Johnny Depp is Headed for an Ugly Divorce Battle by Leslie O’Neal

odell3The marriage of Johnny Depp to Amber Heard is coming to a bitter and very public end.  The Pirates of the Caribbean star reportedly first met the lesser known actress on the set of their movie “The Rum Diary” in 2009.  The pair married in 2015, and Heard filed for divorce just 15 short months later.  Less than a week after filing her divorce petition,  Heard personally appeared in Los Angeles Superior Court, along with her attorney, and filed a request for a temporary restraining Order against Depp for the purpose of protecting her safety.

 

Heard alleged in her Restraining Order Petition that Depp threw her cellphone at her, pulled her hair, hit her repeatedly, and grabbed her face.  Heard’s further testified that she “endured excessive emotional, verbal and physical abuse from Johnny, which has included angry, hostile, humiliating and threatening assaults to [her] whenever [she] questioned his authority or disagreed with him.” To support her assertions, Heard’s attorney submitted photographs of bruising on Heard’s face, alleged to be caused by Depp.

 

After reviewing the allegations of her Petition,  Judge Carl H. Moor granted Heard’s request for a Temporary Restraining Order against Depp, though he rejected Heard’s request that Depp attend a year’s worth of anger management classes and that the protective order extend to her Yorkshire terrier.  Judge Moor scheduled a follow-up court date for June 17, at which point Depp will have the opportunity to appear and defend himself, which can include calling any witnesses he has available to disprove Heard’s allegations.

 

The process for a Protective Order in California is very similar to the Protective Order process for victims in Georgia.  In Georgia, a person who has been the victim of violence or the threat of violence may file a Petition for an Emergency Protective Order in the Superior Court of the County where the Defendant resides.  The alleged abuser would not be given notice of this hearing in Georgia due to the emergency nature of the issue.  As was the case in Heard’s California hearing, if a Georgia court believes the allegations present a potential risk to the accuser’s safety, it will grant an Emergency Protective Order to the accuser and schedule follow-up hearing to allow the accused to present his/her side of the case.  If the Court finds in favor of the accuser at the follow-up hearing, the Court will extend the emergency Protective Order for a longer period of time, typically at least twelve months, and prohibit contact of any kind between the parties.

 

Unfortunately for Depp, the upcoming Protective Order hearing on June 17 isn’t the only challenge he faces in his looming divorce battle.  Heard has also requested that the Court grant her an award of $50,000 per month in support.  This request remains outstanding, and is being made despite the brevity of the marriage and the fact that the couple have no children together.  Courts in Georgia have the authority to award temporary and permanent alimony in divorce cases, although this is done on a case by case basis with the Court considering several different factors, such as the standard of living established during the marriage, the length of the marriage, the age and condition of the parties, the financial resources of each party, and the time necessary for the parties to gain employment.   Regardless of whether the Court grants Heard’s alimony request, it’s safe to say that this is shaping up to be one expensive celebrity divorce case.

Kurt Cobain’s Daughter Hoping to Protect Her Massive Inheritance by Leslie O’Neal

Although many may not know Frances Bean Cobain, her late father Kurt Cobain emerged as a household name after his band, Nirvana, became the poster children for the grunge movement in the 1990s.  Following his tragic death in 1994, the bulk of his estate, which is rumored to be in excess of $400 million, was left to his only daughter, Frances Bean, who was only 20 months old at the time.   Now 23 years old, Frances Bean has just filed for divorce from her husband of less than two years, citing irreconcilable differences.  In her initial petition, she clarifies that she intends to preserve her inheritance from her father’s estate and believes that her spouse should not be entitled to any of it.  Perhaps in an effort to ensure that her husband does not make a play at this asset, Cobain’s divorce petition hints that she is willing to pay him spousal support despite the brevity of the union.

In Georgia, the law is relatively clear that inheritance that one spouse receives from a parent or third party either prior to or during the marriage is characterized as “separate property” and is not considered marital property subject to equitable division in a divorce case.  Likewise, property brought into the marriage by one spouse that was generated by or acquired by that spouse prior to marriage is “premarital property” and is also not subject to equitable division in a divorce.

Things become less clear, however, when one party either receives an inheritance, or owns an asset from prior to the marriage, and then either comingles those separate or premarital funds in an account with other marital funds, or invests the separate or premarital funds in an asset that is jointly titled.  Georgia used to recognize the “source of funds” rule, which allowed for the return of a separate or premarital portion of an asset so long as the party seeking preservation of that asset could clearly trace the pre-marital or separate funds.  However, in 2005, the Georgia Supreme Court made a substantial change to the manner in which Georgia viewed separate or pre-marital funds that had been comingled or jointly titled.   In Lerch v. Lerch, 278 Ga. 885 (2005), the Court ruled that when a spouse places a premarital or separate asset into an investment that includes the name of the other spouse, that act manifests an intent to gift that separate or premarital asset to the marriage.   So unless there is some definitive evidence of a contrary intent (such as a Last Will & Treatment or a Post-Nuptial Agreement), it is now far more difficult to convince a court to classify any portion of a jointly titled asset as separate or premarital property.

In Cobain’s case, her inheritance falls under both categories because she not only inherited the funds from her father’s estate, making it a separate asset, but she also acquired the funds prior to the marriage, making it pre-marital asset as well.  If this case were being litigated in Georgia, the issue of her inheritance would hinge on how she titled that inheritance during her brief marriage.  Hopefully for Cobain’s sake, she was careful to do this since it appears she neglected to have a Pre-Nuptial Agreement signed.

 

DICK & JANE “FINAL TRIAL: PART II” by Justin O’Dell

As we continue to look at Dick and Jane and the topic of divorce, we have moved through a temporary hearing, looked at their discovery issues and we are now headed for a showdown.  Mediation – a final settlement conference – has failed.  The parties are preparing for a bench trial which presents the question, “What happens in a divorce bench trial?”

Many litigants don’t realize it, but a divorce is a civil action.  For example, when polling a jury, a lawyer might ask “Has anyone ever been a party to a lawsuit?”  Many potential jurors often say “no” even when they have been through a divorce.  Divorces generally follow the same rules of evidence and trial procedure as other civil cases.

The first bit of confusion surrounding a trial is the process of having the case set for a final trial.  Compounding the confusion is the fact that every County and every Judge within every County controls his/her calendar differently.  Some Judges specially set all of their hearings and cases, some Judges schedule a handful of matters for the same one or two day calendars and some Judges publish lengthy multi-week trial calendars and place cases “on call” for 2 or 4 hour advance notice of their trial start date and time.  In complicated or lengthy cases, the lawyers will endeavor to have the Court specially set the case as the only matter for consideration and commencing at a certain date and time.  This gives the lawyers the ability to arrange for witnesses and arrange their schedules.  However, special settings are problematic to the Court.  If the case runs longer than announced, the Court has to start bumping other matters.  If the case suddenly settles or is continued, the Court has an empty day with no cases to move.  As the case nears a final trial, it becomes all the more important that Dick and Jane have lawyers familiar with the local rules (written and unwritten) and procedures (written and unwritten) for getting a hearing and have a relationship with the Court staff and personnel to help schedule.

The second aspect of trial that is often most surprising to litigants is that the “aha” moments so often presented on television and in movies rarely occurs.  By the time the case is being finalized, the parties have conducted discovery, exchanged documents and evidence and perhaps even taken depositions.  Each side is very well versed in the arguments and positions that the other side will take and should be prepared to counter the same.

The trial process moves much like any other civil case.  Each lawyer will stand and make a brief opening statement.  The opening statement is not evidence, but is designed to outline to the Court the facts that the evidence will show.  In domestic cases, Judges most often want the opening statements by both lawyers to provide them with the following information:

  • Names and number of children affected and each party’s position on custody;
  • Assets of the parties and desired split for each;
  • Debts of the parties and desired split for each;
  • Income of each party and positions on child support and alimony;
  • Conduct and other factors which each party will ask the Court to consider in making a decision.

Often times, the Court will interrupt or engage in discussion with both lawyers during the opening statement in an effort to make sure that the list above is accurate and agreed upon (even if the division of the same is not) and to try and determine the number of items upon which the parties have agreed.  For example, by the time a case is being presented for a final divorce, it is not uncommon that the parties have already separated smaller bank accounts, begun using separate credit cards, divided up most personal property and will agree that each party can receive the automobile that he or she is presently using.

From a strategy standpoint, the presentation of the case is very different.  Jane is going to most likely try and present a “rear-ward looking” case while Dick will be presenting a “forward looking” case.

Jane is going to focus on the length of the marriage, the amount of time she spent outside of the workplace raising children and building Dick’s career and new business.  Jane is going to try and build a case that Dick’s affair and extramarital conduct was the cause of the divorce.  Her arguments will center upon maintaining the similar “standard of living enjoyed during the marriage” as justifying alimony and a high level of child support.  Jane’s arguments will also push that her contributions to the marriage have caused Dick to not only realize a high income now, but also to realize high income in the future.  As a result, Jane will argue that she should share in that which she helped to build.

Dick’s case is the opposite.  Dick will likely acknowledge Jane’s contributions to the marriage and assert that the division of the assets acquired during the marriage is in recognition of those efforts.  However, Dick is going to point out that Jane is now working or could now be working, able to support herself and maintain her own standard of living.  Dick will also try and show that the marriage had been on the rocks for a period of time before the affair and that the conduct may have precipitated the filing for divorce, but was not the cause of the end of the marriage.  He may point to Jane’s past infidelities as evidence   Dick is going to strive to demonstrate to the Court that his new business is based solely on his efforts and potential and not based upon his past income history.

The case will end and the divorce will be final.  Ultimately, Dick and Jane will be forced to move on.  For couples like Dick and Jane who divorce with minor children involved, the reality is that the divorce only ends the marriage, but the relationship survives.  Dick and Jane will have to learn to co-parent and cooperate.  If they do not, they will find themselves in Court with increasing frequency and could find that the children suffer as a result.

Next month, we will move off the topic of family law and look at some post-divorce estate planning issues that Dick and Jane will need to consider.

 

Final Trial

By Justin O’Dell

As we continue to look at Dick and Jane and the topic of divorce, we have moved through a temporary hearing, looked at their discovery issues and we are now headed for a showdown. Mediation – a final settlement conference – has failed. The question for the parties as they head to a final trial is this: Judge or Jury?

Georgia is one of only two states (Texas being the other) that allows for a jury trial in divorce cases. However, certain issues involving minor children, specifically custody, visitation and child support are not subject to jury resolution. Jury trials in domestic cases are rare. Most often, a jury trial is demanded in instances where the judge assigned to the case has certain tendencies and proclivities that are contrary to the interests of one party or in instances where the judge, in temporary proceedings, has dealt with a party harshly (for example, a temporary contempt citation) and the party does not wish for that temporary situation to influence the ultimate outcome related to alimony or property division.

For these reasons, it is critical that in the process of selecting counsel, Dick and Jane inquire about their attorney’s experience in the County wherein the case will be filed. Outcomes in divorce are variable by Judge, particularly in cases involving alimony and valuation/division of self-owned businesses. Some Judges tend to believe in and award alimony as a matter of course, unless given reason otherwise and others view alimony with skepticism and require a substantial showing of cause before making an award. In high asset cases, the judge assigned to the case and their tendency in this regard can have a net effect of tens of thousands of dollars on the parties. If Dick or Jane were to get a “bad draw” in the judicial assignment and the case cannot settle, a jury trial conversation and election may be the option of last resort.

A jury trial adds significant expense, at least double or more, when compared to a bench trial or trial before a judge. In addition to standard trial preparation, each attorney must prepare for jury selection, jury charges and jury verdicts. Even more importantly, Judges often allow a degree of informality to non-jury domestic trials, specifically related to the use of evidence, the flow of witnesses and testimony and behavior of counsel. A jury trial is presented and conducted with a higher degree of formality and requires a higher degree of preparation.

Although each jury is different and hard to predict, there are some tendencies that also emerge from juries. Generally speaking, a jury is likely to contain one or more members who have divorced. Those jurors are going to bring personal bias and experiences to deliberation that can have an effect on the outcome. These experiences can cut both ways. For example, a divorced female who received alimony might be inclined to make an award to Jane and a divorced female who did not receive alimony might be disinclined to do so, reasoning “I did not get it, why should she?” Divorced men become less predictable. Does a divorced male who had to pay alimony view the payment with resentment and “stand up for his fellow man” and deny Jane support or does he approach the situation with “I had to pay my share, so should he”?

The presentation to the jury will also have to be tailored by the lawyers. In presenting information about the value of Dick’s business, the parties will have to make sure that the expert witnesses are able to adequately convey all of the aspects of the valuation process. Typically, lawyers and experts are presenting this information to judges who have repeatedly heard about the valuation elements and are simply looking for the summary. Jurors have to be educated from square one. Common sense would also seem to dictate that a jury is going to want to get the information needed, make a decision and get home. The lawyers would then be careful about getting into too much of the fault issues, adultery and history of problems during the marriage. However, the popularity of reality television, gossip magazines and entertainment “news” shows teaches that everyone loves to hear about someone else’s train wreck.

Ultimately, for Dick and Jane, a bench trial is probably the most likely scenario. Even when faced with particular biases of a Judge regarding certain aspects of a case, the reality is that it can be easier to convince one person to change his or her mind than to predict the minds of twelve inexperienced strangers and change their inherent prejudices.

Next month, we will wrap up the Dick and Jane divorce adventure with a discussion about their final trial and trial strategies.

The Award for 2015’s Friendliest Divorce by Leslie O’Neal

2015 saw the demise of some of Hollywood’s biggest power couples.  Although Tinseltown isn’t exactly known for longevity when it comes to marriage, there certainly seemed to be a noticeable spike in the divorce rate this year.  It started with the announcement that power couple Ben Affleck and Jennifer Garner are parting ways after 10 years of marriage.  Soon after, Gwen Stefani and Gavin Rossdale separated after a 12 year marriage, and then Gwen’s fellow Judge on The Voice, Blake Shelton, devastated country music fans when it was revealed that he and Miranda Lambert were splitting.  The year finished up with the surprising announcements that Kate Beckinsale & Len Wiseman were divorcing, as were Yolanda Foster & David Foster and Halle Berry & Oliver Martinez.

Thankfully, not all of this year’s splits were ugly, as they tend to be when high incomes, high net worth, and public images are at stake.  Yolanda and David Foster released a joint statement to the press praising one another for the time they spent together.  Blake and Miranda took the “uncontested divorce” approach, which means that they had already agreed on all terms of their separation and finalized everything before they announced their split and filed for divorce in July, 2015.

But the award this year for the friendliest celebrity divorce for 2015 goes to . . . Ben Affleck and Jennifer Garner!  Bennifer has taken a refreshingly cooperative approach to this new chapter in their family.  They are not just being cordial to one another – they are still acting as though they are practically married – presumably for the sake of their children.  Six months after they publically announced their split, Affleck and Garner continue to live in the same house (despite clearly having the money to afford two separate homes).  They have even vacationed together as a family for the Thanksgiving and Christmas holidays.

While this type of friendly living arrangement is not very common, it’s an approach that can work in certain circumstances.  Many couples choose to  live in the same house for a short period of time so that the children don’t have to relocate every other weekend to visit whichever parent has moved out.  This is typically an option only when both parents still get along fairly well, but is not a long term solution.  Some couples cannot afford for one party to move out and have no choice but to stay in the same home until the house sells or their lease terminates.  Another option many couples try is what’s known as “nesting,” which is when the children remain in the home 100% of the time and the parents rotate in and out depending on whose parenting time it is.  If, however, a divorce case becomes contested enough that the parties find themselves in a courtroom; the Judge will not likely impose any of these shared housing scenarios, as their success rates are relatively low.  A judge will almost always order one party to relocate if it is at all financially feasible or if either parent has a local relative that they can live with temporarily.

It appears that Ben and Jen certainly see the benefits of these approaches, at least temporarily.   All of this friendly behavior not only benefits the children, but also benefits the parties’ bank accounts!  Less fighting means that the issues are resolved quicker, less money goes to us divorce attorneys, and both sides avoid the emotional turmoil of a courtroom battle filled with hurtful accusations.   Sounds so simple, doesn’t it?  Unfortunately, those who have wrestled with a divorce case of their own can probably agree that being friendly to the person you are divorcing falls into the old “easier said than done” category…..But here’s to Bennifer for showing us that a divorce can be friendly for the children’s sake, and here’s hoping that celebrity marriages fare better in 2016.

 

“Dick and Jane” Mediation by Justin O’Dell

As we continue to look at Dick and Jane and the topic of divorce, we have moved through a temporary hearing, looked at their discovery issues and we are now headed for a showdown.  Prior to a final trial in the case, the parties will be required to attend mediation in an effort to resolve the case.
Mediation is not the same as arbitration, though the two are frequently confused.  Arbitration is where the parties agree to submit the case (or parts of the case) to a binding decision by a third party that they have chosen or whom has been appointed.  Arbitration is an option for resolving a divorce, particularly in instances where the parties wish to maintain privacy and/or would like someone with unique experience or expertise to consider all or part of the case.  Mediation, on the other hand, is a settlement conference that may or may not result in an agreement.  Either party is free to terminate mediation at any time and for any reason.  Neither party can be compelled or forced to agree to anything at mediation.

Despite being non-binding, mediation is overwhelmingly successful at getting cases resolved.  Cobb County’s Office of Dispute Resolution generally reports an annual settlement rate of 60 – 75% in domestic relations cases.  The actual settlement rate attributable to mediation is likely higher as a number of cases settle in the days leading up to mediation or settle after mediation due to the progress made in that setting.
Mediation begins with the selection or appointment of a “neutral” or mediator who will facilitate the process.  Mediators in domestic cases are usually, but are not required to be, lawyers.  Many mediators are retired Judges from the Superior Court who bring with them years of experience in trying and deciding domestic cases.  Mediators receive initial training through the Georgia Office of Dispute Resolution and also have to maintain annual continuing education requirements.
The selection of a mediator is essential to the mediation process.  Dick and Jane won’t likely know anything about the mediator and his/her mediation style.  The lawyers for each will have a memory bank upon which to draw and will likely have conversations about possible mediators.  Some mediators have a laid back, facilitative style whereby they are able to pass settlement offers between parties and massage each party toward the other party’s viewpoint.  Other mediators respond well to emotional outbursts and have a “counselor” type approach and are able to listen and provide sympathetic ear toward the hurt, anger or frustration being displayed, while also encouraging the party to let that emotion drop and keep the process moving.  Lastly, some mediators are the more forceful “suck it up and get over yourself” type, who can provide each party with an effective dose of what the unsympathetic reaction of a Judge is likely to be.

Mediation will generally start in a group session.  The mediator will review the mediation process, the rules and the role of the mediator.  The parties and lawyers are all asked to sign an agreement indicating that they have read and understand the rules of mediation.  Most important among the mediation rules is confidentiality.  In order for settlement conferences to be productive, both sides must be comfortable making compromises.  If a party felt that a compromise could be admitted in Court, the process would break down quickly.  For that reason, any admission or compromise or settlement proposal made in mediation is confidential and not available for use in Court.

Some mediators allow for each side to make a general statement in the group session of the issues to be resolved.  However, this process can be detrimental to the mediation atmosphere.  Often times, the lawyer or the party will become accusatory and argumentative regarding their position on the issue.  For this reason, many mediators and lawyers prefer to skip the overview portion of the joint session and move immediately to the caucus portion.

During caucus, the mediator meets with each party and his/her lawyer privately.  In that meeting, the mediator wants to know three pieces of critical information:
1) What are the issues to be decided? (i.e. alimony, custody, child support, specific property division)
2) What is that party’s position on each of the foregoing?
3) What are going to be the stickiest issues or possible barriers to getting a deal done today?

Of the foregoing, the third item is critical to success.  There are some barriers and issues which will torpedo a mediation faster than others.  Some issues cannot, by their nature, be compromised.  For example, if the issue being determined is related to custody and the Mother truly believes that the Father is abusing the child and wants no visitation or strictly supervised visitation, but the Father adamantly denies the abuse and wishes to have extended visitation, it will be difficult to compromise the relative positions.  Alternatively, the parties may not have values on property or business interests completed.  The parties may be unwilling or unable to approximate values and cannot productively mediate the case.
It is essential that each party arrive to mediation prepared to settle, but also prepared in general.  Mediation, even if unsuccessful, can be treated as a dry run for trial and used to gain insight into the positions of the other party and to glean a reaction from a neutral third party.

Next month, we will move Dick and Jane on to a final trial?  The question to consider will be – judge or jury?justin2

 

DICK & JANE “Divorce: Discovery – Part II” by Justin O’Dell

As we continue to look at Dick and Jane and the topic of divorce, recall that the process is underway and we have moved past the temporary hearing into the discovery phase. Our last article looked at discovery goals from Jane’s standpoint. For this month, we look at the process from Dick’s perspective.

No doubt, the first issue for Dick will be addressing the issue of his affair. We have analyzed Jane’s ability to question Dick about the affair and his use of privilege to limit the amount of discovery to be had. In response, Dick will probably throw out a few questions about extra-marital conduct toward Jane. It is surprising to many people to see what the other person may or may not reveal. In the end, the affair discussion may create emotion and grab attention, but ultimately conduct by either spouse is probably not going to have an overwhelming impact on the outcome, unless one party can establish a negative effect on the children or the diversion of marital money in furtherance of the misconduct. Still, the existence of the adultery and the desire to keep it out of the public realm can be a strong source of motivation to reach a settlement.

Dick’s primary concern is going to be on his company and the valuation issue. Since he is in control of the corporate information, he is going to have the advantage in working through the valuation process. It will be important that Dick provide thorough and responsive discovery to Jane’s attorney and expert. Although there is an overwhelming temptation to hide issues related to the company, they are usually exposed and more financially painful in the long term. Quite often, Dick can have his financial valuation expert work cooperatively with Jane’s financial valuation expert in order to educate and correct erroneous assumptions.

Lastly, Dick’s discovery of Jane will need to focus on her employability and future goals. As the Court approaches the issue of alimony, most Judges are going to expect that Jane has a plan for the future. If Jane is sitting back with an attitude that she does not need/expect/plan to get any form of employment, she is going to be penalized. Dick will need to discover Jane’s efforts to obtain employment, job prospects, interviews and the like. He can then use this information in response to her alimony case.

Next month, we will look at the mediation process and what happens at a Court ordered settlement conference with an expert mediator.

Khloe and Lamar: It’s Complicated. by Leslie O’Neal

The Kardashian clan just can’t seem to stay out of the headlines these days (not that they are trying….). But this Fall has been especially difficult for the media-loving family.  On October 13, 2015, Khloe’s estranged husband, Lamar Odom was found unconscious at a brothel in Nevada and rushed to a Las Vegas hospital.  He was placed in a medically-induced coma for several days after opiates and cocaine were found in his system.  The news of his condition was grim at first, and Khloe and her crew immediately rushed to his side.

What was revealed a short time later was that despite having separated over two years ago, Khloe and Lamar are still legally married.   Khloe originally filed for divorce in December of 2013.  For the first year of the divorce process, US Weekly reported that things remained unresolved because Khloe was unable to even track Lamar down to get him to sign anything.  He was reportedly still hoping for reconciliation at the time, despite that Khloe had begun seeing other people – then rapper French Montana and now NBA star James Harden.  It was later reported that Khloe and Lamar signed a tentative settlement agreement this past summer, though an official divorce decree had never been entered by a judge and the case was still pending.  Lamar’s sudden and critical medical condition, coupled with their still married status, placed Khloe in the unexpected position of being charged with making medical decisions on Lamar’s behalf.  Similarly in Georgia, if one spouse designates the other on his/her Healthcare Directives form without modifying it, that designation will remain even if a divorce case is pending.

Because recent reports show that Lamar is slowing improving, it seems that the estranged couple avoided an even bigger legal challenge, which is what happens when one party passes away unexpectedly during a divorce proceeding.   Even if a divorce case is pending, the death of one party terminates the divorce proceeding instantly because there is no longer a marriage to dissolve.  This can be a significant game changer in terms of asset division, particularly if there are assets solely titled in the name of the deceased spouse.  Suddenly the assets in deceased party’s name are governed not by equitable division principles under divorce law – which would presumably allow the surviving spouse to receive half of the assets – but rather by the terms of the Last Will & Testament of the deceased spouse.  So if the deceased spouse modified his or her will to leave out the other party, or had never included the other party in his/her Will at all, the surviving spouse would not receive any of the asset that he/she would’ve previously been entitled to under the divorce case.  That spouse would have to Petition the Probate Court for support from the decedent’s Estate.

Thankfully for Lamar and Khloe, their situation looks to be on the mend.  Lamar’s medical condition is reportedly improving, and the couple are reconciling – at least from a legal standpoint that is.  On October 21, 2015 Khloe formally dismissed her divorce petition, leaving the couple right back where they started.  Hopefully for these two, they can work through the complications and patch things up in more ways than one.