Types of Divorce: There are only two types: contested or uncontested. An uncontested
divorce is where the parties have resolved all issues between them and they do not need a
judge or a jury to resolve any issue at all. A contested divorce occurs where there is at
least one issue upon which the parties cannot agree. An uncontested divorce is cheap,
quick and easy. The entire process can happen as quickly as 31 days, but typically takes
5 to 8 weeks, depending on when the judge to whom the case is assigned will next be
holding divorce court.
It is by far in your best interest to have an uncontested divorce, because in a contested
divorce, there will be two or more losers and two clear winners. The two winners are the
lawyers, as they get paid. The two spouses and their children will be the losers. Except
for very wealthy people, it is inevitable, because the family only has but so many
resources. The family is doubling it's expenses as there will now be two households
instead of just the one. Unless one or other spouse starts making more money or otherwise
finds a new financial resource, the parties' standard of living will go down. If they
take what few resources they started with and blow it on lawyers in order to fight, then
there will be even less to go around than there would have been if the divorce had been
uncontested. So, if you are getting divorced, sit down and talk with your spouse about
the issues if you can. Hopefully, the two of you can work things out. Start with custody
of the child(ren) and remember to put your personal desires to the side just the same as
you have always done when considering what is best for your child(ren). Once you have
decided what is truly in the best interest of your child(ren), then do everything within
your ability to make that decision happen.
Grounds for Divorce: There are thirteen grounds for divorce in Georgia. They are:
(1) Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
(2) Mental incapacity at the time of the marriage;
(3) Impotency at the time of the marriage;
(4) Force, menace, duress, or fraud in obtaining the marriage;
(5) Pregnancy of the wife by a man other than the husband, at the time of the marriage,
unknown to the husband;
(6) Adultery in either of the parties after marriage;
(7) Willful and continued desertion by either of the parties for the term of one year;
(8) The conviction of either party for an offense involving moral turpitude, under which
he is sentenced to imprisonment in a penal institution for a term of two years or longer;
(9) Habitual intoxication;
(10) Cruel treatment, which shall consist of the willful infliction of pain, bodily or
mental, upon the complaining party, such as reasonably justifies apprehension of danger to
life, limb, or health;
(11) Incurable mental illness;
(12) Habitual drug addiction;
(13) The marriage is irretrievably broken.
The first twelve are rarely used anymore as Georgia adopted the thirteenth "no fault"
divorce decades ago. It means that one party wants out and that party has no hope or
prospect of a reconciliation. If the parties are physically intimate after a petition for
divorce is filed alleging only that the marriage is irretrievably broken, then that
petition must be dismissed as a matter of law, because the intimacy proves conclusively
that at some point after the petition was filed, there was a hope or a prospect of a
reconciliation. It is not altogether uncommon to see a petition for divorce dismissed in
the heat of battle, because the party who does not want the divorce seduced the one who
does and he or she saves this fact as the ace in the hole for when he or she starts losing
the battle. It's a dirty tactic.
Procedure for Divorce: All civil lawsuits start the same way, that is with the
filing of a petition or complaint with the Clerk of the Court. A summons always
accompanies any civil lawsuit. The summons just says to pay attention, you just got sued
and you have 30 days to file a document by which you admit or deny the allegations against
you. If you fail to answer, you will not be entitled to any further notice. The
paperwork to start a divorce is typically more complicated than most lawsuits,
particularly when there are minor children involved or an emergency exists. If an
emergency exists, you can ask a judge to issue a one-sided or "Ex Parte" order. Judges
exercise this power cautiously. Typically, the first page of a contested divorce is a
"Rule Nisi" which is just a notice that the case has been scheduled for a temporary
hearing. At a temporary hearing, the general idea is to maintain the status quo until the
final trial, at least theoretically. Realistically, however, the outcome of the first
temporary hearing frequently turns out to be the way the case ends with respect to many
issues. In a Georgia divorce, a party may demand trial by jury, but a jury never decides
custody or visitation. A typical day in divorce court has everyone involved in a lot of
cases showing up in the morning, then the judge announces all the cases that are up for a
hearing that day and collects information from the lawyers so he can then sort through the
cases, assign them to the judges available for that day if there is more than one and
generally figure out how all the cases are going to be heard. After calender call,
negotiations start and the judge hopes that most parties will reach agreements so that no
hearing will be necessary, but the judges are usually prepared to stay as long as it takes
to make sure everyone gets his day in court. A temporary hearing is supposed to be
limited to one hour and one live witness per side in addition to the parties.
Issues in a Divorce: There are only six issues in any divorce, namely 1) the ground
for the divorce, 2) alimony, 3) equitable division of marital property, 3) custody, 4)
visitation, 5) child support, and 6) attorney's fees.
The ground for the divorce is often where divorcing spouses want to focus their attention.
Frequently, emotions are high and the parties want to talk about who done what to whom.
Adultery and cruel treatment have financial consequences. An adulterer is not entitled to
alimony, no matter how financially dependent he or she may be on the other spouse. He who
treats his spouse cruelly has fewer equities than he who comes into court with clean
hands, so in an equitable distribution of marital properties, the party with fewer
equities ought to get less than half. Most divorces are granted on the "no fault" ground.
Alimony is an award made from one party to the other party in order to maintain the
lifestyle to which he or she became accustomed during the course of the marriage. It is
awarded where one spouse has depended on the other financially. Where both parties earned
income during the marriage, alimony is generally not awarded. It can be a lump-sum, paid
once or in installments, or it can go on indefinitely, depending on circumstances.
Equitable division of marital property means just what it says. First it is a division
based on what's fair. It includes the debts as well as the assets. Presumably equal
shares is fair unless the evidence shows otherwise. What is divided is marital property,
not separate property. Marital property is most any thing that was acquired during the
course of the marriage by any means other than a gift from a third party or an
inheritance. What a party brings into the marriage is his separate property. It is not
subject to being divided. Houses and retirement accounts are frequently both marital and
separate property. The rules on what is marital and what is separate can get very
complicated.
Custody comes in two forms, which are further sub-divided into two forms. Physical
custody means who has physical possession of the child, meaning where the child lives.
Legal custody means the right to make big important decisions. Each is further divided
into joint or sole. So, "joint legal custody" means both parents have equal rights and
responsibilities for major decisions concerning the children, including the children's
education, health care and religious training. "Sole legal custody" is where one party
gets the final say so when the parents disagree or where one parent does not even get a
say so. "Joint physical custody" means the child spends equal amounts of time living at
each parent's house. Most judges are wary of joint physical custody as experience has
shown that parties who are divorcing usually can not cooperate with each other well enough
to make joint physical custody work without harming the child(ren). Only the judge
decides who gets custody. The judge will decide the issue according to what is in the
best interest of the child(ren).
We now have yet another extra layer of bureaucratic nonsense called a "Parenting
Plan." It is a document that comes in three versions, one to which both parties have
agreed for use in uncontested cases, one where each party proposes excrutiatingly detailed
rules for all the day to day routines involved in parenthood that he wants the judge to
decide in his favor, and lastly, one where the judge makes up all those rules. In my
humble opinion, a "Parenting Plan" is very beneficial to children whose parents fight
constantly and use the children as weapons in their war against each other. Some people
just need the structure that a Parenting Plan provides. For parents who have learned that
they need to work together for the benefit of the children, agree on what is in the best
interest of the children and want to place the children's best interests above all else
(i.e.- the uncontested version), a Parenting Plan is just a headache as no document can
set forth a specific rule for all the situations that parenthood may present.
Visitation is the non-custodial parent's time to have the child(ren) in his or her
possession. As of January 1, 2008, the law requires divorcing parents to have the
Parenting Plan whereby they sort out where the child will be 365 days a year and try to
anticipate as many problems as possible and work them out in advance, per above paragraph.
Child support used to be a balancing act between the needs to the child(ren) and the
ability of the non-custodial parent to pay. Technically, that is still the law; however,
in the 1980's the federal government decided that it would be a great idea if there could
be more regulation of child support in order to make awards of child support more uniform
from state to state. The federal government pressured the individual states into enacting
Child Support Guidelines. Georgia's guidelines were a total no brainer for a long time,
but that changed January 1, 2007. Under the old guidelines, the amount payable was a
percentage of the payor's gross income, before taxes, depending on the number of children
for whom support was being determined in that particular action and with no regard
whatsoever for the custodial parent's finances. Now Georgia follows an "income shares
model" whereby a table of numbers assumes that where the total income of two parents is X
amount of money, then the parents ought to be spending Y amount on the child(ren). For
example, if the father and mother together earn $1,000 per month, they ought to be
spending $239 per month on one child, $343 on two children, $389 on four and so on. Since
Dad makes $600 of that $1,000 he ought to be responsible for 60% of the $239. Since Mom
makes $400 of the $1,000, she ought to be responsible for 40%. So, if Mom gets custody,
Dad pays her his 60% ($143.40 if there's only 1 child) and if Dad gets custody, Mom pays
him her 40% ($95.60 if there's only 1 child.) There is a Child Support Worksheet that can
be filled out manually, but is much easier to do via a spreadsheet program. It has lines
for just about every circumstance imaginable and must be presented to the court and
incorporated into the final judgment of the court.
Attorney's fees are usually a form of alimony such that adultery can bar an award and are
usually awarded or not awarded the same as alimony; however, there are many exceptions to
the rule. In Britain, there was a loser-pays system. When this country was founded, we
adopted what is now know as the "American Rule", meaning that everyone pays his or her own
lawyer as a general rule, unless there is a specific statute enacted by the legislature
that authorizes a court to make one party pay the other party's expenses of litigation,
including attorney's fees. Scorched earth tactics will typically earn an award of
attorney's fees....for your opponent!
Contempt: When a party wilfully refuses to obey a court order, he can be put in jail
until he complies with the court's order. There is no debtor's jail for non-payment of
alimony or child support, because the keys to the cell are given to the prisoner. He can
get out of jail whenever he (or she) wants. All that is required is payment as ordered by
the court. The payee need only prove that the payor was ordered to pay and that the payor
is X dollars in arrears. Then the burden shifts to the payor to show a very good reason
why payment was not made as ordered. The most frequent reason seen in day to day practice
is a claimed inability to pay, but a payor has a variety of other defenses available, such
as the order being invalid. A payor has to pay child support before he (or she) buys
groceries, so the fact that there is no money left over after all the bills get paid is
not a defense. The law says child support and alimony come first. A custodial parent may
not withhold visitation if the child support is not paid and can theoretically be put in
jail for doing so (wilfully refusing to obey the court's order on visitation).
Modification: When circumstances change after a divorce, the parties can petition the
court to modify the final decree of divorce. A child 14 or older can select the parent
with whom to live. A child as old as 11 even gets a slight say so in the matter. If
finances have changed, monetary obligations can be re-arranged. Sometimes parties get
divorced and never see the inside of a courtroom again, but sometimes they fight on for
years, well after the children have grown and moved out.
Adoption: Adoptions are secret and are heard solely by the Superior Court. The files
are sealed and the courtroom is cleared with a guard posted to keep everyone out when an
adoption is being heard, provided that the judge doesn't just take the parties back into
the jury deliberation room or somewhere else private. In order to adopt a child, the
prospective parents must first obtain the written permission and consent of the mother and
legal father, or if there is no legal father, give the biological father a chance to step
up to the plate and become a legal father. Otherwise, the petitioners must have the
parental rights of the mother and legal father terminated. That can occur in a juvenile
court if the child was previously found to be deprived of proper parental care and
control. Most often, however, the petitioners prove that the mother and legal father
failed significantly and without justifiable cause to pay support or to communicate or
attempt to communicate with the child during the year preceding the petition for adoption.
Children Born Out of Wedlock: A man can sue a woman to prove that he is the
biological father of her child. If he proves he is, then he may seek visitation rights
with the child and he will be ordered to pay child support. He may even seek custody and
an award of child support from the mother and to have the child's last name changed to
his. This is called a "legitimation." A woman can sue a man alleging that he is the
biological father of her child in order to obtain child support. She cannot make him step
up to the plate an become a real dad. She cannot force him to visit with the child, nor
to give the child his last name over his objection. This is called a "paternity" action.
The man may counter-claim for legitimation. The Georgia Department of Human Resources,
a/k/a Child Support Recovery, can sue either parent on the child's behalf in order to make
the parent pay child support, but orders entered in these cases do not legitimate the
child or establish parental rights.
Divorce, Custody, Child Support, Adoption and other Domestic Relations cases
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Law Office of Vincent D. Sowerby, P.C.
On the corner of G and Newcastle Streets, downtown Brunswick, Georgia
Telephone: 912-280-0330 Fax: 912-280-0331
E-mail address: vince@sowerbylaw.com