The Meriwether & Tharp Divorce Attorney Blog

Return to the Blog Home Page

General Family Law

Should I Appeal my Divorce Order?

Wednesday, May 13th, 2015

shutterstock_141473581

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

Stock Image 23

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

Stock image 13

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

Stock Image 23

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.

Going Through A Divorce? Check Into The Divorce Hotel

Tuesday, October 28th, 2014

Stock Image 20

There are several ways to come to an agreement on the outstanding issues in your divorce action, including negotiating directly with your spouse/through attorneys, mediation, and a final divorce hearing. A Netherlands-based company has come up with a new option – the “Divorce Hotel.”  ‘Divorce Hotel’ Provides A Quick Getaway…From Your Awful Marriage, by Brittany Wong, The Huffington Post, September 12, 2014. According to the article, the “Divorce Hotel” is “a rotating program that takes place at resorts and boutique hotels in which experts help couples mediate their divorces in one weekend.”  Couples in the Netherlands have been visiting “Divorce Hotels” since 2011, and now the company is expanding.

Later this month, the company will launch its first “Divorce Hotel” in the United States at the Gideon Putman Resort in Saratoga Springs, New York.  For about $5,000, couples can purchase a package that includes two separate rooms and a mediator to help the parties resolve all their outstanding divorce issues.  If the divorce is particularly contentious, the cost may increase, as additional experts may have to be called in to assist.

On the surface, this is not a terrible idea. It forces parties to come together for mediation, while allowing them time to relax at the spa between mediation sessions.  However, many divorces cannot be resolved in such a short period of time, even if the parties come willing to negotiate. For this reason, the “Divorce Hotel” may be a good start, but couples may need additional time and mediation sessions to resolve all outstanding issues.

See here for a video about the “Divorce Hotel.”

 

 

Divorce Hardest On Children From High Income Families

Sunday, October 26th, 2014

Divorce is almost always difficult on the children involved as so many things in their lives are changing.  They will no longer live with both parents.  They may have to move to a different house and/or a different school. Holidays will be split.  Schedules will become more difficult.  They may eventually have to get used to stepparents or step siblings living with them.

Interestingly, new research indicates that children of high-income families are the most significantly impacted by divorce, as compared to children of moderate or low-income families. Divorce Hits Children In Higher-Income Families The Hardest, by Rebecca Adams, huffingtonpost.com, September 15, 2014. The study, which gathered its information by questioning divorced mothers about family structure, household income, and socio-emotional state of their children, observed 4,000 children from birth until age 12. While the conclusion that “parental separation or divorce only significantly impacts he behavior of children in high-income families” was clear, the reason for this conclusion was not.

Nonetheless, the researchers hypothesized that there were likely two reasons. First, “since fathers – who are the sole or primary breadwinners in 60 percent of families – are typically the parent that leaves the household during a divorce or separation, children may experience a more significant drop in family income.”  The children may have to move and/or go to a different school, which can certainly cause stress for a child. Next, the researchers hypothesized that divorce could hit a high-income family particularly hard, since such a change in family dynamic is less common in their social circles and, thus, such a change could be a shock to the children.  Lower income families may be more used to family changes such as divorce or separation.

Further research indicated that the child’s behavior actually improved if the mother remarried.  This is likely because the additional income of the stepparent may allow the children to have back some of the “normalcy” they felt that they lost as a result of the divorce, such as the financial benefit of a two income household.

 

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

Stock Image 20

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

Stock Image 23

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.