Many clients first contact Price Law Group simply to discuss their particular situation or problems with an experienced attorney in order to merely determine whether legal action can even address their concerns, and if so, what type of lawsuit or legal action that might be. If you are blessed to be a newcomer to the court system but are having issues with your marriage, child custody arrangement, collecting child support or alimony from a former spouse, or even exploring something exciting like adoption, you are probably looking for basic answers and wondering where to even begin. If that describes your situation, please take some time to review the main family law and domestic relations topics which we have summarized on the following pages. If you are seeking assistance in one of these areas, and even if you do not see a topic that specifically relates to the issues you are facing, please contact our office to schedule a consultation with an experienced attorney to discuss how we can help you today.
If you are thinking about filing for a divorce or have already been served with divorce proceedings by your spouse, chances are that you have a lot of questions and concerns not just about the future outcome, but what actions you need to take today to protect yourself and your family. At Price Law Group, we understand how difficult it can be to attempt to navigate the complex court system while also experiencing experiencing some of the worst emotional turmoil and anxiety of your life. Consequently, we make it our top priority to take over that burden by answering your pressing questions and ensuring that you understand the process to your satisfaction so that you can focus primarily on picking up the pieces and finding a new path forward.
Contested v. Uncontested Divorces
Not all divorces in Georgia have to be lengthy, expensive or high conflict. Our attorneys frequently handle cases where the parties are able to settle all of the issues by equitably dividing their assets and liabilities without the stress of a high conflict divorce. In Georgia, if both parties cooperate, an uncontested divorce can be obtained as soon as thirty-one days after the defendant is served or voluntarily acknowledges service. However, sometimes the situation does not allow for a quick or quiet resolution; such divorces where the parties cannot agree on major issues such as child custody or property settlement are referred to as contested divorces. Whether you are looking for a lawyer to help you finalize a settlement where you and your spouse already agree on the main terms, or whether you require a whole team to gear up to fight hard on major issues at trial, the team at Price Law Group has been successfully advocating for our clients for over forty years and is here to help. When deciding where to start, select an entire team that has the experience and tenacity to effectively litigate and protect your assets just as you would for yourself. Contact the team at Price Law Group today to arrange your consultation with an experienced and successful divorce attorney.
Child Custody and Visitation
With any divorce involving minor children, the top priority of any parent is the well-being and welfare of their children, both during the divorce and beyond. Despite their differences, divorcing parents should both take the time to seriously consider how the children will be affected and discuss how to best insulate the children from the divorce process as much as possible.
Before a divorce can be granted by the court, the major issues relating to child custody of all minor children of the marriage must be decided and memorialized in a written agreement or order called a Parenting Plan. If you have children under the age of eighteen years of age, deciding child custody issues inevitably will be a major component in your divorce. Accordingly, the three main legal terms you will hear in regards to your custody case are explained below:
Legal Custody & Decision Making Authority
In Georgia, child custody is divided in two main categories: legal custody and physical custody. According to the law, no presumption exists that either the mother or the father should automatically be awarded custody over the other parent. Generally, legal custody determines who may gain access to certain records regarding the child and who is entitled to make major decisions regarding the child. Decision making authority is typically split into four major areas: educational decisions, medical decisions, religious decisions, and extracurricular activity decisions.
In the majority of cases, legal custody will likely be designated as “joint legal custody,” giving both parents equal access to the child’s records and information and allowing them both to participate in all decision making processes regarding the child. However, in certain situations, one parent may be designated as the sole legal custodian, which restricts the ability of the other parent to access the child’s records or make decisions on behalf of the child, essentially putting them on equal footing as a third party caregiver. Although exceptions certainly exist, sole custody is generally reserved for situations where one parent is considered to be at risk for fleeing the court’s jurisdiction with the child, has engaged in substantial misconduct, or has demonstrated a pattern of interference with the child’s school, medical providers, or therapists to the extent where removing the parent from such communications is deemed necessary.
Even in cases of “joint legal custody,” one party still must be designated as the “tie-breaker” or as having “final decision making authority” as to the four major areas mentioned above. Frequently, decision making authority will be designated as “joint” for all four categories, but one parent, typically the parent exercising primary physical custody, will be designated as the “final decision maker” or as having “tie-breaking authority.” In such a situation, that parent is required to engage in meaningful discussion with the other parent and attempt to reach a joint decision before they may make the final decision in the event of an impasse. In recent years, there has been an increasing trend for parents to split the tie-breaking authority, with each parent being designated as the ultimate decision maker in two of the categories. For example, if the mother feels very strongly about religious upbringing and the child’s educational decisions, she may request final decision making authority in those two categories and offer the father, who is actively involved in coaching the child’s athletics and overseeing his sports related physical therapy, the ultimate decision making authority for extracurricular and medical decision making in exchange. In other cases, the parents may choose to simply designate one parent as the primary decision maker in certain categories who may unilaterally make decisions without first requiring a joint discussion. Such option is most frequently chosen in cases where the other parent is absent or unable to reasonably participate in decision making regarding the child, although many parents opt to take this route even when they are equally involved with the child and able to co-parent effectively. Simply put, there is no true “standard” for legal custody, and each case must be evaluated closely based upon the individual circumstances to determine what is best for each child and family.
Physical custody refers to the person(s) who is designated as the primary custodial parent, or in other words, with whom the child will primarily reside. The parent who is designated as the primary physical custodian has the most significant day-to-day responsibility for the care and rearing of the child, and generally receives child support from the other parent in return for shouldering much of that responsibility. Physical custody is designated as being solely with one parent, or jointly with both parents if they will share a 50/50 custodial arrangement, and is one of the two most critical considerations regarding child custody in Georgia. Accordingly, it is important to have an experienced attorney draft your Parenting Plan and final documents in order to clearly explain each parent’s responsibilities and obligations surrounding legal and physical custody.
Visitation Rights & Parenting Time
Visitation rights are a very important part of child custody issues, and are often the last remaining obstacle to settlement. Visitation rights refers to the designated days and time that the non-custodial parent is permitted to spend with the child according to the Parenting Plan. In contrast, the term “parenting time” generally refers to the designated days and time the child will spend with each of the parents, whether they are primary custodian or not. In every child custody action in Georgia, the law requires that a Parenting Plan be submitted to the Court for approval, which outlines all of the details regarding when, where, and how each parent is permitted to exercise their parenting time. In most cases, a set visitation schedule outlining visitation for every major holiday or school break will be decided and ordered in the Parenting Plan. When spouses cannot agree on a visitation schedule, the Court will ultimately hear evidence and then make that determination. Although the historical standard in normal situations is to give the non-custodial parent visitation at least every other weekend, the Court has the authority to apply unlimited restrictions on a non-custodial parent’s visitation, including supervised visitation, no overnight visitation, drug testing prior to visitation, and more. In certain cases, usually where the child’s safety is in question or where the child has no relationship with a parent, the court may completely deny visitation rights to a parent, or allow for only phone calls or therapy sessions.
Consequently, ensuring that you have proper representation during the negotiation and crafting of the Parenting Plan agreement is crucial to protecting your relationship with your child. The attorneys at Price Law Group are well versed in preparing Parenting Plans that address each of our client’s unique interests, and ensure that these important documents reflect the parties’ true intentions surrounding their custodial agreements down to the smallest details.
In all matters involving child custody, monetary support for the minor child must also be addressed. Decades ago, child support was based primarily on a percentage of the non-custodial parent’s gross income or earning capacity. However, on January 1, 2007, Georgia implemented new Child Support Guidelines which take into account both of the parent’s gross incomes or earning capacities in order to determine the proportional responsibility of each parent to provide for the child’s needs and expenses. More emphasis is now placed on the actual needs of the child and the ability of each parent to provide for those costs.
Georgia’s child support guidelines apply not just to divorces, but to paternity or legitimation actions, Juvenile Court dependency and custody cases, and any other action in which a parent’s obligation for child support is at issue. In all cases involving child support, both parents are required to list their gross incomes on a spreadsheet called a Child Support Worksheet, which also contains Schedules for inputting other expenses for the child, such as health insurance premiums or daycare expenses, so that those costs may be taken into account in the basic calculation. The “Basic Child Support Obligation” is determined by the Child Support Obligation Table, which was created by the legislature to correspond with the combined adjusted gross income of both parents. Once the Basic Child Support Obligation is determined, the Schedules also provide for deviations and adjustments from that amount based upon many factors, such as child support already provided for other children, travel expenses incurred to exercise visitation, parenting time adjustments for parents exercising a 50/50 arrangement, or low income of the non-custodial parent (below $1,850.00 per month).
Once the Child Support Worksheet is finalized, a document called a Child Support Addendum is generally also competed, which memorializes the final amount of child support ordered and the date that the non-custodial parent must begin making payments. The Child Support Addendum also addresses items such as who will maintain the child’s medical insurance, what percentage each party must contribute toward any uncovered medical expenses, and whether an Income Deduction Order (“IDO”) will be put into effect, which automatically withdraws child support from the paycheck of the parent obligated to pay child support through the Georgia Division of Child Support Services.
Oftentimes, just determining the gross incomes or earning capacities can be difficult. All too frequently, the parent who will ultimately end up paying child support attempts to conceal or even modify their income in anticipation of litigation in order to minimize their child support obligation. Accordingly, in cases where a parent has no documented income or the amount of income is in dispute, the Court can consider the parent’s prior employment, their education and job skills, their ability to maintain full time employment, and many other factors in order to determine the parent’s actual earning capacity. The Court then may use the determined earning capacity rather than the actual demonstrable income of that parent for determining the Basic Child Support Obligation. In many cases, the ability to argue and prove the actual earning capacity of the other parent in Court is the difference between receiving an adequate amount of child support to provide for the child and being unable to maintain the child’s standard of living, or even make ends meet. Therefore, it is crucial to hire an attorney experienced in proving the other parent’s income and resources so that the other parent is unable to fool the Court and leave you and your child with less than you deserve.
Property Division/Settlement Agreements
Before a divorce can be finalized in Georgia, the parties must decide how to fairly split up all of their property as well as their debts. This concept is commonly referred to as “equitable division” of property and debts. As most issues in divorce, the divorcing parties can either reach a settlement agreement between themselves detailing how the property and debts will be divided, or the Court will ultimately decide how everything should be divided, and who should be responsible for which debts, after hearing the evidence at trial.
Property division relates to everything with exchangeable value, anything that generates income, or even future rights and interests in property. Examples of property are unlimited, but include things such as your home, your car, your personal clothing and toiletries, the tools in the garage, the money in your bank account, your pension through your former employer, your fifty percent ownership in your new antique business, or a written option to buy real estate. Similarly, all debts, or anything creating a liability, must be divided. Common debts which must be divided include the existing mortgage or HELOC on the marital residence (frequently divided through a refinance), car notes and payments, outstanding tax debts with the IRS, outstanding HOA dues, past due medical expenses, personal loans, credit card debt, or even ongoing buyout payments to former business partners. As a rule of thumb, if it is worth arguing about who receives the item or should be responsible for paying it, the matter must be equitably divided in writing.
Georgia is an “equitable distribution” state, meaning that the law views marriage as a two-way relationship between partners, and equitable division of property and debts therefore accounts for both the monetary and non-monetary contributions that each spouse made to the partnership over the course of the marriage. Accordingly, even if one spouse never held a job or contributed one dollar to the marital bills, that spouse is considered to have contributed to the marital property and finances, and has a presumptive ownership right in a percentage of the property or wealth acquired during the marriage. Importantly, marital property is not determined by title, and includes all property acquired during the marriage, whether titled in the name of one spouse or jointly, such as the deed to the marital home. On the other hand, any property previously owned and brought into the marriage, or gifted or inherited from a third party, is referred to as “separate” or “individual property,” and is not subject to equitable division in a divorce, subject to whether such property is still directly traceable to a separate non-marital source. Gifts given from one spouse to the other during the marriage are considered marital property if they were purchased with marital funds, but prior gifts, such as the engagement ring, are generally considered separate property. Oftentimes, the distinction may not be clear cut, and the Court must determine what percentage of certain property items are marital property and non-marital property and factor those findings into the ultimate property settlement award.
Ultimately, many different considerations will factor into the Court’s determination of equitable division of property and debts, including the contributions of each party to the wellbeing of the family, the value of all property interests, the economic circumstances and earning abilities of each spouse, the facts which led to the dissolution of the marriage, the length of the marriage, the age and condition of each of the parties, how and why specific items of property were acquired, and any other factors the Court deems appropriate for consideration in order to arrive at a fair and equitable division of property. Therefore, the way your individual story is painted to the judge can make all the difference in how they view your needs and your ultimate award. Don’t allow your spouse to only tell their side of the story; contact an experienced divorce attorney at Price Law Group to begin crafting your own narrative today.
In Georgia, according to O.C.G.A. § 19-6-1, alimony, or spousal support, is an allowance out of one spouse’s estate, made for the support of the other party when spouses are living separately. Alimony can be either a temporary or permanent award, and is not guaranteed or even available in certain cases. In all cases in which alimony is sought, the law requires that the Court shall receive evidence of the factual cause of the separation even though one or both of the parties may be seeking a divorce, regardless of the grounds upon which a divorce is sought or eventually granted. If such evidence establishes that the separation between the parties was caused by the party seeking alimony’s adultery or desertion, then that party shall not be entitled to receive alimony from the other party regardless of their financial circumstances. In all other cases, an award of alimony is authorized, but not required.
Generally speaking, alimony is most commonly awarded in long term marriages that have lasted over ten years, where one spouse has been the main income provider and the other spouse has minimal or no income earning potential. However, the calculation of any spousal support or alimony award is highly subjective and somewhat arbitrary under Georgia law, leaving much discretion to the agreement of the parties or the trial judge. Unlike child support, there is no set formula or statute that determines the appropriate alimony payment amount. The basis for any award of alimony relies in part on the financial circumstances of both of the parties, looking at both the “financial need” of the requesting party and the “ability to pay” of the other party. The inquiry does not stop with an examination of the parties’ finances, however, as the Court must also consider the evidence of the conduct of each party toward the other.
One of the most pressing questions for parties considering divorce is how long they will be entitled to receive alimony, or on the other hand, how long they might have to pay support to their current spouse. In conformity with the rest of the alimony guidelines, the duration of spousal support awarded will vary greatly from case to case, but frequently is ordered for approximately 1/3 the length of the marriage in many Georgia jurisdictions. When determining the amount and duration of alimony that should be awarded, pursuant to O.C.G.A. § 19-6-5, the Court looks to the standard of living established during the marriage, the duration of the marriage, the age and the physical and emotional condition of both parties, the time necessary for either party to acquire sufficient education or training to enable them to find appropriate employment, 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, the financial resources of each party, including any separate estate, earning capacity, or fixed liabilities, and any other relevant factors deemed proper. Accordingly, alimony awards are designed to be heavily dependent on the actual financial circumstances during the marriage, and attempt to maintain that status quo for the financially disadvantaged spouse for a period deemed appropriate by the judge. It follows that each alimony case will produce very different results, as the award is primarily focused on extending existing financial circumstances as much as possible until the dependent spouse is able to get back on their feet.
Alimony awards also come in many different forms, but fall into two distinguishable categories: lump sum alimony and periodic or permanent alimony. Which category the award falls into can have very important consequences over time. With lump sum alimony, the judge may order a certain sum to be paid immediately or within a certain amount of time after the divorce is finalized, or they could allow that sum to be paid over the course of time. For example, the judge could order that the husband shall pay to the wife the sum of $30,000.00 as lump sum alimony within ninety (90) days of the signing of the Final Judgment and Decree of Divorce, or he could order that the sum of $30,000.00 be paid over time, at a rate of $1,000.00 each month for thirty (30) months. Such an award that is considered “lump sum” alimony may not be modified at a later date. In contrast, “permanent” or “periodic” alimony can be later modified upwards or downwards based upon the parties’ changed financial circumstances, and will terminate altogether upon the remarriage of the party to whom the obligation is owed, unless specifically ordered to the contrary. For example, the judge could order that the husband shall pay to the wife the amount of $1,000.00 per month as permanent alimony beginning on the first day of the month following the entry of the Final Judgment and Decree of Divorce. Although the financial circumstances of the parties might not change at all and the wife remains a stay-at-home mother five years later, if the wife chooses to remarry or even cohabitate and share expenses with her new boyfriend, all alimony shall legally terminate and the husband shall be relieved of his alimony obligation, although he may need to file another case with the Court to clarify or prove such termination. Similarly, a hearing or agreement with your ex-spouse will also be required to otherwise modify permanent alimony due to financial windfalls, such as raising your ex-husband’s alimony payments because he won the lottery or received a large inheritance, or decreasing your own alimony payments owed due to suffering an injury that has left you unable to work and living on disability payments.
Clearly, the issue of alimony determination can be very complex and hard to navigate or predict. The right amount of investigation and preparation can mean the difference between an alimony award you can live with and one that sets you back financially for decades, regardless of which side of the issue you are on. Consequently, it is important to be aware of your rights and choose an attorney that is equipped to turn the facts of your case into the results that you need.
A decree modification is a formal legal process used to change the requirements and obligations previously set forth in a settlement agreement approved by the court or other court order. Although property and debt settlements typically cannot later be modified under normal circumstances, a Petition for Modification can be filed to request that the court amend the terms of almost any other court order resulting from a divorce, such as custody, visitation rights, child support, or alimony. As the success of a Petition for Modification depends heavily on whether the Petitioner is able to obtain evidence and use that evidence in court to prove to a judge that a modification is necessary, it is important that your attorney is well versed not only in the laws governing modification petitions, but also in engaging in discovery and other investigatory procedures aimed at pinpointing your ex-spouse’s current financial position or lifestyle changes warranting the requested change.
Modification of Alimony or Termination of Alimony
If your financial circumstances have changed drastically, or your ex-spouse is now making much more income or remarried, you may qualify for an alimony termination or modification to change the amount you are either paying or collecting. As explained in detail in the “Alimony” informational section above, Georgia law recognizes two types of alimony: “lump sum” alimony and “periodic” (also referred to as “permanent”) alimony. This distinction is important, as only periodic alimony is subject to modification or termination.
Once periodic alimony has been awarded, it is subject to an upwards or downwards revision upon the filing of a petition by either former spouse showing a change in the income or financial status of either former spouse. After hearing evidence from both parties, the court may modify and revise the prior award in accordance with the changed income or financial status of either former spouse if the evidence is satisfactorily proven so as to warrant a revision. Importantly, pursuant to O.C.G.A. § 19-6-19, no petition may be filed by either party within a period of two years from the date of the final order on a previous petition, so it may prove important to be sure of the circumstances before moving forward.
Periodic alimony is also subject to modification or complete termination upon the remarriage or voluntary cohabitation of the former spouse with a third party in a meretricious relationship. Notably, the word “cohabitation” means dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person.
Regardless of whether the Petition for Modification is brought to simply modify or completely terminate alimony payments, the court may award attorneys’ fees, costs, and expenses of litigation to the prevailing party as the interests of justice require, and is actually required to grant reasonable attorney’s fees in the event of a non-prevailing petition based upon cohabitation. In other words, if you bring a Petition for Termination of Alimony and cannot prove that your spouse is actually cohabitating in a meretricious relationship, you will be held responsible for not only your own attorney’s fees, but those of your ex-spouse. Accordingly, a Petition for Modification or Termination of Alimony should not be filed recklessly, and you should discuss your particular circumstances and evidence with an experienced family law attorney before taking any action.
Modification of Child Support
A Petition for Modification of Child Support is the only remedy available to change a child support obligation or award, and is governed by O.C.G.A. § 19-6-15(k). Unless there has been a substantial change in either parent’s income, financial status, or the needs of the child, a parent does not have the right to petition for a modification of child support. Additionally, a petition may not be filed within a period of two years from the date of the last final order awarding child support except where a noncustodial parent has failed to exercises the court ordered visitation, a noncustodial parent has exercised a greater amount of visitation than ordered, or the motion to modify is based upon an involuntary loss of income of twenty-five percent (25%) or more pursuant to O.C.G.A. § 19-6-15(j). Importantly, such loss of income must be involuntary and not due to the unilateral acts of the obligated party.
A Petition for Modification of Child Support follows the same rules applicable to divorce proceedings, and also allows for a temporary hearing and temporary modification of the child support order pending the final trial on the petition. At a hearing on the Petition for Modification of Child Support, testimony and evidence must be introduced to show the change in circumstances, whether the change is in the income of a parent, the financial status of a parent, or in the needs of the child. If the court determines after hearing the evidence that a change has been satisfactorily proven to warrant a modification, the court shall enter a written order specifying the basis for the modification, and may award attorney’s fees, costs, and expenses of litigation to the prevailing party as justice may require. Importantly, although the court “may” award fees to any prevailing a party, the court has no discretion and “shall” award reasonable and necessary attorney’s fees to the custodial parent if they prevail in an upward modification of child support based upon the noncustodial parent’s failure to be available and wiling to exercise court ordered visitation.
In all child support modification cases, many factors come into play which can have major effects on the outcome. For example, although a father who owes child support but has lost his job due to coronavirus or COVID-19 concerns may not be able to quickly obtain a hearing due to delays in the court system, the law provides that the court may “back-date” a future modified child support amount to the date of his filing of the Petition for Modification of Child Support. Accordingly, whether the father chooses to file his Petition immediately or wait until months later when his unemployment may be exhausted can make a substantial difference in his eventual monetary outcome. Schedule a phone consultation with one of our attorney’s today to ensure that you get ahead of the problem as much as possible and protect your finances today.
Modification of Custody v. Modification of Visitation Rights or Parenting Time
Both filing and defending against a modification of child custody and visitation action can be very stressful and complicated. In addition to affecting the wellbeing of the minor children involved, many contested Petitions for Modification of Custody and Visitation also involve negative allegations against the other parent in order to demonstrate the necessity for the modification to the court, which can be difficult to make as well as receive.
Pursuant to O.C.G.A. § 19-9-3, the portion of a court order effecting the visitation or parenting time of a child may be reviewed or modified by the court periodically, provided that the alteration shall not be had more than once in each two-year period following the date of the last order. In essence, if a parent is filing a Petition for Modification of Visitation to ask the court to modify the number of days that a parent is permitted to visit with the children, or just the details surrounding something like visitation exchanges, the parent may petition the court to change those details once every two years. Frequently, cases to modify visitation rights are less contentious than cases to modify custody, and often settle during negotiations or at mediation with the help of a third party neutral.
However, in order to bring a valid Petition for Modification of Custody, the Petitioner must show that there has been a material change in conditions or circumstances of either parent or the child that effects the well-being of the minor child at issue. A material change in circumstances affecting the well-being of the minor child must be found by the court, and a small change will not suffice to justify a modification. Frequently, actions for modification of child custody are based upon material changes in circumstances such as the relocation of the custodial parent to another state, the written election of a child age fourteen (14) or older to live with the other parent, or a demonstration by the non-custodial parent that the custodial parent has become unfit or unable to care for the child. Oftentimes judges will hear petitions to modify custody on an expedited emergency basis when they are based upon the alleged unfitness of the custodial parent, such as a drug abuse problem affecting the minor child’s safety. In most situations, however, the court will consider all of the facts of the case before deciding whether or not a change in circumstances is “material enough” to justify a change in custody.
Regardless of whether you are facing a modification of custody or a modification of visitation rights, it is important to govern your behavior carefully and ensure that your daily actions are consistent with your legal position and goals. Although many clients initially appear confident that they have their affairs in order to the extent they are assured a quick and easy victory, they are frequently surprised to find after speaking with an experienced family law attorney that many of the things they viewed as positives are actually negatives, or that issues they had not even considered might have a substantial impact on the outcome of the case. Consequently, meeting with one of our experienced attorneys as early as possible to discuss your plan of action may be critical to your success, so schedule your consultation today.
Contempt and Enforcement Actions
When an order is issued in a divorce action, child custody action, child support action, or any other domestic or family law case, one or both parties are typically subject to ongoing obligations to the other party as a part of the Court’s order. For example, one parent may be required to pay monthly child support to the other parent, turn over certain items of property, refinance the marital residence, obtain life insurance, pay alimony to the former spouse, satisfy credit card debt, or make the parties’ minor child available for visitation with the other parent. Unfortunately, the failure of one or both parties to fully comply with all the terms of the Court’s orders is a frequent issue that arises both during the litigation and years after the case has been finalized. When one party finds themselves aggrieved due to the other party’s failure to comply with orders, the available remedy is called a Petition for Citation of Contempt, wherein the party requests the court to find that the other parent is in contempt, and also impose remedies and/or sanctions to ensure the other party’s future compliance. Frequent remedies and/or penalties for contempt may include ordering “makeup” parenting time, modifying visitation details to help ensure future compliance, ordering payment schedules to satisfy monetary arrearages, requiring the party in contempt to pay the other party’s attorney’s fees and expenses, and even incarcerating the party in the county jail as a sanction for particularly willful contempt, or until the party makes a “purge” payment to satisfy child support arrearages. Regardless of the particular type of contempt, the attorneys at Price Law Group are ready to help.
Contempt for Failure to Pay Child Support
Oftentimes, one parent will fall behind in making child support payments and will accrue what is referred to as child support arrears. Sometimes those arrears will be intentional and willful, such as one parent simply refusing to write a check to the other parent out of spite, while other times the arrears will accrue due to the parent having just lost their job or suffering a major illness and incurring major medical expenses which leave them unable to pay all their bills at the end of the month. As one might guess, these situations are generally treated very differently by the court, and illustrate the difference between “willful” or “malicious” contempt and simple “contempt.” Although a judge has wide discretion in contempt cases to craft appropriate remedies or sanctions, in general the consequences of a willful contempt finding will be much more severe than a regular finding of contempt. Generally, a court will attempt to sanction or punish a party for willful contempt as such a finding implies deliberate defiance of a court order, whereas a non-willful contempt remedy generally just tries to rectify the situation without imposing a punishment.
A finding of child support contempt can have severe consequences for an individual, as a finding of arrears can result in the implementation of an Income Deduction Order, which involves your employer in your affairs by requiring them to deduct your child support straight from your paycheck. Pursuant to O.C.G.A. § 19-6-28.1, the court may also suspend your driver’s license if you are sixty (60) days or more in arrears, and this often happens before the party may even be aware of the contempt or child support enforcement case, leading to more severe legal problems. Your bank account and assets may also be garnished or seized in order to satisfy child support arrears judgments. Finally, in worst case scenarios where a judge has given a party prior chances to comply and believes the contemptuous behavior is willful, the judge may order incarceration in the county jail until the party or someone on their behalf satisfies the contempt, or a portion thereof, by making a “purge” payment in a designated amount to the other party.
Regardless of which side of the equation you find yourself, child support arrears and contempt actions can have serious consequences for everyone involved. Accordingly, make sure that you discuss your situation with one of our knowledgeable attorneys so that we can address your contempt issue before it snowballs out of control.
Contempt for Failure to Pay Alimony
Unfortunately, there are times where one party ordered to pay alimony has simply stopped paying. If this happens to you, then you may find yourself in a position where you need to file a Petition for Citation of Contempt in order to obtain the monies owed to you if discussion with the other is unsuccessful. If you are forced to file a motion for contempt, you may be able to recover your attorney’s fees and expenses from your former spouse in addition to the alimony owed if it can be proven that your former spouse willfully violated the court’s order requiring the alimony payment. On the other hand, if you are on the receiving end of a motion for contempt for failure to pay alimony that you owe your former spouse, you may have a valid reason for nonpayment, such as loss of employment, injury, or unexpected major expenses, and need an attorney to help explain your situation to the court. Regardless of your circumstances, it is important to organize your relevant documentation and meet with an attorney early on in the process to gain control over the situation before it spirals out of control.
Contempt of Parenting Plan/Custody Order
Frequently, ex-spouses find themselves back in court for failure to follow their many different agreements regarding the children, or the court’s ordered Parenting Plan if they were unable to reach an agreement themselves. A Petition for Citation of Contempt of Custody or Parenting Plan is the appropriate pleading to request that the court become involved and address the problem once discussions with the other parent have been exhausted. At Price Law Group, we see issues of contempt of custody and visitation rights all too often, with new methods of contempt seemingly rearing their ugly heads in each new case. However, some common types of contempt of Parenting Plans are blocking visitation, blocking communication and phone calls, purposely disparaging the other parent in front of the child, refusing to comply with agreed upon safety measures for the children, failing to inform the other parent of the child’s extracurricular schedules or educational information, failure to meet the child’s medical needs, and any other violation of a parenting plan provision. As with other types of contempt, the judge has substantial discretion in deciding how to resolve the contempt, and the consequences for such contempt can be severe and punitive or remedial in nature depending on how the court views each situation. Frequently, a contempt action may even be paired with a modification action to provide evidence to the court that there has been a material change in circumstances to warrant a modification of custody. Accordingly, it is important to hire an attorney that will become familiar with the facts of your case and be prepared to defend or explain each and every action that you have taken in the saga leading your family back to court.
Contempt of Final Order or Settlement Agreement
Although most spouses enter into a Settlement Agreement with the intention of fully complying with all of their promises and never having to step foot in court again, unforeseen circumstances regularly arise which cause one or both spouses to find themselves in contempt of provisions of their Settlement Agreement or the Final Judgment and Decree of Divorce. As with other types of contempt, the court can find that such contempt is willful and impose sanctions on the offending party. At first glance, the remedies for contempt of a Settlement Agreement or order dividing property and debts can be more limited than a custody order, where the judge can simply change custody if one parent refuses to cooperate, as property settlement is generally considered final and unmodifiable. Generally, contempt of a Settlement Agreement will end in the court ensuring that the issue is remedied immediately, that sanctions and attorney’s fees are paid, or even that the party is incarcerated as a punitive measure for malicious behavior. However, often more creative and attractive options are available than first meet the eye. At Price Law Group, we pride ourselves in finding the less obvious solutions to actually craft a permanent remedy for our clients rather than using a temporary bandaid until the problem arises again. Contact us today to discuss how we can help you find a solution to your ongoing contempt issue.
Sometimes situations arise where different individuals need to assume the parental role for a child. This relationship is called guardianship, and under Georgia law there are five (5) main types of guardianships for minors. Those types are:
Natural guardians or parents;
Testamentary guardians (individuals nominated in a will);
Standby guardians (individuals nominated by a parent or current guardian because of a pending health issue); and
In order to become a legal guardian, the person seeking guardianship must initiate a legal action in the Probate Court of the county where either the person requesting guardianship resides, or if that person lives outside the state, in the county where the minor child currently resides. Only the person with physical custody or control of the minor child may file the Petition for Guardianship. Importantly, if a child’s natural guardian or parent does not consent to the guardianship, then the Probate Court must dismiss the Petition and no guardianship will be created. Accordingly, if a situation arises where you believe that a parent is unable to properly care for a child, but the parent will not consent to a guardianship, then filing a dependency action or other action in the Juvenile Court to obtain custody of the child may be appropriate. Regardless of the situation, our attorneys at Price Law Group will discuss which particular option is best for you and help you navigate the complexities of the legal system to obtain the necessary results
Guardian ad Litems
A growing trend in contested divorces and custody modifications is for the judge to appoint a Guardian ad Litem pursuant to O.C.G.A. § 19-9-3 to represent the best interests of the minor children at issue. Typically, the Guardian ad Litem is a licensed attorney who the judge appoints to assist the court in investigating the circumstances, and is authorized to look into the entire background of the parties, their current homes and living conditions, their intimate and familial relationships, and practically any issue that is tangentially related to the best interests of the child. Guardian ad Litems are given fairly expansive authority to investigate the parties and issues, and frequently conduct home visits, speak with third party witnesses, visit the child’s school, and speak with the child’s relevant service providers, such as doctors, tutors, or even therapists. The Guardian also has the authority to obtain school, medical, and other records regarding the child by virtue of the appointment order. The Guardian may also be specifically authorized to make binding recommendations during an interim period, coordinate counseling or other mental health services among the parties, and a host of other actions aimed at reducing courtroom conflict and addressing existing issues for the benefit of the children and family. Ultimately, the Guardian will give either an oral or written recommendation regarding custody and visitation, or any other issues relating to the children in the case, which input frequently helps the parties to settle the matter during mediation. However, if the parties are unable to reach a resolution with the assistance of the Guardian, the Guardian will then usually participate in the final hearing on the matter and give their final recommendation to the judge. Although the judge does not have to accept the recommendation of the Guardian, generally judges acknowledge that Guardians likely have a much greater understanding of the case than the limited evidence which they have been presented, and frequently adopt and use their findings if not their ultimate conclusions. Although each judge may place different weight on a Guardian’s findings and recommendations, it is always vital to your case’s success to make sure you comply with a Guardian ad Litem’s investigation and provide them with the necessary and relevant information to validate your concerns and arguments. At Price Law Group, we have multiple attorneys who regularly serve as a Guardian ad Litem in the Superior and Juvenile Courts. Accordingly, we are not only able to provide this service to the court and other law firms, but are able to provide in depth counsel to our family law clients who may be dealing with the appointment of a Guardian ad Litem in their own case. This important ability should not be discounted, as approaching the Guardian ad Litem’s investigation appropriately can easily make the difference between success and failure in a custody matter. Schedule your consultation today to discuss how our Guardian ad Litem’s can help.
Temporary Protective Orders and Family
Under Georgia law, there are several statutes and tools that can be used to protect victims of domestic violence and stalking. Although these laws are crucial for protecting actual victims, unfortunately, sometimes people use these same tools to make false allegations and gain an advantage in a divorce or other matter between the parties. Having a protective order issued against you can have long reaching consequences that can affect your day to day life, including your ability to return to your home, possess firearms, or continue your employment unaffected. Simply put, protective orders are serious matters that should not be taken lightly by the Petitioner or the Respondent.
Despite the protective order laws containing forms and other tools to help unrepresented victims navigate the legal system, it is still important to understand the applicable evidentiary rules and how they may affect your ability to make out your case to the judge, as much evidence relevant to stalking or abuse cases may be oral statements classified as impermissible “hearsay” which cannot be introduced at the hearing as evidence. Therefore, it is important to have an experienced attorney on your side to ensure you are able to present your evidence and make out a sufficient case to the judge to obtain the relief that you are requesting. Our attorneys have received specific training in handling Family Violence Temporary Protective Orders, Stalking Protective Orders, and representing clients in the frequently related criminal cases, such as negotiating terms of the Special Conditions of Bond that may also govern provisions of contact between the Petitioner and Respondent. Whether we represent the Petitioner or the Respondent in these matters, our main priority is understanding the goals of our client and ensuring that their rights are represented while ensuring the safety, financial security, and protection of every party involved.
Ex Parte Temporary Protective Orders
An Ex Parte Temporary Protective Order, commonly referred to as a TPO, is a temporary court order that prohibits a specific person from being able to contact you and/or your minor children, both directly (in person) or indirectly by the use of telephone, e-mails, social media, or by messages through third parties. A TPO may also require that the specific person stay a certain distance away from you, your children, your home, your office, or your children’s school. An Ex Parte Temporary Protective Order is available in cases where the Petitioner is seeking both a Stalking Protective Order as well as a Family Violence Protective Order, which are the two main types of protective orders relating to personal relationships between individuals. In all situations, the Respondent is subject to immediate arrest and incarceration for violation of a temporary protective order without requiring a hearing.
The original Ex Parte Temporary Protective Order usually may be obtained by completing a form Petition which outlines the basics of who the parties are and contains a sworn affidavit outlining the facts supporting the request for a protective order. Once that Petition is filed with the court, the presiding judge generally then determines whether to grant the Petition “ex parte,” which translates to “for one party” and signifies that notice is not given to the other party. The procedures for consideration of the Ex Parte Petition vary greatly between counties based upon individual preferences of each court, but in general, a judge may simply grant the petition and sign an order based solely upon your written affidavit, they may ask you to present more information in chambers, or they may decide that the interests of justice require a non-ex parte hearing to be held in a courtroom with notice to the other side prior to making a decision, which can be common when a divorce or other action between the parties is already pending. Additionally, a judge might deny the Petition on a temporary basis but still set the matter for a later hearing with notice to the Respondent, or they may deny the Petition and dismiss the matter altogether.
If the Judge does grant the Ex Parte Petition, the Respondent must be located and served with the Temporary Protective Order by the Sheriff before it will technically be in effect. The case will be subject to dismissal after thirty days if the Respondent is not served, but may be extended if the court finds that the party is avoiding service to delay the hearing. By statute, the Ex Parte Temporary Protective Order is only meant to last ten days, or enough time to serve and notify the Respondent and schedule a hearing on whether the protective order should be extended or made permanent, which should not exceed thirty days. At that “thirty day hearing,” common outcomes are that the court grants the protective order for a period of twelve more months, three more years, or even on a permanent basis under severe circumstances. Additionally, if the safety concerns are less severe, the Petitioner and Respondent may agree to enter into a Consent No Contact Order, which may have less severe consequences and restraints and be more appropriate in a case where some contact may be necessary to co-parent mutual minor children.
Family Violence Protective Orders
A Petition for Family Violence Protective Order pursuant to O.C.G.A. § 19-13-1, et seq., may be brought by any adult, or on behalf of a minor by an adult. In order for the court to grant a Family Violence Protective Order, the law requires that a certain familial relationship exists between the parties. Specifically, either the Petitioner or the minor child must have experienced an act of family violence by one of the following: a spouse or ex-spouse; a parent, step-parent, or foster parent; a child, step-child, or foster child; someone the Petitioner has a child with; or any person formerly or currently living in the same household. The law also requires that an occurrence of “family violence” must have occurred between the designated parties, which is defined as “any felony,” or “commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass,” and specifically does not include reasonable discipline administered by a parent to a child. Upon the filing of the verified Petition which alleges specific facts establishing that family violence has occurred in the past and may occur again in the future, the court may order such relief as it deems necessary to protect the Petitioner or a minor of the household from violence, as well as maintain the household expenses and provide support for the affected individuals. The general procedures outlined above for granting an Ex Parte TPO and future hearings on the permanent protective order also apply to Family Violence Protective Orders.
Stalking Protective Orders
A Petition for Stalking Protective Order pursuant to O.C.G.A. § 16-5-94 may be obtained by any adult, or on behalf of a minor by an adult, by filing a Petition alleging stalking by another person as defined by Georgia law. Pursuant to O.C.G.A. § 16-5-90, “A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” The statute further defines “contact” as not being limited to communication in person, such as contact by telephone, mail, broadcast, computer, or by any other electronic device. Importantly, in order to work around jurisdictional requirements to allow the Petitioner to file in the county of their residence regardless of the location of the Respondent, the place that the contact is deemed to occur is considered to be the place where the communication is received by the Petitioner. Frequently, the legal definition of the term “harassing and intimidating” can have a significant effect on the outcome of the Petition. According to the statute, “harassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’ safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior which serves no legitimate purpose. The code section specifically provides that an overt threat of death or bodily injury is NOT required to obtain a Stalking Protective Order.
The general procedures outlined above for granting an Ex Parte TPO and future hearings on the permanent protective order also apply to Stalking Protective Orders. In granting relief based upon a Petition for Stalking Protective Order, the court primarily focuses on bringing about a cessation of conduct constituting stalking, and may direct a party to refrain from such conduct, order a party to refrain from harassing or interfering with the other party, award costs and attorney’s fees to either party, and order either or all parties to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of stalking. Regardless of the additional provisions, a Protective Order still carries the consequence of jail time for a violation, so it is important to understand your rights and speak with a reputable attorney prior to any hearing date regardless of whether you are the Petitioner or the Respondent involved in such a proceeding.
Prenuptial and Postnuptial Agreements
Oftentimes, when parties are considering a second marriage, or simply wish to protect their finances and assets prior to their marriage, they may consider entering into a prenuptial agreement, also referred to as a “premarital” or “antenuptial” agreement, or simply “prenup” for short. The purpose of such an agreement is to settle financial and property matters in advance in the event of a future divorce or death, and frequently is put in place to prevent separate property owned by one spouse before the marriage from being divided between the spouses in the event of divorce. Although many people may view a prenuptial agreement as unromantic or a sign that the marriage is not designed to last, when considering that at least half of marriages end in divorce, many experts say that such agreements are simply smart financial planning. Parties in Georgia may also enter into a “postnuptial” agreement, which is essentially a prenuptial agreement entered into after the couple has married, which may be entered into before an attempted reconciliation following an affair, or for almost any reason.
Although a prenuptial agreement is designed to simplify the divorce process, a prenuptial agreement cannot include child support or custody issues based upon public policy issues. Essentially, despite any prior agreement of the parties, the court still retains the power to decide what is in the best interest of the child, and will not uphold an agreement that denies the child the right to financial support from both parents or the opportunity to have a relationship with a fit parent. Similarly, a prenup may not include provisions detailing anything illegal, and inclusion of anything illegal may cause the whole document to be unenforceable. A prenup generally provides a procedure for future cancellation of the agreement, future modification or additions to the agreement by drafting an addendum, or an automatic cancellation after an agreed upon amount of time.
It is important to involve an attorney in discussions regarding any prenuptial or postnuptial agreements, as their involvement is basically imperative for the document to be upheld in court. A court has wide discretion regarding prenuptial or postnuptial agreements, and can refuse to enforce the agreement depending on several factors which either party may assert at a hearing, as follows: whether the agreement was obtained through fraud, duress, mistake, or through misrepresentation or non disclosure of material facts; whether the agreement is unconscionable; or whether the facts and circumstances have changed so much since the agreement was executed that enforcement would be unfair and unreasonable. Accordingly, it is important to take many different factors into consideration and plan accordingly, such as executing the agreement well in advance of the planned marriage date in order to avoid future claims of duress. As the law regarding these agreements and their required components is actually very complex and varies significantly from state to state, it is crucial to the protection of your estate that you consult with an attorney who has experience drafting these agreements and anticipating any future issues that may arise. Schedule a consult with one of our attorney’s today to decide whether implementing a prenuptial or postnuptial agreement may be in your best interest.
Last Will and Testament
A Last Will & Testament, or “Will” for short, is a legal document designed to address the personal and specific choices of a Testator in the event of their death. Such a document places into writing the Testator’s choices regarding disposition of their personal and real property, and provides specific instructions with regard to exactly how they would like their personal property, accounts, real estate, and any other property to be distributed to their beneficiaries upon their death. Such a document also generally selects one or more trusted representatives, or Executors, who are willing to oversee the implementation of the document and ensure that the Testator’s estate wishes are properly executed. If at any point a Testator or Principal would like to adjust their will or revoke it entirely, they may do so as many times as they wish, so long as they remain of sound mind, or legally competent. Although many individuals hesitate to contemplate what will occur in the event of their death for obvious reasons, it is crucial to execute a Last Will & Testament if you wish for your family to be able to avoid the complicated process of probating your estate, or if you would like to provide for any specific distributions to beneficiaries. Otherwise, your estate will be distributed according only to the laws of the State of Georgia, which is called an intestate estate. In the absence of a valid Will, your intestate estate will be split by your surviving spouse and your living children or grandchildren, or will be inherited in full by your spouse in the event you have no living children or grandchildren at the time of your death. However, under Georgia law, the surviving spouse will always receive at least one-third of the total estate, without considering the number of surviving children or grandchildren. Accordingly, if you wish to avoid the standard intestate split, or to provide for distributions to other beneficiaries such as nieces and nephews, parents, friends, or charities, it is important to consider executing a Will while you remain in good health; otherwise, your family may not even be unaware of your wishes. Schedule an appointment with Price Law Group today to discuss completing this important document.