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Paying Your Child’s Private School Tuition? This May Count as Child Support

Tuesday, November 24th, 2015

This summer, the Georgia Court of Appeals addressed a case involving the payment of a child’s private school tuition in lieu of paying child support directly to the child’s custodial parent. Although it is never advisable for a parents to ignore or unofficially modify a court’s child custody or child support order, the case of Jackson v. Sanders, A15A0127 (Ga. Ct. App. July 16, 2015), seems to suggest that payment of a child’s expenses may count as child support.

In Jackson, the couple divorced in 2001, when their son was less than a year old. As the non-custodial parent, Jackson (father) was ordered to pay Sanders (mother) $1,005 per month as child support for the benefit of their minor child. Jackson paid child support as ordered until 2012, when both parents agreed that instead of paying child support directly to Sanders, Jackson would pay an equivalent amount to N. J.’s new private school for Sanders’s half of the tuition. In Sept. 2012, Jackson filed a motion to modify child custody. In response, Sanders counterclaimed seeking over $14,000 in unpaid child support. Although Jackson responded to Sanders claim by showing he did indeed provide support to his son by making payments toward his private school tuition, the trial court nevertheless found that Jackson owed over $27,000 in unpaid child support.

Jackson appealed the trial court’s decision, and the Court of Appeals ultimately sided with Jackson holding:

The trial court was indeed correct that, “while parties may enter into an agreement concerning modification of child support, the agreement becomes an enforceable agreement only when made the order of the court.” Nevertheless, our Supreme Court has recognized that there are certain equitable exceptions to that general rule. And included among these “equitable exceptions are situations where the mother has consented to the father’s voluntary expenditures as an alternative to his child-support obligation, or where the father has been in substantial compliance with . . . the divorce decree, for example, where he has discontinued child support payments while he had the care and custody of the children and supported them at the mother’s request.

Here, Jackson and Sanders did not modify the amount of Jackson’s child-support obligation as set forth in the 2001 Judgment. Instead, they merely agreed that Jackson would pay an equivalent amount for Sanders’s half of N. J.’s private-school tuition as an alternative to paying her directly. And our Supreme Court has held that such an agreement was valid under nearly identical circumstances. Thus, the trial court erred in ordering Jackson to pay $27,135 in past due child support, and we reverse its judgment in this respect.

Id. (Quotations in original. References omitted).  Thus, when read with prior Georgia cases addressing this issue, Jackson may indeed allow for non-custodial parents to pay children’s expenses, such as private school tuition, in lieu of direct child support payments to a custodial parent. See Nagle v. Epstein, 241 Ga. 612, (1978) (affirming the trial court’s judgment that the husband was not in contempt for failing to pay past-due child support when he testified that the parties agreed that the wife would accept the his payment of their son’s private-school tuition in lieu of an equivalent amount of past-due child support and the wife did not testify otherwise).

What is Promissory Estoppel, and How Can It Impact My Georgia Divorce?

Sunday, November 22nd, 2015

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Promissory estoppel is not a legal concept generally associated with divorce, child support or any other issue of family law. But, if you are considering divorce and you have been serving as a guardian or primary caretaker of a child her in Georgia, this legal principle may be applicable to your case. The Georgia Court of Appeals has addressed the issue of promissory estoppel in child support cases on more than one occasion. But, the case of Mooney v. Mooney, 235 Ga. App. 117 (1998), is especially instruction on when and how promissory estoppel has the potential to impact divorce proceedings.

In Mooney, the wife agreed to become the guardian of her grandchild, but only if her husband promised to help support the child. Husband and wife subsequently divorced. Although the parties both contributed to the child’s support during the marriage, no provision for child support was made during the divorce. Later, wife filed an action seeking child support from her former husband. The trial court initially dismissed wife’s action, ruling that husband could not be compelled to support his grandchild absent some explicit agreement to do so. However, on appeal, the Georgia Court of Appeals concluded that wife should be able to proceed with her action seeking child support on the theory of promissory estoppel. Id.

Although wife failed to succeed on her claim for child support, the Court of Appeals allowed the wife in Mooney to proceed with her action because she was able to put forward at least some evidence that her husband promised to provide support for their grandchild and that she relied on his promise. Ultimately, wife failed to succeed on her claim for child support based on the theory of promissory estoppel, because she was unable to make two additional showings: 1) that husband promised both her and the child that he would assume responsibilities of fatherhood and 2) that husband held himself out as the child’s father. Wright v. Newman, 266 Ga. 519 (1996); O.C.G.A. § 13-3-44.

If you are considering divorce in Georgia, and you are concerned that promissory estoppel may impact your divorce, or if you simply have more questions regarding this topic or any other divorce related topics, please review our other helpful articles and blogs or give us a call to speak with one of our family law professionals.

Women More Likely To Initiate Divorce

Tuesday, November 17th, 2015

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Divorce attorneys see both men and women initiating divorce actions. Sometimes the husband and wife even want to coordinate and file at the same time. Practically speaking, in the eyes of the court, it doesn’t matter which party files the Petition for Divorce first. It may make a difference to the parties involved, however, and there are trends showing which spouse is more likely to initiate the action.

A recent Stanford University study found that women are much more likely than men to initiate a divorce. Women Initiate Divorces More Than Men, But Not Breakups, Study Suggests, by Brittany Wong, The Huffington Post, August 24, 2015. The study followed adults with opposite sex partners for six years, and analyzed their breakup statistics. Interestingly, while women were found to have initiated 69% of divorces, the initiation of breakups between non-married couples was nearly equal between the genders. The study’s author found this to be an interesting phenomenon “because social scientists previously argued that women were more likely to initiate divorce simple because they were more sensitive to relationship difficulties.” This is not the case, however, since women are not the primary initiators in non-marital breakups.

There could be several reasons for this disconnect. Marriage is a significant commitment to another person and women may be less likely to remain committed in such a permanent way to a person with whom they are no longer happy. For unmarried women in relationships, the commitment may not seem as significant and, thus, they may not feel the need to remove themselves from the relationship. In addition, if a woman feels she could be happier with someone else, getting divorced, rather than having an affair, may be an easier pill to swallow. An unmarried woman in a relationship may not see an affair as that significant without the marital vows; thus, cheating on a boyfriend, rather than breaking up with him, may be the chosen solution.

What is FERPA?

Tuesday, November 3rd, 2015

FERPA, or the Family Educational Rights and Privacy Act, is a Federal law that protects the privacy of student education records. 20 U.S.C. § 1232g; 34 CFR Part 99. According to FERPA, all parents have certain rights regarding access to their children’s educational records. These rights include equal access to their child’s educational records, the right to seek the correction of any inaccurate or misleading information contained in their child’s records, and the right to prevent the disclosure of information contained in their child’s educational records under certain circumstances.

It is important for all parents, both custodial and non-custodial, to be aware of their rights according to FERPA, because under FERPA, all parents enjoy the rights listed above, regardless of whether a parent shares legal custody of their child with the other parent. This is because FERPA defined the word “parent” as a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian. Thus, under FERPA, a parent has the right to access their child’s educational records, despite not having legal custody or final decision making authority regarding educational issues. Put another way, neither the school district, nor the custodial parent, has the right to deny a non-custodial parent’s request to access their child’s educational records. The only way a parent would be deprived of this right is in cases where a court order exists that specifically revokes this right.

It is generally uncommon for court’s to specifically preclude one parent’s access to their child’s educational records. So, if you are a parent who has been denied access to your child’s educational records, please know that you are entitled to access according to this important federal law. Keep in mind though, only report cards, standardized test information, individualized education program plans, and similar information are considered educational records. Information such as this may be requested. On the other hand, general information regarding your child’s progress in school, lunch menus, PTA information, school calendars and extracurricular activity calendars are not considered educational records, and may not be demanded under FERPA.

Child Support not tied to Child Custody

Wednesday, October 21st, 2015

Along with concerns regarding how child support is used by the custodial parent, another reason commonly given by non-custodial parents to explain their non-compliance with child support orders is that they don’t have the custody or visitation rights they desire. Although this is a very common concern, shared by many non-custodial parents, if you are a non-custodial parent ordered to pay child support, you should know that your obligation to pay child support is in no way tied to your visitation or custody rights. Put another way, you may not withhold child support, even if your ex-spouse or co-parent is wrongfully withholding visitation or parenting time. In fact, there are certain circumstances where a non-custodial parent may be ordered to pay child support, even though no accompanying visitation or custodial rights are awarded.

This may seem unfair, but Georgia law regarding child support and child custody is primarily focused on the best interest of the child, not the best interest of the parent. Child support is fundamental to ensure the financial needs of a child are met, regardless of the parents’ custodial arrangement. Even though a non-custodial parent’s obligation to pay child support is not dependent on his or her ability to exercise parenting time or visitation, if you are a non-custodial parent who has been denied visitation of your child, or if you are seeking to win custody of your child or children, contact your Atlanta Divorce Team today at 678-879-9000 to discuss your options.

Can I Request an Accounting of Child Support in Georgia?

Tuesday, October 20th, 2015

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Before directly addressing the answer to the question, it may be beneficial to first discuss what exactly an accounting of child support is, and why a non-custodial parent might desire an accounting of child support.

What is an Accounting of Child Support?

Generally speaking, an accounting of child support requires a custodial parent to account for their expenses and detail how child support money was used. A non-custodial parent may request an accounting of child support by filing a motion with the court. In some states, a non-custodial parent must allege facts showing why an accounting is necessary. In other states, courts have the discretion to require a custodial parent to detail how child support payments are being used at any time.

Why Seek an Accounting of Child Support?

One very common reason given by non-custodial parents to explain their lack of payment or to explain why they are uncomfortable with paying child support to their former spouse is because they do not believe the custodial parent is using the money for the benefit of the child. One way to address this common concern is to request an accounting of child support. With an accounting, the custodial parent must account for how the child’s expenses are being met, thus assuring the non-custodial parent that his or her payments are indeed benefitting the child.

Does Georgia Recognize the Concept of Child Support Accounting?

Some states allow non-custodial parents to seek an accounting of child support, while others do not. Georgia does not recognize the right of a non-custodial parent to seek an accounting of child support. Cohen v. Barris, 137 S.E.2d 469 (Ga. 1964). In Cohen, a father sought an order of the court requiring his ex-wife to provide an accounting of how child support payments were being applied. In his petition, the father alleged that his ex-wife was not using the funds for the benefit of their children. Although the court agreed that the mother is obligated to use child support funds for the benefit of the children, the court dismissed the father’s claim because a claim for an accounting of child support is not authorized by Georgia law. Id. at 470.

Can I Stop a Child Support Income Deduction Order by Quitting my Job?

Monday, October 12th, 2015

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The short answer to the question is: Yes, quitting your job may temporarily stop an income deduction order. But, the key word here is temporarily.

In Georgia, an Income Deduction Order (IDO) is a court order requiring an obligated parent’s employer to take money from that party’s income to satisfy a child support obligation. Once an IDO is entered and takes effect, the non-custodial parent’s employer will send the child support or alimony payments to Georgia’s Family Support Registry, and the Support Registry will send the payments to the recipient spouse. Although Georgia law generally requires IDOs to be entered automatically in all child support cases, many times IDOs are only put into place if a non-custodial parent has indicated an unwillingness to comply with the court’s order to pay child support or a non-custodial parent has failed to pay child support in the past.

In the event an obligated parent in unable to meet their child support obligation due to a substantial change in financial circumstances, such as a job loss, he or she may petition the court for a downward modification of child support. However, if an obligated parent voluntarily quits their job, this will not automatically terminate or reduce the child support obligation. Although as stated above, quitting a job may temporarily stop an income deduction order for child support, this does not stop the child support obligation, and will not stop the accrual of child support arrears. Thus, if you are a non-custodial parent who is currently satisfying your child support obligation via income deduction order, please know that if you quit your current job, the income deduction order will indeed stop. But, once you resume work or obtain another job, another income deduction order will be put into place to collect currently owed child support along with any accrued arrearages.

Active Appreciation vs. Passive Appreciation of Assets in Georgia Divorce

Tuesday, October 6th, 2015

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In a previous post included in our Celebrity Divorce Chronicles series, we discussed the divorce of Oklahoma oil tycoon Harold Hamm from his wife of 26 years, Sue Ann Arnall (formally Sue Ann Hamm). Ultimately, an Oklahoma court ruled that Harold Hamm, founder of Continental Resources, must pay Sue Ann Arnall a settlement of roughly $1 billion dollars. The court concluded that the $1 billion settlement represented an equitable division of the couple’s marital estate, which had been valued at around $18 billion.

Both parties appealed the trial court’s decision. Mr. Hamm contends that the marital settlement is too much. On the other hand, Ms. Arnall contends that although $1 billion is a significant amount of money, the $1 billion payment is not a fair or equitable division of the couple’s marital assets. The legal and financial concept at the heart of the couple’s dispute is active appreciation vs. passive appreciation.

Active Appreciation of Assets
Active appreciation is the increase in the value of certain assets that can be attributed, at least in part, to the contributions or efforts of either spouse. Put another way, if a person owns a company, and that company grows and succeeds because of the ideas, leadership and business acumen of the owner, that increase in value is due to active appreciation.

Passive Appreciation of Assets
Passive appreciation is the increase in the value of certain assets due to outside market forces such as supply and demand and inflation. For example, let’s say Person A bought a parcel of land 20 years ago. Upon purchase the parcel was worth $10,000. Over the alast 20 years, Person A made no improvements to the land, but the area around that parcel was successfully developed over the past 20 years. Today, due to no efforts on the part of Person A, the parcel is now worth $100,000. This is passive appreciation.

Georgia and Oklahoma are both equitable division states, meaning that marital assets are divided equitably or fairly upon divorce. Additionally, both Georgia and Oklahoma employ the concept of passive vs. active appreciation of assets similarly in the context of dividing assets upon divorce. Thus, using the Hamm’s Oklahoma divorce as an example may be particularly helpful in understanding active vs. passive appreciation in Georgia divorce.

Under Oklahoma law, the amount attributed to the active appreciation of separate, premarital assets over the term of the marriage is subject to division in divorce; the amount that passively appreciated is not. Harold started continental Resources before he married Sue Ann. Thus, although it may seem counterintuitive, it is in his best interest to argue that the tremendous success of Continental Resources was largely due to the whims of a fickle commodities market, or just good luck, not due to his active participation and decision making. Maintaining this position allows Harold to argue the success of his company was due to passive appreciation. Thus, any increase in value should be deemed separate property not subject to equitable division upon divorce.

Alternatively, it is in the best interest of Sue Ann to argue that the success of Continental was largely the result of Harold’s skills and his successful active management of the company. Because she also worked for the company, it is also in Sue Ann’s best interest to argue that the company’s success is also the result of her hard work and successful management. Sue Ann is best served by taking this position, because any increase in the value of the company attributed to active work of one or both spouses is deemed active appreciation, subject to equitable division upon divorce.

Active vs. passive appreciation is a very complicated concept in Georgia divorce law. Thus, the examples discussed above should not be relied upon to determine whether you or your spouse is entitled to the benefit of a certain asset upon divorce. If you are considering divorce, and have question regarding how the concept of active vs. passive appreciation may apply to your specific case, contact one of our knowledgeable and experienced Atlanta divorce attorneys today.

Is Imputing Income to Non-Custodial Parents Fair?

Saturday, September 26th, 2015

In Georgia, child support is calculated using Georgia’s Child Support Worksheet. This child support worksheet relies on the monthly income of each parent, along with other information regarding the income and expenses of each parent, to determine the appropriate child support obligation for the non-custodial spouse. However, in the event the non-custodial parent is unemployed or underemployed, an income may be imputed to that spouse for the purposes of calculating child support. For example, if a non-custodial parent is unemployed and has no significant work experience, a court may impute an income of minimum wage on that parent. Alternatively, if the earning potential of an unemployed or underemployed parent can be proven by examining that parent’s work history and prior salary, a higher income may be imputed on that parent.

The rationale behind the imputation of income on non-custodial parents is to ensure that child support is calculated fairly and uniformly, and to deter non-custodial parents from quitting their jobs or seeking lower paying jobs to avoid child support obligations. Although the ultimate aim of this policy is to serve the best interests of the child involved, many child support reform advocates argue that calculating child support based on imputed income instead of actual income is unfair to non-custodial parents because jobs are hard to find. Due to the instability of the current job market, child support reform advocates believe that imputing income to unemployed non-custodial parents traps these parents in a cycles where they are obligated to make child support payments that it is impossible for them to pay.

Child support reform advocates are correct that ordering an unemployed parent to make child support payments, regardless of their ability to pay, is not practical. However, child support is not calculated in a vacuum, without regard to the special circumstances each parent faces. In determining a non-custodial parent’s child support obligation, Georgia courts may consider all of the facts and circumstances or each case, and may apply certain deviations and adjustments to the presumptive child support amount generated by the child support worksheet. Thus, the answer to the above question is yes, imputing income to non-custodial parents can be fair so long as family courts use their discretion to consider all the facts of each individual case.

How to Avoid Common Divorce Mistakes

Tuesday, September 8th, 2015

Divorce is a complex legal issue consisting of four core elements: division of marital assets, child custody, child support and alimony. Because of the complexity of divorce, and the fact that divorce touches on almost every facet of one’s life, making a mistake during the divorce process could be potentially costly in various ways. With that being said, it is important to identify and plan ways to avoid making one or more of these costly mistakes. Listed below are several common divorce mistakes along with some tips on how to avoid them.

Mistake #1: Bad-mouthing your ex in front of the kids.

Regardless of how tempting it is, resist the urge to bad mouth your ex-spouse, especially in the presence of your children. Exhibiting such behavior can cause your children to begin viewing the other parent in a bad light, which may ultimately impact their relationship with that other parent. As any parenting coach of child therapist will tell you, it is imperative for children to have healthy relationships with both parents if at all possible, so don’t let your anger or bitterness impede your child’s relationship with your ex-spouse.

Mistake #2: Taking legal advice from just anyone.  

Yes, hiring a divorce attorney may be costly, but divorce attorney exist for a reason. The role of an attorney is to provide legal guidance and advice during your divorce process, and this is the only source of information you should rely upon during your divorce. Although your friends and relatives may mean well when they offer divorce advice, you should remember that all advice is not created equal.

Mistake #3: Failing to plan for life after the divorce. 

Should you keep or sell the martial home? Do you have life insurance independent of your ex-spouse?  How will you support yourself post-divorce? These are all questions that are essential your financial wellbeing post-divorce. However, more often than not many going through the divorce process fail to address these questions until after the divorce is over. Yes, divorce is stressful and emotionally taxing, but failing to address these important financial issues could have potentially devastating consequences. Thus, it is important to work with a financial advisor to create a post-divorce financial plan to ensure you have an affordable and sustainable post-divorce budget in place.

Mistake #4: Keeping the kids out of the loop.

Should your children be made aware of every single detail of your divorce? Absolutely not. However, it is important that you discuss your divorce with your children in an age appropriate way. Failing to adequately discuss your divorce with your children may cause them to harbor unhealthy feelings and beliefs surrounding your divorce. For example, your children may feel that the divorce was the result of their behavior, or that they will no longer be able to have a relationship with both parents. If you are unsure how to appropriately address the issue of divorce with your children, seek the advice of a parenting coach or a therapist who specializes in family and child counseling.

Mistake #5: Failing to anticipate how long the divorce process will last.

The divorce process can last as little as 31 days, and as long as 3 years (possibly longer). Although divorce attorneys are skilled at assessing the divorce process, there is no way your attorney can accurately predict how long your divorce process will take, and neither can you. For this reason, it is a mistake to assume your divorce will be amicable and short lived, no matter how friendly the relationship between you and your estranged spouse is currently. Failing to plan accordingly can result in unexpected and unneeded stress and expense. With this in mind, it is important to have a candid discussion with your divorce attorney about your expectations early on in the divorce process.