Atlanta Family Law FAQs
We know you have a lot of questions. Take a look at our Atlanta, GA family law questions and answers.
FAQs on Family Law in Atlanta
If one spouse wants a divorce, a divorce will ultimately happen. It can work in many ways. The spouses can talk and come to an agreement, the spouses can hire attorneys to litigate in court, the spouses can participate in a collaborative divorce, or the spouses can work with a mediator to reach an agreement. An agreement that settles all questions about how assets are to be divided, how debts are to be divided, how parents will share parenting time, must be reached and signed by both spouses before a court will grant a divorce.
Regardless of when or how an agreement is reached, a specific procedure must be followed to get a judge to sign a final judgment and decree of divorce. First, a complaint for divorce, which is also called a petition for divorce, must be filed. The spouse who files the divorce is the plaintiff or the petitioner and the other spouse is the defendant or respondent. The respondent needs to be personally served with the complaint for divorce, which is best accomplished by asking the other spouse to sign an acknowledgement of service. That avoids sending a sheriff to serve the respondent, which can really get things off to a rocky start. The respondent then needs to file an answer and possibly a counterclaim for divorce. Discovery will follow, which is the procedure by which both sides obtain the documents and evidence they think will be necessary to reach a settlement agreement or proceed to trial and let a judge or jury decide how assets and debts will be divided. The judge can also decide what is in the best interests of the children and order a custody schedule, child support and possibly alimony. If a judge or jury has to decide the case, it will probably take at least a year before the case is over, and possibly much longer.
Most clients get referrals for a divorce or family law attorney from friends or family who have been through a divorce. After getting the names of three of four divorce lawyers, visit the attorneys’ websites, then, if the attorney looks experienced and competent, schedule an initial consultation with the lawyers, preferably in-person. You should hire an attorney with whom you feel comfortable and whom you believe will be a good fit. Go to the initial consultation with a list of questions and listen carefully to the answers to help you decide who the best fit for you and your unique situation is. There are many good attorneys, and there are many attorneys who lack the experience to be truly helpful. Do not let an attorney’s low hourly rate be the only reason you hire the attorney. In family law matters, you get what you pay for.
The attorneys at Richardson Bloom & Lines family law attorneys each have a different hourly rate based primarily upon the attorney’s years of experience. Those rates will be shared with you when you call to schedule an appointment. During the initial consultation, the attorney with whom you meet will tell you how much you will need to pay for a retainer. While a high asset, complex divorce will cost more than a simple divorce with limited assets, remember that you have more control over fees than you think. If you want a nasty, ugly, acrimonious battle, it is going to cost you a lot more. It is possible to reach an agreement and save a lot of money in attorneys’ fees. The secret is to set realistic goals and set aside your anger. The blame game that results from anger leads to futile court battles that are extremely expensive.
The simple answer is that until you have a court sign a final judgment and decree of divorce, you are still married and not able to marry anyone else. Some people want to have a trial separation and use that time to see if they can save their marriage. If that is your goal, we highly recommend you work with a marriage counselor. Georgia does not recognize a legal separation, but it does have a legal proceeding called “separate maintenance”. The goal of a separate maintenance action would be to provide for financial support for children and possibly a non-working spouse during the period of separation.
In our opinion, a nasty divorce is completely unnecessary. We recognize that ending a marriage is a very emotional and difficult thing to do, but we have learned that nobody feels better after a nasty divorce. To the contrary, there is less money to go into your pocket and the children suffer from the high conflict if a nasty divorce. Work out your hurt and anger with a therapist, and work out your finances with your attorney and possibly a financial advisor. Be smart, not spiteful.
Your divorce attorney will want to know how long you have been married, whether you have children together and, if so, how many, their ages, and where they go to school. Your attorney will want to know both spouses’ occupations and incomes, and to have a general idea of your financial circumstances. You should also be prepared to talk openly and honestly about why your marriage is coming to an end. Prepare a list of questions such as how the procedure works, what to expect, and how to achieve your goals so that you can leave the meeting armed with information and feeling more comfortable about the process.
Your attorney will want your most recent tax returns, pay stubs, bank account statements, retirement account statements, and credit card statements, as well as documents showing other assets and liabilities, such as the amount of your monthly mortgage payment and what the mortgage balance is, investment account statements, stock option awards, inherited assets, and information about any family business, if applicable. Georgia law requires that each spouse prepare a Domestic Relations Financial Affidavit, and your attorney will provide you with that form, probably at the initial consultation.
Georgia is an equitable division state. That means that the assets (and debts) accumulated during the marriage will be divided in a way that is fair under the unique circumstances of your family. Equitable division does not mean that all the marital assets will be divided in half, but absent unusual circumstances, courts will usually divide the assets equally.
Keep in mind that if you have pension plans, including 401(k) retirement accounts, there is a special document that must be signed by the court to be able to divide the account balances without any tax consequences or penalties. That document is called a Qualified Domestic Relations Order, or QDRO. Some retirement plans cannot be divided, such as state or county pensions, including Georgia Teacher Retirement System pensions. If the couple has a retirement plan that can be divided, there are other creative ways to equitably divide those retirement funds.
Many times, one spouse will have been awarded stock option by his or her employer. Typically, stock options can not be transferred to the other spouse. If stock options are an issue in your financial picture, make sure you let your attorney know so the attorney can get all of the appropriate documents to make sure that the potentially substantial asset of stock options can be properly considered and divided.
Sometimes title will control who gets to keep the house, but it depends on why it is titled in just one spouse’s name. Title does not always control who gets what when it comes to dividing assets in a divorce. A house may be titled only in your name because you owned it before the marriage. If that is the case, you may very well get to keep the house, but if there was a mortgage that was paid during the marriage, and the house is worth more than you owe on the mortgage, you probably are going to have to pay your spouse some cash to buy out his or her equity. Because there are so many reasons that a house can be titled in just one spouses name other than it was owned by you before the marriage, this is a good question to discuss with your lawyer at the initial consultation.
In Georgia, the money earned by one or both spouses during the marriage is considered a marital assets. Thus, even though you were the only one working, it is not very likely that you will get the house and all the equity. If your spouse stayed home to rear the children, and the children have not yet graduated high school, your house may be awarded the home, and you each may get some of the equity. Although you may feel like you paid for everything because you were the only one earning money, the court will not look at it that way. Decisions made during the marriage of whether to work outside the home, or how to spend money, or any other of hundreds of decisions married couples make, will be considered to be joint decisions made by the marital unit, just like the assets and debts accumulated during the marriage will be considered marital. It will all be subject to equitable division.
All assets, including retirement benefits, that are earned during the marriage, are to be equitably divided in a divorce. If you have been employed at the same company for longer than you have been married, however, the value of your retirement plans, adjusted for increases and decreases over the course of the marriage, will be awarded to you as a pre-marital asset. Only the portion that was earned during the marriage will be divided.
Generally in Georgia, inherited assets are not considered marital assets. That means the inheritance does not have to be shared with your spouse. However, if that cash was put into a joint account (commingled), Georgia courts will presume you meant to make it a gift to the marital unit and it may be divided. If you do not have a prenuptial agreement that addresses what will happen to inheritances, the best thing to do is keep the money or other asset separate and not title it in your spouse’s name.
The best way to minimize any potential harm to your children is to not make them your friend and confidant, and remember that the children are aware that they have two parents are a part of each of you. Never speak poorly of the other parent to or in the hearing of your children, do not share adult information about why you are getting a divorce or what is going on with the divorce. Many parents tell us that they are not going to lie to their children and if a child asks questions, the parent intends to answer it, truthfully. It is a much better practice to tell your children that you and their other parent will always love them but that the divorce is just between you and the other parent. We think the best way to tell the children about the divorce is to have a conversation with the other parent in advance and decide how you will tell the children, together, at when. That way the children see that the parents can continue to work together to protect them and it will make your children feel much safer. Don’t tell your children “secrets” or think they will agree with you against the other parent if you explain why you feel the way you do. Studies indicate that most children will do well in a bi-nuclear home if the parents do not fight and are not hostile to one another. Children are very perceptive, so it is best to work out those negative feelings about the other parent with the assistance of a good therapist. We are happy to make recommendations of mental health professionals who can help keep the children safe and shielded.
Most family law attorneys and judges are of the opinion that children need both parents in order to grow up to become happy, productive members of society. Today, since both parents are valued as essential to a child’s well-being, assuming the parents do not suffer from a mental illness or addiction, it is rare for one parent to be awarded sole custody. If one of the parents travels for work all the time, it can make a parenting plan challenging, but we will try to come up with a parenting plan that is similar to how the children have spent time with the parents during the marriage. Some studies have concluded that the relationship between the children and the traveling parent can be improved because that parent will spend more time with the children as the parent in charge of planning meals, homework, entertainment, and spending time together.
There are two kinds of custody in Georgia: physical custody and legal custody. Physical custody is the term used to describe how the children will spend time with each parent, and legal custody is the term used to described how major decisions affecting the children will be made. Most parents are awarded joint legal custody, with one parent being designated the tie breaker in the four areas of medical, educational, religious, and extra-curricular decisions. Both physical and legal custody will be decided, if the parents are unable to agree, based upon the best interest of the children. What is in the best interest of children depends entirely on how things have been done historically in your family, the personalities of your children, and the mental and physical health of both parents.
Grandparents are allowed to intervene in a divorce action or bring an independent action to ask for visitation with the grandchildren. In certain very limited circumstances, the parents can ask for custody. If the grandparents are able to show that the children will be harmed if the grandparents are not awarded visitation with the grandchildren, then a court may, in its discretion, enter an order that gives the grandparents time with the grandchildren. As with any issue involving children, the court must determine what is in the children’s best interest.
High Net Worth Divorce Concerns
It is not so much that the quantity of assets makes a divorce complex, but rather the quality of the assets. For example, if the couple has invested in cryptocurrency, its division is complex by its very nature. Because there is a wide variety of retirement plans, such as 401(k) plans, IRAs, state and county retirement plans, pension plans, etc., many high net worth couples have several different types of plans. Each is subject to its own rules for division and the retirement plan documents must be reviewed. Stock options come in many forms, and the attorneys chosen by each spouse must have experience and knowledge about all of the different nuances of all of the different assets. If a family business is involved, the attorney must know about business valuations and the vocabulary and methods employed by the valuators. A high net worth divorce is complex because of the nuances of all of the assets, which are typically more than a house and some checking and savings accounts.
If you have a high net worth and are seeking a divorce, you need to make sure that you hire an attorney who is familiar with the types of assets that will be divided. Indications of whether the attorney is qualified to competently handle a high net worth or complex divorce is if the attorney is a Fellow of the American Academy of Matrimonial Lawyers, if the attorney has at least 15 years of experience, and if the attorney handles only family law matters.
The myriad types of trust and the general absence of statutory and case law on how to treat trusts in a divorce makes this question difficult to answer. This is the type of question that needs to be addressed during the initial consultation and will probably require a great deal of investigation. Like everything is a divorce situation, the answer is fact specific.
You must bring a legal action to terminate the alimony obligation. If you just stop paying the court ordered alimony, you run the risk of being held in contempt. Georgia law does allow for the termination of alimony if a former spouse is living with someone. You should consult with your attorney to determine the best course of action.
In all likelihood, you will not split all of the options with your spouse. There is a formula that is typically applied that results in a smaller and smaller percentage of each tranche as it vests. Your attorney will need to review the option agreement and determine whether and how options can be divided. Having an attorney who understands options and the restrictions that typically accompany the options is essential.
The same formula that is used to determine how unvested stock options should be divided is also typically applied to the unvested portion of defined benefit pension plan benefits. The formula takes into account how long you have been married, how long you have worked for the employer that offers the benefit, and how far into the future after the divorce the benefit vests.
Bring the prenuptial agreement to the initial meeting with the lawyer you are interviewing. It is very important for the attorney to know you have a prenuptial agreement and to be able to read it and ask you questions about the agreement and everything that happened leading up to the signing of the agreement. If the agreement is enforceable, it will be followed by the court and only things such as custody and child support that are not addressed in the prenuptial agreement will need to be decided.
Although prenuptial agreements are becoming more popular, most of our clients do not have one. If you do not have a prenuptial agreement, then, with the help of your attorney, you will identify the marital assets and debts, and divide them equitably. Since a prenuptial agreement cannot control custody or child support, those decisions will be made on the best interests of the children and the Georgia child support guidelines.
It is best to have your will revised once you are divorced. If you do not revise your will, however, Georgia law says it is presumed that your former spouse died before you did, even if he or she is still alive, so your former spouse will not be part of your will. We can provide you with the names of estate planning attorneys who can help you revise and update your Last Will and Testament.
It is very important to change your beneficiaries after your divorce if your former spouse is the beneficiary and you do not want him or her to be the beneficiary any more. If you die and your former spouse is still the beneficiary, your former spouse will be given the account proceeds or your intended beneficiary will be involved in expensive and usually ugly litigation with your former spouse. Of course, sometimes a spouse has been required by the court order to maintain or purchase a life insurance policy naming the former spouse as a beneficiary to protect an alimony, child support or other financial obligation, in which case, the former spouse is the intended beneficiary and it will be honored. We strongly urge you to follow all of the provisions of a court order, including maintaining life insurance, and also strongly you encourage you to change the beneficiary on policies and accounts that the divorce order does not require you to maintain for your former spouse.
We think it is a good use of time and money to get a financial advisor involved with the divorce. Having a team of experts, including your attorney, a financial advisor, a therapist, and a child specialist, almost always results in a good outcome.
We advise our clients not to continue to share the same financial advisor after the divorce. There is a potential for a conflict of interest. We can provide you with the names of financial advisors that we know and have worked with over the years.
A QDRO is a qualified domestic relations order. It is the legal document required by law to divide certain types of retirement plan benefits, including 401(k) accounts and pensions.
DRFA stands for Domestic Relations Financial Affidavit. Georgia law requires that both spouses prepare a DRFA, so that the spouse is swearing that all of his or her income, expenses, assets, and liabilities are disclosed on the DRFA so the court knows what assets and debts to divide, how much income is earned to calculate child support, and to determine the needs and ability to pay alimony o the spouses involved in appropriate situations.
If you have children who are younger than 18 or 18 but still enrolled in and attending high school, you will need to prepare a child support worksheet. The worksheet will calculate child support based upon the date entered into the worksheet. The amount of child support calculated by the worksheet is called the presumptive amount, but it can be changed upward or downward in appropriate circumstances. You can find the child support calculator worksheet at www.cscalc.gaaoc.us.
Arbitration is very similar to a trial, but in a private setting. The parties agree on an arbitrator, and the case proceeds as it would with a trial: witnesses are called, evidence is presented, arguments are made. Like a judge, the arbitrator gets to make a final decision that is binding on the parties. The primary benefit of arbitration is that the courts are so busy, it takes a very long time to get a trial date. With arbitration, the parties and the arbitrator work together to find dates that work for everyone as quickly as everyone’s schedules allow. Unlike with a trial in court, however, the arbitrator is paid an hourly rate. Arbitration and mediation are very different. See below.