FAMILY LAW GENERAL INFORMATION
  
Divorce Cases. 

Divorce cases in the State of Georgia may involve the division of marital property and debts between the parties, the payment of maintenance from one spouse to another (formerly called alimony), child custody issues, child support issues, and issues regarding the payment of expert fees and attorneys fees. Dissolution cases can be quite complex and there are sometimes issues requiring special skills of expert witnesses such as the valuation of a business or professional practice, the earning potential or employability of a spouse seeking maintenance, tax consequences of the division of property and debts, or when a spouse is involved with a trust or retirement/pension plan. 

Maintenance Issues.

When the parties to a divorce have been married either for a number of years or have small children that make it inappropriate for the custodial spouse to work outside of the home maintenance may be an issue in the case. The court has the power to award maintenance to a party after considering statutory factors such as that the spouse seeking maintenance 1) lacks sufficient property including marital property apportioned to him or her, to provide for his or her reasonable needs, and 2) is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek maintenance outside the home. The court has discretion after considering certain factors to determine whether maintenance is appropriate in a particular case.


a) The finder of fact may grant permanent alimony to either party, either from the corpus of the estate or otherwise. The following shall be considered in determining the amount of alimony, if any, to be awarded:

(1) The standard of living established during the marriage;
(2) The duration of the marriage;
(3) The age and the physical and emotional condition of both parties;
(4) The financial resources of each party;
(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;
(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
(8) Such other relevant factors as the court deems equitable and proper.
(b) All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided.



Child Custody. 

 In Georgia, the courts have power in dissolution actions generally to grant sole custody, joint legal custody, or joint physical custody. The statutory factors set out generally include the following for the court to consider prior to making custody award:

1) the wishes of the child’s parents as to his or her custody;
2) the wishes of the child as to his or her custodian;
3) the interaction and interrelationship of the child with his or her parents, siblings, and any other person who may significantly affect the child’s best interest;
4) the child’s adjustment to his or her home, school, and community;
5) the mental and physical health of all individuals involved including any history of abuse of any individuals involved;
6) the needs of the child for a continued relationship with both parents: and the ability and willingness of the parents to actively perform their functions as mother and father for the needs of the child;
7) the intention of either parent to relocate his or her residence outside the state; and
8) which parent is more likely to allow the child frequent and meaningful contact with the other parent;


The court may award joint custody and may consider agreements of the parties, if they are in the best interests of the child. The court shall award custody as in the best interests of the child. If a child is 14 years old or older, the child shall have the right to select the parent with whom he desires to live, and such selection shall be controlling unless the parent is not fit. The court may consider family violence in making a decision. Visitation shall be ordered unless there is a history of family violence.

The statutory factors in Georgia are not exclusive and must be considered along with any other relevant factor. Custody determinations in Georgia must be based on the welfare and best interest of the minor child. The judge has the ultimate decision-making authority as to an appropriate award of custody. Cherokee County Parenting Plan

Child Support. 

 Georgia Law provides that the court may order either or both parents owing a duty of support to the child of the marriage to pay for his or her support. The court in making an award of child support considers factors in determining the extent of a support obligation including the financial needs and resources of the child, the financial needs, and resources of the parents, the standard of living the child would have enjoyed had the marriage not been dissolved; and the physical and emotional condition of the child and his or her educational needs. These factors, however, are not exclusive and the award of child support is within the discretion of the trial court. The Court relies heavily on the Child Support Worksheets when calculating the child support for each parent http://csc.georgiacourts.gov/

Attorneys Fees. 

The court in Georgia has the discretion to award attorneys' fees in a dissolution action. There are statutory factors that will be considered by the court. The award of attorneys’ fees is within the court’s discretion and is not mandatory. 

Paternity and Parental Rights. 

 There are instances where the parents of a child were never married to each other and the biological father’s rights need to be established as to that child. This can be initiated by signing the birth recored and administrative legitimation. However a formal Petition for Legitimation must be initiated to obtain Custodial and Visitation rights and priviledges.  Legitimation  
There are also instances where a child is born out of wedlock and, the mother needs to seek child support award and/or a custody and visitation plan for the minor child this is done through a Paternity Action.


Prenuptial Agreements. 

 In Georgia, a couple can make agreements to treat their property and debts in a particular way pursuant to contract. This allows couples to plan for asset and debt distribution in the event of a future divorce. Prenuptial agreements may be particularly appropriate when one party has significantly more assets than the other party or in a situation where a second marriage is occurring late in life after both parties have significant property rights and/or children. Future child support cannot be determined in a Pre Nuptial Agreement.

Alternate Dispute Resolution and Mediation.

 There are many instances where legal disputes in dissolution matters can be resolved without litigation. 

Preparing For Divorce. 

 No one expects to find themselves in a situation where they are served with a petition for divorce or where they are forced to file for divorce due to the actions of their spouse. It is extremely important that as soon as a divorce becomes a possibility that you seek experienced legal advice regarding the many issues and decisions which will present themselves over this process. Generally, the earlier that these issues and concerns are addressed the better. 

  In most complex cases where parties own a home or business or have children there are complex issues to be decided, for example:

1) temporary and permanent custody, child support and maintenance arrangements; payment of camp during the summer and child care during breaks.
2) disposition or sale of real estate,
3) payment of maintenance,
4) allocation of debts to each party,
5) medical insurance coverage,
6) filing federal and state tax s jointly or separately
7) orthodontic expenses,
8) medical insurance coverage for the children,
9) payment of uninsured medical expenses for children,
10) private or public school expenses,
11) college expenses,
12) income tax deductions or exemptions for children,
13) visitation and holiday schedule,
14) transportation for visitation,
15) sale or transfer of business assets,
16) payment of taxes on business,
17) retirement funds and stock options or royalties for works
18) mediation,
19) payment for mediation,
20) payment of court costs,
21) real estate appraisals
22) personal property appraisals, and
23) payment of attorneys fees.
*There are many other issues in a given case.


     I suggest a consultation as early in the process a possible so that the client may obtain an outline of the legal issues that exist in their case, an education session regarding the law in this state, as well as to chart their course of action in these difficult cases. 


QUESTIONS AND ANSWERS

What is a divorce?

Divorce, also known as “dissolution of marriage,” occurs when a marriage is legally terminated. Divorce law governs the sometimes complicated process of divorce, helping to determine how property and assets are divided as well as who will have custody of any children the couple may have and who will pay child support. 

What is the alternative to divorce? 

The most common alternative to divorce is separation. 

Separation occurs when a couple chooses to live apart without getting divorced.

There are several types of separation:

Trial separation – when a couple is unsure as to whether or not they want to permanently separate, they may choose to undergo a trial separation. During this time, they live apart, but their assets and debts are still considered mutual. 
Permanent separation – in a permanent separation, the couple has already made a decision not to get back together. They are actively choosing to live apart. Therefore, any material gains and losses are the individual’s rather than the couple’s responsibility but marital assets until a final hearing. 

• Legal separation – when a couple decides to separate permanently, they may choose to become legally separated. This means that a court decides how property and possession are divided and makes decisions about child custody, visitation, child support, and alimony. 

What are the different types of divorce?

 There are two types of divorce: fault and no fault. In the past, the spouse filing for divorce had to show evidence of wrongdoing on the part of his or her partner. Today most states no longer require it. There may still be divorce cases, however, when showing that one partner is at fault may be worthwhile. The following is a description of each type of divorce.

Fault Divorce
In some cases, one partner can be shown to be at fault in a divorce. This is most common when abuse is an issue. One spouse may also be found at fault if it can be shown that he or she is guilty of adultery or abandonment. In addition, a fault divorce may be given if one partner is unable to engage in sexual intercourse or if he or she is in prison. In some cases, the divorcing spouse may want to file a fault divorce, because he or she may be awarded a greater share of the couple’s assets. Fault divorces also tend to be processed more quickly as there is no separation period like the one required for a no-fault divorce.

No-Fault Divorce
A no-fault divorce is much less complicated than a fault divorce. In a no-fault divorce, there is no need for evidence or proof of wrongdoing. Instead, any legally recognized reason for divorce is acceptable. Generally, “irreconcilable differences,” or the mere inability to get along, is considered a valid reason for no-fault divorce. This means that the other spouse cannot prevent his or her partner from filing for divorce. By challenging the decision, he or she only lends merit to the fact that the couple does not see eye to eye.
Child Custody and Visitation

Child custody refers to the custody of children in the event of a divorce. Custody battles can be hard on the children, so it is important that custody be resolved as quickly as possible. 
 
Types of Child Custody

There are four main forms of child custody: legal custody, physical custody, joint custody, and sole custody:

Legal custody –
                              a form of child custody that grants one parent the right to make decisions regarding the child’s upbringing. This includes where the child goes to school and what their religion will be. 

Physical custody –
                             a form of child custody that grants one parent the right to live with the child. 

Joint custody –
                            a form of child custody that awards joint legal custody, joint physical custody, or both to each parent. When parents are awarded joint legal custody they must agree about decisions regarding the child’s upbringing. When parents are awarded joint physical custody, the child will spend equal time living with the mother and the father. When parents are awarded both joint legal custody and joint physical custody, both scenarios above apply. 

Sole custody 
                            a form of child custody that grants one parent both legal custody and physical custody of the child. In instances where neither parent is able to care for the children, another party such as a grandparent or other relative may be given custody.

  Visitation

Visitation refers to the rights of a parent who does not have physical custody of their children to visit them at specified times. There are three main types of visitation: reasonable visitation, fixed visitation, and supervised visitation.

 Reasonable visitation refers to a court order that grants visitation at reasonable times and places. In this instance, the times and places are left to the parents to determine. However, because the parent with physical custody is not legally obligated to agree to a schedule, this arrangement usually gives them more control over visitation rights, such as the times, places, and duration of visits.

 Fixed visitation refers to a court order that specifically orders the times, duration, and places of visitation. This arrangement works best for parents who are extremely hostile toward each other.


 Supervised visitation is usually granted in cases where the parent without custody has a history of violence toward the child or their former spouse. In this instance, an adult supervisor must be present during each visitation.


What if one of us wants to move or has moved what state has jurisdiction?

In general, under the Uniform Child Custody Jurisdiction and Enforcement Act, a state court can make a decision about a child custody arrangement if (these are in order of preference):

1)The state making the decision is the child's home state. For a state to be a child's home state, the child must have resided with a parent in the state for at least six months prior to the legal action being brought, or the child must have been residing in that state but is absent because a parent removed the child from the state.

2)The child has significant connections with people in the state. These connections can include connections with teachers, doctors and grandparents, to name a few. In addition, there should also be substantial evidence inside the state that concerns the child's care, protection, training and personal relationships, like friends.


3)The child is in the state for safety reasons. Generally, this means that the child is in the state after being removed from another state for fear of abuse, neglect or abandonment if sent back to the other state.


4) No state can meet one of the three above tests. In general, this means that no state can meet any one of the above three tests, or a state can meet at least one of the three tests but has declined to assert jurisdiction over the matter.


What is child support?
 Parents have an obligation under the law to provide support for their children. When parents divorce, each parent still retains that duty. Child support is a form of payment that must be made by the parent who does not have custody of the children after a divorce. If one parent has sole custody of the children, then that qualifies as supporting the child. The other parent, who does not have custody, must make monetary payments to contribute to the care of the children. In cases of joint custody, child support payments are based on the parents’ relative incomes and the amount of time the children spend with each of them. 

  The determination of the amount of child support varies considerably both from state to state and from case to case. Some of the factors considered when deciding how much the supporting parent will pay include:

• How much the parent with custody makes, has, and needs 
• How much the parent without custody can afford to pay 
• The children’s educational, health, and other needs 
• What the children’s standard of living was before the divorce 

The law takes child support payments seriously. If a parent fails to pay court-ordered child support, several different enforcement acts can be used to compel him or her to pay. In cases where the owing parent refuses to pay, he or she may face time in jail, lose their drivers license priviledge, have their passport suspensed, have a tax return attached, or have their professional license interfered with until patment is made..

Child support must be paid until one of the following conditions is met:

• The child reaches the age of 18 or until child graduates high school.
• The child is legally emancipated 
• The child goes on active military duty 

Is there a reason to deviate from the Guidelines?

The Guidelines are just that: guidelines. A court may increase or decrease the child support order depending on the individual circumstances of both parents and the best interests of the child.

Factors the court looks at include:

High Income of the Parents (Combined Income is $30,000 Per Month)
Low Income of the Non-Custodial Parent (Earning $1,850 Per Month or Less)
Health related insurance;
Life Insurance (One Parent is Insured and the policy names the child as beneficiary)
Child and dependent care tax credit;
Travel expenses;
Alimony;
Mortgage;
Permanency plan or foster care plan;
Extraordinary expenses such as medical conditions or education expenses;
Actual Parenting time.



Who pays child support?

 In cases where one parent is awarded sole physical custody of the children, the non custodial parent is required to pay child support. In cases of joint custody, one of the parents may be required to pay child support to the other, depending on their relative incomes and expenses and how much time the children spend with each parent.

Not all cases of child support are clear-cut, however. Paternity issues often arise in child support cases.

What is Included in a Support Order Monetary support (food, clothing, & shelter), health insurance, basic education expenses. Also might include child care expenses, extraordinary medical expenses, visitation travel costs, and extracurricular activities.
Alimony Spousal Support 

 Alimony is defined as a payment from one spouse to the other pending separation or after divorce. Alimony is also referred to as “maintenance” in some states. In the majority of cases, alimony is paid to the wife from the husband, although the wife may be required to pay alimony if the husband is the homemaker and primary caretaker of the children.


Types of Alimony

 There are several types of alimony, including:

Permanent alimony 
                                         a type of alimony awarded after divorce. Permanent alimony consists of regular payments that may change in amount or end if the receiving party remarries, dies or financial terms change significantly for either party. Permanent periodic alimony is taxable as income to the party receiving it and a tax credit to the payor. 

Temporary alimony 
                                        a type of alimony awarded pending a divorce or separation. Temporary alimony consists of payments that include enough money to afford the lawsuit and money to take care of needs until permanent alimony can be established. 

Lump sum alimony –
                                        also known as alimony in gross. Some states allow lump sum alimony payments that permit spouses to pay their alimony all at once. Lump sum alimony brings benefits with it to the party receiving the alimony.


(a) The finder of fact may grant permanent alimony to either party, either from the corpus of the estate or otherwise. The following shall be considered in determining the amount of alimony, if any, to be awarded:

(1) The standard of living established during the marriage;
(2) The duration of the marriage;
(3) The age and the physical and emotional condition of both parties;
(4) The financial resources of each party;
(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;
(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
(8) Such other relevant factors as the court deems equitable and proper.
(b) All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided.


Alimony Payments

 It is very important to keep track of alimony payments in the event that there is a disagreement between the two parties. The spouse receiving alimony may make a claim in court that the spouse paying alimony has not been doing so, and the payer may be sued for back support. In addition, the IRS may challenge alimony payments that were made or received, and the payer may lose the alimony tax deduction.

 In order to avoid these situations, the spouse paying alimony should:

• Keep a list of all payments with the date, check number, and address to which the alimony payment was sent. 
• Keep the original checks in a safe place, such as a safe deposit box. 
• Keep a receipt signed by the recipient if alimony was paid in cash. 

The spouse receiving alimony should:

• Keep a list of all payments received with the date, the amount received, check number, account number of the check, and the name of the bank the check is drawn from. 
• Keep a photocopy of each check or money order. 
• Keep a copy of the receipts if alimony was paid in cash. 

The inforamtion on this page is not to be considered advice nor deemed a consultation. No opinion is offered as to the accuracy of the above information until the attorney is retained. The attoreny does not state that all or any of the above inforamtion applies to your particular case and each case stands on the merits and circumstance of each individual case. No attoreny client bond is formed based on just the reading of this case. The information is a general opinion based on information in the public stream. The attorney is not accountable for any misinformation unless and until a consultation is provided and the attorney enters into an employment agreement.