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General Family Law

Does Georgia Recognize Palimony?

Wednesday, October 15th, 2014

The short answer to the above posed question is: No, the concept of palimony, or the award of monthly support payments to one partner upon the dissolution of a non-marital relationship, is not recognized in Georgia.

Although recognized by some other states such as California and New Jersey, the concept of palimony is not recognized by Georgia law, and any attempt by one party to seek it will not be granted by Georgia’s courts. Samples v. Monroe, 183 Ga.App. 187 (1987). Because palimony is sought by individuals subsequent to the dissolution of non-marital relationships, such claims would not be brought in conjunction with divorce actions, but as independent contact actions.  However, such contact actions are barred in Georgia pursuant to O.C.G.A. § 13-8-1, which invalidates contracts based on meretricious relationships. See O.C.G.A. § 13-8-1; Sprouse v. Sprouse285 Ga. 468 (2009). 

Georgia’s prescription against palimony, or the award of maintenance upon the dissolution of a domestic partnership, poses myriad legal hurdles for parties seeking to vindicate their interests upon the termination of a non-marital relationship. Thus, if you are involved in a domestic partnership, it is recommended that you seek legal counsel concerning how to establish and protect your legal rights. The caring and professional team of family law attorneys at Meriwether & Tharp would be more than glad to speak with you.

 

Should I Consider Annulment?

Tuesday, October 14th, 2014

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Many wonder should they seek divorce once financial, emotional, or other difficulties arise during marriage. However, in Georgia, divorce in not the only way to dissolve a marriage. An annulment voids or invalidates a marriage, and may be sought by parties wishing to terminate a marriage if certain criteria are met. O.C.G.A. § 19-4-1.

Similar to divorce, an annulment will only be granted by a court if there are valid grounds, or basis, for the annulment. In Georgia, grounds for annulment include:

  1. Intermarriage – The parties to the marriage were related to each other, such as a marriage between a father and daughter;
  2. Under Age – One of the parties to the marriage is under 16 years of age;
  3. Lack of Capacity – One of the parties did not have sufficient mental capacity at the time of the marriage;
  4. Bigamy – One of the parties was legally married to someone else at the time of the marriage;
  5. Force – Force, menace, or duress was used to obtain the marriage; and
  6. Fraud – The marriage was obtained due to the fraud of a party.

See O.C.G.A. §§ 19-3-3 to 19-3-5.

With the above in mind, if you are currently party to a marriage that was entered into under force or as a result of fraud, or if you or the other party was underage, lacked mental capacity, married, or related to each other at the time of marriage, an annulment may be the best course of action, because annulments void the marital relationship as if it never existed. O.C.G.A. § 19-4-5. If you believe an annulment is the best option for you based on the facts of your case, speak with an Atlanta divorce attorney to determine if you are eligible to seek an annulment or if seeking a divorce would better suit your circumstances.

What is Parental Alienation Syndrome?

Saturday, October 11th, 2014

Generally, Parental Alienation Syndrome (PAS) is a disorder that arises primarily in the context of child-custody disputes. PAS may be defined as one parent’s deliberate attempt to distance his or her children from the other parent and destroy the bond of affection that exists between the child and the target parent. Because child custody battles tend to be more acrimonious than other family law matters, it may be hard initially to determine if conduct is simply the result of parents being overprotective or if those actions fall into the realm of parental alienation.  Below is a list outlining warning signs of parental alienation:

Warning signs of Parental Alienation Syndrome

  • Asking the child to choose one parent over the other.
  • Letting the child choose whether to visit with the other parent, regardless of the court ordered parenting time schedule.
  • Refusing to be flexible with the visitation schedule or over-scheduling the child with activities so the other parent is prevented from exercising parenting time.
  • Using a child to spy or secretly gather information for the parent’s own use.
  • Telling the child details about the breakdown of the marital relationship or reasons for the divorce.
  • Disparaging or peaking badly about the other parent directly to the children.
  • Exposing the children to the details of the parents’ ongoing conflict, financial problems and legal proceedings
  • Denying the other parent access to school or medical records and the child’s activity schedules.
  • Blaming the other parent for money problems, splitting up the family, or having a girlfriend or boyfriend.
  • Encouraging the child’s anger or resentment toward the other parent.
  • Reacting with hurt or sadness to a child having a good time with the other parent.
  • Making demands of the other parent that are contrary to court orders.
  • Listening in on the child’s phone calls with the other parent.

Although PAS has never been considered in depth by Georgia case law, Georgia law is very clear that a parent should not be permitted to undermine the other parent’s relationship with the child. Thus, any action taken by one parent resembling the warning signs listed above may be grounds for a court to reconsider child custody and parenting time. It is also important to note that Parental Alienation Syndrome is not recognized by the American Psychological Association. Consequently, evidence of it, such as expert testimony, may not be admissible at trial.  Mauldin v. Mauldin, 322 Ga. App. 507 (2013).

 

Pre-Nup Mediation

Tuesday, September 30th, 2014

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As Georgia divorce attorneys, we often tout the benefits of utilizing mediation as a means to settle divorce, contempt, and modification action in lieu of proceeding to trial. But, very rarely do we suggest mediation as a way to negotiate and settle the terms of a pre-nuptial agreement or pre-nup, until now.

Typically, one soon to be spouse’s attorney drafts the pre-nuptial agreement. Once the agreement is drafted, it is then forwarded to the other betrothed’s attorney for review. The attorney will then volley the agreement back and forth with proposed changes until both parties are satisfied with the agreement. During pre-nup negotiations, it is not uncommon for the more financially established party to seek a more aggressive or protective pre-nuptial agreement, and it is often a challenge for the other party to beneficially modify the terms of the agreement especially if the initial draft was proceed by the moneyed party’s attorneys. This can often produce feelings of animosity between the couple, especially if the negotiations between the attorneys become acrimonious

Mediation is an excellent way for parties to clearly communicate and resolve their differences concerning the terms of a pre-nuptial agreement. Similar to how mediators help parties seeking to resolve conflict during divorce proceedings, a mediator can help level the playing field in pre-nup discussions, and referee the concerns of both parties in a non-confrontational setting. Additionally, a mediator may propose ideas to help the parties resolve their conflict that neither party would have thought possible or practical otherwise.

Relying on mediation may not be the best route for every couple seeking to enter into a pre-nuptial agreement, but it is definitely a viable option to consider, as seeking mediation may help mitigate some of the negative feelings, delay and expense associated with traditional pre-nup negation.

What do I have to do to make my out-of-state marriage valid in Georgia?

Thursday, September 18th, 2014

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Each state has different laws regarding who may get married in that state as well as different license and ceremony requirements. So what happens if you get married in one state and then move to another? Is your marriage still valid? The simple answer is yes…usually.

Georgia law states “[a]ll marriages solemnized in another state by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state.” O.C.G.A. § 19-3-43.  Thus, if you get married legally in the state of Texas, your marriage will be recognized by the state of Georgia if you later choose to move here.  If the marriage is valid where it was performed, it will be recognized as valid in Georgia.

There is one caveat, however.  Georgia law states that “[p]arties residing in this state may not evade any of the laws of this state as to marriage by going into another state for the solemnization of the marriage ceremony.” Id.  This means that two men cannot travel to marry each other in Vermont, where gay marriage is legal, and then come back to Georgia expecting that this state will recognize the marriage.  Since gay marriage is prohibited in Georgia, the marriage will be considered void in this state. O.C.G.A. § 19-3-3.1.

Can I legally get married in Georgia?

Wednesday, September 17th, 2014

There are several requirements for a valid marriage in Georgia. O.C.G.A. §19-3-2. Generally, a person capable of entering into a contract may enter into the contract of marriage in this state. To contract marriage in Georgia, the requirements are as follows:

  1. Both parties must be of sound mind. O.C.G.A. §19-3-2(a)(1).  This means that both parties must have the knowledge and understanding that they are entering into a marriage.
  2. Both parties must be at least 18 years of age, except that a 16 or 17 year old may get married with the proper parental consent. O.C.G.A. §19-3-2(a)(2) and O.C.G.A. §19-3-2(b).  Specifically, the parents must appear in person in front of a Judge and consent to the marriage. O.C.G.A. §19-3-37(b).
  3. Neither party may have a living spouse of a previous undissolved marriage. O.C.G.A. §19-3-2(a)(3).  This means that if one party is separated from a former spouse, but the divorce was never finalized, he/she cannot enter into another marriage until the first one is fully dissolved via a Final Divorce Decree.
  4. The parties must not be related to each other by blood or marriage as follows: father and daughter/stepdaughter, mother and son/stepson, brother and sister of the whole blood or half blood, grandparent and grandchild, aunt and nephew, uncle and niece. O.C.G.A. §19-3-2(a)(4) and O.C.G.A. §19-3-3.

Upon a challenge to a Georgia marriage, there is a presumption that the above requirements were met and that the parties had the capacity to contract marriage.  This presumption will prevail unless and until it is proven that one or both of the parties to the marriage did not fulfill one of the Georgia requisites to a valid marriage. Fanning v. State, 46 Ga. App. 716 (1933).

What is Surrogacy?

Tuesday, September 9th, 2014

Georgia couples who are experiencing problems conceiving have more options than ever before to help them grow their families. Among those options are adoption and the utilization of assisted reproductive technologies such as in vitro fertilization and intrauterine insemination. Surrogacy is another option.

Surrogacy Generally

Like in vitro fertilization and intrauterine insemination, surrogacy is also a form of assisted reproductive technology. Specifically, surrogacy is considered a form of third party assisted reproductive technology. Practically speaking, surrogacy refers to a paid legal arrangement where a woman agrees to become pregnant and give birth to a child on behalf of another person or a couple. A surrogate may either be a woman the couple knows well or a woman matched to the couple by an agency. Regardless of the relationship, it is important for couples considering surrogacy to ensure that much consideration is put into selecting a surrogate and that the relationship is clearly defined by a surrogacy agreement drafted by an experienced Georgia family law attorney.

Types of Surrogacy

There are two types of surrogacy that prospective parents may choose from when deciding to grow their family via surrogacy: Gestational surrogacy and traditional surrogacy.

Traditional surrogacy involves the surrogate mother (or the woman who will be carrying the child) being inseminated with sperm from the couple’s male partner or from a third party donor. Because the child born as a result of this type of surrogacy will be biologically related to the surrogate, these types of surrogacies often involve greater legal and emotional consequences. The potential difficulties involving traditional surrogacy lead many couples to choose gestational surrogacy instead.

Gestational surrogacy involves the surrogate mother becoming pregnant through the process of in vitro fertilization, using eggs and sperm donated by the intended parents or donors the intended parents have selected. This type of surrogacy is often preferred because it does not involve a genetic link between the surrogate and the child and because it allows the child to be genetically related to both the intended parents.

Surrogacy in Georgia

As opposed to other states, Georgia domestic relations law is relatively expansive and exhaustive. With this being said, it is surprising that the issue of surrogacy receives very little attention in Georgia statutory or case law. Georgia has no statutes specifically addressing surrogacy, and no published legal opinions appear to address surrogacy in depth. Fortunately for those considering surrogacy in the state, Georgia does not have any laws that prohibit surrogacy outright.  Because the law is unsettled, it is vital for any couple contemplating surrogacy to consult a Georgia domestic relations attorney regarding surrogacy agreements and the paternity and parentage concerns often attendant to surrogacy to avoid any potential legal pitfalls.

Pet Prenups?

Sunday, September 7th, 2014

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As discussed in a recent installment of our series Celebrity Divorce Chronicles, Melanie Griffith and Antonio Banderas are ending their marriage of 18 years. According to reports, the couple’s divorce seems to involve the common issues of divorce, such as child custody, child support, and property divorce. However, one potential issue of the couple’s divorce is not as common: a pet custody battle.

Celebrity news outlets such as the Examiner report that Griffith is seeking to retain custody of the three dogs that the couple adopted last year, over the objection of Banderas. Although “pet custody” is not a matter that is traditionally viewed as an issue of divorce, our attorneys have experienced an increase in the number of divorces where “pet custody” is a contested issue. We refer to “pet custody” in quotes, because Georgia law does not recognize the concept of “pet custody.” Pets are considered property according to Georgia divorce law, not children or family members. Thus, a Georgia court will not order visitation or custody schedules for pets. Rather, a court will award the pet or pets to one spouse as a division of marital property.

If a couple wishes to set out certain rules for sharing “custody” of a pet post-divorce, or if a couple wishes to settle the issue of pet ownership in the event of divorce, entering into a prenuptial agreement addressing such issues is advisable. Due to the rise in disputes regarding pet ownership post-divorce, pet prenups, or the inclusion of pet related clauses in a couple’s prenuptial agreement, is also becoming a popular trend. Although such an agreement between spouses is generally not necessary, couples who believe pet ownership may potentially be a contested issue in the event of divorce should seriously consider addressing this issue in a prenuptial agreement.

I Signed a Prenup, but I No Longer Believe Its Terms are Fair. Can I fight it?

Sunday, August 31st, 2014

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The short answer to this question is: Yes, divorcing spouses may definitely challenge the enforceability of their prenuptial agreement. In fact, this practice in not uncommon. The downside of making this legal maneuver is that there is no guarantee such a challenge will be successful.

The general purpose of prenuptial agreements are to predetermine alimony awards and establish how property will be divided in the event of divorce. If a divorcing couple has entered into a prenuptial agreement, it is very likely that the court presiding over the divorce case will enforce that agreement and incorporate the terms of that agreement into the Final Order and Decree of Divorce. However, Georgia courts have wide discretion in determining whether a prenup is valid and worthy of enforcement. Once a prenuptial agreement is challenged by a party during a divorce action, the presiding judge will ask the following questions to determine the validity of the prenuptial agreement:

  1. Was the agreement obtained through fraud, duress, or mistake or through misrepresentation or nondisclosure of material facts?
  2. Is the agreement unconscionable?
  3. Have the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair and unreasonable?

See Mallen v. Mallen, 280 Ga. 43 (2005); Alexander v. Alexander, 279 Ga. 116 (2005); Blige v. Blige, 283 Ga. 65 (2008); Gravley v. Gravley, 278 Ga. 897 (2005); Sanders v. Colwell, 248 Ga. 376 (1981).

If the answer to these questions is no, the agreement will be deemed valid and enforceable. On the other hand, if the answer to any of these questions is yes, the agreement will likely be deemed unenforceable by the court.

Addressing Social Media in Prenuptial Agreements

Tuesday, August 26th, 2014

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Generally, prenuptial agreements address the subjects of alimony and division of property in the event of divorce. However, there is a growing trend favoring the inclusion of social media clauses in prenuptial agreements. Such clauses would determine the types of images and information formers spouses may share on social media sites such as Facebook, Instagram, or Twitter in the event of divorce. For example, a social media clause in a prenuptial agreement may prohibit former spouses from making derogatory or harassing comments about the other former spouse online. Alternatively, social media clauses could potentially prohibit former spouses from posting pictures of the couple’s minor children or embarrassing or disparaging photos of the other former spouse online. If adopted by the court and incorporated in the couple’s Final Decree of Divorce, such provisions would be enforceable via a contempt action. Alternatively, couples may choose to agree to certain penalties in the event the terms of the social media clause is violated.

In light of the increasing popularity of social media as a form of communication and expression, and the reality that it is all but impossible to erase a derogatory image or statement once it has been posted online, the increasing popularity of social media clauses in prenuptial agreements is understandable. For information regarding prenuptial agreements in Georgia, contact The Atlanta Divorce Team at Meriwether & Tharp. One of our experienced family law professionals will be more than glad to consult with you.