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General Family Law

As a Grandparent, Do I have a Legal Right to Visit my Grandchildren?

Monday, August 17th, 2015

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The short answer to this question is yes. But, this right is not automatically recognized legally. Put another way, if you are a grandparent, and you want to legally establish your legal right to visit your grandchildren, you can, but there are certain steps that you must take first. Georgia law recognizes that it is extremely important for children to not only have a relationship with both parents, but to maintain a healthy relationship with their grandparents as well. As a result, Georgia law allows grandparents to seek and establish a legally enforceable visitation arrangement with their grandchild or grandchildren in certain circumstances. According to O.C.G.A. § 19-7-3, a grandparent may either file an original action for visitation or intervene in an ongoing action that determines the custody of their grandchild (such as an adoption, divorce, or modification action) and ask the Court to grant him or her the right to reasonable visitation with their grandchild.

It is important to note that as a grandparent, you may only seek visitation rights in cases where the parents are separated, divorcing or divorced. For further information on how to seek grandchild visitation and how to protect your relationship with your grandchild or grandchildren, see our other articles on Grandparents Rights in Georgia. If you have any questions, or if you are ready to exercise your right to visitation, contact one of our friendly and experienced family law attorneys today.

Can I Protect my Assets Without a Prenup?

Wednesday, August 5th, 2015

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Prenuptial agreements can be a great tool for individuals seeking to protect their assets in the event of divorce. However, if a couple does not enter into a prenuptial agreement, there are still ways for a spouse to protect his or her non-marital assets in the event of divorce. If you are concerned about your assets in the event of divorce, but you don’t have a prenup in place, listed below are a few steps you can take to protect some of you assets without a prenup.

  1. Consider a post-nuptial agreement. A postnuptial agreement is similar to a prenuptial agreement, with the main difference being that a postnuptial agreement is entered into after a couple has married. If you and your spouse did not enter into a prenuptial agreement, but you both believe that predetermining issues such as alimony and equitable division in the event of divorce is the best option for both parties, contact a Georgia divorce attorney to discuss what steps are necessary to enter into a valid postnuptial agreement.
  2. Keep your own funds separate. If you have an account or fund that was established prior to the marriage, and you wish to retain that account or fund post-divorce as separate property, it is essential that you keep those funds separate. If you commingle assets those assets during the marriage, the account will no longer be deemed separate property, but marital property subject to equitable division.
  3. Keep your own real estate separate. Just like an account established prior to the marriage may be deemed a marital asset upon divorce if it is not kept entirely separate, separate real estate may be deemed marital property upon divorce as well. To prevent this, be sure to make sure any separate real estate remain titled in your name solely, and be sure to always use separate funds to maintain separate real estate. Even if your spouse is not listed as an owner of real estate, if marital funds are used to maintain it, your spouse can claim an interest in it upon divorce.
  4. Keep retirement accounts statements issued prior to and at the date of marriage. Retirement assets accrued during marriage are generally deemed marital property. However, retirement assets accrued prior to marriage may be deemed separate property if the spouse seeking to retain them as separate property can produce evidence, such as account statements, establishing which portion of the account should be awarded as separate property, and which portion should be divided as marital property.

There are many other precautions you can employ to protect your separate assets, even without a prenuptial agreement. Schedule an appointment with one of our Atlanta divorce attorneys today to discuss your options.

Same sex marriage legal nationwide – but some are refusing to comply

Tuesday, July 21st, 2015

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Unless you have been avoiding all news sources, you know that the United States Supreme Court recently legalized same sex marriage nationwide. Supreme Court rules states must allow same-sex marriage, by Ariane de Vogue and Jeremy Diamond, cnn.com, June 27, 2015. This means that same sex couples can now be married in all 50 states, and any state law banning same sex marriage is now invalid. Despite this broad ruling invalidating any ban on same sex marriage, some states, counties and lawmakers are still trying to prohibit their courts from issuing these marriage licenses, but without much success.

Texas’ Attorney General Ken Paxton told county clerks in his state to disregard the Supreme Court’s ruling regarding same sex marriage and “refuse to issue marriage license to same sex couples if they believed their religion prohibited them from doing so.” Houston senator asks DOJ to protect rights of gay Texans, by Lauren McGaughy, chron.com, June 29, 2015. Paxton acknowledged that this course of action by the clerks could result in litigation and fines. Despite Paxton’s “advice,” many Texas counties have issued marriage licenses to same sex couples.

Louisiana governor Bobby Jindal said he would not issue any marriage licenses in New Orleans (where he controls issuance of marriage licenses) until he was ordered to by the state’s lower court. Conservatives still blocking gay marriage in the South, by Ben Levin, ajc.com, June 29, 2015. Apparently the other Louisiana parishes are also waiting, on order from the state’s Attorney General. Other southern, conservative states are also following orders from their Attorney General’s to hold off on issuing same sex marriage licenses until there is an explicit order from a federal court to do so.

These delay tactics and attempts at continuing to ban same sex marriages in their states will not be successful for long. Rulings of the United States Supreme Court are the supreme law of the land, and cannot be appealed. When the Supreme Court legalized interracial marriage nearly 50 years ago, there were also protests and refusals to abide by the ruling, but eventually everyone acquiesced. Hopefully in the near future we will be able to say the same about this recent ruling legalizing same sex marriage.

 

 

 

Same-Sex Divorce in Georgia

Tuesday, July 14th, 2015

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The recent United States Supreme Court decision in the case of Obergefell v. Hodges holds that same-sex couples may exercise the fundamental right to marry in all states.  The necessary implication that will eventually follow is divorce. What about same-sex divorce? What about same-sex divorce in Georgia?

Previously, 37 states, plus Washington, DC, allowed same-sex couples the right to marry, while 13 states prohibited same-sex marriage. Many same-sex couples would get married in one of the 37 states that recognized same-sex marriage then move to a state that did not recognize same-sex marriage and encounter difficulty if the marriage did not work out and divorce was necessary. The Supreme Court’s decision in Obergefell, effectively removes this barrier.

Gay and Lesbian couples may now seek relief from courts in any state to dissolve their marriages and make decisions regarding child custody, child support, alimony/spousal support, and property division.

In fact, nola.com reported that “[t]he first same-sex divorce in Louisiana was granted about two hours before the first legally sanctioned same-sex wedding took place.” First same-sex divorce in New Orleans comes before first marriage, by Andy Grimm, nola.com, (June 30, 2015).  According to Nola.com, “[t]wo New Orleans women, Anna Wellman and Stephanie Baus, who married in Massachusetts in 2009, made bittersweet history by filing for divorce in Orleans Parish Civil District Court on Friday (June 26) — something they couldn’t have done before the U.S. Supreme Court’s ruling last week because Louisiana law did not recognize same-sex weddings performed out of state.” Further, Judge Paulette Irons stated, “I treated them just like I would a man and a woman . . . [m]y responsibility is to uphold not just the laws of the state of Louisiana, but the laws of the United States and the Constitution. After the Supreme Court ruled, that’s the end of the road for me.”

For same sex couples looking for divorce options in Georgia, Meriwether & Tharp, LLC is well equipped to help.  The Atlanta Divorce Team will guide Gay and Lesbian couples through the divorce process and strive to get the best possible result in a timely manner while keeping costs down. Learn more about Gay Divorce by visiting our web page addressing this topic: http://mtlawoffice.com/same-sex-divorce. Call (678) 879-9000 for a free telephone consultation.

One Woman, Ten Marriages

Wednesday, July 1st, 2015

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In Georgia, a person can only enter into the contract of marriage if he/she: (1) is of sound mind, (2) is at least 18 years old (or is at least 16 with parental consent), (3) has no living spouse or previous undissolved marriage, and (4) is not related to his/her prospective spouse by blood or marriage. O.C.G.A. § 19-3-2. These prerequisites to a valid marriage are similar in every state. Still, they are violated fairly often, which will deem the marriage invalid.

For example, a woman in New York is facing felony charges for marrying ten different men – and only divorcing one of them. New York Woman Marries 10 Times, Only Got Divorce Once: DA, by Tara Fowler, people.com, April 10, 2015. Liana Barrientos obtained New York marriage licenses for each of her marriages, but her scam was only uncovered after she filed her tenth marriage license. Barrientos is now being charged with filing fraudulent marriage licenses since, obviously, she knew that she had not been divorced before filing for each subsequent license. According to the article, it is unclear at this time whether the husbands will also face charges.

In Georgia, a marriage of persons unable to contract (such as by having a previous undissolved marriage) is void. O.C.G.A. § 19-3-5(a). Though this case is in New York, it is likely that that state has similar prerequisites to divorce as Georgia. As such, in this case, the only valid marriage would be Barrientos’ first or second one. If the one divorce was after the first marriage, then her second marriage would be valid. However, if the one divorce was not the first marriage, then the first marriage still stands and no subsequent marriage would be valid.

If Barrientos is interested in actually remaining married to any of these men, she may have a silver lining. In Georgia, if a marriage is void because of a previous undissolved marriage, “after removal of the impediment to marriage, a subsequent free and voluntary consent and ratification of the marriage accompanied by cohabitation as husband and wife shall likewise render the marriage valid.” O.C.G.A. § 19-3-5(b). Thus, if Barrientos obtains a valid divorce from the one valid marriage, she can ratify whichever marriage she chooses so long as her husband voluntarily consents and the parties live together as husband and wife. Unfortunately for Barrientos, this may be impossible, as it looks like she may be cohabitating in jail for awhile.

 

Billion Dollar Divorce Appeal?

Wednesday, May 27th, 2015

In early April, the Oklahoma Supreme Court dismissed an appeal of one of the largest divorce awards in U.S. history. In 2014, the divorce between Oklahoma oil tycoon Harold Hamm and Sue Ann Arnall was finalized with an order by the court awarding Arnall nearly $1 Billion dollars. However, both Hamm and Arnall appealed the trial court’s decision.

In her appeal, Arnall argued that she deserved a larger share of the estimated $18 Billion fortune Hamm amassed as the founder of Continental Resources Inc. In his appeal, Hamm argued the exact opposite, that the nearly $1 Billion award was excessive. Although appeals are generally only disposed of after extensive briefing and oral argument by both parties, in this case, the Oklahoma Supreme Court dismissed Arnall’s appeal. The rationale behind the court’s decision is that Arnall forfeited her right to appeal because she cashed the $974.8 million check paid to her by Hamm in January. Essentially, the court found that because she accepted the award as ordered by the trial court, she gave up her right to appeal.

Although Arnall’s appeal has been dismissed, Hamm’s appeal is currently still pending before the Oklahoma Supreme Court. The court has yet to make a determination on the merits of Hamm’s appeal, but given the court’s conclusion in Arnall’s case, it would not be suppressing if the Oklahoma Supreme Court affirms the trial court’s judgment and determines the award initially ordered by the trial court is appropriate.

 

Should I Appeal my Divorce Order?

Wednesday, May 13th, 2015

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If you have recently divorce in Georgia, it is highly likely that you were dissatisfied with at least one of the order or rulings issued by the court at the conclusion of your divorce. If this is the case, you may have considered appealing the court’s rulings. Although seeking an appeal is appropriate under the right circumstance, the truth is, the odds for success on appeal are very slim.

First, not all court order can be appealed. For example, if you entered into a settlement agreement with your ex-spouse and the presiding court adopted that agreement into the final order of divorce, that divorce decree is not appealable.

Second, even if you are seeking to appeal an order that is subject to appeal, successfully overturning trial court’s decision is extremely difficult, because divorce courts have wide judicial discretion when making decisions. Practically speaking, divorce courts have lots of leeway when it comes to making legal determinations. Therefore, in order to prevail on appeal, you must either show the trial court abused this discretion, or that the court failed to follow the law or applied the law incorrectly.

Finally, the role of an appellate court is very different from that or a trial court and it is very limited. During the appellate process, you will not be able to present your entire case to the appellate court. Instead, because the trial court is in the best position to judge the credibility of witnesses and the persuasiveness of evidence presented at trial, an appellate court will give deference to a trial court’s determinations, and instead focus of the legal issue preserved by each party and presented on appeal.

Thus, even if you sincerely believe the trial judge’s decision in your divorce case was incorrect, seeking an appeal may not be the most prudent route unless your attorney can show that the court abused its discretion or failed to follow the applicable law. In order to determine if seeking an appeal is the best course of action in your case, seek the advice of an Atlanta divorce attorney with experience handling appeals and other post-divorce matters. Call our Alpharetta office at 678-879-9000 for free consultation on whether you need to appeal.

Divorce vs. Annulment

Monday, April 20th, 2015

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Divorce and annulment both involve legally ending a marriage. However, there are several differences between divorce and annulment. For example, there are several more circumstances under which a couple may seek a divorce than there are grounds justifying annulment. Additionally, unlike divorce, certain awards, such as alimony, will not be granted post-annulment. With that being said, if you are considering divorce or if you are considering seeking the annulment of your marriage, it is important you understand the major difference between these two legal concepts.

Divorce

  • Parties may seek a divorce based on one or more of Georgia’s thirteen grounds for divorce.
  • Divorce dissolves or terminates the marital relationship legally.
  • Generally, Georgia Superior Courts to not grant divorce by default.
  • Upon divorce, a court may award one party alimony or spousal support.
  • Marital property is divided between the parties in an equitable manner upon divorce.

Annulment

  • Unlike divorce, there are only 6 grounds for annulment in Georgia. See O.C.G.A. §§ 19-3-3 to 19-3-5.
  • Unlike divorce, annulment does not just terminate the marital relationship, but annulment voids a marriage as if it never existed. O.C.G.A. § 19-4-1. Once a marriage is annulled, the parties are returned back to their original status as unmarried or never married individuals.
  • Unlike divorce, a court may enter an order granting an annulment without the necessity of conducting a hearing if the respondent fails to answer the petition or contest the annulment within 30 days of service. O.C.G.A. § 19-4-4 and O.C.G.A. § 19-4-5.
  • Post annulment, since annulments void a marriage as if it never existed, certain awards, such as alimony, are not available post annulment. See York v. York, 2020 Ga. 50 (1947).
  • Although a court may partition property or make legal determination regarding a couple’s respective property rights in an annulment, a court will not divide marital property, because as mentioned above, an annulment voids the marriage as if it never existed. McKinney v. McKinney, 242 Ga. 607 (1978).

Domestic Violence and the New Year

Tuesday, January 27th, 2015

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The holiday season should be full of joy and celebration, but unfortunately for many women and men, the holiday season may bring the pain of domestic violence. According to law enforcement data collected in cities throughout the United States, there is an increase in the number of domestic violence calls for service around the New Year’s holiday. There is no way to be certain whether this increase in reporting is due to an actual increase of domestic violence incidents or solely due to an increase in the number of reports. However, one thing is certain: No one deserves to suffer abuse at the hands of anyone. With that being said, if you need help leaving an abusive relationship, or you know someone in an abusive relationship, there are several supportive resources in the Atlanta metro area. Below is information on just a few of the resources available. If you need help or knows someone who does, seek help immediately. Many women’s resource centers and law enforcement agencies are available 24 hours, seven days a week to provide assistance, and many resource centers have text and online chat options to make reaching out easier. Feel free to take a look at our article on Women’s Shelters for more information.

Women’s Resource Center – (404) 688-9436

Partnership Against Domestic Violence – (404) 870-9600

International Women’s House – (770) 413-5557

Wal-Mart Heiress Prenuptial Agreement

Thursday, January 22nd, 2015

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Some divorcing parties fight over huge sums of money and property, while others have nothing but personal property over which to fight. No matter the value of the marital estate, many divorcing couples will find something over which to fight tooth and nail. In the case of Wal-Mart heiress Paige Laurie Dubbert, her soon to be ex-husband, Patrick “Bo” Dubbert, is fighting to invalidate their prenuptial agreement, despite the fact that the agreement gives him $30,000 a month for three years (half of the length of their marriage). Here’s What a Wal-Mart Prenup Looks Like, by TMZ Staff, tmz.com, November 21, 2014. Many people would be thrilled with over a million dollars, but he apparently thinks he can get more.

Bo lists several reasons why he thinks the agreement should be thrown out. First, he says that he originally had a lawyer to help him negotiate the prenup, but that Paige’s lawyer told him that his lawyer didn’t know what she was doing and “had never dealt with billionaires.” He, thus, thinks that Paige’s lawyer deviously convinced him to fire her. Second, Bo alleges he was pressured into signing the prenup quickly when Paige’s parents told him if he didn’t sign it before they returned from a trip, they wouldn’t pay for the wedding planner.

 In Georgia, there is a three-part test for enforceability of prenuptial agreements. This test is similarly used in the majority of jurisdictions throughout the country. The party seeking enforcement of the agreement must prove that: (1) the prenuptial agreement was not the result of fraud, duress, mistake, misrepresentation, or nondisclosure of material facts; (2) the agreement is not unconscionable; and (3) taking into account all relevant facts and circumstances, including changes beyond the parties’ contemplation when the agreement was executed, enforcement of the prenuptial agreement would be neither unfair or unreasonable. Scherer v. Scherer, 249 Ga. 635 (1982).

 Thus, in general, a prenup is likely to be upheld so long as it was entered into voluntarily and there was no deception in regards to each party’s full disclosure of assets, income and liabilities. Here, there does not seem to be any allegation that Paige failed to disclose assets.  Thus, in determining the validity of the prenuptial agreement, a court will have to determine whether Bo signed the agreement voluntarily. The court will look at all evidence surrounding execution of the agreement, including Bo’s allegation that there was some sort of coercion and duress involved by both Paige’s attorney and her parents. Without further details, it is impossible to speculate how this case will turn out but, either way, Bo will likely be financially well off – assuming he does not spend all his money in attorney’s fees.