Divorce: Temporary Hearing – What does Dick need?

As we continue to look at Dick and Jane and the topic of divorce, recall that the process is underway. As we move through the process, we are going to examine each phase from the perspective of Dick and from the perspective of Jane. Last month, we looked at the temporary hearing from Jane’s perspective. This month, we approach the same hearing from Dick’s standpoint.

Dick’s primary concerns moving forward are as follows:

  1. Maintaining contact and a relationship with his children;
  2. Making sure that the funds he earns support Jane and the children but don’t prohibit him from providing for them either;
  3. Minimizing the financial impact of the divorce and avoiding funding a “war chest” for the attorneys;
  4. Shielding his marital indiscretions from the case.

Just as Jane should view all of her goals at the temporary hearing through the lens of family stability, Dick should have the same approach.

On a temporary basis, he may be willing to concede that Jane is the primary physical custodian but he should ensure joint legal custody. Dick may have some subject areas of legal custody over which he would like to have final decision making authority. For example, he may feel strongly about public v. private school, certain medical treatments of the children or their religious upbringing. The Court may not decide final legal custody on a temporary basis, but if Dick does not make these areas known at this phase, he will lose out on his ability to do so later.

The parenting time and visitation schedule will be an important opportunity for Dick to demonstrate his role as a parent and Father. If he bites off too much time and cannot keep it up due to work conflicts, he will play right into Jane’s arguments. If he takes too little time, he runs the risk of becoming a “Disneyland Dad” or guy that just sees his kids every other weekend, but is not really involved in their lives. The best outcome would be for Dick to try and obtain visitation time that blends weekends and weekdays so as to give him quality time and involvement with the children. Schedules like Thursday after school until returning to school on Monday morning one weekend and Thursday after school until returning to school on Friday morning the next weekend are becoming increasingly popular with the Courts. The schedule is predictable and structured and minimizes back and forth for the children. In addition, the children are exchanged through the school, rather than in a parents driveway (which can be tense and lead to disputes).

Financially, Dick needs to step up at the temporary hearing and support the family, but he must be prudent in doing so. The temporary order should be structured so that it is just that, temporary. Most Judges and Courts are going to expect Jane to seek some level of employment. If she is receiving all of the funds that she needs or wants on a monthly basis, she may not be inclined to push for work. From Dick’s standpoint, he would be best to volunteer to pay certain monthly expenses (mortgage, utilities, car note and insurance, etc…) directly rather than just giving the money to Jane. On a temporary basis, all of the foregoing is commonplace. This creates a feeling that this structure is not permanent and will be revised on a final basis. On the contrary, if Dick were just to pay over a sum of money each month in gross support, a precedent could be created for a final order.

Attorney’s fees and the payment of Jane’s attorneys will be a major struggle for Dick. If he cuts off funds to Jane completely, she cannot obtain adequate representation and the case will bog down. On the other end of the spectrum, if she has or receives a large amount of funds, she may be inclined to start a major battle.   Dick should concede that some fees may be appropriate (particularly in light of his misconduct problem) so as to appear reasonable, but should push that additional attorney’s fees be borne by the parties individually or be paid equally utilizing marital assets as the source. Some Judges will state that it is very necessary that both spouses (regardless of fault) need to “feel the pain” of the divorce process if they choose to keep fighting. The goal of every Judge is for the parties to settle the case themselves. If one side is paying 100% of the costs on both sides of the fight, the non-paying side has no incentive to ever end it.

Next month, we will look at the discovery process from Dick and from Jane. We will focus on what each side needs to gain by way of information, particularly as it relates to the valuation of the marital business.

What’s in a Will?

Leslee Champion Hungerford - Attorney in Marietta, GAWhat’s in a Will? Why do I need one? A will or last will and testament is a legal declaration by which a person, the “testator,” names one or more persons to manage his or her estate and provides for the distribution of his or her property at death. In other words, it is a legal description of what you would like to happen to your property after you die.

What Property Is Included In A Will?

Most generally, the will distributes a decedent’s real property (land) and personal property (everything else). The property you own at your death is called your “probate estate” and consists of all property owned by you at the time of your death that is not otherwise distributed under the terms of a contract or by operation of law (I.E. life insurance with a death beneficiary designation, pension and retirement accounts (like IRAs and 401(k)s) with a death beneficiary designation, property owned by you and some other person as joint tenants with right of survivorship, and bank and brokerage accounts with pay-on-death or transfer-on-death designations). Probate property includes your tangible possessions like clothing, jewelry, household furniture and furnishings, cars registered in your name, real estate titled in your name (or in your name and the name of some other person as tenants in common), bank accounts registered in your name with no pay-on-death designation, and stocks and bonds held in a account in your name with no transfer-on-death designation.

Who Can Receive Property From A Will?

There is no specification as to whom property must be left to in a Will and the testator may direct the distribution of his or her probate estate in any manner that is not contrary to Georgia law or public policy. That is, a Will is legal even if it leaves everything to a complete stranger and nothing to a spouse or other relatives. (However it should be noted that any surviving spouse and minor children will be entitled to property from your estate for their support and maintenance for a period of 12 months.)

What Is Required To Make A Will Legal?

Georgia law requires the following for a valid will:

Capacity To Make A Will: A person must meet certain minimum requirements in order to make a will. In Georgia, the legal age to make a Will is fourteen (14) years of age. A person must also know what property he or she owns and must have a decided and rational desire as to the disposition of his or her property. The testator must also know “the objects of his bounty” (i.e. his children, spouse, family, etc.). Finally, the testator must know the contents of the will he is signing.

Freely and Voluntarily Execute The Will: The will must be executed freely and voluntarily by the testator. A will that is made under pressure or coercion is not valid.

In Writing: A will must be written in order to be valid. The will does not have to be typewritten or on any special paper. It can be handwritten. A will may not be oral in Georgia. For example, a videotape of someone expressing his wishes on videotape would probably not be a valid will under Georgia law.

Signed By, Or At The Direction Of, The Maker Of The Will: The will must signed by the testator (person making the will) or someone else in the presence of and at the express request and direction of the person making the Will. That is, if a person cannot sign his or her name (either for an inability to write, or a physical handicap) he or she can make a mark to indicate the intent to sign, or someone can sign the person’s name if directed to do so.

Properly Witnessed: The will must be attested and signed in the testator’s presence by at least two competent witnesses. The witnesses must be at least fourteen (14) years old and must sign their own respective names on the will. Each witness must be competent to witness the will. Under Georgia law, a witness is “competent” if the witness can distinguish right from wrong and can testify in a court of law regarding the facts surrounding the execution of the will. The fact that a witness is a criminal does not render the witness incompetent to witness a will. While it does not affect the validity of the will or the competency of the witness, if there are only two witnesses to a will and one of those witnesses is a beneficiary under the will, the witness loses any rights to property the witness would have received under the will. Therefore, no one who is a beneficiary under a will should witness that will.

Why Do You Need A Will?

Many people wonder if they need a will. That answer depends on whether the individual would like a say in how their property is distributed upon their death. With a will, you decide how your estate will be distributed and you may dispose of your property as you choose. Without a will, your estate is distributed to your heirs, who are determined in accordance with state law. That being said, whether you are married, single, have minor children or own even a nominal amount of personal assets or property, you should have a will.

Benefits of a having a Will include the following:

  • With a will, you have control as to which members of your family receive any part of your estate and how much they receive. Without a Will your estate is distributed to your heirs in accordance with the law.
  • With a will, you have the ability to name an “Executor” to take care of matters and divide the estate according to your wishes. Without a Will an “Administrator” will be named by the court and you have no say as to who this person will be.
  • With a will, your executor can be given full powers to sell your property and manage it without requesting permission of a court. Without a will, your heirs must petition a court for the administrator to be granted these powers.
  • With a will, you can nominate the person whom you want to be guardian of your minor children. Without a will, the choice of guardian will be determined by a court.
Fulton County Judge Grants Rapper Ludacris Full Custody Of 13 Month Old Daughter After Year Long Court Battle

The 14 month legal battle between rapper Ludacris – whose legal name is Chris Bridges – and Tamika Fuller over custody of their 13 month old daughter, Cai Bella Bridges has reached a dramatic conclusion. The lawsuit started in December of 2013, with Ludacris filing a Petition in Fulton County Superior Court seeking a legal legitimation of his daughter. Fuller filed a counterclaim requesting that she be awarded a sizeable sum of monthly child support from the rapper.

The final trial took place in January of 2015. During the proceedings Ludacris cited Fuller’s poor parenting over her other child from a previous relationship as a primary reason for him to be awarded primary custody of Cai Bella. Fuller countered by revealing that Ludacris had requested that she have an abortion and bribed her in an effort to get her to terminate the pregnancy. Fuller also accused Ludacris of manufacturing his current marriage in an effort to appear more stable. The Court also heard from a Court appointed Guardian ad Litem, who had conducted an independent investigation of both parents. Following all of the testimony, Judge Doris Downs awarded Ludacris primary physical custody and granted the parties joint legal custody.

What remains unclear is whether Ludacris will still be ordered to pay child support to Fuller. Under a previous temporary ruling in the case, the rapper was ordered to pay $7,000/month to Fuller. However, based on the Court’s final custody Order granting him primary custody, his attorneys may be seeking to eliminate his child support obligation all together, or possibly even order Fuller to pay child support to him.

If they do pursue this option, there is no guarantee that they will prevail. It is possible in Georgia for a custodial parent to still be required to pay child support to the non-custodial parent. Georgia law allows the Superior Court Judge to exercise his or her own discretion to determine whether the best interests of the child would be served by money being paid to the noncustodial parent to allow for proper visitation. Such an anomaly generally only occurs when the incomes between the parties are so disparate that it would be unfair to the child to have such radically different living environments between the two households. This legal loophole in Georgia is likely Tamika Fuller’s only chance at this point at getting any money out of the wealthy rapper.

Divorce: Temporary Hearing – What does Jane need?

As we continue to look at Dick and Jane and the topic of divorce, recall that the process is underway. As we move through the process, we are going to examine each phase from the perspective of Dick and from the perspective of Jane.

For this month, we will look at the temporary issues from the perspective of Jane. Jane’s primary concerns moving forward are as follows:

  • Maintaining stability & a routine for the children;
  • Making sure she has adequate funds to pay household expenses;
  • Making sure she has adequate funds to get through the costs of the divorce, including amounts to find out about assets;
  • Discovering information about the extent of Dick’s affair

In preparation for the temporary hearing, Jane should focus most on the children and the stability of the family. By presenting the case through that lens, all of her concerns above can be met. On a temporary basis, Jane would push for a determination that she has primary physical custody and joint legal custody of the children, with her having final decision making authority over legal decisions affecting the children’s healthcare, education, religion and general welfare. The Courts use a form document called a “Parenting Plan” to lay out the provisions controlling custody and visitation. It will be most important for Jane to come up with a realistic schedule for the children so that they can meet their academic and extracurricular requirements with minimal disruption. The Court will want to start the parties on a schedule that looks more and more like things will look when the parties are completely divorced. Jane may want to push for an order from the Court preventing Dick from introducing the children to any new love interests. On a temporary basis, a mutual order of this sort would not be out of the question.

From a financial standpoint, Jane will need to prepare a budget. The budget will document all of the household and children’s expenses. The budget is known as a Domestic Relations Financial Affidavit. The Court will look at the budget and determine the amount of money needed for Jane and the children and order that Dick pay the same. The Court can order that certain expenses be paid directly (like a mortgage) and that other funds are to be given to Jane for the payment of expenses.

Alimony is becoming increasingly harder and harder to obtain. Women of all walks of life are expected to work and contribute to the household expenses. On a temporary basis, the best argument for Jane to make is going to be to lay out a plan for the future. If Jane needs to go back for job training or schooling, she should present a plan to do so and ask for an award of money to pay for the same. The Courts are going to look much more favorably on Jane if she can present a logical plan to return to work as opposed to simply making a request for funds every month.

On the issue of attorney’s fees, Jane needs to outline the plan for litigating the case and, specifically, the amount of funds needed to get the case to a settlement posture. Courts are very receptive to the use of reasonable attorneys’ fees in order to get a case resolved and not subjected to a final trial. If Jane attempts to make the temporary hearing all about Dick’s affair and appears out for “vengeance” the Court is going to shoot her down. A Judge is not going to be inclined to allow Jane funds to go on the warpath. Jane will need a reasonable amount of money to use the discovery process to get a handle on the parties’ assets. One major issue will be determining the value of Dick’s new company (we will devote an entire blog post to this subject later). If Jane can outline a fee proposal designed to get this information, the Court would be inclined to grant the award.

It might be difficult for her to contemplate, but Jane will need to wrestle with the decision of selling the house. If the parties have equity in the house, a sale might be the only way to access the funds in order to divide them. This is particularly true if the parties do not have sufficient funds elsewhere to offset the value of the house. It might be tempting for Jane to enter into an agreement whereby she keeps the house and the equity in it and allows Dick to keep other assets in exchange. However, Jane should caution against becoming “house poor” or in a situation where she has a high, unaffordable mortgage payment and her savings is inaccessible due to being in the equity in the house. Jane will need to consider the needs of the children for stability and structure and determine if the house can or should be sold.

Next month, we will look at the same issues from Dick’s perspective. Dick must be very cautious about setting a precedent for payments and managing damage control.

Justin O’Dell & Leslie O’Neal Are Rising Stars

Rising Stars 2015 Super LawyersJustin O’Dell and Leslie O’Neal have been named Rising Stars for 2015 by Georgia Super Lawyers! No more than 2.5 per cent of the lawyers in Georgia are selected each year. For Justin O’Dell, this is his third year being selected and the first for Leslie O’Neal.

Good for Cobb

Good for cobbPrior to the SPLOST vote in November 2014, Justin O’Dell spent countless hours dedicating himself to the merits of its value to Cobb County. He knew that the continuation of the SPLOST would mean improvements in transportation, public safety and quality of life for all residents of Cobb. As co-chair of the effort to Secure Cobb’s Future, Justin understood that the needs of many should outweigh the negative few.

As a continuation of his efforts to secure a great future for residents of Cobb, Justin O’Dell has joined with other business leaders in the community in a grassroots initiative that will carry the torch for more progress. As Vice-Chair of the “Good for Cobb” Steering Committee, Justin will serve the community in promoting improvements through development and projects. Bringing the Braves to Cobb was just the beginning of many good things to come for the citizens of Cobb. From the courtroom to the community, Justin is committed to serving clients and community.

MDJ_good_for_cobb

Leslie O’Neal Chairs Cobb Young Professionals

1380423_852264694815580_3567506577305390080_n“To be impactful and relevant economic, social and civic leaders in our communities.”

That is the vision of a dynamic group of young professional leaders in the Cobb Chamber of CommerceCobb Young Professionals is dedicated to cultivating leaders within the Cobb community who will thrive in the workplace and grow in their potential to contribute. O’Dell & O’Neal is proud to announce that Leslie O’Neal is the CYP Chair for 2015!

Cobb Young Professionals kicked off the new year at the Georgia Special Olympics Indoor Winter Games. They played basketball and cheered for the athletes, supporting a great organization in the spirit of training and competition for people with intellectual disabilities. At their kick-off celebration event, Leslie O’Neal announced many exciting and rewarding events and opportunities for CYP in 2015. We can’t wait to see how they develop their potential and strengthen Cobb County!

Justin O’Dell Receives 2015 Chairman’s Award

10410974_10204985281928258_8577167585810985675_nThe 2015 Chairman’s Award was presented to Justin O’Dell at the 73rd Cobb Chamber Annual Dinner Celebration. This award recognizes outstanding leadership, dedication, commitment, support and enthusiasm to the Cobb Chamber. Justin devoted much of his time to the renewal of the SPLOST, securing Cobb’s future as a leader in job creation, protecting our community and providing a quality of life that’s second to none.

Chairman’s_Award

Rock ‘n Renner Gearing Up for Battle

IMG_8925By Leslie O’Neal

While Chris Rock and Jeremy Renner have never shared time on the big screen, they currently have one thing in common: they are both dealing with newly filed divorce cases with the potential to get messy on the issue of custody.    Rock filed for divorce in New Jersey Superior Court on December 23, 2014.  In his Petition, Rock alleges that his wife of 20 years Malaak Compton-Rock “has repeatedly refused to permit [him] normal and usual access to the children, and has acted in a manner detrimental to the children’s best interests”.

Meanwhile Jeremy Renner’s Canadian model wife, Sonni Pacheco, filed for divorce against him in Los Angeles on December 5, 2014.  While she cited the standard “irreconcilable differences” ground for divorce in her initial Petition, she also included some not-so-standard requests, most notably her request that he be ordered to return her passport and that she be given “independence”.  E! News reports that Renner fears Pacheco plans to move back to Canada with their 22 month old daughter, Ava.  Needless to say, both Rock and Renner are reportedly prepared to seek custody of their children.

Renner and Rock’s state of uncertainty is not uncommon at the beginning of a divorce case when the parties have not yet had a hearing.  Thankfully, Georgia Courts put an immediate Order in place in all contested divorce cases which provides some basic rules that both parties are required to follow.  The Order is generally known as a Domestic Relations Standing Order, and prevents either party from removing the minor children from the jurisdiction, cancelling the other party’s health insurance, cutting off utilities in the home, and selling or transferring assets.

However despite the stability provided by the Standing Order, things can still be chaotic until a hearing takes place because there is no clear order establishing who has primary custody of the children, when visitation will take place, how much child support will be paid, and how the family’s bills will be paid.  Because these are generally considered issues of immediate importance, Georgia law permits parties in a domestic case to have a temporary hearing, typically at the beginning of the case, on the immediate issues that need to be addressed.  Because the temporary hearing is considered to be a shortened version of the final trial, the parties are prohibited from calling more than 1 witness (other than themselves) and the Court is instead permitted to consider written testimony from other witnesses (in the form of a sworn Affidavit) rather than live testimony.

The temporary hearing can have a huge impact on the ultimate outcome of the issues being litigated because it gives both parties a glimpse into how the Judge will react to various issues.  It also creates a status quo in the case on the issues of custody, visitation, and child support which can be challenge to overcome later in the proceedings.  It looks like for Rock and Renner, a temporary hearing cannot come soon enough in their cases.

Divorce: The Case is Filed, Now What?

Justin O'DellBy Justin O’Dell

As we continue to look at Dick and Jane and the topic of divorce, we will assume that both have met and selected counsel and that the process of divorce is underway.  This brings us to the filing of a divorce and what happens next.

Recall that our case involves a contested divorce (no settlement agreement reached before filing).  For those who do not recall the facts about this family, you can find them here:  http://www.odelloneal.com/blog/dick-and-jane/meet-dick-and-jane-2/.

The first issues, post-filing, for Dick and Jane are temporary issues.  In order to deal with these issues, Georgia law allows for a “temporary hearing.”  The purpose of a temporary hearing is to address the immediate needs of the parties and the children, specifically temporary custody, temporary child and spousal support, temporary use and possession of assets (including the house) and temporary payment of expenses.  The decisions on some of these issues can be quite different from the ultimate outcome in a divorce.  For example, on a temporary basis the Judge could order the wage earning party to continue to pay a variety of expenses directly, like mortgages and car payments.  Thus, issues like alimony and even child support may be addressed through the payment of direct expenses.  On a final basis, the Judge is going to expect each party to pay his or her own expenses and will deal with availability of funds through child and spousal support.  If the parties have a contested custody matter, the Judge may be inclined to consider alternative custody arrangements like shared/split parenting time or even “bird-nesting” (where the parents take turns living in the house with the children rather than the children moving from home to home).

Although Judges do not divide assets at a temporary hearing, it is not uncommon for the parties to be awarded temporary use and control of the same.  Those awards are generally an indication of where the asset is ultimately going to go.  For example, if a Judge awards Jane temporary use and possession of the marital residence on a temporary basis, the asset (if not sold) is going to probably remain with her in the final settlement.

A temporary hearing is also designed to ensure that each party has access to funds to secure adequate representation.  Georgia law allows an award to be made to the non-primary wage earning spouse from the marital estate or from the earnings of the other spouse for payment of her attorneys’ fees and litigation costs.  This allowance is recognition that it would be fundamentally unfair for one spouse to be forced into a settlement simply by being unable to afford the process or unable to conduct discovery regarding assets.

A temporary hearing is usually set anywhere from 30 – 45 days following the filing of the divorce, though this time can be longer in some counties than others.  Most parties are able to reach a temporary agreement without the intervention of a Court.  This is true even in instances where there are hotly contested issues in the case.  Many times, the temporary order is simply a reflection of the status quo.

One of the most underappreciated benefits of the temporary hearing can be the “venting” process.  In our case, Jane may be particularly upset about Dick’s alleged misconduct.  The lawyers in the case might be indicating a possible temporary resolution that would be workable for everyone.  Jane may feel that the resolution is unfair given “what he has done.”  In a temporary hearing, Jane can require Dick to get on the stand.  Dick can be compelled to answer questions about his conduct (or he can take the 5th Amendment and refuse, which in a civil case allows the Judge to assume an admission).  Jane can take the stand and discuss the impact and difficulty on her children and her family.  Most often, the Judge will then issue a decision somewhere along the lines predicted by the lawyers.  Maybe the Judge will direct a comment or two toward Dick about his behavior.  Maybe the Judge will direct a comment or two toward Jane about moving on and making sure the children are not alienated against their Father, regardless of his behavior.  Jane may feel some catharsis from having had a public moment.  Both parties may come to understand that they do not want to be in front of a Judge again.  Finally, both parties may come to believe that when the lawyers who they have hired and who have extensive experience in the field and with the Judge, both indicate and seem to agree on a potential outcome, they are probably pretty accurate.

For Dick and Jane, we are going to look at the goals for a temporary hearing in the next few months.  We will view the case from each perspective.  In order to set up the discussion, we will assume that Dick has been unfaithful and that Jane is aware of it.  However, unbeknownst to Dick, Jane also had an extramarital relationship that started about a year ago.  Hers never became physical, but was emotionally intimate, flirtatious through texts and social media.  It was also around this time that Jane withdrew from Dick physically and emotionally.  When confronted with the issue of his affair, Dick left the house to stay with his brother.  He has been seeing the children some on weekends and attending their activities.  Thus far, he has been maintaining all of the household expenses and giving Jane a few hundred dollars each month for expenses.  We shall see how the temporary issues unfold…..