Below, please find answers to common questions I am asked. This is important information if you are considering taking legal action:
How is Property Divided in a Divorce?
Georgia divides property in a divorce based upon the principle of equity. This means that your property is divided based upon “fairness” and not community property (i.e. New York, California, Florida). What does this mean? That your property will be divided based upon actions of the parties, one parties ability to pay the mortgage or acquire other property outside the divorce etc. The fact that your name is not on the deed has no bearing on your potential ownership interest in any property that was purchased during the marriage. Property acquired during the marriage is marital property.
Is my inheritance separate property?
Inheritance is considered separate property unless you co-mingle it with your spouse’s property. For example, if you receive money and put it in a joint account, or your spouse’s account, it is no longer your separate property and can be claimed by the other party in a divorce.
Is my relationship considered Common Law?
Common law marriages were abolished by statute in 1997. However, if the parties considered themselves to be married, and held themselves out to the public (by using the same last name on leases, tax returns, telling someone you are married, etc.) to be married, prior to 1997, then the marriage can be enforced by either party and dissolution of the marriage must be done by divorce. However, if neither party claims that the parties were married by common law, then divorce is not necessary.
What are Grounds for Divorce?
The most prevalent ground for divorce is irretrievably broken under O.C.G.A. 19-5-3(13). What this ground means is that your marriage, which is a partnership under the law, is no longer possible because one, or both of you no longer want to be married. Once you file for divorce and your only ground is “irretrievably broken” you cannot have sexual relations with your spouse or the court will consider that the marriage is NOT in fact irretrievable and could deny the divorce.
If your spouse is committing adultery and comes to you to “confess” and you continue to stay with the spouse and try to work out the marriage, the opposing counsel could raise the defense of condonation (or that you condoned the behavior) in a divorce. Make certain that if you do stay in the marriage after such a revelation by your spouse, that you make it clear you are willing to work on the marriage, but with the understanding that this behavior does not continue.
Can posts on Social Media affect my case?
DO NOT POST ANYTHING THAT WOULD INCRIMINATE YOU ON SOCIAL MEDIA. This includes photographs of other men or women, of you with an injurious habit, cursing your spouse out through social media. This seems like common sense but you would be amazed at the evidence that comes out in court in a divorce. Just because your spouse is no longer your “friend” on Facebook, or does not “follow” you on Instagram, doesn’t mean that she/he can’t follow you through someone else.
Do not leave text messages on your phone that your spouse can access, i.e. texts to your girlfriend or boyfriend about your undying love and devotion, the sex you just had, etc. Again, this certainly seems like common sense but you would be amazed at what can be found and brought into court.
Do not get a new cellphone that you don’t tell your wife/husband about and think you are safe. They might find it and all they need is the service provider. The opposing counsel in the divorce can subpoena all of those “texts” seen above paragraph or at the least the frequency of data messages to someone other than your spouse.
What does the court need to determine child support?
When filing for child support, bank statements, W-2's, paycheck stubs, tax returns from the other party, as well as your own are needed, so make sure you don’t leave the house without this documentation. You cannot tamper with another person’s mail but if the information is lying around, get it and copy it.
Income Deduction Orders are standard but can be waived if the person paying the child support has timely and routinely paid the support to the other party.
Garnishment is an option in collecting child support if you have already been awarded support by court order.
There are deviations to be considered to either lower or increase the child support including, costs of daycare, travel expenses to exercise visitation, extra-curricular activities. Make sure that if you come to court asserting that the cost of daycare should be considered, bring invoices, checks made out to the daycare, etc. The court won’t necessarily consider your daycare costs without documentation.
Insurance is credited to the party paying the premiums however this is not considered a deviation under the Child Support Worksheet. It does lower the overall payment of child support for the person paying.
If the neither parent has ever been to court regarding child support, he or she is still under an obligation to pay child support. The amount does not have to be set out in an order. There is a common law obligation to pay support regardless and the non-custodial parent can be arrested for abandonment if one month passes and they have paid no significant maintenance/ support for the child/children.
Visitation has nothing to do with child support. Even if a non-custodial parent is not paying support (court ordered or not) the visitation (if ordered) must still be allowed or the custodial parent will be found in contempt.
A father who has not legitimated the child, is still obligated to pay for some of the necessities of the child.
If the custodial parent is not receiving court ordered support they have the option of contacting the local Child Support Enforcement office to either establish or collect child support.
What do I need to know about Legitimations?
The father has no rights to the child if born out of wedlock unless and until he legitimates the child. Putting a father’s name on the birth certificate if you are not married, or having the Father sign an Acknowledgment of Paternity does not confer any rights on the Father, nor does it legitimate the child.
Legitimation is important to establish that the child is an heir of the father, able to inherit and it enables the father to have the court order visitation. If a father dies without legitimating his child or children, they will NOT inherit from him, unless of course he includes them in a will.
The danger of not legitimizing the child soon after birth is that if the mother marries and the “stepfather” establishes a relationship with the child or children, the father is less likely to be able to legitimate or change the name of the child to his last name. The mother and stepfather can move out of the state without contacting the father and the father will have to legitimize the child in the state of his or her residence.
Can I get a temporary protective order?
Many counties in Georgia have a victims’ assistance division in their courthouse or nearby, that can assist people in drafting a petition for a protective order. An attorney is not necessary for this however, documentation such as recordings, photographs or witnesses are important to establish that the incident(s) occurred. Otherwise the court considers it a “he-said she-said” matter and cannot find for the petitioner. The burden of proof is not as heavy as in a criminal matter but still requires more than the petitioner’s word against the perpetrator.
If you are being subjected to domestic violence, call the police. They will come out, prepare an incident report and help you at a TPO hearing if subpoenaed. Additionally, they may make out a criminal case against the offender.
A hearing must be held within thirty days from the issuance of an Ex Parte Order (Order given without the other party present) to give the other side a chance to have their side heard, but you must also attend the hearing to put up your evidence or the case will be dismissed.
There are shelters for battered people in most counties, however their phone numbers are not always published. The court or an office that handles mediation should have this information. In Georgia the office of mediation is called Alternative Dispute Resolution, or ADR.
What does “contempt” mean?
A contempt is a petition that is filed when one side is not complying with a court’s order. The contempt is brought in the county where the order was issued, but the other party must be served with a summons and copy of the petition. The original order that the party is not complying with, must be attached as an exhibit, so if you have an appointment with an attorney for a contempt, bring the order.
Attorney’s fees can be assessed for contempt but make sure you are not also refusing to comply with any part of the order (i.e. denying visitation because you are not receiving child support)
otherwise you will not be reimbursed for your attorney’s fees and you may be found in contempt as well as the other party.
One relief often sought by the Petitioner is that the Respondent, or person not complying with the court order, be incarcerated. This is not always optimum if the other party is behind in child support and needs to stay employed.
Child Support Enforcement can also file contempts for arrearages in child support.
Most of the counties in the metro-Atlanta area require that a mediation be scheduled, prior to a trial or hearing, unless waived by the office of mediation, or ADR.
Some counties require that a parenting class be attended, if minor children are involved and the certificate of completion of the class must be filed with the court.
Most attorneys will give you some free advice over the telephone or a brief free consultation in their office if you schedule an appointment. Utilize this before you make a decision that could have long lasting impact upon yourself and/or your family.