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The Importance of Thinking Through Parenting Plans

Wednesday, February 25th, 2015

In any case involving child custody in Georgia, the parents (jointly or separately) must submit a parenting plan. O.C.G.A. §19-9-1. In addition to several general statements about custody, see O.C.G.A. §19-9-1(b)(1)), the parenting plan must include specific details about who the children will be with every day of the year, including holidays, vacations, special occasions such as birthdays, how visitation exchange will take place, and allocation of decision making authority. O.C.G.A. §19-9-1(b)(2).

When working with your spouse to come up with a parenting plan, it is important to think long and hard about your children and their schedules (as well as the schedules of you and your spouse). There is no cookie-cutter parenting plan that will make sense for every family. Each family is unique and has different things to consider in determining what will work best post-divorce. For example, if you have high school aged children, it may work best if they just drive themselves to and from visitation. Obviously, elementary and middle school aged children will need to be driven. In addition, older children may have numerous extra curricular activities and their schedules may not lend themselves to weeknight visitation. Parents who live far from each other also may have a hard time working weeknight visitation into the schedule even if their children don’t do any extracurricular activities. It may help to look at “a week in the life” of your family in determining what will work best post-divorce. Living in two separate households can certainly make things more difficult, but doing your due diligence up front before being locked into a parenting plan can help.

Parents know their children better than any Judge. For this reason, it almost always works out better if the parents can work together to jointly submit a parenting plan to the court. Unless the Judge finds the parenting plan to be contrary to the best interests of the children, he/she will accept it and it will become part of the final divorce decree. If you cannot agree, the Judge will make the decision and you may be stuck with a parenting plan that does not make practical sense for your family. Even if you and your spouse are at extreme odds in your divorce and cannot seem to agree upon anything, try to mediate just the custody issue and see if you can jointly come up with a plan that will work for both of you, and your kids. If you can do so, your post-divorce life will likely be a little easier, at least as it relates to co-parenting.

Thirteen Reasons to Divorce in Georgia: Part 5

Tuesday, February 24th, 2015

Reason #5: Your wife was pregnant by another man when you got married, and you didn’t know it.

Due to the nature of pregnancy, it is possible for a wife to be pregnant by another man unbeknownst to the husband. Once the child is born, if the husband discovers the child was fathered by another man, and that the wife was pregnant with the child at the time of marriage, the husband may seek a divorce pursuant to O.C.G.A. § 19-5-3. This particular section of Georgia law allows husbands to seek divorce due to the “Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown by the husband.” O.C.G.A. § 19-5-3(5).

Marriage should be based on trust, honesty and openness between the parties. Thus, if a wife exhibits dishonesty by withholding the fact that she is pregnant by another man at the time of marriage, her husband is entitled to seek recourse through divorce.

Is Child Support Dischargeable in Bankruptcy?

Sunday, February 22nd, 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.

Can I Force My Estranged Husband to Leave the Marital Home?

Saturday, February 21st, 2015

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Divorce is stressful, and it is often characterized by escalating contention between the estranged spouses. Often, this strife leads one party to leave the marital residence. However, it is not advisable for a spouse seeking possession of the marital residence to leave the marital residence during the pendency of the divorce. With this in mind, our Atlanta Divorce attorneys are often asked: “can I force my estranged spouse to leave the marital residence?”

Generally, because both spouses would jointly own or possess a marital residence, both spouses have equal right to access the residence. Thus, one spouse cannot unilaterally deny the other spouse access to the marital home. Only if the judge presiding over the divorce matter enters an order granting one spouse exclusive possession of the marital residence may that spouse force the other spouse to leave the home. Absent such an order, or a restraining/protective order granting one spouse exclusive use and possession of the marital property, may one spouse exclude another spouse from a marital residence.

If you are seeking divorce or currently going through the Georgia divorce process, and would like more guidance on issues such as this, seek the guidance of one of our experienced divorce attorneys

 

Badmouthing Your Ex Can Cost You – Literally

Tuesday, February 17th, 2015

When going through a divorce, you likely do not have feelings of love, or even like, toward your soon to be ex-spouse. In fact, it can be very tempting to vent to anyone who will listen about all the horrible things he/she has done to you both throughout the marriage and during the pending divorce case. A good family law attorney, however, will advise you to keep the badmouthing to a minimum as most of the time it can do nothing to help your case. In fact, often times badmouthing the opposing party, particularly in a public forum, can be to your detriment in a divorce case.

Consider the divorce case of Ira and Janice Schacter. Ex-wife gets less in divorce of BigLaw partner because her badmouthing hurt rainmaking, judge says, by Debra Cassens Weiss, ABA Journal, April 9, 2014. Ira Schacter is a partner at a New York law firm. His wife, Janice, became upset after Ira allegedly paid $215,000 for his new girlfriend’s engagement ring while refusing to pay $12,000 for their daughter’s hearing aids. Janice then ranted and called him cheap on a popular legal blog site. The Judge in their divorce case found that Janice’s actions harmed her husband’s reputation in the legal community and caused the value of his business assets to decline. Accordingly, she was only awarded 17% of the partnership in the divorce whereas, otherwise, she would likely have been awarded 50% or close to it (depending on other facts in the case).

This case is important to keep in mind when going through your divorce. If you feel the need to vent or badmouth your soon to be ex, do it privately, to a few close friends or family members who you trust. Definitely do not scream it from the rooftops, either literally or figuratively. No good can come of it. You may think you are getting back at your ex, but you very well could just be hurting yourself, as the wife in the case above learned.

The Difficulty of Divorce in Orthodox Judaism

Sunday, February 15th, 2015

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While divorce is a difficult process, it is easy to take the ability to get a divorce for granted. If your marriage falls apart for any reason, you or your spouse can file a Petition for Divorce, which will begin the proceedings and result in your marriage being dissolved. Certainly, depending on the issues in your case and the level of cooperation of the parties, the divorce process could be relatively quick or it could take a very long time. But, if you want a divorce, you will eventually get it.

This is not always true for women of the Orthodox Jewish faith. Judge ‘gets’ to preside over strikingly similar divorce case, by Julia Marsh and Josh Saul, nypost.com, January 22, 2015. In Orthodox Judaism, a “get” is a religious decree that allows a woman to remarry in the Jewish faith. Without the “get,” an Orthodox Jewish woman cannot remarry, even if she has obtained a divorce. In the case described in the article above, an Orthodox Jewish woman is divorcing her rabbi husband due to allegations of severe abuse. However her husband, a rabbi, is refusing to give her the “get” she needs to truly move on with her life. The Judge in the case, who interestingly went through this same issue with her husband in the late 1980s, threatened the husband with lifetime alimony if he does not give in on this issue. The Judge is essentially saying that if he refuses to give the “get” and, thereby, precludes his wife from remarrying and “starting a new economic partnership,” he should have to financially support her himself. The husband appears unmoved by this threat saying, “In religious law, a man must give a get freely, so if you place something over him to force him, the get is meaningless.” Thus, it seems that he would oppose any potential remarriage, regardless of the Judge’s final decision.

This is obviously a difficult situation for the wife and her children. Clearly she should not be forced to stay in an abusive relationship and it appears the Judge agrees with her. It will be interesting to see, if the alimony threat becomes an actual final judgment, whether the husband will abide by the court order, or whether the parties will be back in court. Like any contempt case, if the husband fails to abide by the alimony order (assuming it is upheld by the appellate courts should he appeal), he is subject to sanctions, which could include jail time. In that situation, the court will likely push aside his religious beliefs and be  more concerned with the fact that he is willingly disobeying a court order.

Considering Divorce? 3 Reasons Why Divorce May be the Right Choice

Wednesday, January 28th, 2015

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If you are considering divorce in Georgia, you have likely come across many articles and web pages outlining several reasons why divorce may not be the answer. However, if you are currently considering divorce, and are unsure of what path to take, below are three reasons why divorce may indeed be the right choice.

1. Staying marriage may not be the best for the children. It is not uncommon for unhappily wed couples to remain married for the sake of the children. However, the belief that staying in a failing marriage is better for children than divorce may be misplaced. Although it is true that divorce takes a toll on both parents as well as children, witnessing and experiencing the breakdown of their parents’ marriage may be even more damaging to children. Depending on the circumstances, the constant tension and conflict may be worse for children than the distress of divorce.

2. Divorce could improve your health. A failing marriage, along with all the conflict and stress caused by it, is bad for your health. Research suggests that the resentment, chronic fighting, and distress resulting from a failing marriage may lead to health concerns such as sleeplessness, weakened immune system, and eating disorders, and even a shortened life span.

3. Divorce may be liberating. Often, the fear of being alone keeps many trapped in unhappy marriages. However, the longer a person stays in an unhappy and unfulfilling relationship, the longer he or she is denied the happiness and fulfillment of a loving relationship. Divorce is tough. Divorce is stressful. Divorce may also be liberating, because although it closes the door on one relationship, it opens the door to new and healthy relationships.

Equitable Division – Should You Ask For The House?

Tuesday, January 20th, 2015

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In many divorces, a highly fought over issue is who will get to keep the marital home. In Georgia, the marital home is subject to equitable division. This means that it is included in the split of all marital property/assets. For this reason, if one spouse keeps the home, the other spouse will usually get other marital assets to make the split equitable. But while many divorcing spouses are quick to say they want to stay in the home, there are many things to consider before asking for it as part of equitable division:

  1. Can you afford to stay in the house? – This is by far the most important consideration. As part of a divorce, your household income will decrease, sometimes dramatically. While there may be alimony and/or child support involved, this income will only continue for a limited period of time (depending on the details of your case). Not only will you have to be able to make the mortgage payment, there are other costs associated with home ownership such as homeowners insurance, utilities, general upkeep and unexpected repairs. It would be beneficial to make a spreadsheet of your monthly income and expenses to see what you can afford, before fighting tooth and nail to get the house in court or mediation. Going from two household incomes to one, or from one household income to none/looking for a job is often a substantial change and something you must consider before assuming the responsibility of the marital home on your own.
  2. Can you transfer the mortgage into your name? – Even if you compare monthly income and expenses and decide you can afford to stay in the home, your mortgage lender may feel differently. When you and your spouse applied for your mortgage on the marital home, the bank was likely considering two incomes. If you remain in the marital home after the divorce, your Final Decree of Divorce will most likely require you to refinance the mortgage on the marital home to remove your ex from liability on a home in which he/she is no longer living. Unless you were the primary breadwinner in your family, it can be difficult to refinance with a lower income. This is something you should explore with the bank before asking for the marital home in the divorce because you do not want to be stuck unable to refinance and, thus, in contempt of your divorce decree.
  3. Does it make sense to stay in the house? – It is also prudent to just take a step back and ask yourself if staying in the house makes practical sense. Often, divorcing couples are so caught up in the divorce process and “getting everything” that they may end up with something they don’t even want. Will your ex have primary physical custody of the kids? If so, staying in a huge house may not be necessary. Will staying in the house prevent you from emotionally moving on with your life? If so, moving may make the most sense for you.

After carefully considering the above, as well as anything else you deem important, it is possible that neither party wants nor can afford to keep the marital home after the divorce. In that case, the home will be sold (subject to certain conditions in the divorce decree) and the proceeds divided equitably between the parties.

Custodial Kidnapping

Wednesday, January 14th, 2015

Periodically, there are news stories about children who are “kidnapped” by their parents. Sometimes the parent fails to return the child at the end of his/her visitation time. Other times a parent may flee with the child during a pending divorce or custody battle in fear that he/she will lose custody. Whatever the motivation, a parent’s choice to run away with a child in contravention of a court order (including a standing order in a pending case) usually does not benefit that parent in terms of long term custody and will certainly harm the child emotionally. In a recent case bringing up this very issue, a woman in New Hampshire turned herself in ten years after fleeing with her eight year old daughter during a custody dispute. Fugitive Mom Arrested After Allegedly Kidnapping Daughter, by Associated Press, people.com, November 18, 2014. During a trial in 2004, the mother attempted to prove that her ex-husband had harmed their daughter and, when her attempt failed, she fled with her daughter to Central America.

 It is no coincidence that the mother waited ten years – the daughter is now 18 and no longer subject to the family court and/or parental custodial rights. Thus, the only thing that can happen now is the mother can be punished for her actions, and the mother’s lawyer said she is ready to go to trial on her custodial interference charge. The mother said the daughter is safe, though she did not give any information about her whereabouts. Obviously, the father now wants to be reunited with his daughter, but forging a relationship may be difficult. The daughter was 8 when she was taken and, thus, her father knows she was old enough to know what was going on. For that reason, he fears that “she has been told falsehoods and misstatements on the events of her youth.”

 Certainly, if you feel that someone is harming your child, you will want to do whatever is necessary to protect him/her. However, if the mother in this case truly felt that the father had harmed their daughter, she should have let the case run it’s course and, if the custody issue did not go her way, she could have consulted with an attorney about the possibility of a motion for new trial or appeal. Taking the law into your own hands is not a good idea when custody is involved. Most times, the offending parent will be punished by way of contempt, or by losing custody altogether. Even if you strongly dislike the other parent, your best hope is to trust the system and trust that the truth will come out.

 

My Child Support is Too High! What Should I Do?

Tuesday, January 13th, 2015

The brief answer to this question is to seek the help and advice of a knowledgeable Georgia child support attorney. Once you do, he or she will likely advise you that seeking a child support modification may be a viable option for you. A child support modification is a legal action that may be initiated to modify the terms of a prior court order establishing child support, such as a final divorce decree or a paternity order. A child support modification action may be initiated by either the parent obligated to pay child support, or the recipient parent. In order for a parent to seek and obtain a modification of child support, he or she must allege and show that there has been a change in the income or financial status of either parent or in the needs of the minor child or children. O.C.G.A. § 19-6-19(a).

Specifically, if you are an obligated parent who feels your current child support obligation is too high based on your current financial circumstances, seeking a child support modification may be the best course of action for you. Speak with an Atlanta Divorce Attorney today to determine if the change in your financial status qualifies you to seek a child support modification.