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…..

Probing the Probate Court

IMG_8618By Leslee Champion Hungerford

When most people think “probate” they usually associate it with death, probating a will, and the general confusion that typically accompanies it. While the word “probate” can refer to the act of presenting a will to a court for filing — such as, to “probate” a will, in a more general sense, probate refers to the method by which your estate is administered and processed through the legal system after you die.

Although the main focus of the Probate Court is administering the estates of the deceased (both those with and without a will), the Probate Court offers many other valuable services. In Cobb County, the Probate Court has jurisdiction over the following services:

Probate of Wills

When an individual dies and has a Will, the Will is usually offered for probate by the individual who is named in the Will as the executor. A nominated Executor is not authorized by law to act in accordance with the Will until the Will is proven to the Court to be the Last Will and Testament of the deceased individual; the Court appoints the Executor, and the Executor takes his oath. Even if the Will is not going to be probated, anyone who is in possession of the Will of an individual who has died must bring the Will to the Probate Court for filing. The Will is probated in the Probate Court in the county where the deceased established residency.

Administration of Estates

When an individual has not made a Will, or if the Court deems the Will to be invalid, the Estate can be handled through an Administration. An administrator is appointed to represent the estate. The laws of assent determine the heirs to receive property.

Guardianship or Conservatorship of a Minor

Temporary Guardianship Orders authorize individuals to care for minor children when parents are unable to care for their children, temporarily. A Guardianship Order is often required for a single parent to enter into the military. Guardianship Orders may be required to register the minor child in school and authorize medical treatment for a child.

Permanent Guardianship authorizes an individual to care for a minor child when both parents are deceased. The minor has no natural guardian, testamentary guardian, permanent guardian, or the parental rights of any living parent have been terminated by a court. Termination of parental rights is not the same as a loss of custody. Termination of parental right is permanent; a custody order could be modified at a later date.

An individual must request the Court to be appointed Conservator of property belonging to a minor if the minor child is receiving funds that are more than $15,000 from an inheritance or from a settlement. No petition is necessary for a natural guardian to receive any money or property for their child, if the property is worth less than $15,000.00.

Guardianship or Conservatorship of Incapacitated Adults

The petitioner is seeking the authority to care for the Incapacitated Adult, and/or manage the assets of the incapacitated adult or Ward. A guardian of an Incapacitated Adult has rights and powers and is charged with the responsibility to provide adequately for the support, care, education and well-being of the Ward. The Conservator (guardian of the property) has the duty to exercise ordinary diligence in dealing with the Ward’s property and may be held liable for any loss resulting from a lack of such diligence.

Involuntary Commitments of the Mentally Ill, Alcohol and Drug abusers

A petitioner may request the Court to issue an Order to Apprehend an individual, alleging the individual is in need of a mental evaluation. Upon the order of the Court in Georgia, the sheriff’s deputy will pick the person up and deliver the individual to East Central Regional Hospital for a mental evaluation. To commit someone involuntarily for a mental evaluation, two people have to petition the Court, must have witnessed the behavior of an individual within 48 hours of their hearing date, and must attest to the fact that the said individual is a mentally ill person, an alcoholic or is drug dependent; presents a substantial risk of imminent harm to himself or others; and that this individual needs involuntary treatment.

Issuance of Marriage Licenses

In order to get married in the State of Georgia you must first obtain a marriage license. If either party is a resident of Georgia, they can apply for a marriage license in any county in the State of Georgia. If neither party is a resident of Georgia, they will have to apply in the county they are going to get married in. The license allows for the marriage ceremony to take place in Georgia.

Issuance of Weapons Carry Licenses

To receive a license to carry a weapon an individual must first apply for the Weapons Carry license in the county in which they are domiciled (or reside).  In order to obtain a Weapons Carry license in Georgia, you are required to be photographed, fingerprinted, and must undergo a criminal background investigation by the GBI and FBI.

Miscellaneous services such as Issuance of Fireworks Permits, Recording of Elected Officials’ Oaths and Bonds, and Certificates of Residence

While the Probate Court may appear to be intimidating, I encourage you to give it a deeper look. You may find just the service you need! If you would like a steady legal hand to guide through the probate process, call our office and schedule a consultation.

Divorce: Consultations and Meeting an Attorney

why-us1By Justin O’Dell

Starting this Fall, we switched our discussion of Dick and Jane to the topic of divorce.  This topic is going to be far ranging and extensive and we will also be looking at various issues from the perspectives of both Dick and of Jane.

We have been looking at the process of hiring and selecting a domestic lawyer to handle a divorce.  For this month, we will consider the initial consultation and the expectations of the client and lawyer in that initial meeting.

  1. Consultations May Not Be Free. This is probably one of the biggest areas of disconnect between the public and family law attorneys.  The majority of attorney advertising is done by personal injury law firms and criminal defense firms.  Personal injury firms are paid based on a contingent fee, usually one-third to forty percent of the money recovered to the client.  Since they do not charge by the hour, these firms almost always offer free consultations.  Criminal law is generally handled on a flat fee basis and free consultations are also the norm.  Since these firms advertise “free consultations” many people are led to believe that all lawyers offer free consultations.  Most domestic lawyers (and general civil lawyers) charge their clients by the hour.  If they spent much of their day giving free hours to consultations, they would not have time left over for paying clients.  Some family law lawyers have managed to find a way to offer free consultations, but most do not.
  2. How Much Will This All Cost? One question that is always asked during the initial consult is “How much is this going to cost me?”   The reality is that unless you walk in the door with a completed settlement agreement in hand, no one knows and no one can predict.  An experienced lawyer can look at the situation and generalize, but even a seasoned veteran attorney would be making nothing more than an educated guess.  The degree to which the couple chooses to fight will control the costs.  More important than “how much will this cost me?” a better question for your lawyer is “How do we keep costs under control on our end?”  There are a lot of aspects of divorce litigation that are optional, even if perhaps helpful.  For example, Jane might tell her lawyer that “I think Dick has hidden money.”   Jane’s lawyer can hire a forensic accountant to investigate.  However, if Dick is only earning $40,000 per year and the parties are living paycheck to paycheck, the most that Dick could likely squirrel away would be a few hundred or even a few thousand dollars.  Is it worth spending $5000 or more to try and find such a small sum?  Alternatively, Dick may have concerns that Jane has started seeing a new man since he and Jane separated.  Is it really worth spending thousands of dollars in discovery related to this new relationship, if it ultimately will have little bearing on the outcome?  The client and attorney should quickly try and develop a consensus about the overall plan for the divorce and discuss the various aspects of the case that need to be proven and spend resources and finances accordingly.
  3. The Retainer & Billing Process. Most domestic attorneys work on a retainer.  Many clients do not get an adequate explanation of the retainer in their initial consultation.  Most attorneys bill incrementally (in tenths of an hour).  Many clients do not get an adequate explanation of incremental billing in their initial consultation.  Some lawyers charge an initial retainer ($2,500.00 or $5,000.00), draw down against that retainer on a monthly bill and require that the retainer account be reinstated to that level each and every month.  Other lawyers will require the amount to be reinstated only when it hits zero.  For billing purposes, some lawyers bill in minimal increments of six or twelve minutes.  This means that a quick phone call or e-mail could be charged for that minimum.  It is important in the initial consultation that both the lawyer and the client have a clear understanding of how the relationship will be charged.
  4. How Will It Turn Out? Most clients come to a consultation expecting to find out “how this will all turn out?”  There are some areas where the domestic lawyer can offer opinions and thoughts regarding potential outcomes.  If certain variables are known (like each spouses’ gross income), then child support is fairly predictable due to Georgia’s Child Support Worksheet and calculator.  Other areas of dispute, like alimony, vary from County to County and even from Judge to Judge within a County.  These areas are also highly dependent upon the facts of the case and how those facts are presented to the Court.  Any prediction is nothing more than an experienced guess.  Instead of “how will it turn out?” the better question is “What kind of divorce am I going to have?”  The lawyer and client must be on the same page regarding the process of divorce.  Does the client want things settled quickly and without fighting (even if the client has to pay or give up more to their spouse)?  Does the client have certain issues that are “non-negotiable” like primary custody or protection of non-marital property?”  The more the client has in the “non-negotiable” column, the more likely the divorce will be a fight.

The first meeting with a lawyer is an important one.  Most often, the client wishes to receive answers to questions like cost and outcome.  The reality is that these issues, though important, are highly variable and highly unpredictable.  Rather than focus on costs and outcome, it is critical that both sides gain an understanding about the process of the divorce.   Over time, the process will help to control and manage both cost and outcome.

O’Dell & O’Neal Applauds Cobb Voters

JustinIn addition to serving clients, Justin O’Dell worked tirelessly for months to Secure Cobb’s Future. His efforts as co-chair of the advocacy group for a 1% sales tax referendum to improve transportation, quality of life and public safety across Cobb county were met with victory as 53% of voters said yes. Mr. O’Dell took his courtroom experience in educating and advocating outside the courthouse to the citizens of Cobb at town hall meetings and civic gatherings. Approval of this SPLOST is a testament to the educated voters in Cobb and their strong desire secure the future of this county. Serving clients and community on a daily basis, Justin O’Dell is committed to moving people forward to a better future!

2014.11.05.MDJ – SPLOST Sails Through

2014.11.02.MDJ – The Truest Form of Transparency

2014.10.30.MDJ – Arguments at Final Debate

2014.10.15.MDJ – Wasteful vs. Fabulous

2014.10.12.MDJ – Parks and Recreation

2014.10.05.MDJ – Transportation Projects

2014.09.04.MDJ – SPLOST Editorial

2014.09.03.MDJ – Secure Cobb’s Future Part 1

2014.09.03.MDJ – Secure Cobb’s Future Part 2

Divorce: Choosing an Attorney

IMG_8717By Justin O’Dell

Starting last month, we switched our discussion of Dick and Jane to the topic of divorce. This topic is going to be far ranging and extensive and we will also be looking at various issues from the perspective of both Dick and of Jane.

For this month, it is important to devote time and energy in determining how to hire a domestic lawyer. There are a lot of factors to consider in hiring a domestic relations lawyer and each factor is important.  More than anything, it is critical that the client have a high degree of comfort, confidence and trust in their lawyer.  If the attorney-client relationship is lacking in any of these three areas, the process will be extremely difficult. Along those lines, here are ten initial thoughts (in no specific order of priority) in choosing a family law attorney:

  1. Am I comfortable with this person? The answer to this question is unique to each individual. Some clients prefer attorneys of the same gender or race, others prefer the opposite. Some clients want a lawyer to be a tender heart and soothing voice, others prefer someone who can bluntly tell them to “get a grip.” Regardless of preference, the personality must mesh.
  2. Can I trust this person? The analysis here is simple. If you cannot be completely honest with your family law lawyer, you have the wrong lawyer. It is essential that your lawyer know everything to best represent you. If you cannot be that open, it is not a good fit.
  3. Does my lawyer practice where my case will be heard? Family law is different in this regard than most other types of cases. To quote the great Tom Browning, the discretion of a family law judge is “broader than the plan of salvation.” Different judges bring different attitudes and perspectives to issues like custody, alimony, misconduct, attorneys’ fees and so on. Your attorney needs to have a history and understanding of these factors in order to best handle the case.
  4. Does my lawyer need my business? This is a critical factor, often overlooked. The reality is that in a family law case, the longer the case goes and the more fighting that occurs, the more the attorney earns. There are law firms and lawyers who have high overhead to cover. There are law firms and lawyers who are struggling to pay the bills. In these instances, there is a latent danger that the lawyer could be picking a fight where one does not need to exist or advising against a settlement offer than might make financial sense (i.e. the lawyer rejects a total alimony award of $48,000.00 in settlement and goes to trial at a cost of $25,000.00 seeking to get a total alimony award of $60,000.00. Although the result obtained was “more” the net effect to the client was a monetary loss).
  5. Is my lawyer my cheerleader or my advisor? This is a fine line that exists in family law cases. Often times, lawyers can become emotionally invested in their clients due to sympathies to a particular situation. In these instances, both the lawyer and client become focused on “winning” rather than a positive overall outcome for the family unit. A lawyer must be able to tell the client, without hesitation, when the client is being irrational, off-base, unreasonable, etc… The lawyer is not to be a cheerleader merely feeding the client advice that the client wants to hear. The lawyer is to be an advisor and advocate.
  6. Will my lawyer go to Court? Most family law cases settle and most family law cases should settle. Parents and spouses should be able to take ownership of their own situation and, with advice and counsel, be able to hammer out an agreement for themselves. However, there are instances where compromise cannot be had and the facts get tough. Family law dos attract lawyer who simply are not interested in going to court or do not like the adversarial process. If the lawyer has a reputation of not wanting to go to Court or if an opposing counsel can sense that a lawyer is unwilling to try the case, the settlement negotiations become very one-sided.
  7. Does my lawyer explain the financial aspects of the case? Divorce litigation costs money and expenses can add up fast. As a case heats up, many lawyers start a routine process of following the same strategy for every client. Discovery depositions, demands for guardian ad litem, custody evaluations, etc… There is not a “one size fits all” divorce. Some clients cannot afford the full court press. Some clients can afford everything, but have no inclination to pay for it. A divorce can be fairly presented without exhausting every possible litigation strategy. It is important that the lawyer review the costs and benefits of each strategy with the client BEFORE committing to a course of action.
  8. Does my lawyer get along with the other lawyer? This is often hard for the client to gauge at first. Over time, the client should be able to review the correspondence between the attorneys and see them interact in person. It is not essential that the lawyers be best buddies, but they should be able to treat each other with civility, respect and professionalism. Although it is initially fun to read a caustic letter from your lawyer to the other side, in the end it just ratchets up emotion and ultimately expense.
  9. Does my lawyer return my messages? The number one complaint to the State Bar regarding lawyers is a lack of consistent communication. Your case is important to you and it should be important to the lawyer. If your lawyer cannot at least send an e-mail or leave a voice message in response to an inquiry, get a new one.
  10.  Does my lawyer have an investment in the community?   In choosing a lawyer, consider whether that lawyer is committed to their immediate environment. Are they involved in the civic, charitable and social causes on the community? If not, the lawyer is probably more interested in pulling money out of a community than truly being a part of it. Lawyers are uniquely suited and tailored to serve at Church, in civic clubs and on charitable boards. They are asked to do so constantly. If the lawyer is not involved somehow, somewhere, it is a deliberate choice.

Next month, we will look at the process of a divorce consultation and the first meeting with a lawyer. What should Dick and Jane expect to get out of that first meeting?

It’s No 7th Heaven for Stephen Collins

IMG_8925By Leslie O’Neal

Stephen Collins became a household name while playing the role of the family patriarch in the popular TV series “7th Heaven”, which ran from 1996-2007.  On the show, Collins played a minister and devoted father to a family of five children.  However, the shocking allegations from his divorce case paint a far different picture of Collins’ real life persona.

Collins filed for divorce against his wife of 27 years, Faye Grant, in 2012 citing irreconcilable differences. At the time of the filing, Collins claimed the split was perfectly amicable.  Grant didn’t see it the same way.  Grant’s response to the divorce petition was explosive, alleging that she learned in January of 2012 that Collins had a long term pattern of sexually molesting children.   Grant further alleged that Collins had narcissistic personality disorder with sociopathic tendencies.

The situation dramatically worsened on Tuesday, October 7, 2014 when TMZ released an incriminating audiotape from a joint therapy session between Grant and Collins. The audio reveals what sounds like Collins’ voice confessing many of the child molestation allegations. Collins’ lawyers have accused Grant of extortion tactics related to the recording, claiming she suggested she would leak the recording to the media unless Collins acquiesced to her settlement demands. Grant released a statement adamantly denying any involvement in the leaking of what she called an “extremely private recording”. Since the recording was leaked by TMZ, Collins’ career has gone down the tubes. He was dropped from the film “Ted 2”, was pulled from previously filmed “Scandal” scenes, and has voluntarily resigned from the Screen Actors Guild.

Allegations of psychological issues are not uncommon in divorce cases. These types of allegations play a central role in cases where custody or visitation is in dispute, as the mental health of the parents is one factor that a court is required to consider in determining custody of a child. In Georgia, the Judge overseeing the lawsuit has the authority to order that one or both parties of a custody dispute to undergo a psychological evaluation by a court appointed psychologist or psychiatrist. Thankfully for all involved, custody is not an issue in the Collins/Grant divorce, as their only child, Kate, is twenty-five years old. However, it won’t be surprising for Collins’ conduct to remain a central focus in his ongoing divorce case.

Leslie O’Neal Reads to Kindergarten Class

Banner5This month, the students at Lockheed Elementary School in Marietta got a special treat. Leslie O’Neal spent time with Kindergarteners reading “Bunny Cakes”. In her role on the Cobb County Board of the United Way, Leslie always looks forward to volunteer opportunities in local elementary schools. The story of “Bunny Cakes” is much like legal disputes. Max and his sister, Ruby, have different ideas about what kind of cake to bake. But in the end, compromise prevails and a settlement is reached!

Justin O’Dell Has Joined the Academy of Court-Appointed Masters

IMG_8717We are pleased to announce that Justin O’Dell has been recognized as a Fellow of the Academy of Court-Appointed Masters! Justin is the only attorney in Cobb County to hold this special certification and will offer his services to assist area Judges in a variety of ways. As a Special Master appointed by a Judge, Mr. O’Dell can provide time and cost savings to the Court. He is qualified to assist parties in reaching settlement agreements and resolving discovery in Family Law matters, resolving Contract and Employment disputes and serving as a Civil Trial Master. Mr. O’Dell can be appointed to oversee the implementation of court orders and/or settlement agreements in Civil Matters. At O’Dell & O’Neal, we continue to seek ways in which we can serve our clients and the community!

Justin O’Dell Co-Chairs “Secure Cobb’s Future”

IMG_8717Justin O’Dell has been an advocate for positive changes in Cobb County for his entire career practicing law. He is committed to supporting improvements in transportation, quality of life and public safety for all residents of Cobb. On November 4th, voters in Cobb will have the opportunity to vote on a SPLOST approval that will provide funds for future projects and enhancements. Justin O’Dell is Co-Chair of the committee to “Secure Cobb’s Future” and will work to gather information and deliver it to voters.