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More couples choosing to cohabitate, but remain unmarried

Friday, June 22nd, 2012

In Georgia and in other parts of the country, more and more couples are choosing to live together without getting married. More couples stay happily unmarried, by Gracie Bonds Staples, The Atlanta Journal-Constitution, March 11, 2012. According to a recent article on ajc.com, a New York based marketing communications agency conducted a survey, which found that 45% of never-married women and 68% of never-married men prefer a long term, committed relationship to marriage. This is, in part, due to the fact that moral judgments about cohabitation have largely disappeared. In addition, women’s gains in education and the workplace combined with an economy that values communication and negotiation skills (values more predominant among women) have made marriage non-essential for many people.

Living together without being married can legally mean different things in different states. Unfortunately in some states, such as Georgia, cohabitating partners have no legal benefits. Georgia does not recognize domestic partnerships or common law marriage, unless it was legally entered into prior to January 1, 1997. OCGA §19-3-1.1. Thus, parties in Georgia who choose to live together without legally marrying cannot divorce.What this means, practically speaking, is that neither party will be entitled to alimony or equitable division of assets if the relationship falls apart. A court will, therefore, not get involved and the parties will have to work everything out on their own. This could be particularly problematic if the parties own property together and have other joint assets, such as bank accounts, or if one party was the primary “bread winner” while the other party chose not to work. These are all issues you should think about, and possibly discuss with your partner, if you choose to cohabitate without getting married.

Refinancing a Mortgage Loan in Georgia After a Divorce

Monday, June 11th, 2012

In Georgia, it often occurs that one party wishes to retain the marital home after a divorce. If the Husband and the Wife’s name are both on the mortgage loan documents as the borrowers, the question then becomes how to remove the name of the party relinquishing their interest in the home so that they are no longer liable for mortgage payments. Even in divorce situations, most lenders are unwilling to remove borrower’s names from loans because it leaves them less recourse in the event of a default or a foreclosure. To remove a party’s name in these situations, the loan either must be satisfied in full or the party wishing to retain the home must refinance.

When a home mortgage is refinanced, the existing mortgage is replaced by a new mortgage that has different terms. This process is frequently used to, among other things, achieve a better interest rate or consolidate debts. In a divorce situation where both party’s names are on the mortgage loan and one party is to retain the home, the party who is keeping the home is often required to refinance the mortgage into their name only. In today’s struggling real estate market, refinancing has become a problem due to the number of people who owe more on their home than it is worth. In these situations, a solution may be the Home Affordable Refinance Program (HARP).

HARP is a federally run program that allows eligible parties with mortgages owned or guaranteed by Fannie Mae or Freddie Mac to refinance their homes to a lower interest rate, even if they owe more on their mortgage loan than their home is worth. Eligibility requirements for borrowers wanting to utilize this program include, but may not be limited to: (1) zero missed payments in the last six months, (2) no more than one missed payment in the last twelve months, (3) a current loan-to-value ratio greater than 80%, and (4) no previous refinances under HARP. To determine if your current mortgage is owned or guaranteed by Fannie Mae or Freddie Mac, visit www.fanniemae.com/loanlookup and www.freddiemac.com/mymortgage.

If you are dealing with how to best address the issue of your marital home during a divorce, or are facing contempt action on a Final Judgment and Decree due to your inability to refinance the marital home, we recommend you contact one of our Atlanta Divorce Lawyers to assist you with this process.

By: Courtney H. Carpenter, Associate Attorney, Meriwether & Tharp, LLC

More Frequently Asked Questions: Georgia Divorce

Monday, May 28th, 2012

Question: How do I prevent my ex-spouse from stopping alimony payments?

Answer: If your ex-spouse has a Court Order to may alimony, and a condition has not occurred in the Order that would allow him to terminate the alimony payments (ex: remarriage), then you can file for contempt against your ex-spouse after he stops paying. There is nothing you can do before he stops paying because he has not violated any Order.

Question: Can my attorney of many years, who has seen my mental health records, represent my wife in our separation agreement?

Answer: There is likely a conflict of interest here, especially if your attorney knows information that may impact the divorce proceedings. You may waive this conflict if you would like but,depending on your situation, it may be best for each of you to have separate attorneys.

Question: I want to remove my name from the deed on the house, but how can I make sure that my spouse refinances to remove my name from the home equity loans?

Answer: In this situation, I recommend that the parties arrange to refinance all the loans at once. Both parties can show up to the closing and the quitclaim deed can be signed at the same time the refinance documents are signed. Otherwise, I would not recommend a person signing a quitclaim deed when they still have liability on the house.

Service by Publication in Georgia

Monday, May 21st, 2012

A problem sometimes faced by individuals in Georgia embroiled in either a divorce or a custody dispute with a spouse out of the state or country is how best to serve notice on the opposing party.The spouse’s whereabouts may be unknown, in which case simply hiring a process server won’t do the trick. However, in order to satisfy the due process clause of the United States Constitution, it is necessary for all parties to be given notice of a proceeding. For persons residing out of state, notice must be given in a manner calculated to give actual notice pursuant to either the laws of the state where service is to occur or the state where the proceeding is to occur.

One way of reaching those who either can’t or don’t want to be found is to make use of service by publication. According to O.C.G.A. § 9-11-4(f)(1)(A), personal service must be attempted before service by publication is proper. The Court in Gaddis v. Dyer Lumber Co., 168 Ga.App. 334, 335 (1983), stated “In order to justify service by publication where the address of the defendant is known, or believed to be known, generally it must be shown that service was attempted unsuccessfully at the defendant’s last known address and that personal service was proven impossible.”

The Court in Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1983), noted that because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts.

However, if the address of an opposing party is known, then according to O.C.G.A. § 9-11-4(f)(1)(A), the Petitioner must supply the exact address of the nonresident to the Clerk. If the Petitioner knows the address of the defendant but does not furnish it to the Clerk of Court for purposes of mailing the notice, the judgment could then be set aside for fraud. Stiles v. Stiles, 183 Ga. 199, 205 (1936).

If you are facing similar issues involving service on an out-of-state spouse, please contact one of our skilled Atlanta Divorce attorneys.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

Exit Strategies: Atlanta Divorce and The Marital Home

Friday, May 11th, 2012

In more than a few recent cases, the stumbling block to settling the case has been the marital home. As a result of the real estate market meltdown, Atlanta divorce attorneys have had to rethink how they structure agreements regarding real property. So what do you do in a case when neither party wants the marital home? It’s the proverbial hot potato no one wants to be left holding.

When clients are contemplating walking away from a home, our job as divorce attorneys is to eliminate or at least minimize a client’s loss when structuring an exit strategy. The first step in making this happen is to ensure the client has the information necessary to make an educated and informed decision. One of the key pieces of information is how much equity, if any, is in the property. Knowing whether the client would need to bring funds to the closing table if the property were sold allows us to immediately rule out certain options. Other critical facts clients need to be aware of include who is listed as a borrower on the mortgage, how far the mortgage is in arrears and both parties’ financial condition and employment plans.

Several possible alternatives clients may want to consider include bankruptcy, foreclosure, leasing, a short sale and a limited sale. Something I am seeing more often in divorce practice is parties choosing to “walk away” from a property. Although this is not a situation we encourage, in some cases foreclosure is the only option. While “walking away” may not be the best moral decision for some, it may make sense, at least from an economic perspective, to those parties who owe much more than the home is worth. If the parties agree to a foreclosure, the parties need to ensure that the possibility of a Deficiency Judgment is addressed.

Other alternatives to consider are leasing out the property until the market recovers or placing the home on the market in the hope of a short sale. A short sale may not be an option, however,since most lenders won’t even consider an offer on the property for less than the amount owed, unless the borrowers are at least several months behind on the mortgage.

In situations when parties are underwater or facing foreclosure on the marital residence, it is important to have an experienced divorce attorney. Regardless of the situation, an improperly drafted agreement could leave a person with a financial obligation in the divorce case that they cannot even bankrupt. The few hundred dollars a person might save by not having a lawyer draft the agreement can easily be lost if they draft a bad agreement. A knowledgeable attorney can work with you to craft the right agreement, to suit your specific needs and minimize any losses.

By Alyssa Vaughn, Associate, Meriwether & Tharp, LLC

Are Personal Injury Settlements or Awards Considered Income for Purposes of Calculating Child Support in Georgia? – Part 3

Friday, April 27th, 2012

In the first two parts of the discussion regarding personal injury awards in Georgia divorce cases, we examined whether personal injury awards were subject to equitable division. In part 3, we discuss how personal injury settlements and awards are handled when calculating child support in Georgia.

The first step when calculating child support in Georgia is to accurately determine the amount of each parent’s gross monthly income. So the question is, is a personal injury settlement or award included in gross income for purposes of calculating child support in Georgia? According to Georgia’s Child Support Statute, gross income is defined to specifically include personal injury awards as well as awards from other civil actions. OCGA § 19-6-15(f)(1)(a)(xvi). Nevertheless, even if a personal injury award is included in gross income, the statue allows a Court the authority in these types of situations to calculate gross income differently.

The frame of reference most often used in determining an individual’s gross monthly income is examining the parent’s income over the last year. For parents who have received certain types of settlements or awards, however, reviewing their income over the typical one year time period may result in the imposition of an inequitable child support obligation. Everyone loses when child support is set at an unsustainable amount and a parent is unable to meet their support obligation on an ongoing basis.

Fortunately, the legislature contemplated this potential inequity and crafted the Child Support Statute to allow for situations in which a parent’s sole income is from irregular payments or a single, lump-sum payment as a result of a personal injury suit. Under the law, when a parent has received such an award, the fact finder may permit gross income to be computed by averaging the amounts received over a reasonable period of time or permit a one-time lump-sum child support payment to be made of a percentage of the total award received. OCGA § 19-6-15(f)(1)(a)(xvi). If you have received an award or settlement as a result of a personal injury suit, an experienced Georgia family law attorney can assist you in determining the appropriate amount of child support in your particular situation.

By Alyssa Vaughn, Associate, Meriwether & Tharp, LLC

New Study Says Divorce Can Kill

Monday, April 23rd, 2012

According to an article on HuffingtonPost.com, a new study entitled “Divorce and Death” which appears in the journal Psychological Science shows that failed marriages can have the same negative effect on your life expectancy as smoking.

The study produced results indicating that the risk of death is 23% higher for those who have gone through a divorce than those that stayed married. Researchers were surprised as they did not believe life expectancy would drop to levels comparable with smokers, heavy drinkers and the obese.

Men are at a much higher risk of early death than their former wives. It appears that having a wife helps keep husbands alive as the women generally serve as caregivers, noticeably prolonging life expectancy. Companionship with a nurturing woman seems to delay the slide into the poor health that comes with old age.

Study authors made sure to clarify that the association between divorce and death is not causal, meaning that they do not believe that the moment someone files for divorce years are shaved off their life. Instead, the research shows that “there is something uniquely difficult about remaining separated or divorced that accelerates time of death.”

Researchers believe that things like the cumulative strain of being a single parent, financial stress associated with a divorce proceeding or an intense and exhausting conflict with an ex cause the stress which can then cause premature death. In a roundabout way, one spouse’s bad personality trait, such as a tendency to belittle or a penchant for negativity, can be responsible for both killing the marriage and, in the long run, for killing the ex.

If you are facing a stress-inducing divorce and need advice, please contact one of our skilled Atlanta Divorce attorneys.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

In Georgia, trial court cannot rely on evidence from temporary hearing in making final judgment

Monday, January 16th, 2012

The Supreme Court of Georgia recently reversed a trial court’s decision in a custody modification case because the trial court erroneously relied on evidence from the temporary hearing in making its final custody determination. Vaughn v. Davis, S11A1950 (2012). In that case, the parties had been granted joint legal and physical custody of their children in their divorce action.Neither was required to pay child support to the other, but they were ordered to split the children’s expenses. Id. The mother later filed a motion for change of custody and child support. Id. At the temporary hearing at which both parties appeared pro se, the trial court entered a temporary order awarding primary physical custody to the father, with the visitation to the mother. The mother was also ordered to pay child support to the father. Id.

The mother retained an attorney prior to the final hearing in the case. At the final hearing, the trial court again granted primary physical custody to the father, with visitation for the mother.Id. at 2. After her motion for a new trial was denied, the mother appealed, contending “that the trial court erred by relying on evidence adduced at the temporary hearing.” Id.

The Supreme Court of Georgia agreed with the mother, citing a case from 2010 which held that “[t]he nature and quality of the evicence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing, and parties should ordinarily expect that only that evidence which their opponent sees fit to offer at the final, more formal hearing will be relied on to support the permanent custody award…Accordingly, we now hold that, absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.” Id. at 2-3, quoting Pace v. Pace, 287 Ga. 899, 901 (2010).

Here, it is clear that the trial court relied on evidence from the temporary hearing in reaching its final custody decision, and “there is no indication that the parties were notified in advance that this was going to happen.” Vaughn at 3. Thus, the trial court’s order must be reversed and remanded for further proceedings.

Residence requirements for divorce in Georgia

Friday, January 13th, 2012

In Georgia, when spouses live in different counties, or if one spouse lives in Georgia and one lives out of state, there are specific rules which govern where the divorce action must be filed. Georgia law states that: “No court shall grant a divorce to any person who has not been a resident of this state for six months before the filing of the petition for divorce.” OCGA§19-5-2. An exception to this rule is that “a nonresident of this state may file a petition for divorce, in the county of the residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.” Id.

If both parties have resided in Georgia for more than six months, the Petitioner must file the divorce action in the county in which the Respondent resides, even if the Petitioner does not live in that county. So, if the Petitioner resides in Fulton County and the Respondent resides in Cobb County, the divorce action must be filed in Cobb County. If the Petitioner resides out of state and the Respondent has resided in Georgia for at least six months, the divorce action must be filed in the Georgia county in which the Respondent resides. If the Petitioner resides in Georgia and the Respondent resides out of state, the divorce action cannot be filed in Georgia but, rather, must be filed in the state in which the Respondent resides.

In Georgia, am I legally separated after I file my divorce action?

Friday, December 30th, 2011

Georgia divorce attorneys are often asked whether the filing of a divorce action means the parties are legally separated. This question often comes from people who are interested in starting to date other people during the pending divorce.

Please keep in mind that Georgia does not recognize legal separation. Therefore, nothing changes about your marital status until your final divorce decree has been signed by the Judge. Until you receive your final divorce decree, you are still married in the eyes of the law and sex with anyone who is not your spouse is considered adultery. Whether this adultery is considered to be the cause of your divorce is a different question. It is important to note, however, that the Judge can take your actions both before and during the pending divorce action into consideration in awarding alimony, custody, and equitable division of assets.