The Meriwether & Tharp Divorce Attorney Blog

Return to the Blog Home Page

Divorce

Michigan Children Jailed for Refusing Lunch with their Father

Monday, August 31st, 2015

Most people are familiar with parents being punished for refusing to abide by the custody and visitation terms of a final divorce decree. Recently, a Michigan judge punished the children of divorced parents for refusing to see their father. Kids Jailed for Refusing Lunch With Dad Being Freed as Judge Caves, by Steven Nelson, usnews.com, July 10, 2015. In that case, the three children (ages 14, 10 and 9) refused Judge Lisa Gorcyca’s order that they spend time with their estranged father. The children did not want to see their father because he had allegedly abused their mother. Judge Gorcyca “told the siblings they would be placed in ‘cells’ and forced to use toilets without privacy until they turn 18” for refusing to comply with her.

Despite several allegations of abuse, Judge Gorcyca told the children that their father “had never been convicted of anything” and that he was “a great man.” In fact, Judge Gorcyca had previously denied the mother’s request for a protective order from the father, alleging that he had hit her, assaulted her, and threatened to kill their children. It is unclear why this protective order was denied. In spite of these abuse allegations, however, the mother apparently still encouraged the children to comply with the order, but they refused. After two weeks and a media firestorm, Judge Gorcyca backed down and released the children, though she claimed she had their best interests at hear throughout the case.

A case like this seems almost unbelievable. It is hard to imagine that it is in the best interests of children to spend time with a parent of whom they are afraid. But to go one step further and put children in jail for refusing to see a parent of whom they are afraid is unconscionable. There has to be a middle ground. If a Judge does not believe the allegations of abuse and feels strongly that the children should see that parent, the Judge should put some safeguards in place to make that child feel more comfortable. Perhaps visitation in a public place or with another adult with whom the children feel comfortable. Or even just give the children some time to think about it and revisit the situation in a month. Punishing the children will not help the situation and will likely only make the children more resentful if and when they do spend time with the parent at issue.

Divorce and Back to School Time

Tuesday, August 25th, 2015

Stock-Image-41

When you go through a divorce and work out custody and visitation arrangements with your spouse, you make an agreement based on the kids’ ages at that point. However, as anyone with kids knows, schedules change fairly regularly as kids get older and get more involved with school and extracurricular activities. A parenting plan made when children were 7 and 5 will likely not work when the children are 15 and 13. As such, it is prudent to revisit your parenting plan regularly to make sure it still meets the needs of your changing family. A good time to do that is around back to school time, since schedules for school age children tend to change with the beginning of the school year, rather than the beginning of the calendar year.

Towards the end of the summer (or even earlier for some very organized families), your children’s school schedules will firm up and you will learn about the dates for breaks in the school calendar, such as Thanksgiving, winter break, spring break, and any other school holidays. You and your ex can then (hopefully!) work together to adjust the visitation schedule so that it makes sense with the children’s new schedule. For example, maybe your daughter had dance on Tuesdays last year, but now has it on Wednesdays. If the non-custodial parent’s weekday visitation is dinner on Wednesday night, this new dance class may cut into it. As such, it may make sense to switch the weekday visitation to another day where there would not be a conflict with an extracurricular activity. In addition, perhaps one parent has a family reunion over Thanksgiving and wants to bring the children, but the other parent is supposed to have the children for Thanksgiving that year. Hopefully the parents will be able to work together to switch things around in that situation.

Technically, your parenting plan (however old it may be) is the custody and visitation order that must be followed by both parents. However, it does not make practical sense to go back to court to modify every time your child’s schedule changes. As such, try to work things out with your ex on your own. While exes who still greatly dislike each other may not be able to work well together in this way, it can save you both a lot of money as opposed to contacting attorneys each time you need to make a change. Just make sure you communicate via email so that any changes are confirmed in writing. That way, if your ex goes back on his or her agreement to modify visitation and tries to sue you for contempt of the order, you will have a paper trail.

Beware of Child Support Collection Scams

Saturday, August 22nd, 2015

Owed child support? If so, there are several ways to enforce your child support order, including filing a contempt action against the non-custodial parent, seeking an income deduction order or garnishment of the non-custodial parent’s earnings, or contacting your local office of the Georgia Department of Human Services, Child Support Enforcement Division. Additionally, there are some private agencies that offer to collect child support arrearages in exchange for a contingency fee or percentage of the amount collected.

Although divorce and family law attorney are prohibited from entering into contingency fee agreements with clients, when the collection of past due support is treated like a collections case, contingency arrangement may be acceptable. Seeking the services of such a private collections company is an option if you are seeking to collect child support arrearages, but it is not advisable, because such companies may take up to 40% of the child support you are entitled to as payment of their services.

Additionally, as evidenced by the fraud perpetrated by the private company formerly known as the Child Support Services of Georgia, seeking the services of a private company could be potentially dangerous. In that case, the owner of the company pleaded guilty in 2014 to federal charges including conspiracy to commit mail and wire fraud and money laundering after it was discovered that his company stole over $2 million dollars from Georgia parents seeking child support arrears by defrauding them. According to parents who fell victim to this fraud, the company would contact the non-custodial parent and enforce the child support order, but instead of forwarding the money collected on to the custodial parent, the company would instead pocket most of the money, using it to fund the expensive lifestyle of company owners.

Is my Inheritance Marital Property?

Wednesday, August 19th, 2015

Stock Image 23

Although this is a common question, it is also a very complicated one to answer, because as with many issues concerning divorce, the answer to this question depends on the specific factual circumstances in each individual case. The general rule in Georgia is that an inheritance will be viewed as separate property not subject to division upon divorce, unless the funds or property are comingled.

Some examples may be helpful:

During her marriage, wife receives an inheritance from her grandfather after he passes away. Upon receiving the inheritance, wife places the funds in a separate account, and never mixed the funds with marital assets. Two years later, the couple decides to divorce, and husband threatens to take half of the inheritance. So long as wife never comingled the inheritance with marital assets (she always kept in in a separate account in her name only), it is highly unlikely the court will deem the inheritance marital property subject to division upon divorce.

Alternatively, let’s say wife deposited the inheritance into the joint marital account, or applied the funds to a jointly held investment account. In the event of divorce, husband’s threat to seek half of the inheritance is more concerning. By comingling the inheritance with marital funds, wife has transmuted the separate asset into a marital asset. Put another way, by mixing the inheritance with marital property, the inheritance becomes marital property subject to equitable division upon divorce.

Buying a House Post-Divorce? Seek Child Support and Alimony by Check

Sunday, August 9th, 2015

Stock Image 20

Generally, recipients of alimony and child support would be more than glad to receive their payments by direct deposit or cash. However, if you are the recipient of child support or alimony, and you are thinking about buying a house in the near future, it may be more prudent to receive child support and alimony payments by check. Why? Because when considering an applicant’s mortgage worthiness, banks require proof of income. Without a paper trail establishing a track record on on-time payments made by the obligated spouse, a mortgage lender cannot count a recipient spouse’s support as income. Thus, former spouses who rely primarily on alimony or child support for income may not qualify for a mortgage absent sufficient proof of that income.

With the above in mind, if you currently receive child support or alimony from your former spouse, and you are considering purchasing a house in the near future, seek support payments by check and make sure you keep meticulous records of the support payments you receive each month.

Five Things You Didn’t Know About Alimony

Tuesday, August 4th, 2015

Stock Image 20

Alimony or spousal maintenance can be generally defined as payments made by one former spouse to another former spouse post-divorce. Alimony may be paid on a periodic basis, such as monthly or bi-weekly, or alimony may be paid all at once in one lump sum. Alimony is not awarded in every case. In fact, it is within the discretion of the presiding to determine when to award alimony, and if so, how much. The law regarding alimony in Georgia is very complex, and there are several legal factors that must be considered in order to determine the most appropriate alimony award in each case. Many times, these factors are relatively obvious and self-explanatory. However, there are some pretty quirky aspects of alimony as well. Below is a list of five things that even the most well informed divorce litigant may not know about alimony.

  1. There is no alimony calculator in Georgia. Unlike child support, which can be determined using Georgia’s Child Support Worksheet, there is no formula or calculator used to determine alimony awards in Georgia. When awarding alimony, Georgia courts must rely on Georgia’s alimony factors to determine the amount of alimony.
  2. Men are entitled to alimony. Many individuals mistakenly believe that alimony may only be awarded to a wife post-divorce. Although this was previously the law in many states, including Georgia, now both men and women may receive alimony post-divorce if the court determines such an award is appropriate.
  3. An adulterous spouse is not entitled to alimony. In Georgia, if one spouse proves to the presiding court that the other spouse committed adultery during the marriage, and that adultery resulted in the breakdown of the marriage, the offending spouse is barred from receiving an award of alimony.
  4. Alimony generally terminates upon the remarriage of the recipient spouse. If the spouse ordered to pay alimony can show the court the recipient spouse has remarried, the obligated spouse can petition the court to terminate the alimony obligation. An obligated spouse may also petition the court to terminate the alimony obligation if he or she can prove the recipient spouse is living with a new girlfriend or boyfriend.
  5. Alimony is deemed income to the recipient. Because alimony is considered income, a spouse who has been awarded alimony must declare alimony payments received as income for the purpose of taxes. Conversely, the obligated spouse can claim alimony paid as a deduction when filing tax returns.

 

Lump Sum Alimony in Georgia

Sunday, August 2nd, 2015

Stock Image 24

Just like periodic or monthly alimony, lump sum alimony is spousal support paid by one spouse to the other spouse post-divorce. What differentiates lump sum alimony from periodic alimony is how the payment is made. Instead of being paid in monthly or bi-weekly payments, lump sum alimony that is either awarded or paid in one lump sum. Although lump sum alimony takes the form of a single payment from the obligated spouse to the recipient spouse, it should not be confused with equitable division. Lump sum alimony is not a division of a couple’s marital assets, it is a lump sum payment to be made from the obligated spouse’s separate or non-marital assets.

There are certain benefits to receiving alimony in a lump sum, instead of on a periodic basis. For example, a lump sum alimony award ensures the recipient spouse will receive a pre-determined amount of alimony, regardless of remarriage, cohabitation or change in financial circumstances. Just as there are benefits, there are drawbacks as well. To determine if lump sum alimony is a viable option in your divorce, see our article regarding lump sum alimony in Georgia for more information, and contact one of our friendly Georgia divorce professionals with any questions.

Georgia Child Support Helpline

Saturday, August 1st, 2015

In Georgia, child support is primarily based on the income of both parents, and the ability of each parent to meet the needs of the child or children involved. Georgia’s child support worksheet is the method Georgia courts use to determine the appropriate amount of child support to award the custodial parent in each case. The child support worksheet is a document used to enter the financial information of both parents to calculate the amount of child support according to Georgia’s child support guidelines. Anyone can access and download a copy of Georgia’s child support worksheet. In fact, each party to a divorce in Georgia must submit a proposed child support worksheet for the court to consider.

If you are represented by a Georgia divorce attorney, your attorney will complete and submit a proposed child support worksheet on your behalf. However, if you are representing yourself during your divorce, you must complete and submit this form yourself. If you are completing this form yourself, it is important that you complete it fully and completely. Otherwise, the child support calculation may be inaccurate, and this inaccuracy may be financial detrimental to you. Although instructions are included with the child support worksheet, there may be some aspects of the worksheet that remain confusing. If you need more guidance on how to complete the child support worksheet, please review the instructional articles on our website entitled: How to Complete a Child Support Worksheet.

Additionally, the Family Law Section of the State Bar of Georgia has launched a Child Support Worksheet Helpline. This helpline is a free service that helps unrepresented individuals prepare child support worksheets. The child support helpline is manned by volunteer divorce attorneys who will work with callers to prepare child support worksheets. Once the worksheet is prepared, the volunteer attorney will email or mail the finished worksheet to the caller. If you are working to complete a child support worksheet in your Georgia divorce or child custody case, and you are not represented by an attorney, you can call the helpline at (404) 526-8609.

Studies Suggest Debt is the Most Harmful Relationship Issue

Tuesday, July 28th, 2015

Stock Image 23

When considering the most common precursors to divorce, issues such as infidelity, abuse, lack of communicating, and unrealistic expectations often come to mind. However, in a poll conducted by Money.com, there was one marital issue that consistently outranked the previously listed issues: debt.

Although it is well know that disagreements about money can often lead to marital strife, Money’s poll pinpoints debt as the financial issue that is most associated with the breakdown of relationships and divorce. In fact, an article authored by Utah State University associate professor Jeffrey Dew seems to confirm this study. In his article, Dew discusses studies that indicate that marital satisfaction and the likelihood of divorce are directly correlated to debt levels and assets. Dew’s article reveals that as debt levels increase, and available assets decline, marital satisfaction also declines.

Despite the findings revealed by Money’s poll and Dew’s article, there is hope for couples experiencing high debt levels and financial distress. Because marital satisfaction tends to track debt levels, as a couple successfully pays down debt, marital satisfaction increases. Thus, the key for couples experiencing marital strife due to debt or other financial concerns, is to work together to set financial goals and work together to achieve them.

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

Saturday, July 25th, 2015

Stock Image 26

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.