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Articles

Divorce Cases

This article is not intended to be taken as legal advice specific to your case. It is general information only. You should consult an attorney before or shortly after a divorce is filed.

THINGS YOU SHOULD KNOW ABOUT DIVORCE

The break up of a marriage is painful whether or not it is anticipated. When there are children involved it is even more difficult. The more things you and your spouse can agree on, especially concerning the children, the easier the process becomes. And yes, there is life after divorce.

A divorce begins with a lawsuit filed by one spouse against another. Even if you and your spouse have agreed to all terms and the divorce is amicable, before the divorce is final, a petition or complaint for divorce must be filed. Additionally, some counties have a “standing Order” which applies to both parties once a divorce is filed. These Court Orders usually contain provisions prohibiting the transfer of assets as well as selling, encumbering, trading, contracting to sell, or otherwise disposing or removing any of the property belonging to the parties except in the ordinary course of business. Even where there is no standing order, once a divorce is filed Georgia law prohibits the transfer of assets as well as selling, encumbering, trading, contracting to sell, or otherwise disposing or removing any of the property belonging to the parties except in the ordinary course of business. Standing Orders also forbid either party from causing or permitting a minor child of the parties to leave Georgia. It also forbids parties from doing, or attempting to do, or threatening to do, any act injuring, maltreating, vilifying, molesting, or harassing the adverse party or the child(ren) of the parties.

A couple is still considered married until the date of the final decree so it is a good idea not to date anyone until your divorce is final. It is also a good idea not to be alone with a member of the opposite sex who is not related by blood or marriage.

Along with the divorce, you must file a financial affidavit, initiation forms and, where there are minor children, a child support worksheet and proposed parenting plan. The fee to file your suit varies by county. You must formally present or “serve” the divorce petition to your spouse if you are the first person who filed the petition. You may get the sheriff to serve the petition or you or your lawyer can provide it to your spouse. If you chose to give it to your spouse or have a lawyer send it to your spouse you he or she will also include an Acknowledgment of Service which he/she must sign before a notary public. As the wording of an Acknowledgment of Service may vary, if your spouse files the divorce and presents you with an Acknowledgment of Service consult your lawyer before you sign it as it may give up important rights.

There is a common misperception that if the parties agree to divorce it is “uncontested.” A truly uncontested divorce is where you and your spouse agree on everything including child custody, child support, alimony and division of assets. Until there is a signed written settlement agreement the divorce is contested. Moreover, even if one party does not want the divorce, he or she can not stop it. If one party thinks the marriage is irretrievably broken, it is irretrievably broken.

A spouse who resides outside Georgia but lived in Georgia during the marriage or who has moved after the lawsuit has been filed is still subject to divorce in Georgia. If you don’t know where your spouse lives service of the complaint may be done by publication. This requires a Court Order and proof you’ve made a good faith effort to find them. Consult an attorney about this.

Even if you and your spouse agree on all issues a lawyer can’t represent both of you. If your spouse does not have an attorney, it is in everyone’s best interest for him or her to retain someone for the limited purpose of reviewing the settlement agreement. Where there are minor children involved the Court will look at the child support provisions very carefully and is not required to agree with the parties. Similarly, it is the Judge who will ultimately decide custody including visitation or secondary custody and set the amount of child support or force the parties to come up with an alternate acceptable arrangement.

The vast majority of divorces settle and never have an actual trial however some, unfortunately, have to be tried in Court. Georgia is one of only two states that has trial by jury in divorce cases. If a case is tried to a jury, the jury will be asked to decide how to divide the real and personal property including who gets the residence or if the home must be sold and who is responsible for each debt. The jury will also decide whether and how much alimony a spouse receives.

At the beginning of every case, and required to be filed with the complaint, each party must fill out a financial affidavit. This affidavit is designed to give a picture of what assets, liabilities and expenses each party has. It also requires larger assets to be characterized as Husband’s, Wife’s or Joint. While all expenses may not be known or may have to be estimated, you should try to include as realistic picture of expenses as you can.
In order to be sure you know all about your spouse’s economic, medical, social and psychological condition, lawyers often recommend what is known as "discovery." Discovery includes Depositions (where the witness is placed under oath and asked questions in the presence of the court reporter), Interrogatories (written questions which must be answered under oath), Request for Admissions, and Request for Production of Documents. Discovery tools are very helpful, if not indispensable, in determining what is a fair settlement. You should consult with an attorney to determine what type of discovery is best in your case and how to respond to discovery. Wording can be very important.

In addition, if you or your spouse own real estate, a business or professional practice you may need an expert to testify about the fair market value of the real estate and/or the value of the business or practice. Some or all of it will be marital property subject to division. If a house was purchased by one party before the marriage, there is still a marital component. The amount of appreciation and reduction of principal on the mortgage is marital and formula is used to determine how the marital portion should be divided.

If you and your spouse cannot agree on what to do about money, custody, and/or living arrangements until the divorce is final or are in need of immediate income, a temporary hearing also known as a Rule Nisi may be requested. Temporary hearings are very useful and often facilitate a final settlement of a case. Alimony, also known as spousal support, may or may not be appropriate. Alimony is based on the needs of a party and the other party’s assets or ability to pay. It may be permanent, in situations where one party has not worked in many years and is too old to start now, or “rehabilitative” alimony for a few years if the recipient has been out of the workplace for a significant amount of time such as where a mother stays home to be with the children. Your lawyer can advise you about whether or not you have a good case for or against alimony. In Georgia a person who commits adultery is not entitled to alimony unless that adultery has been condoned. If you have committed adultery let your lawyer know about it. You should discuss with your lawyer the pros and cons of a particular strategy and whether or not you are likely to get or have to pay alimony.

In some case the largest asset of a party may be his or her retirement accounts and/or stock options. If a retirement account is to be split you will have to have a Qualified Domestic Relations Order or QDRO. It is not unusual, and typically advisable, for a divorce lawyer to associate a specialist in pensions to draft the QDRO. The QDRO is often drafted after the divorce and submitted to the Court nuc pro tunc or retroactive to the date of your divorce.

There are tax consequences to some divorces. You should seek advice from your CPA or other tax professional tax advisor on the consequences of various property decisions, taxation of support, filing of income tax returns and other tax issues.

If you must go to Court for a hearing or a trial, be sure to dress appropriately. Once in Court, the judge will want to know whether or not you want the case reported (i.e., taken down by the court reporter). If you do not have it taken down, it is almost impossible to appeal the Court’s ruling. At the current time, you can anticipate paying between $30.00-$45.00 per hour for the "take down." You should have money with you so that you can pay the reporter immediately. Not all reporters will accept a check. You and your lawyer will discuss with you the advisability of having your particular case reported. Unless there is a reason to do so, you are not obligated to purchase the transcript as the “take down” only insures that you will have a transcript should you need it.

If you or your spouse has moved out of the marital residence, you should check your auto insurance policy to see whether the person who has moved out is still covered by auto insurance. If the insurance is in your spouse’s name only, you may not have insurance even though you remain in the marital home. Many policies cover only the named insured and family members living with them. Once a party moves from the marital residence, unless they are named insured, they may not have coverage, a fact you would not like to learn after an accident or being stopped by the police in a routine roadblock. Either your insurance agent or attorney should be able to assist you in determining coverage and making sure you are protected irrespective of where you live.

You should be aware that a divorce does not automatically invalidate your will. There may be specific provisions which are advisable given your divorce, your children and other beneficiaries so consult with your lawyer. Note, divorce does not invalidate a Power of Attorney you may have signed. It also does not automatically change your life insurance beneficiaries, or designate new beneficiaries on any pension, IRA OR 401-K plans you might have. You will need to make these changes, yourself after the divorce.

The final step in any divorce is getting the divorce granted. Only the Court can do this. Some judges require one of the parties, usually the Plaintiff, go to Court to get your "Final Decree " which will also make any settlement agreement an Order of the Court and enforceable by contempt, garnishment and other methods. Depending upon which county the case is in and which judge is assigned the case you may be able to a Final Decree by simple motion and affidavit.

This article is not intended to be taken as legal advice specific to your case. It is general information only. You should consult an attorney before or shortly after a divorce is filed