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General Family Law

Get Married or Go to Jail?

Monday, September 21st, 2015


Imagine a Judge giving you a choice – get married or go to jail. This is essentially what happened to a Texas man who pleaded guilty to an assault charge of punching his girlfriend’s ex-boyfriend. Judge orders man to get married or go to jail, by Tony Marco,, August 8, 2015. In that case, the Judge gave the man the choice between spending 15 days in jail, or two years of probation. One of the probation terms was getting married to his girlfriend within 30 days. Before the Judge executed the order, he apparently asked both parties if they were OK with that term of probation, and they both said yes. Accordingly, the order was entered and they got married shortly thereafter.

While the couple themselves seemed to be OK with the ordered marriage, the woman’s father was less than pleased and tried to talk them out of it. According to the father, “Judge Rogers stepped into my family and tried to tell them what to do without any regard for me or anything. This isn’t his decision. I told them they didn’t have to do this, but they were afraid. They are young and they didn’t now that they had any other options.” The father may very well be correct.

In Georgia, “[t]o constitute an actual contract of marriage, the parties must consent thereto voluntarily…” O.C.G.A. § 19-3-4.

Though this case is in Texas, it is likely that that state has similar laws regarding entering into marriage voluntarily. In this case, though both parties indicated that they were “OK” getting married, it is unknown if they would have actually gotten married if not for the probation terms. If they woman’s father is correct that the couple didn’t know they had any other options, this seems to indicate that they felt they had to get married and, as such, didn’t do so completely voluntarily. As such, they may not have a valid marriage.

If, however, the marriage does prove to be valid, they would certainly have a good ground for divorce if they lived in Georgia. One ground for divorce in Georgia is “force, menace, duress, or fraud in obtaining the marriage.” O.G.C.A. § 19-5-3(4). Here, there was certainly duress as the man was set to go to jail if the parties did not get married within 30 days. Thus, they would easily be able to obtain a divorce if they chose to do so.

Establishing Paternity when both Putative Fathers are Identical Twins

Wednesday, September 16th, 2015

A few years ago, a paternity and child support case in Missouri presented a very interesting question regarding the determination of paternity: What happens when both putative fathers named in a paternity action are identical twins? In this Missouri case, twin brothers Raymon and Richard Miller both unknowingly engaged in a sexual relationship with the same woman. Subsequently, the woman both brothers were seeing, Holly Marie Adams, became pregnant. Although Holly named Raymon as the putative father for the purposes of determining paternity and establishing child support, Raymon objected and demanded a paternity test. However, in this case, a paternity test proved unhelpful for two reasons: 1) because Raymon and Richard are twins and share the same DNA, a paternity test revealed both brothers have over a 99.9% probability of being the father of Holly’s child, and 2) during the court proceeding, Holly testified that she had sex with both brothers, within hours of each other, near the date of conception.

Although the judge assigned to the case, Judge Fred Copeland, was not able to rely on the result of genetic testing to determine paternity and child support in this case, Judge Copeland ruled that regardless of the identical DNA test and the overlapping relationships, Raymon would be named the legal father of the child in question. In support of his decision, Judge Copeland noted that a court is not limited to relying solely on the results of a DNA test to determine paternity. Raymon appealed Judge Copeland’s decision, arguing that he should not be named the legal father, because the identical DNA results make it impossible to determine which brother is truly the biological father of the child in question. On appeal, the Appellate Court upheld Judge Copeland’s decision, which was based on the testimonial evidence presented at the hearing. Specifically, Judge Copeland relied on the testimony of Holly Adams, who testified that she believed the date of conception can be traced back to a night spent with Raymon.

Genetic or DNA testing is a very useful tool used by courts to determine paternity in cases where paternity is contested. But, as shown in this Missouri case, DNA testing cannot always be relied on to resolve paternity disputes. When the results of a DNA test are not reliable or definitive, paternity can still be established. In such a situation, a presiding court must simply rely on the tools and methods used to establish paternity before DNA testing was widely available, such as witness testimony and calculations regarding the date of conception.


Rights and Benefits of Marriage

Tuesday, September 15th, 2015

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As Atlanta Divorce attorneys, we often write about the four core topics of divorce, which include equitable distribution, alimony, child custody, and child support here on our Atlanta Divorce Attorney blog. However, before a marriage can be dissolved by divorce proceedings, there must be a valid marriage to begin with. Once a couple enters into a valid marriage, the institution of marriage confers certain benefits, rights, and protections on each person. Once those rights and benefits are conferred by marriage, a divorce is necessary to legally sever this relationship and determine the respective rights of the spouses once the marriage is dissolved.  Just as the process to obtain a divorce varies from state to state, the rights and benefits conferred to couples upon marriage also vary. But, there are some benefits of marriage that widely applicable, these benefits typically include:

Tax Benefits: One of the most important financial benefits that comes along with marriage is the ability to file joint income tax returns with federal and state taxing authorities. The ability to file joint tax returns is important, because it allows couples to take advantage of tax deductions and other benefits not available to single individuals. And additional tax benefit derived from marriage includes the ability to create a “family partnership” under federal tax laws. Creating a “family partnership” allows families to divide business income among family members.

Estate Planning Benefits: Marriage also bestows very important estate planning benefits on married couples. Once married, spouses are entitled to inherit a share of the other spouse’s estate, receive an exemption from both estate taxes and gift taxes for all property given to or bequeathed to the other spouse, and create life estate trusts that are restricted to married couples.

Government Benefits: Social Security, Medicare, disability benefits, and certain veterans’ and military benefits are just a few example of the government benefits spouses may be entitled to on the account of the other spouse due to marriage.

Employment Benefits: Certain employment related benefits are another important benefit conferred by marriage. For example, spouses are able to obtain insurance benefits through the other spouse’s employer, take family leave to care for the other spouse during an illness, and receive wages, workers’ compensation, and retirement plan benefits for a deceased spouse.

Other Legal Benefits and Protections: In addition to the various types of marital benefits set out above, there are several other legal benefits and protections that are granted by marriage. This list is by no means exhaustive, but some of these other legal benefits and protections include: The ability to visit a spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility, the ability to make medical decisions for a spouse if that spouse becomes incapacitated and unable to express wishes for treatment, the right to sue a third person for wrongful death of a spouse and loss of consortium, the right to claim the marital communications privilege during a court proceeding, and the ability to obtain  immigration and residency benefits for a noncitizen spouse.

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,, 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,, 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,, 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, 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,, (June 30, 2015).  According to, “[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: 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,, 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


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.