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The 4 Georgia Divorce Issues – What are they and do they apply to you?

Saturday, July 25th, 2015

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In every Georgia divorce, there are four issues that must be resolved either by settlement agreement or court Order: equitable division, child custody, child support, and alimony. While there may be other “issues” that muddy up the resolution of the case, everything will fall under one of these main categories. The following is a brief overview of each of these issues and to whom they will apply:

  1. Equitable division (division of marital assets) – In Georgia, division of marital assets is equitable, not necessarily equal. This means that there will not automatically be a 50/50 split of everything. Rather, the court will look at the circumstances of the case and divide everything while taking those circumstances into consideration. Each party will keep their own separate property (anything with which they came into the marriage) and everything else – from the marital home to cars to furniture – will be divided in an equitable way according to the particular circumstances of the case. The issue of equitable division is one that must be addressed in every divorce case, even if just to say that the parties acknowledge that all assets are separate property and there are no marital assets to divide.
  2. Child custody – There are two aspects of child custody – legal custody and physical custody. Legal custody has to do with decision making over the child(ren), while physical custody has to do with where the child(ren) will live and when they will see each parent. In Georgia, divorcing parents have to file a Parenting Plan outlining exactly how custody will be handled. Obviously, if a couple has no children together, this issue will not apply in their divorce case.
  3. Child support – In Georgia, child support is based upon each parent’s income and then adjusted for other child related expenses such as health care and work related childcare costs. These amounts are put into a child support calculator to determine the presumptive amount of child support. The court can deviate from this presumptive amount for extraordinary situations such as high/low income, visitation related travel expenses, life insurance and parenting time. See O.C.G.A. § 19-6-15. Again, if a couple has no children together, this issue will not apply.
  4. Alimony – Alimony is payment made from one spouse to the other for his/her support. Unlike child support, there is no calculator for alimony. Rather, the amount of alimony is based upon the needs of one party and the ability of the other party to pay. Many factors are considered in determining whether alimony should be awarded and its amount including how long the parties were married, the financial circumstances of the parties, and the standard of living established during the marriage. See O.C.G.A. § 19-6-5. This issue often applies in long marriages where one party has a substantially higher income and assets than the other.

Can You Relocate After Your Divorce?

Thursday, July 23rd, 2015

After a divorce is finalized, most people want to live their lives completely free of their ex-spouse. If you and your ex had no kids together, this is often possible. However, when there are kids involved, you have to consider your ex before making any major life decisions – at least until the kids are 18 and no longer subject to any custody or child support order. One question often asked of family law attorneys is whether one parent can relocate to a different city with the children. The answer to this question is not black and white. Each family is different with unique facts to consider.

In considering a move, the first thing you should do is to consult your final divorce decree or settlement agreement. Often, these agreements have clauses requiring notice to the other parent of any intent to change residence, as well as requiring the parent desiring to move to give complete, updated contact information. The purpose of requiring notice is two-fold. First, it is just common courtesy to inform a child’s parent of where that child will be living so the two of you can hopefully work out a modified visitation schedule, if necessary. Second, it gives the other parent the opportunity to object to the move. This is more common when one parent is attempting to move with the child out of the city and away from the other parent.

The most important thing to consider in planning a move with you children to another city is whether that move is in the children’s best interests. If a move will take children away from their school, friends, and family, this may not be in their best interests. However, if you are moving for a job opportunity that could be great for the whole family, this may trump the fact that your children will have to adjust to a new place.

Whatever the reason for the desire to move, you must consider the children and the impact it will have on their lives. If they are old enough, talk to them about it. As difficult as it may be for you, be open to any wishes they have to remain in the same city with the other parent. The court will consider this anyway if the move becomes a litigated matter. Also talk to your ex to work out a custody and visitation arrangement that will make practical sense after the move. If your children know what to expect and when they will see the other parent, the move will become a bit easier for them.

One set of twins – two fathers?

Monday, June 29th, 2015

In a very unusual family law case, a New Jersey woman just found out that her two-year-old twins have two different fathers. New jersey judge rules twins have different fathers, by Haimy Assefa, cnn.com, May 8, 2015. The mother had filed a paternity action against the man she believed fathered both children and a DNA test proved he was only the father of one of the children. Apparently, the mother had sexual intercourse with two men within the same week and, while this medical phenomenon is extremely rare, it is not impossible. As a result of the paternity case, the mother now receives child support for one of her twins, but will have to file a paternity/child support action against the other father (assuming she knows who it is) in order to receive any child support for her other child.

This case brings up some interesting family law issues. Though they are twins, these two children will be treated in the eyes of the law as regular siblings. Everything from child support to custody will be treated separately as there are two different fathers to contend with. Once the paternity of the second father is established, the child support cases will remain separate.

Custody may be considered together, however. The children have been raised together their entire lives and it would likely not be in their best interests to split them up. As such, if either father wants custodial/visitation rights, the court would likely consider the relationship between the twins and make sure any visitation allowed them to be at their mother’s together. For example, if the fathers each had visitation every other weekend, the court would likely order the visitation to be on the same weekend, so that the children could spend as much time together. Thus, while this case certainly presents some interesting issues, the court will still look at the best interests of the children in making any determinations regarding custody and visitation.

Divorce Myth – All Marital Property Will Be Divided In Half

Tuesday, June 9th, 2015

When a family law attorney meets with a prospective client for the first time, that attorney often has to spend time dispelling some divorce myths in order to give the prospective client a better idea of what to expect throughout the divorce process. One widely believed divorce myth is that all marital property will be divided in half. This statement is misleading for several reasons.

First, taking this statement literally does not make practical sense. The court will not make a list of each item of marital property and give 50% ownership to each spouse. There are numerous types of marital property including, but not limited to, the marital home, bank accounts, cars, and retirement accounts. While dividing a bank account in half is not complicated, this solution does not work for other marital assets. Consider the case of the marital home. It would make no sense if the court awarded 50% ownership in the home to the wife and the other 50% to the husband. Who would live in the house? What if one spouse wants to sell the house and the other does not? Rather, instead of splitting each marital asset in half and bringing up a whole other set of potential issues, the court will look at the sum of all marital property and figure out a way to divide that sum in a way that makes practical sense. Maybe the husband is not interested in keeping the martial home. In that case, the court can put the home in the wife’s “column” and give other assets to the husband to balance it out.

Further, this statement is misleading because, in Georgia and many other states, marital property is divided equitably, which does not necessarily mean equally. This means that the court will look at all relevant facts in the case to help determine how the marital assets should be divided. For example, if one party committed adultery and spent marital funds on his/her paramour, the court may give a larger amount of the marital estate to the other spouse to balance out this inequity.

When meeting with a divorce attorney for the first time, it is important to get any myths you have heard out on the table. Don’t be embarrassed if you have believed something that is not true – it certainly won’t be the first time that attorney has heard it. It is better to have any myths dispelled at the beginning of your case than to hold onto to something you believe to be true, only to find out too late that it is not.

Should I Seek Joint Custody or Primary Custody?

Tuesday, June 2nd, 2015

Should you split child custody 50/50 with your ex-spouse, or should you seek primary physical custody? This is a question that every parent considers at some point during the Georgia divorce process.

Although many believe it is best for children when one parent have primary physical custody, because it allows children to have one stable primary home, and it obviates any stress children may endure by having to constantly move around between two households. However, a recent study published in the Journal of Epidemiology & Community Health suggests that children fare better when they spend time living with both parents. Even though this study goes against the beliefs of many concerning the best interest of children post-divorce, this Georgia law has supported this conclusion for decades. As recited in Georgia statutory law:

It is the express policy of this state to encourage that a child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their child after such parents have separated or dissolved their marriage or relationship.”

O.C.G.A. § 19-9-3(d).

With this recently published study, as well as Georgia law in mind, if you are considering divorce or if you are currently going through a divorce or child custody matter and are wondering which child custody arrangement would be best for you and your children, it is important to consider all options, and to seek the guidance of an honest and experienced Alpharetta family law professional.

Is Jail an Appropriate Remedy for Failure to Pay Child Support?

Tuesday, May 19th, 2015

In Georgia, as well as in several other states, one way a state can enforce a court’s directing a non-custodial parent to pay child support is to incarcerate that non-custodial parent for failure to pay. In fact, not only can states and courts enforce child support order by jailing the offending non-custodial parent, but the Federal government may also levy criminal charges against a non-custodial parent who fails to pay child support.

Although incarceration is an available remedy for the failure of a non-custodial parent to pay child support, is it appropriate, and is it effective? In a recent article published by the The New York Times, many argue that although the “threat of jail [is] considered an effective incentive for people who are able but unwilling to pay,” sending non-custodial parents who are simply unable to pay to jail defeats the purpose.

Those who adopt this argument often rely on the fact that a non-custodial parent cannot pay child support while incarcerated and may lose his or her job as a result of that incarceration. Thus, this remedy is self-defeating. Those who advance this argument also contend that the reason many non-custodial parents find themselves in a situation where they are unable to pay child support is because the original child support orders obligated them to pay more than they were financial able to pay in the first place.

Although these arguments are sound, and may be applicable in some situations, there are many situations where a non-custodial parent, despite his or her ability to pay, simply refuses to do so. If that parent takes active measures to avoid paying child support, the question then is what should the court or the state do to ensure the best interest of the children effected are served. Although it may seem unsavory, the threat of jail is often a very effective tool to ensure that some non-custodial parents comply with their child support obligation.

Please note thought that if you are a non-custodial parent whose circumstances have changed, leaving you unable to pay child support as ordered by the court, there are steps you can take to reduce your child support obligation. One of those steps is seeking a downward modification of child support. For more information on who is eligible for such modifications and how to go about obtaining one, see our articles on child support and child support modification.

Divorce By Facebook?

Wednesday, May 6th, 2015

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Once a divorce Petitioner files all of the documents and pleadings required to initiate a divorce case in the court system, the next thing that must happen is that the Respondent (the Petitioner’s spouse) must be personally served with these documents. Personal service means that a sheriff, marshal, certified process server, or other person appointed by the court must personally deliver these documents directly to the Respondent. O.C.G.A. § 9-11-4. The purpose of the strict rules governing service of process is to ensure that the Respondent receives proper notice of the proceedings so that he/she has sufficient opportunity to respond and defend him/herself. In some divorce cases, the Respondent will agree to sign an Acknowledgment of Service, which is a document signed under oath attesting that he/she did, in fact, receive all of the required divorce documents. In other cases, however, the Respondent makes service of process as difficult as possible on the Petitioner, causing the Petitioner to look to other avenues to perfect service.

A recent example of this can be found in a divorce case out of New York, where a court recently found that Facebook is an acceptable way for a wife to serve her husband with the divorce papers. Divorce By Facebook: New York woman can file online, by Stephanie Gallman, cnn.com, April 6, 2015. In that case, the wife had been attempting to serve her husband for years, but she and her attorney haven’t been able to physically find him. She did speak to him by phone and was told, “he has no fixed address and no place of employment,” and further refused to cooperate with service. The wife’s attorney filed a motion for “service by alternate means,” asking for the ability to serve the husband via Facebook. After the wife sufficiently proved that the account belonged to her husband and that he consistently logged on to the account such that he would see the summons, the Judge granted the motion and allowed service by Facebook.

While this appears to start a slippery slope of alternate means of service, it is important to note a few facts in this case that likely had an impact on the Judge’s decision. First, the parties separated shortly after they were married and never lived together. Second, the parties had no children together. Third, the wife was not asking for any money or property from the husband – all she wanted was a divorce. The fact that there were not real issues over which to argue (i.e. child custody, child support, alimony, property division) may have made the Judge be a little more lenient that he otherwise would have been.

However, the Judge did say “the advent and ascendency of social media” make sites like Facebook the “next frontier” as “forums through which a summons can be delivered.” Those are pretty strong words and it will be interesting to see how this could trickle down to other courts in New York and around the country.

 

 

Ten Questions to ask before seeking Alimony

Saturday, May 2nd, 2015

Aside from child support, alimony is often one of the most hotly contested issues of divorce. In most cases however, the arguments basically boil down to how much the recipient spouse needs as support versus how much the obligated spouse is able to pay. Generally, the obligated spouse either argues that he or she doesn’t have sufficient financial resources to pay alimony or that the recipient spouse does not need spousal support due to that spouse’s independent resources of earning ability. Because the battle regarding alimony often revolves around the financial needs and resources of the respective parties, if you plan to seek alimony during your divorce process, it is important for you to consider the following questions. After considering the questions below the next essential step is to consult with a team of Atlanta Divorce Attorneys with experience negotiating alimony settlement and winning alimony awards at trial.

  1. How Much Money Do You Need To Live On Every Month? It is essential to make a budget and be able to accurately articulate how much financial support you will need going forward in order to successfully seek an award of alimony.
  1. Will you be Living With Someone or Getting Remarried Within the Next Few Years? If so, please note that in Georgia, alimony generally terminates upon the remarriage or cohabitation of the recipient spouse.
  1. How Much Can Your Spouse Realistically Afford to Pay You? If your spouse makes $5,000 per month, she cannot realistically afford to pay $4,500 per month in alimony.
  1. How Secure is Your Job, and how secure is your spouse’s job? Both questions relate to your spouse’s ability to pay going forward, and your potential financial need.
  1. How Will Alimony Affect Your Income Taxes? Alimony is treated as taxable income to the recipient. This is one aspect that many individuals going through the divorce process do not realize. Before entering into any agreement concerning alimony, be sure to consult an accountant or financial adviser regarding the tax implications.
  1. Will Your Alimony Award be For a Fixed Period of Time, or Will It Be Reviewable? In Georgia, it is not uncommon for couples to enter into agreement concerning alimony where both parties agree not to seek an upward or downward modification of alimony. It is important to consider this option, and whether such an agreement is the option for your circumstances.
  1. How are You Going to Secure Alimony? What if your former spouse dies before his or her alimony obligation is exhausted? Because it is highly unlikely that your ex-spouse will set aside money in his or her estate plan to satisfy alimony willingly, be sure to include a provision in any settlement agreement requiring your ex-spouse to maintain life insurance, naming you as a beneficiary and sufficient to cover the alimony obligation, while they are obligated to pay alimony.

No Fault Divorce in Georgia: The Pros and Cons

Saturday, April 25th, 2015

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In Georgia, there are thirteen grounds for divorce. The thirteenth reason a couple may seek divorce in Georgia is that their marriage is “irretrievably broken.” What this means, basically, is that the couple is no longer able to continue in a marital relationship, and there is no hope the couple will reconcile. This thirteenth ground is Georgia’s “no-fault” ground for divorce. This means that if a couple seeks a divorce on this basis, neither party has to allege any wrongdoing on the part of the other spouse, but must simply show the court the marriage is broken beyond repair.

Many argue that because no fault must be alleged, no fault divorce allows for individuals to seek divorce too readily. Alternatively, others argue that no fault divorce allows for the expedient resolution of divorce matters, which is in the best interest of all involved, including any minor children. Below are some pros and cons of no fault divorce that any person seeking a divorce on this basis should consider before beginning the divorce process.

The Upside of No-Fault Divorce.

  • No-fault divorce allows for a shorter and more concise divorce process. This benefits parties because a shorter process means (hopefully) less contention between the parties, and less attorney’s fees and other related court costs parties will accrue.
  • There is no incentive for either party to fabricate, manufacture, or search for wrongdoing on the part of either spouse.
  • No-fault divorce allows for a more streamlined process, which saves judicial economy. What this means practically for litigants is that divorce cases do not have to linger on a court docket for years awaiting trial or evidentiary hearing.
  • Even if adultery the reason, or one of the reasons for the separation, both parties may maintain their privacy by seeking a no-fault divorce, instead of disclosing details of affair in open court.

The Downside of No-Fault Divorce.

  • Sometimes, advising the court of a party’s misbehavior can help the court come to the best conclusion regarding child custody and financial support obligations. If a no-fault divorce is sought, this information may not be brought to the court’s attention.
  • Allowing one or both parties to “have their day in court,” or inform the court of the circumstances surrounding their separation.
  • There is also an argument that no-fault divorce undermines the institution of marriage, because, it is believed by some, that no-fault divorces are too simple to obtain.

What is a Forensic Accountant, and do I Need One?

Sunday, April 19th, 2015

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What is a Forensic Accountant?

A forensic accountant is an accountant who analyzes the bank accounts, financial records, assets, liabilities and spending habits of one or both spouses. This analysis may be undertaken for several reasons, like to determine if one spouse is hiding assets, or to determine a spouse’s true income or earning potential for the purposes of calculating child support or alimony. Once a forensic account makes findings regarding income and assets, he or she may also provide expert testimony at a final hearing or trial.

Should I hire Forensic Accountant for my Georgia divorce?

Are you concerned that your spouse is hiding assets or misappropriating marital funds? Do you believe your spouse’s income or earning potential is greater than what he or she claims of the Domestic Relations Financial Affidavit? Are you unsure how you will be able to prove you spouse’s income or assets for the purpose of equitable division, child support and alimony? If you answered one or all of these questions with a yes, then you should consider consulting a forensic accountant to assist with your divorce process. However, before you do so, it is essential that you seek the advice of an Atlanta divorce attorney first to determine if seeking the aid of a forensic accountant is indeed the best option to for your case.