The Meriwether & Tharp Divorce Attorney Blog

Return to the Blog Home Page

Divorce

Do Non-Economic Contributions Matter in Georgia Equitable Division Cases?

Wednesday, July 30th, 2014

Stock image 13

Georgia law does not provide a formula when it comes to equitably dividing marital property upon divorce. Alternatively, Georgia law gives judges and juries discretion to determine what is a fair or equitable division of a couple’s marital property. In deciding equitable division cases, judges and juries rely on certain factors outlined in Georgia case law to determine how a couple’s property should be divided. These factors include, among others:

  • Each party’s contribution to the acquisition and maintenance of the marital property;
  • The purpose and intent of the parties regarding the ownership of the property;
  • The separate estate or non-marital property of each of the parties;
  • The length of the marriage;
  • Any prior marriage of either party; and,
  • The service contributed by each spouse to the family unit.

Stokes v. Stokes, 246 Ga. 765 (1980); See also Rooks v. Rooks, 252 Ga. 11 (1984) (concurring opinion)( “Stokes simply recognized that a spouse’s non-economic contributions to a marriage might be reflected in an ‘equitable division’ of property, notwithstanding the incidence of legal ownership,[…]”).

Thus, the question posed above can be answered in the affirmative. Yes, non-economic contributions, such as the service contributed by spouses to the family unit, do indeed matter in Georgia equitable division cases.

Effective Co-Parenting Post Divorce

Sunday, July 27th, 2014

Co-parenting can be a nightmare. Ineffective communication, residual resentment, lack of trust and differing parenting styles are just a sampling of the issues that make co-parenting post-divorce especially difficult. Although difficult, it is imperative for parents to learn to cooperate with each other post-divorce to further the best interests of their children. Below are three tips that may serve as a starting place for parents who desire to work together to co-parent more effectively.

Communicate Regularly. Lack of communication is one of the most common precursors to divorce. Thus, it is not uncommon for co-parents to have difficulty communicating post-divorce. If former spouses have trouble communicating directly, communication tools such as text messages, emails and online co-parenting tools like Our Family Wizard may facilitate effective communication between co-parents. Use of these tools also allows co-parents to keep records of communication in the event there is a later dispute between the parties.

Seek Professional Help. There are several resources available to those who are currently going through the divorce process as well as those whose divorces have been finalized. These resources include family counselors, individual therapists, and parenting coordinators. Taking advantage of such resources may help both parents work through personal and family issues that may be hampering the co-parenting relationship. As mentioned above, there are also online resources available such as Our Family Wizard and 2Houses.com that may be very helpful to co-parents by helping them keep track of communications, schedules, and appointments.

Avoid Litigation: Sometimes litigation is necessary, especially if it the only way to resolve disputed issues between the parties. However, if at all possible co-parents should avoid litigation and instead take advantage of alternatives to litigation such as mediation or settlement negotiations. If parents resort to seeking court intervention every time a dispute arises, resentment escalates, both parties become entrenched in their position and there is a risk the co-parenting may be damaged in the future. Additionally, resorting to litigation to resolve co-parenting issues may be financially damaging to both parties as child custody and child support matters are often lengthy and expensive endeavors.

Facebook May be to Blame in Some Divorces

Saturday, July 26th, 2014

Stock Image 22

A research study lead by Russell Clayton, a doctoral student in the University Of Missouri School Of Journalism suggests that the popular social media site may be damaging to a user’s relationship status. According to the study, which is slated to be published in the Journal of Cyberpsychology, Behavior and Social Networking, people who tend to check Facebook status and updates on an hourly basis or more often are more likely to have Facebook related conflict with their spouses, fiancés, or other romantic partners.

Clayton’s study revealed that the more often a Facebook subscriber utilizes the site, the more likely he or she was to monitor their romantic partner’s activity on the site. Such heavy monitoring of their romantic partner’s Facebook activity in turn often leads to feelings of jealousy which then often result in negative outcomes for the relationship, such as infidelity, termination of the relationship or divorce. In a press release concerning his research and findings, Clayton offered the following advice regarding Facebook usage that may be particularly beneficial to married couples: “Cutting back to moderate, healthy levels of Facebook usage could help reduce conflict, particularly for newer couples who are still learning about each other.”

 

No-Fault Divorce Becoming Unpopular in Many States: Is Georgia Next?

Tuesday, July 22nd, 2014

Stock Image 20

There are 13 grounds for divorce in Georgia, one of which is “irretrievably broken”, Georgia’s no-fault basis for divorce. Like in several other states, Georgia law did not always recognize this ground for divorce. Instead, to seek a divorce, the party initiating the divorce had to include fault based grounds for divorce, such as adultery or desertion, in his or her divorce petition, and that claim had to be proven to the court before a divorce would be granted. Over time, states began to make changes to divorce laws, and no-fault grounds for divorce were adopted universally. However, if legislation proposed in Oklahoma, North Carolina and Kansas is any indication, the consensus regarding the approval of no-fault divorce may be changing in the United States.

In each of the three states mentioned above, legislators have either recently, or in the immediate past, introduced legislation designed to either abolish no-fault divorce in that state or impose stricter limitations on divorce. In Oklahoma, a bill was introduced this year that sought to eliminate incompatibility, which is Oklahoma’s no-fault basis for divorce, as an available grounds for divorce in the state. Although that bill did not advance out of the state House of Representatives, another bill proposed by a state senator was successful after a Senate vote, and will likely be considered by the state’s House in the near future. This proposed legislation introduced a 90-day “cooling-down period” to the divorce process in Oklahoma. This “cooling down period” would occur immediately following the filing of a divorce petition, and is designed to be a reflective period for parties to consider if divorce is truly the option they wish to take.

Similar to Oklahoma, a state legislator in Kansas, has also introduced a proposed bill that would eliminate Kansas’s no-fault grounds for divorce. In North Carolina, there is no pending legislation aimed at eliminating no-fault divorce in the state, but in 2013 three state senators introduced a bill titled the “Healthy Marriage Act.” This bill aims to replace the existing one year waiting period for a divorce in North Carolina to a two year waiting period. The bills discussed above have yet to be enacted into law in these three state, but their proposal begs the question of whether no-fault divorce is on its way out in Georgia.

Not Paying Court Ordered Child Support? Your Licenses and Passport Could be at Risk

Sunday, July 20th, 2014

Failure to pay court ordered child support carries serious consequences in Georgia. In addition to being subject to an action for contempt, a mother or father obligated to pay child support who fails to honor this obligation may also be at risk of losing his or her driver’s license, fishing license, hunting license, and professional licenses.

Georgia law regarding the suspension of such licenses states:

“In any proceeding for enforcement of a judgment or order to pay child support, if the court is satisfied by competent proof that the respondent has accumulated support arrears equivalent to or greater than the current support due for 60 days and that the respondent is licensed to conduct a trade, business, profession, or occupation, licensed to hunt or fish, licensed to drive a motor vehicle, owns a motor vehicle which is registered in this state in his or her name, or is applying for the renewal or issuance of any such license or registration, the court may order the appropriate licensing or registering entity to suspend the license or registration or deny the application for such license and to inform the court of the actions it has taken pursuant to such proceedings. […]”

O.C.G.A. § 19-6-28.1(b).    

Not only may an obligated parent’s state issued licenses be revoked or suspended for failure to pay court ordered child support, an obligated parent’s passport may also be revoked. According 22 CFR Part 51.70 (a)(8), which a Federal regulation regarding the issuance and denial of passport applications, a person who has been certified to Passport Services by the U.S. Department of Health and Human Services (HHS) to be in arrears of child support payments in excess of $2,500, is ineligible to receive a U.S. passport.

Because the risks associated with the failure to pay court ordered child support are so great, it is advisable for any non-custodial parent obligated to pay child support who is unable to make timely child support payments to seek a modification of child support in lieu of ignoring their obligation.

Can A Stressful Marriage Lead To Early Death?

Saturday, July 19th, 2014

Stock-Image-29

There have been several recent studies about the health benefits marriage can have for a person.  Another recent study, however, has found that certain types of marriages can actually be detrimental to a person’s health. Study Says Stressful Marriages Can Lead To Early Death In Men, by Taryn Hillin, May 14, 2014, huffingtonpost.com. Specifically, the study, part of the Danish Longitudinal Study on Work, Unemployment and Health, found that a stressful marriage increases the risk of premature death in men.

The study followed nearly 10,000 participants, aged 36 to 52, for 11 years, tracking their health and surveying them about conflict and stressful situations in their lives.  At the end of the 11 years, a large portion of the participants had died.  By correlating the data collected, the researchers found that “men’s risk of death increased when in stressful marriages.”  Specifically, the men “who ‘always’ or ‘often’ experienced worries and demands from a partner had a higher mortality risk than those who ‘seldom’ had this experience.”  Those men who experienced similar worries and demands from other people (friends, family, etc.) did not have a higher mortality rate, indicating that it as the marriage and stress combined that produced the result.

The researchers suggested “skills in conflict management could help curb premature deaths associated with relationship stressors.” Thus, if you are in a high stress marriage, a conflict or stress management class will likely be of great benefit to both you and your spouse.  It may not rid your relationship of stress entirely, but it can help you learn how to deal with it in a healthy way.

Can A Judge Limit Facebook Activity During Georgia Divorce?

Wednesday, July 16th, 2014

As with many topics and questions concerning Georgia family law and Georgia divorce, the answer to the above posed question in not a simple one. As exhibited by a criminal case out New Jersey, a court can indeed limit the contact one party has with another during a pending legal action. In that case, a Hunterdon County, New Jersey Superior Court judge ordered a mother who plead guilty to a charge related to her attempt to kidnap her children to refrain from blogging about or mentioning her children or ex-husband on her Facebook page. Despite the court’s order, the mother continued to post about her children and ex-husband, and appealed the court’s order, claiming, among other things, that the order violated her right to free speech. In this case, the appellate court ruled that the Superior Court judge did indeed have the authority to order the mother not to mention her children or ex-husband on Facebook.

When it comes to divorce matters specifically, Georgia courts have similar authority. In fact, once a divorce is filed in Georgia, an order of the court called a Domestic Relations Standing Order is automatically put in place. Among other things, this order prohibits the parties from mistreating or interfering with each other. For example, Fulton County’s Automatic Domestic Standing Order states, in relevant part:

“Each party is hereby enjoined and restrained from doing, or attempting to do, or threatening to do, any act injuring, maltreating, vilifying, molesting, or harassing the adverse party or the child(ren) of the parties.”

This order not only applies to activity conducted in person, but also applies to online activity as well. As with any other court order, of one party violates the terms of this standing order, the court may find the offending party in contempt of court and penalize that party accordingly. Thus, when it comes to divorce actions in Georgia, a Georgia divorce court may not be able to preemptively limit a party’s Facebook or other online activity, a court may find a party in contempt of court for failure to abide by the terms of the court’s Automatic Domestic Standing Order.

Resolving Disputes About the Settlement Agreement

Wednesday, June 18th, 2014

Stock Image 20

The majority of divorces are resolved pursuant to a settlement agreement.  This means that the parties negotiated all issues of the divorce and were able to come to an agreement that both parties could live with.  It does not mean that everyone is completely happy with the outcome, but they are likely happier than they would be if a Judge dictated the terms of the divorce.  Nonetheless, the parties have signed the agreement and are ready to abide by its terms.  But what happens if there is a dispute about whether a party is fully performing under the agreement?

If a party is in default under the agreement, the other party can file a Petition for Contempt, which will bring the alleged violation in front of the court in an effort to force the party to comply.  Punishment for contempt can range from license revocation to incarceration.  However, filing a Petition for Contempt is often not the best first step to address a violation of the settlement agreement.  Rather, the party should first reach out to the other party (through attorneys or directly, as appropriate) and attempt to resolve the matter without involving the courts.  Often, a disagreement about performance under the settlement agreement is caused by a miscommunication that could be easily resolved without costing both parties money with an unnecessary court battle. If negotiation does not work, however, a Petition for Contempt may be your only option.

If you think that your spouse is going to have a difficult time abiding by the terms of the settlement agreement, you could put language into the agreement addressing that very issue.  For example, the agreement could require the defaulting party to pay for all associated costs and attorney’s fees associated with the other party’s successful enforcement of the agreement.  This means that if one party defaults and the other party files an ultimately successful Petition for Contempt, the defaulting party is automatically required to pay attorney’s fees.

What Issues Should be Addressed in a Settlement Agreement Including Child Custody?

Thursday, June 12th, 2014

For divorcing parents, often the most important issue to work out is who will have custody of the children, and how visitation will work for the other parent.  Generally, when drafting a settlement agreement, the following custody issues should be addressed:

  1. Primary physical and legal custody
  2. Decision making authority
  3. How the parties will communicate regarding the children
  4. Weekly visitation
  5. Summer visitation
  6. Holiday visitation
  7. Telephone/email visitation

When reviewing a proposed settlement agreement, it is important to remember that every divorce is different, and every set of parents and children are different.  Therefore, after hitting the high points listed above, it will likely be necessary to modify or add to terms in the proposed agreement.  For example, you will want to ensure that the agreement provides for a visitation schedule for all holidays that are important to you.  While Easter may be very important to one family, a Jewish family will likely want to make sure Passover visitation is included.

In addition, if substance abuse is an issue in the divorce, a parent will want to make sure there is an alcohol/drugs clause in the agreement.  Also, if one parent travels a lot for work, the other parent may want a right of first refusal for visitation, rather than having the children stay with a babysitter.

If you and/or your spouse are working with attorneys in your divorce action, you will likely be shown a template settlement agreement as a starting point.  Remember this is just a first draft and it can be modified to suit the needs of your particular family.  It may be helpful to take some time by yourself to think about what is most important to you and really think through how you want to live your life after the divorce.  The more prepared each party is, the better negotiations will go.

 

 

 

 

 

 

 

 

 

 

 

No Retroactive Child Support in Georgia

Wednesday, June 4th, 2014

Many states embrace the concept of retroactive child support or “back child support,” but Georgia is not one of those states.  Although there are certain circumstances under which a custodial parent may recover some of the costs actually incurred caring for a minor child from the non-custodial parent, a Georgia court will not award a custodial parent a set monthly award for a past period of time during which a valid child support order was not in place. O.C.G.A. §19-6-15.

What this means practically for non-custodial parents is a court will not require a non-custodial parent to pay the custodial parent the amount of monthly support that he or she would have otherwise been required to pay from the date of the child’s birth to the present if a valid child support order was in place. For example:

Child was born in 2000. Mother did not seek and obtain a valid child support order against Father until 2013. In 2013, Father is ordered to pay Mother $500 per month in child support. Father must pay this monthly amount going forward. He will not be required to pay Mother $500 per month for the 13 years that elapsed prior to the entry of the child support order (or $78,000).

Georgia law does not recognize the concept of back child support, but it does not totally abandon custodial parents who have incurred considerable expenses caring for their children without the aid of the non-custodial parents. Once a prospective child support order is entered, a Georgia court may order the non-custodial parent to reimburse the custodial parent for a portion of the expenses incurred on half of the minor child or children.

Although this is very uncommon, if the custodial parent can prove the actual expenses incurred on behalf of the minor child (these may include pre-natal and post-birth expenses), a court may order the non-custodial parent to reimburse a portion of these expenses. Weaver v. Chester, 195 Ga. App. 471 (1990); Coxwell v. Matthews, 263 Ga. 444 (Ga., 1993); Smith v. Carter, 305 Ga. App. 479 (2010).