are some people who file for divorce and later change their mind. Such is the case with Pamela Anderson and Rick Salomon. Pamela Anderson Files for Divorce from Rick Salomon Again, by Michele Corriston, people.com, February 12, 2015. Anderson and Salomon married in 2007, and had the marriage annulled two months later. They then married again in early 2014. Anderson filed for divorce a few months later, but then dismissed her petition in August 2014. Now, six months later, Anderson has filed for divorce from Salomon again. Going back and forth this many times may not be common, but it does happen. So, what do you need to do if you have filed for divorce, but want to give your marriage another chance?

The first and most important thing you need to do is to make sure you and your spouse are on the same page about the dismissal. This may seem like common sense, but often spouses do not see eye to eye on this. A spouse may be willing to try marriage counseling, but wants to keep the divorce case going just in case. If you have changed your mind, but he hasn’t, then there is no need to dismiss the case, as he will likely file a petition for divorce a short time later.

If you are on the same page about dismissal, you will need to file a Motion to Dismiss your divorce petition. The petition should be filed without prejudice, which means you are free to file it again at any time. If your spouse has filed any counterclaims, those must be dismissed as well. Often, a respondent in a divorce case files and Answer and Counterclaim to the Petition for Divorce. This means that there is also a claim for divorce against the petitioner/filing party. If this is not dismissed, the divorce case will continue on those claims. Once the divorce petition and any counterclaims have been dismissed, the case will be removed from the court’s docket and you will not longer have to worry about it.

It should be noted that, if you dismiss your divorce case and then later decide to file again, you have to start all over. Thus, you will again have to file a Petition for Divorce and have your spouse served with all of the required documents. It will be a completely new case with a new case number, so you will have to modify anything filed in the previous case.

Child Support Conflict – There’s An App For That

Tuesday, March 17th, 2015

When you go through a divorce with children, your final decree will include the exact amount of child support the non-custodial parent must pay to the custodial parent each month. In Georgia, there is a child support worksheet into which parties can plug relevant information (i.e. income, health insurance, daycare/school expenses) to come up with the appropriate amount of child support. O.C.G.A. § 19-6-15. The worksheet takes into account known expenses for the children, but anyone who has children knows that unanticipated expenses come up all the time. These can include everything from unexpected medical expenses to extracurricular activities. If the custodial parent wants to be reimbursed for these expenses, he/she will have to work out payment with his/her ex, or involve attorneys to get payment, if the parties do not communicate well. Even for parents who get along and co-parent very well, the constant asking for money on top of child support may foster resentment between the parties, especially if the parent being asked for money does not know exactly where the money is going. Constantly asking for money for “soccer” may not sit well and may make visitation exchanges uncomfortable.

Fortunately, there are now websites and apps that can help parents in this situation. One app, called Our Family Wizard, allows a parent to put in an expense and attach a receipt. A notification then goes out to the other parent, much like a bill that needs to be paid. This takes the parent-to-parent communication out of the equation. If both parties join (it is $99/year per parent), they can even link their accounts and pay the bill by transferring money from one parent’s account to the other. As an additional benefit, the app allows member parents to use a shared calendar, which can likely help ensure everyone is on the same page about visitation times, vacations, etc.

There are several other websites/apps that provide a similar service: 2houses.com, thedivorcelog.com. Another option is using a shared Google doc. All of these options ensure there is transparency about expenses for the children and could work for both custody and child support. While some parents may not want to give up the personal communication about their children’s financial needs, others may want to give up the stress that comes along with it. Figure out what works best for you, but don’t be afraid to utilize some of these programs if they could have a positive impact on your co-parenting.

 

Are Stock Options Marital Property?

Saturday, March 14th, 2015

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The short answer to the question posed above is: it depends. Depending on why the options were granted and when the options a exercisable by the employee spouse, stock options may indeed be deemed marital property subject to equitable division in Georgia.

Generally, stock options may be defined as a right given to an individual, such as an employee, by a corporation to purchase a set number of shares of that corporation’s stock during a specific time frame and at a fixed price. If an employee is granted stock options, that employee is not required to exercise the option to purchase the stock, but that employee has the freedom to choose whether to exercise the option. Primarily, there are three reasons why a corporation would grant stock options to an employee:

  1. To provide an incentive for the employee to remain with the company. An option granted for this purpose would represent compensation for future services;
  2. To attract new employees. If stock options are granted for this purpose, the employee is then usually paid below the going rate in return for a part of company’s future growth. Options granted in a circumstance such as this would generally represent deferred compensation for services rendered in the present.
  3. To give current employees a bonus or reward for good work in the past. If stock options are granted for this purpose, they would represent compensation for past services.

In equitable division states such as Georgia, stock options that are exercisable up to and upon the date the marriage ends may be viewed as marital property. Stock options that are not exercisable up to and upon the date the marriage ends are generally treated as separate property, and thus not subject to property division upon divorce. Put another way, stock options granted for past and present services may, depending on the specific circumstances of the case, be deemed marital property subject to property division upon divorce. On the other hand, options granted as an incentive for or compensation for future services are more likely to be deemed separate property upon divorce.

Because the classification of stock options, as marital or separate property, depends on the specific facts and circumstances of each case. Additionally, there is a complex calculation necessary to determine how stock options should be divided upon divorce should they be deemed marital property. With that said, it is important to seek the guidance of an Atlanta divorce attorney with the knowledge and skill necessary to ensure you are awardee a fair property settlement if you are seeking divorce.

I Can’t Find My Spouse to Finalize My Divorce

Wednesday, March 11th, 2015

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As we mention in many of these blogs, going through a divorce is incredibly difficult. It is made even more difficult if you have an uncooperative spouse who refuses to respond to court pleadings and/or work with you to settle the issues in your divorce. An example of this issue is the very public divorce of Khloe Kardashian and Lamar Odom. Kardashian filed for divorce over a year ago, but she has been unable to get in touch with him to finalize everything. Khloe Kardashian still can’t reach Lamar to finalize divorce, by Derrick Bryson Taylor, pagesix.com, December 29, 2014. According to the article, “He’s living with some guy she doesn’t know. He uses prepaid phones and constantly switches numbers.” Clearly, Odom is avoiding the situation, whether just to make it difficult for Kardashian or because it doesn’t want to the marriage to end. Either way, what can Kardashian do to get the divorce finalized despite Odom’s uncooperativeness?

 Presumably, since the divorce was filed over a year ago, Odom has already been served with the Petition for Divorce and the case has been progressing with discovery, etc. As such, all that likely remains is to finalize all outstanding issues, including division of marital assets and alimony, and obtain a final divorce decree. It appears from the article that Kardashian wants to get in touch with Odom so that they can come to an agreement on all outstanding issues and settle the case. While this is very admirable of her, it does not look like that will be successful, as Lamar has virtually disappeared. Khloe’s best option at this point would be to ask the Judge to schedule a final hearing. Hopefully, Odom will appear for the hearing. However, if he does not, assuming that he did receive notice, the Judge will only be able to hear Kardashian’s side of the case and will likely give her everything she requests in the divorce.

 If you find yourself in a situation such as this, don’t be afraid to ask your Judge for a final hearing. It is quite possible that a hearing being placed on the calendar will scare your spouse and make him/her come to the table to negotiate. If he reappears at the courthouse on the date of the hearing, most Judges will allow you time to attempt to settle the case before the hearing, if both parties want to. In the worst-case scenario, if your spouse doesn’t even show up for the hearing, you will at the very least have the final divorce decree at the conclusion of the hearing. Call Meriwether & Tharp now for a free consultation with one of our experienced attorneys in Atlanta, Alpharetta, Woodstock, Canton, Duluth or Decatur.

 

Is Child Support Dischargeable in Bankruptcy?

Saturday, March 7th, 2015

As Atlanta Divorce attorneys, it is our experience that divorce and bankruptcy are often interrelated. As a result, we are commonly asked whether child support and other financial obligations incurred in divorce, such as alimony, are dischargeable in bankruptcy. The short answer to this question is no. According to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), domestic support obligations, such as child support and alimony, are not dischargeable in bankruptcy. Thus, if a former spouse obligated to pay child support or alimony files for bankruptcy protection, he or she will still owe the child support or alimony once the bankruptcy has concluded.

With this in mind, if you are seeking divorce, and you and/or your spouse are also considering bankruptcy, it is essential to discuss this issue with your divorce attorney. Additionally, it is also advisable to retain a divorce attorney who is well versed on how bankruptcy impacts the divorce process.