Atlanta Divorce Attorney Blog

Georgia Child Support - Willful Unemployment or Underemployment

Mon, 17 Jun 2013 14:45:04 -0600

In determining a Georgia child support obligation, the first item to be determined is the gross incomes of both parents. In considering the evidence for gross income, the court will determine whether either parent is willfully unemployed or underemployed – meaning, whether either parent could reasonably be earning more money to contribute to child support. In making this determination, the court “shall ascertain the reasons for the parent’s occupational choices and assess the reasonableness of these choices in light of the parent’s responsibility to support his or her child and whether such choices benefit the child.” OCGA §19-6-15(f)(4)(D). A determination of willful or voluntary unemployment or underemployment “can be based on any intentional choice or act that affects a parent’s income,” not solely a parent’s intent to avoid or reduce child support payments. Id.

In making this determination, “the court may examine whether there is a substantial likelihood that the parent could, with reasonable effort, apply his or her education, skills or training to produce income.” Id. Georgia law lists several factors for the court to consider:

1. The parent’s past and present employment
2. The parent’s education and training
3. Whether unemployment or underemployment for the purpose of additional schooling or training is reasonable
4. A parent’s ownership of valuable assets and resources that appear inappropriate in light of the income claimed
5. The parent’s health and ability to work outside the home
6. The parent’s role as caretaker of a child of that parent, a disabled or seriously ill child or adult child, or any other relative, which eliminates or substantially reduces the ability of that parent to work outside the home

OCGA §19-6-15(f)(4)(D)(i-vi).

Consider the example of a parent who has a graduate degree and previously worked as CEO of a large corporation who has chosen to have a less stressful job working at a fast food restaurant. In applying the factors above, a Georgia court would likely conclude that this parent was voluntarily underemployed. Regardless of whether the intent was to reduce his/her child support obligation, the Court will likely require the parent to attempt to a job in line with his/her past employment and training.

In Georgia, at what age can a minor decide which parent to live with, without having to go back to court?

Fri, 14 Jun 2013 14:42:10 -0600

Until a child is of the age of majority (18 years), he/she cannot choose with whom to live, absent a court order. Consider the situation of a 17-year-old child who wants to begin living with her mother, rather than her father, who has custody.

That child can "elect" to live with her mother, but in order for that election to be enforceable, the parties have to revise their Parenting Plan and have it signed off by a Judge. This can all be done by consent, but it still has to be signed off on by a Judge to make it legally binding.

If the current Parenting Plan has the father as primary physical custodian and the father is OK with the child going to live with her mother, the mother is the one that is arguably taking a risk if the Parenting Plan is not legally changed. The reason is that the father could enforce the current Parenting Plan a month later and the mother would be in contempt for failing to abide by the custody arrangements. There may be other factors to be considered as well. If you are in a situation such as the one above, your best bet would be to have a consultation with a local family law attorney so that they can ask you all relevant questions and make a informed recommendation for you.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

If my husband and I get a divorce, will I get 50% of our home if he purchased it before we were married?

Mon, 10 Jun 2013 14:39:24 -0600

The short answer to this question is possibly, but 50% is not a guarantee under any set of circumstances. Georgia is an equitable division state, which means that assets are divided equitable, not necessarily equally. What is "equitable" depends upon the specific facts and circumstances of each case.

One of the factors to look at is how much in the way of marital funds have been put into the house, including mortgage payments. In other words, if he bought the house with no money down, but made all the mortgage payments while you were married, then you have an argument that all of the equity in the house is marital because he invested marital funds into the house. However, if he made a down payment on the house when he purchased it (before the marriage), the situation gets trickier. In that case, you would not be entitled to the portion he put down, but you may be entitled to an equitable portion of the remainder, assuming you could prove that the mortgage payments were made with marital funds. If you are in a situation requiring a potentially complicated calculation such as this one, I recommend consulting with an experienced family law attorney.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

What is Included in a Petition for Divorce in Georgia?

Fri, 07 Jun 2013 19:22:31 -0600

Georgia law does not require a complicated or lengthy Petition for Divorce. Rather, the Petition is only required to include 6 things:

1. The residence or last known address of the respondent
2. That the applicant meets the residence requirements for bringing an action for divorce or that the applicant is bringing a counterclaim and is not required to meet the residence requirements
3. The date of the marriage and date of the separation
4. The name and age of each minor child, if any. If there are no minor children, the Petition should include a statement indicating such.
5. The statutory ground(s) upon which the divorce is sought
6. If alimony, support, or equitable division is involved, the property and earnings of the parties, if known.
OCGA §19-5-5(b).

While these are the only statutory requirements, parties often include additional information and/or requests for relief. For example, a parent may state in his/her Petition for Divorce that he/she is seeking primary custody of the children and that the other spouse should pay child support. Further, a party may list out items that he/she contends are separate property and, thus, not subject to equitable division.

Additionally, the Petition must be verified by the Petitioner, which means that the Petitioner must swear in front of a notary public that all facts in the Petition are true to his/her knowledge. OCGA §19-5-5.

Though these are the only items required to be included within the Petition for Divorce, courts often require that several items be filed along with the Petition inclyding, but not limited to, child support worksheets (if applicable), Domestic Relations Financial Affidavits, and case filing forms. Each Georgia county has different requirements so, if you are unsure, schedule a consultation with an experienced family law attorney who can help you get the proper paperwork filed and keep your case moving toward a resolution.

Can a Georgia Judge Refuse to Grant a Divorce?

Mon, 03 Jun 2013 19:19:34 -0600

In a word - yes. In Georgia, there are 13 grounds for divorce – intermarriage by persons within the prohibited degrees of affinity, mental incapacity, impotency, force/menace/duress/fraud, pregnancy by a moan other than the husband at the time of the marriage, adultery, desertion, conviction for an offense involving moral turpitude, habitual intoxication, cruel treatment, incurable mental illness, habitual drug addition, and marriage is irretrievably broken. OCGA §19-5-3. Believe it or not, there are also several reasons a court can refuse to grant a divorce. OCGA §19-5-4(a). These reasons include:

1. The adultery, desertion, cruel treatment, or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing a divorce
2. The party complaining of the adultery, desertion, cruel treatment, or intoxication of the other party was consenting thereto
3. Both parties are guilty of like conduct
4. There has been a voluntary condonation and cohabitation subsequent to the acts complained of, with notice thereof.

Id. (1-4). In fact, under any of these circumstances, Georgia law states that no divorce shall be granted – which means the court doesn’t even have a choice. It has to deny the divorce. In cases that include any of the above, the respondent in the divorce action can offer such evidence in defense of the divorce action and, after reviewing the evidence, the court or jury can refuse the divorce. OCGA §19-5-4(b).

License Revocation as Penalty for Nonpayment of Child Support in Georgia

Fri, 31 May 2013 19:15:27 -0600

In general, if a Georgia child support payor is found to be in contempt of the Court Order requiring him/her to pay child support, the court “shall have the power to subject the [him/her] to such terms and conditions as the court may deem proper to assure compliance with its orders and, in particular, shall have the power to punish the respondent who violates any order of the court.” OCGA §19-6-28(a).

One penalty option for child support contempt is license revocation. OCGA §19-6-28.1. According to Georgia law, if the Respondent/child support payor “has accumulated support arrears equivalent to or greater than the current support due for 60 days,” the following licenses may be suspended: license to conduct a trade, business, profession, or occupation; license to hunt or fish; license to drive a motor vehicle; and motor vehicle registration. OCGA §19-6-28.1(b). Specifically, the court can “order the appropriate licensing or registering entity to suspend the license or registration” or, if the person is applying for renewal/issuance of such license, the court can order that the application be denied. Id.

In order for the Respondent to prove that compliance with the child support order and to have the license revocation order lifted, he/she must submit to the licensing or registering entity “written proof of payment by cash or certified check, notice issued by the court, or notice from a child support receiver.” OCGA §19-6-28.1(c). Absent this proof, the party will not be able to get his/her license back.

Georgia Child Support - What is excluded from "gross income"?

Mon, 27 May 2013 09:36:03 -0600

In Georgia, the first step in determining a child support obligation is to “determine the monthly gross income of both the custodial parent and the noncustodial parent.” OCGA §19-6-15(b)(1). In a previous post, we discussed what is included as “gross income” for purposes of the child support calculation. There are also several categories of “income” that are excluded from the calculation. These exclusions are:

1. Child support payments received by either parent for the benefit of a child of another relationship. OCGA §19-6-15(f)(2)(A).

2. Benefits received from means-tested public assistance programs – Examples include PeachCare for Kids Program, Temporary Assistance for Needy Families Program, food stamps, supplemental security income, benefits received under Section 402(d) of the federal Social Security Act for disabled adult children of deceased disabled workers, and low income heating and energy assistance programs. OCGA §19-6-15(f)(2)(B).

3. Foster care payments paid by the Department of Human Services or a licensed child placing agency for providing foster care to a foster child in the custody of the Department of Human Services. OCGA §19-6-15(f)(2)(C).

4. A nonparent custodian’s gross income. OCGA §19-6-15(f)(2)(D).

While the items excluded from gross income are not as numerous or complicated as those included in gross income, it is usually worth it to have an experienced family law attorney review your child support worksheets to ensure that your gross income is reported properly. This will, in turn, help guarantee that you are paying or receiving the proper amount of child support.

Georgia Child Support - What is included in "gross income"?

Fri, 24 May 2013 09:30:53 -0600

In Georgia, the first step in determining a child support obligation is to “determine the monthly gross income of both the custodial parent and the noncustodial parent.” OCGA §19-6-15(b)(1). While this sounds fairly straightforward, calculating a parent’s gross income may be a complicated process as there are several categories of “income” that are included:

1. Attributable income – Includes salaries; commissions, fees and tips; income from self-employment; bonuses; overtime payments; severance pay; recurring income from pensions or retirement plans; interest income; dividend income; trust income; income from annuities; capital gains; disability or retirement benefits from SSA; workers’ compensation benefits; judgments recovered from civil actions; gifts of cash, or which can be converted to cash; prizes; lottery winnings; alimony or maintenance from other parties; assets used for the support of the family. OCGA §19-6-15(f)(1)(A).

2. Self-employment income – Refers to “income from, but not limited to, business operations, work as an independent contractor or consultant, sales of goods or services, and rental properties, less ordinary and reasonable expenses necessary to produce such income. Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership, limited liability company, or closely held corporation is defined as gross receipts minus ordinary and reasonable expenses required for self-employment or business operations.” OCGA §19-6-15(f)(1)(B).

3. Fringe benefits – Refers to income or “in kind” remuneration received by a parent in the course of employment that significantly reduce that parent’s personal living expenses. OCGA §19-6-15(f)(1)(C). Examples include a company car or housing.

4. Variable income – Includes commissions, bonuses, overtime pay, dividends, etc. are “averaged…over a reasonable period of time” and added to a parent’s salary to determine gross income. OCGA §19-6-15(f)(1)(D).

5. Military compensation and allowances – Includes base pay, drill pay, basic allowances for subsistence, whether paid directly or received in kind, and basic allowance for housing, whether paid directly or received in kind. OCGA §19-6-15(f)(1)(E).

If you or your spouse has a gross income that includes several of these categories, you will be best served to have an experienced family attorney help you with your child support calculation. This will ensure that you and your spouse are properly reporting your incomes, and that the proper amount of support is received for the children.

Name Change After Georgia Divorce

Mon, 20 May 2013 19:24:06 -0600

In a Georgia divorce action, “a party may pray in his pleadings for the restoration of a maiden or prior name.” OCGA §19-5-16. Once the divorce is granted, “the judgment or decree shall specify and restore to the party the name so prayed for in the pleadings.” Id. Thus, if a wife wants to change her name back to her maiden name, all she has to do is request the change in her Complaint for Divorce (or Answer and Counterclaim for Divorce), and her name will be changed in the Final Decree of Divorce. She can then take this Court Order to the Department of Motor Vehicles, Social Security Office, or passport office to have her name changed on the appropriate documents.

If the party fails to request the name change in the divorce pleadings, and the divorce is granted without name change, the party must then file a separate Petition for Name Change in the Superior Court. OCGA §19-12-1.

If the party in the divorce action desiring the name change has children, this does not affect whether the name change will be granted. However, that party may want to think hard about whether she wants her name to be different than that of her children. It should be noted that a child’s name cannot be changed as part of the divorce action but, rather, a request for change must be made in a different action. Thus, if desired, this must be done at a different time and the other parent must consent. OCGA §19-12-1. This process is, therefore, not as straightforward as that of a name change incident to a divorce.

Duration of Child Support in Georgia

Fri, 17 May 2013 19:21:21 -0600

Family law attorneys deal with child support issues every day. A common question asked is: How long do I have to pay child support? Fortunately, Georgia law makes this clear. Specifically, the law says “[t]he duty to provide support for a minor child shall continue until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs.” OCGA §19-6-15(e). One caveat to this rule is that, in any child support order entered on or after July 1, 1992, the court “may direct either or both parents to provide financial assistance to a child who has not previously married or become emancipated, who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that such financial assistance shall not be required after a child attains 20 years of age.” Id. Presumably, this clause was added to cover a situation where a child turns 18 in August, but will still be attending high school and living in a parent’s home until the end of the school year, 10 months later.

Despite the language in the statute, parties can agree to a longer child support duration in their settlement agreement, if they choose to do so. For example, the parties could have a clause in their settlement agreement stating that one or both parties must pay for college. A court, however, is unable to require either or both parties to pay for college. Thus, if this is something that is important to you, make sure the language is in your settlement agreement because, if you go to court to try to make your spouse pay for a child's college expenses, you will be unsuccessful.

Georgia Annulment

Mon, 13 May 2013 19:17:12 -0600

A person has two options to end a marriage in Georgia – annulment or divorce. An annulment is much harder to come by and may only be granted in the case of a marriage declared void by law. OCGA §19-4-1. In Georgia, “marriages of persons unable to contract, unwilling to contract, or fraudulently induced to contract shall be void.” OCGA §19-3-5(a). Thus, a person may get an annulment if he/she can prove the marriage is void for one of the above reasons. However, in the case of a spouse unwilling to conrtact or fraudulently induced into contract, a subsequent consent and ratification of the marriage, freely and voluntarily made, accompanied by cohabitation as husband and wife shall render the marriage valid.” OCGA §19-3-5(b). In that situation, an annulment would not be granted and the person’s only option for ending the marriage is divorce.

In addition, Georgia law is clear that an annulment may not be granted “in instances where children are born or are to be born as a result of the marriage.” OCGA §19-4-1.

If an annulment is granted, it “shall have the effect of a total divorce between the parties of a void marriage and shall return the parties thereto to their original status before marriage.” OCGA §19-4-5. The main difference is the parties will walk away as if the marriage never happened, as opposed to divorce where there may be equitable division and/or alimony.

Separate property in Georgia

Fri, 10 May 2013 19:14:08 -0600

Georgia is an equitable division state. This means that, upon a divorce, the property of the parties is divided equitably between them (though not necessarily equally). The exception to equitable division is separate property. In Georgia, “the separate property of each spouse shall remain the separate property of that spouse.” OCGA §19-3-9. Basically, this means that any separate property is not included in the marital estate and, thus, is not subject to equitable division.

Some examples of separate property include an inheritance, gifts, real property or bank accounts. One must be careful, however, to keep separate property separate, or it may convert into marital property subject to equitable division. Consider, for example, if a spouse inherits a large sum of money from a deceased relative. If the spouse puts the money into a separate account bearing only that spouse’s name and does not commingle the funds with marital funds, the account will continue to be treated as separate property, and that spouse would take the entire account upon divorce without any offset to the other spouse. However, if the spouse adds the inherited funds into a joint account in the names of both spouses, or opens a new account but adds the other spouse’s name to that account, he/she is treating the funds as marital, rather than separate, and they will likely be treated as marital upon divorce. In addition, if it is a separate account, but both spouses subsequently deposit funds into it, a portion of the account may be treated as separate and a portion treated as marital.

Separate property can be a complicated issue during a divorce, particularly if funds have been commingled. The calculation for figuring out how much is separate and how much is marital can be complex and, if not done correctly, can result in the entire asset being treated as marital and subject to equitable division. It is important that you speak to an experienced family law attorney if you are dealing with this issue in your divorce.

Age Requirement for Marriage in Georgia

Mon, 06 May 2013 19:09:43 -0600

In Georgia, a person must be at least 18 years of age to legally marry. OCGA §19-3-2(a)(2). The one exception to this age requirement is that a 16 or 17 year old may get married in this state so long as he/she has the requisite parental consent. OCGA §19-3-2(b).

In cases where the parties applying for a marriage license are 16 or 17 years old, the parties must first submit proof of their ages. Proof may include “a birth certificate, driver's license, baptismal certificate, certificate of birth registration, selective service card, court record, passport, immigration papers, alien papers, citizenship papers, armed forces discharge papers, armed forces identification card, or hospital admission card containing the full name and date of birth.” OCGA §19-3-36. The parents or guardians of the underage applicants must then “appear in person before the judge and consent to the proposed marriage, provided that if physical presence because of illness or infirmity is impossible, an affidavit by the incapacitated parent or guardian along with an affidavit signed by a licensed attending physician stating that the parent or guardian is physically incapable of being present shall suffice.” OCGA §19-3-37(b).

Additionally, if the parents or guardians live in a different Georgia county than the applicants, they can appear before the court in the county in which they reside. OCGA §19-3-37(c)(1). If the parents or guardians live in a different state, they may appear before the judicial authority in their state. OCGA §19-3-37(c)(2). In either of these cases, “the parents or guardians shall obtain a certificate from the judge of the probate court or the proper judicial officer before whom they have appeared with the seal and title of the official appearing thereon, the certificate containing information to the effect that the parents or guardians appeared before the judge or judicial officer and consented to the proposed marriage.” OCGA §19-3-37(c)(3).

Termination of parental rights in Georgia

Fri, 03 May 2013 15:56:37 -0600

In Georgia, when considering whether to terminate a parent’s parental rights, one of the most important steps is giving that parent the full opportunity to present his/her case as to why his/her rights should not be terminated (assuming that parent wants to do so). A Georgia trial judge recently denied this right to a father in the case Hafer v. Lowry. Hafer v. Lowry, A12A2549 (2013).

In that case, the mother had sole custody of the child subsequent to the parties’ divorce. She later remarried, and the stepfather sought to adopt the child, to which the father vehemently objected. The stepfather claimed that the father’s rights should be terminated because, among other things, the father had failed to communicate with the child for over a year, and had not provided for the child as required in the divorce decree. Id. During the hearing, while the father’s attorney was presenting evidence, the judge interrupted him to stop presentation of the evidence and ruled that the father had lost his parental rights. Id. at 2. The father’s attorney objected, but the judge apparently disregarded the objection. Id.

The Court of Appeals agreed with the father and vacated the judge’s order granting the stepparent adoption and terminating his parental rights. Specifically, the Court of Appeals emphasized, “the fundamental idea of due process is notice and an opportunity to be heard.” Id.; quoting Gottschalk v. Gottschalk, 311 Ga. App. 304, 312 (2011). The Court held that “by foreclosing [the father’s] right to show cause why his parental rights should not be terminated, the trial court deprived him of a meaningful opportunity to be heard.” Hafer, at 4.

It does not matter if a party has a strong case, or if most of the evidence is against him. He still has a right to present all the evidence he has and to be fully heard on the matter. Otherwise, the ruling is contrary to due process and cannot stand.

How can I obtain a passport for my child when I do not know where the father is or how to get in touch with him?

Mon, 29 Apr 2013 15:47:05 -0600

Obtaining a passport for a minor can be overwhelming and complicated, especially when one of the parents is unavailable. One document that is needed to obtain a passport for a minor is a certified birth certificate. If the mother is the only parent on the birth certificate, then the father’s consent is not needed to obtain a passport. If both parents are listed on the birth certificate, both need to give consent, except in limited situations. This is where it can get complicated, particularly if the whereabouts of one parent are unknown, or if one parent is uncooperative. Information regarding obtaining passports for minors can be found here.

I highly recommend consulting with a local attorney who has experience with this particular issue to discuss the process in greater detail and help you obtain the necessary documentation.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC