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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.

Georgia Divorce Appeals: Which Child Support Order Should I Follow?

Wednesday, August 20th, 2014

When one former spouse appeal the Final Judgment and Decree of Divorce, the pendency of the appeal often leaves both former spouses wondering: “During the appeal, which child support order should I follow?” Often, in the course of a Georgia divorce, courts enter temporary orders directing parties on issues such as child support, child custody, and alimony until the divorce is finalized. Alternatively, parties may enter into temporary agreements regarding child custody, child support and alimony until the divorce is final. Once the divorce is finalized however, parties must abide by the terms of the final decree of divorce.

But, in cases where one former spouse seeks to appeal the final divorce decree, conflict may arise regarding which child support order to follow. One former spouse may argue that the final order should control until the appeal is finalized, while the other former spouse may argue that the temporary order should continue to control while the final order is being appeal, because the divorce decree should not be viewed as final until the appellate court affirms it. Although there is logic in both lines of thought, The Georgia Supreme Court resolved this issue in 2010, when it held that as it relates to child support orders, the temporary child support order entered by the court during the pendency of the divorce controls until the appeal is finalized. Robinson v. Robinson, 287 Ga. 842 (2010). Put plainly, while the appeal is pending, parties should follow the temporary child support order, not the child support order contained in the Final Order and Decree of Divorce.

Child Custody: The Standard for Modification of Visitation Rights

Wednesday, August 6th, 2014

Some of the most important questions parties to a divorce will ask are “who will make important decisions for my child and how much visitation should my spouse have?” These questions fall under the purview of child custody. Even if the issue of child custody is resolved when the divorce is finalized, what is in the best interests of the child now may not be in the best interests of the child later on. Therefore, parties will sometimes seek to modify their child custody order. Nevertheless, modifying child custody orders is often not as simple as it sounds. In Georgia, there are specific rules and standards that must be observed for a modification to be proper. A recent Georgia case analyzed these rules and standards and set forth some guidelines for us to follow.

In Cannella v. Graham, the trial court originally awarded the parties joint legal custody and awarded primary physical custody to the Mother and visitation to the Father. Cannella v. Graham, 325 Ga. App. 596 (2014). Approximately one year after the trial court’s order, Mother filed to modify child custody, seeking sole legal custody of the child and asking that Father’s visitation be supervised or eliminated. Id. After Mother presented her evidence, the trial court granted Father’s motion for a directed verdict. Id. Mother subsequently appealed. Id.

The Court of Appeals of Georgia noted that “[v]isitation rights of non-custodial parents are subject to review and modification upon the motion of either parent every two years without the necessity of showing a material change in circumstances.” Id. (quoting In the Interest of R. E. W., 220 Ga. App. 861, 862 (1996)). However, when determining whether to modify visitation rights, the “best interests of the child standard” shall be considered. See Id. (citing In the Interest of R. E. W., 220 Ga. App. 861, 862 (1996)). The court noted that the trial court granted Father’s motion for a directed verdict because Mother “failed ‘to show a substantial change of condition affecting the minor child which would justify a modification of custody.’ The order does not mention the child’s best interest. The order therefore reflects that the trial court applied the wrong standard.” Id. at 597. While the trial court orally announced that they made a “best interests of the child” determination, they neglected to mention any such determination in their written order. Id. “[A] trial court’s oral pronouncements are not binding because, while they may provide insight on the intent of the subsequent written judgment, any discrepancy between the written judgment and oral pronouncements is resolved in favor of the written judgment.” Id. (quoting In the Interest of J. J., 317 Ga. App. 462, 463 (2012)). Accordingly, the court vacated and remanded the case so that the “the best interests of the child standard” could be applied. Id.

By: Jason W. Karasik, Associate Attorney, Meriwether & Tharp, LLC

Paternity vs. Legitimation in Georgia: What’s the Difference?

Tuesday, July 15th, 2014

As Georgia divorce attorneys who help clients with domestic relations matters ranging from uncontested divorces and separate maintenance actions to matters involving child support and child custody, such as paternity and legitimation actions, we are often asked: “What’s the difference between Legitimation and Paternity is Georgia?”

Georgia courts have long made it clear that paternity and legitimation are two distinct legal concepts in Georgia. In fact, the Georgia Court of Appeals makes this point explicitly in its decision in Ghrist v. Fricks et al., 219 Ga. App. 415 (1995). In that decision the court stated that “paternity and legitimation are not the same thing. Biology is not destiny, and a man has no absolute right to the grant of his petition to legitimate a child simply because he is the biological father. Instead we have held time and time again that the court must consider the best interest and welfare of the child before granting a legitimation petition, and that it is not bound by the desires and contentions of the biological parents.” Id.

Put another way, paternity is based on biology in Georgia. Once a man is determined to be the biological father of a child, paternity may be established. With the establishment of paternity also comes the establishment of a father’s financial obligation to the minor child. On the other hand, legitimation is not based on biology alone. In fact, a man may be deemed the biological father of a child, by virtue of a paternity judgment, without being granted any legal child custody or visitation rights. This is so because in Georgia, a father must legitimize his child in order to establish a legal relationship with his child. Only once this legal relationship is established will a father be granted visitation and child custody rights. In essence, paternity equals child support, and legitimation equals child custody and parenting time.

Setting Aside Paternity Judgments in Georgia

Tuesday, July 8th, 2014

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Prior to 2002, when Georgia’s current statutory law regarding setting aside paternity judgments was enacted, it was slightly more difficult to successfully challenge an inaccurate or inappropriate paternity judgment, because the law of challenging paternity judgments was largely based on case law. With the enactment of Georgia’s current statutory law regarding setting aside paternity judgments 2002, those seeking to challenge paternity judgments were given a statutory framework outlining when a paternity judgment may be challenged and how.

 According to Georgia law, in order for a man to successfully challenge a paternity judgment via a motion to set aside a determination of paternity, he must file his motion with the Superior Court in the appropriate county along with the following documents:

(1) An affidavit executed by the movant that the newly discovered evidence has come to movant’s knowledge since the entry of judgment; and

(2) The results from scientifically credible parentage-determination genetic testing, as authorized under Code Section 19-7-46 and administered within 90 days prior to the filing of such motion that finds that there is a 0 percent probability that the male ordered to pay such child support is the father of the child for whom support is required.

O.C.G.A. § 19-7-54(a).

If a man who has been determined to be the legal father of a child, and thus ordered to pay child support, is able to meet the requirements set out above, the presiding court will grant his motion if the court also finds the following to be true:

(1) The genetic test required in paragraph (2) of subsection (a) of this Code section was properly conducted;

(2) The male ordered to pay child support has not adopted the child;

(3) The child was not conceived by artificial insemination while the male ordered to pay child support and the child’s mother were in wedlock;

(4) The male ordered to pay child support did not act to prevent the biological father of the child from asserting his paternal rights with respect to the child; and

(5) The male ordered to pay child support with knowledge that he is not the biological father of the child has not:

(A) Married the mother of the child and voluntarily assumed the parental obligation and duty to pay child support;

(B) Acknowledged his paternity of the child in a sworn statement;

(C) Been named as the child’s biological father on the child’s birth certificate with his consent;

(D) Been required to support the child because of a written voluntary promise;

(E) Received written notice from the Department of Human Resources, any other state agency, or any court directing him to submit to genetic testing which he disregarded;

(F) Signed a voluntary acknowledgment of paternity as provided in Code Section 19-7-46.1; or

(G) Proclaimed himself to be the child’s biological father.

O.C.G.A. § 19-7-54(b).

The above cited law addresses when and how a man may go about challenging a paternity judgment rendered by a court in Georgia. However, when paternity has been established via a voluntarily acknowledged paternity, the means to set aside or obtain relief from an inappropriate paternity determination are different. If you are a man who has been determined to be the legal father of a child, and you believe this determination was made in error, or if you believe you have acknowledged or agreed to a paternity determination in error, contact a member of the Atlanta Divorce Team to discuss the legal options available to set aside the paternity judgment and terminate the associated child support order.

Georgia Health Insurance and Divorce

Tuesday, June 17th, 2014

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Health insurance is a hot topic in our country today.  One benefit to being married is that a spouse and children can be covered under the other spouse’s health insurance policy.  Even if both spouses are employed and have the option of health insurance through their employment, often one spouse will have better health insurance and, thus, the entire family will opt to be covered under that policy. But what happens if the spouses divorce?

If the family were covered under one parent’s employer’s health insurance policy, it would likely be beneficial for that parent to retain the same coverage for himself and the children.   Once the divorce is final, however, the other parent will no longer be able to be covered under that policy and will be responsible for obtaining his/her own insurance.  That parent will have the opportunity to continue coverage under the same policy through COBRA, but that option is often cost prohibitive for many people.  As such, that parent will have to research to find the best health insurance for his/her situation, be it through his/her employer, Obamacare, or otherwise.  In some divorce situations, if only one parent is employed, that parent may agree pursuant to a settlement agreement, or be ordered by the court, to pay for the health insurance for the other parent for a certain period of time.

The parent paying for health insurance for the children after the divorce is eligible for a deduction on his/her child support payments for the amount attributable to health insurance (assuming the parent is contributing an amount in excess of what his/her employer is paying).  Generally, the parents will then equally split any co-pays and uncovered health expenses for the children.

The important thing is to make sure your health insurance does not lapse as a result of your divorce.  If you are covered under your spouse’s policy, begin doing research now to determine what the best health insurance option will be for you post-divorce.

 

 

Online Resources for Adoption Leads

Tuesday, June 10th, 2014

Adoption can be a promising time, full of hope about a future addition to a family. However, for many families who wish to adopt, especially those who chose to take the private adoption route, simply finding the child who will hopefully join their family may be more difficult than expected. For this reason, many prospective adoptive families are turning to the internet for help.

According to Denise Bierly, President of the American Academy of Adoption Attorneys,

“The Internet has changed everything about adoption. We will never go back to what it used to be.”

What Bierly means by her statement is that over the past years, the number of prospective adoptive parents who turn to the internet to help them in their search for a child to adopt has seen a substantial increase. Although it is unknown exactly how many of the 677,000 children placed for adoption through private domestic adoptions are places as a result of online resources such as social networking or online adoption resources, a small study conducted in 2012 by Families for Private Adoption suggests that 40% of private adoptions were successfully matched online.

The increase in the number of families turning to the web for adoption resources is likely the result of the increased pervasiveness of social networking as well as the increased competition among hopeful parents due to the growing number of families seeking to adopt and the ever increasing limitations being imposed on international adoptions.

For prospective parents who are investigating the idea of adoption, and for those prospective parents who are currently searching for the special child to join their family, there are several online resources available such as: ParentProfiles.com, Adoptomism.com, Adoptimist.com, and It’s My Time Now Georgia. Additionally, many private adoption agencies and adoption consultants are advising clients to take advantage of Facebook, Twitter and Craigslist to advertise their search. One word of caution regarding employing online resources in an adoption campaign: Beware of online scams. Never send money directly when solicited, and never agree to participate in prohibited activity.

Adoption is a very complex process that varies from state, and not every state allows for the advertisement of adoption campaigns. Specifically, in Georgia the use of social media to advertise an adoption campaign may be unlawful under certain circumstances. O.C.G.A. § 19-8-24. According to Georgia law:

“(a) It shall be unlawful for any person, organization, corporation, hospital, or association of any kind whatsoever which has not been established as a child-placing agency by the department to:

(1) Advertise, whether in a periodical, by television, by radio, or by any other public medium or by any private means, including letters, circulars, handbills, and oral statements, that the person, organization, corporation, hospital, or association will adopt children or will arrange for or cause children to be adopted or placed for adoption; or

(2) Directly or indirectly hold out inducements to parents to part with their children.

As used in this subsection, “inducements” shall include any financial assistance, either direct or indirect, from whatever source, except payment or reimbursement of the medical expenses directly related to the mother’s pregnancy and hospitalization for the birth of the child and medical care for the child.

(b) It shall be unlawful for any person to sell, offer to sell, or conspire with another to sell or offer to sell a child for money or anything of value, except as otherwise provided in this chapter.

(c) Any person who violates subsection (a) or (b) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine not to exceed $10,000.00 or imprisonment for not more than ten years, or both, in the discretion of the court.
(d)(1) Paragraph (1) of subsection (a) of this Code section shall not apply to communication by private means, including only written letters or oral statements, by an individual seeking to:

(A) Adopt a child or children; or

(B) Place that individual’s child or children for adoption, whether the communication occurs before or after the birth of such child or children.

(2) Paragraph (1) of subsection (a) of this Code section shall not apply to any communication described in paragraph (1) of this subsection which contains any attorney’s name, address, telephone number, or any combination of such information and which requests any attorney named in such communication to be contacted to facilitate the carrying out of the purpose, as described in subparagraph (A) or (B) of paragraph (1) of this subsection, of the individual making such personal communication.”

Id.

Thus, it is imperative to engage the services of a caring Georgia adoption attorney to aid you in your journey to add a new member to your family to ensure all necessary law and regulation are complied with.

 

 

 

Putative Father Registry: Can I Deny Paternity?

Monday, June 9th, 2014

The simple answer to the question posed above is: Yes, it is possible for you to rescind your acknowledgement or deny paternity even after signing the putative father registry and acknowledging paternity. But, like any other legal issue, especially family law issues, there are exceptions to this general rule and the ability to rescind an acknowledgement rely on the specific circumstances of your case. Now, for the longer answer…

Generally, once you have acknowledged paternity on the putative father registry you may subsequently deny paternity or rescind the acknowledgement at any time before a child support or other order is entered that establishes that you are the father of the child, such as an order of paternity or order of legitimation. If the mother agreed that you were the father of the child and indicated such by signing an acknowledgement of paternity with you, you may rescind your acknowledgement of paternity as long as you do so within 60 days of your initial acknowledgment. Within this time limit, you may rescind your acknowledgment at any time unless a court enters an order finding that you are the father of the child.

Georgia’s law regarding the rescission of paternity acknowledgments is codified in O.C.G.A. § 19-7-46.1. According to Georgia law:

A voluntary acknowledgment of paternity or registration with the putative father registry is subject to the right of any signatory to rescind the acknowledgment prior to the date of the support order, any other order adjudicating paternity, or 60 days from the signing of the agreement, whichever is earliest. Recording such information in the putative father registry shall constitute a legal determination of paternity for purposes of establishing a future order for support, visitation privileges, and other matters under § 19-7-51.

After the 60-day rescission period, the signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the person challenging the acknowledgment. The legal responsibilities of any signatory, including child support obligations, arising from the acknowledgment may not be suspended during the challenge, except for good cause shown.

Id.

If, after this 60 day period, you later find that you are not in fact the father of the child all hope is not lost. However, after the time limit is lapsed it will be necessary to contact a Georgia paternity attorney to aid you with the process of rescind your acknowledgment and disestablishing paternity.

Celebrity Divorce Chronicles: Sonya Miller vs. Percy “Master P” Miller

Thursday, June 5th, 2014

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Although news of the Miller vs. Miller divorce is nothing new – Sonya Miller filed for divorce against the rapper back in October 2013 – the recent developments in the couple’s divorce proceedings reveal how extensive assets and the lack of a prenup or premarital agreement can further complicate the divorce process.

According news celebrity news outlets, Yahoo Music and TMZ, in a recent document filed with the court, Sonya Miller, Master P’s estranged wife, claims that the rapper has around $178 million in assets, and is seeking an award of 37%, or around $66 million, of her estranged husband’s fortune. In the document Sonya Miller filed with the court, which is likely similar to Georgia’s Domestic Relations Financial Affidavit, Mrs. Miller listed the artist’s assets as including:

  • 31 real estate properties, including properties in Los Angeles, Baton Rouge, New Orleans, Houston, Georgia and Tennessee, with a combined value of $19 million;
  • Various business entities, such as No Limit Records, Master P, Inc. and No Limit Forever, LLC, valued at around $136 million;
  • 13 cars, including Cadillac Escalades, Mercedes, a Rolls-Royce, BMW, and Porsche, among others, totaling around $235,000 in value;
  • Furniture, such as three chandeliers valued at around $300,000 a piece; and,
  • Various items of  jewelry

As mentioned above, of the rapper’s estimated $178 million in assets, Sonya Miller is seeking around $66 million. Because the couple did not have a prenuptial agreement, likely due to the fact that the couple married more than 24 years ago, before Master P began enjoying success as an entertainer. Although the lack of a prenup and the length of the couple’s marriage may not necessarily be beneficial to the rapper, they may turn out to be factors that weigh in Mrs. Miller’s favor as the California court presiding over the divorce matter determines how the couple’s community assets should be divided. The couple’s divorce has been pending since October 2013, and in light of Mrs. Miller’s recent court filings and the amount of assets at stake, there will likely be no resolution to this dissolution in the near future.