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General Family Law

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

Thursday, September 18th, 2014

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

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

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

Can I legally get married in Georgia?

Wednesday, September 17th, 2014

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

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

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

What is Surrogacy?

Tuesday, September 9th, 2014

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

Surrogacy Generally

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

Types of Surrogacy

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

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

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

Surrogacy in Georgia

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

Pet Prenups?

Sunday, September 7th, 2014

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

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

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

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

Sunday, August 31st, 2014

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

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

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

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

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

Addressing Social Media in Prenuptial Agreements

Tuesday, August 26th, 2014

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

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

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.