Why Do I Have to Complete a Domestic Relations Financial Affidavit? By Alyssa Blanchard

Alyssa 2016 jpg (33 of 38)Pursuant to Uniform Superior Court Rule 24.2, in all cases involving temporary or permanent child support, alimony, equitable division of property, modification of child support or alimony or attorney’s fees, all parties are required to submit a Domestic Relations Financial Affidavit (“DRFA”).  Unless otherwise ordered by the Court, if you file your case with an agreement or consent order resolving all issues (except divorce) you are not required to file a DRFA.  Your DRFA is a summary of your average monthly income and average monthly expenses including payments to any creditors.  It will also include a summary of your assets (value of your home, vehicle etc.)  You are required to file the DRFA 5 days before any temporary hearing or mediation.  If you later amend your DRFA for any reason you must file the DRFA 5 days before the final trial.

 

Your DRFA is important because it assists the Court in reviewing your financial circumstances and in making decisions.  For example, if you are requesting alimony which is based on need and ability to pay, the Court will look at your available resources and what your expenses are in determining whether and how much to award you in alimony.  When preparing your DRFA keep in mind that your expenses may not be the same exact amount each month so you will need to average your expenses.  The DRFA is important so be accurate as possible when completing.  Be sure to discuss your DRFA with your attorney and gather any documents supporting your numbers.

“What Do I Do With The Deceased Will?” By Leslee Hungerford

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When a loved one dies you may be left with several questions, including what do I do with their Last Will & Testament? Under Georgia law, a person in possession of a Last Will & Testament has an affirmative duty to file it with reasonable promptness with the probate court of the county having jurisdiction. See, O.C.G.A. §53-5-5. However, filing the Will with Probate Court is not the same as formally offering the Will for Probate. To formally initiate the probate process, you must file the requisite petition with the court in addition to filing the Will. Generally, the named Executor of the Will is responsible for offering the Will for Probate. If for any reason the executor fails to offer the will for probate with reasonable promptness, or if no executor is named, any interested person may offer the will for probate.

If you find yourself in possession of the deceased’s Will, the first step will be to check the Will to see if an Executor is named. If so, you should contact the Executor and discuss moving forward with initiating the probate procedure, including filing the Will with the court. If there is no named Executor in the Will, you may be permitted to file the Will and initiate the probate process yourself. Schedule a consultation to discuss the probate process and what responsibilities you may have as a holder of a Will.

The Bitter End of Brangelina Includes Supervised Visitation by Leslie O’Neal

Hollywood has been stunned by the sudden split of one its golden couples, Brad Pitt and Angelina Jolie.  It was announced in September that the couple is divorcing after a lengthy and high profile relationship spanning more than ten years.   They share six children together – 3 of whom are adopted – and they have a vast estate that includes a Chateau in the South of France with a working winery.  However, unlike many high profile splits, it is not the asset division that has become the biggest source of contention in this saga, but rather custody and visitation rights over their six children.

In a twist that would rival any Hollywood script, it was revealed shortly after Jolie’s divorce filing that the L.A. Department of Child and Family Services (“DCFS”) was investigating Pitt for becoming physically confrontational with the couple’s oldest son Maddox on an international flight aboard a private plane.  As a result, it has been widely reported that Pitt’s initial reintroduction and visitation with his children has been supervised by a third party based on temporary recommendation from DCFS.

Supervised visits are generally imposed by Courts in Georgia when there is a potential risk of an unsafe and/or unhealthy environment for the children involved.    This tool is also used when an investigation is being made into allegations of abuse or inappropriate behavior.  Until the investigation is complete and a determination can be made regarding the validity of the allegations, a judge may impose supervised visitation out of an abundance of caution.  This ensures the protection of the children if the allegations are later validated, but also ensures continuing contact between the children and that particular parent.  This is likely what is occurring in Pitt’s case, as it has been reported that all parties are awaiting the results of the DFCS investigation before moving forward with a more permanent visitation schedule.

Supervised visitation services in Georgia generally come at a steep price.  They generally run at about $50 per hour, plus an added fee for the supervisor to prepare a written report at the conclusion of the visit.  In addition to the cost, both parents must fill out forms in advance of the visits and follow-strict guidelines during the visit. However, despite the cost and strict guidelines, supervision services often place a particular emphasis on keeping the visits as natural as possible for the child.  The following provides more detailed information for supervised visitation services offered in Georgia and other states:  http://www.svnetwork.net/.  Thankfully for Pitt, he can easily afford any cost associated with supervised visits with his children, though the affordability probably doesn’t ease the sting of the negative stigma.

“I’M DIVORCED: NOW WHAT?” by Justin O’Dell

So Dick and Jane got divorced.  Jane has the kids on a primary basis with Dick having visitation.  Before they each settle back into their own lives, each one of them has some important “I’s” to dot and “T’s” to cross related to their respective estates.

First and foremost, Dick and Jane should each immediately update their life insurance policies, 401k policies, IRA policies and any other benefits or plans wherein a beneficiary has been named.  Their divorce may require them to name each other as the beneficiary (or a trustee beneficiary for the children) for a certain amount. If so, that provision should be followed.  However, all other policies and accounts need to be immediately updated.  If, for example, Dick were to die and Jane was still listed as the beneficiary of a life insurance policy or IRA, the policy or account is going to pay out to her.

The second thing each needs to do is update their Wills.  In the instance where a party has a Will executed while married, but then gets divorced, the Will is not revoked.  However, the spouse is treated as predeceasing the maker of the Will.  This is a safety net for the parties in the event that they do not update their Wills and avoids the draconian consequences seen with life insurance and the like, but the situation is still rife with potential problems.  First of all, the Wills created as a married couple probably created a Guardian for the children and a person to serve as Trustee over any money left to the children.  Either person may wish to revisit that decision.  If the parties had named Jane’s sister while married, Dick may want to change Trustees of money he leaves to the children to someone from his own family.  As for the Guardian, the opposite spouse would be the presumptive guardian of the children if one of them died.  However, when that second spouse died, the Court would make a decision based on the person appointed in that spouse’s Will.  It is imperative that each side make an expression as to whom they would wish to have in that role.

Thirdly, both spouses need to make a note about their tax status and future filings.  The parties have probably been filing joint returns.  Now as separate tax filers, they are no longer both benefitting from certain deductions.  One spouse may be able to file head of household, one may have the dependency exemptions over the children and one of them may have the mortgage interest deductions.  If one is paying alimony to the other, it may be tax deductible to the payor and taxable to the payee.  Both Dick and Jane may want to speak with their CPA and tax preparer to review their withholding status and also to plan to set money aside for future taxes.

Lastly, Dick and Jane may want to start a diary or journal of the various dates, deadlines and obligations arising under the decree.  It might be beneficial to keep a calendar regarding the dates visitation and parenting time is exercised and the dates when it is swapped.  Each side may wish to keep a log of any disputes and of the other parties’ attendance at the children’s events, activities, conferences and the like.  Often times parties will act like this sort of journaling is unnecessary under the belief that “We are getting along and working together, so I don’t need to arm myself for future court.”  Those parties are well-served to remember that the couple also exchanged wedding vows which contained a host of promises and commitments, yet wound up in a divorce.  Life changes and situations certainly present themselves which neither party anticipated.  It is better to be ready than to be caught off-guard and guessing.

Uncontested Divorce 101 written by Attorney Alyssa Blanchard

One can proceed with a divorce action in one of two ways: 1) contested or 2) uncontested.  In a contested action parties come to the court with most if not all of the issues unresolved.  In an uncontested action, parties have resolved all issues and come to the court to have the divorced finalized based on the agreement the two parties have reached.

Ideally an uncontested divorce will proceed in the following manner: 1) One files the Summons and Complaint for Divorce; 2) One’s spouse acknowledges service of the Summons and Complaint; 3) One’s agreement is reduced to writing and executed by both parties; 4) a final uncontested hearing is scheduled; and, 5) Parties attend the hearing and obtain the Final Judgement and Decree of Divorce. A Summons, Complaint, Acknowledgement and Agreement may also be filed at the same time.

The key to the uncontested divorce is the Agreement.  If both spouses have already discussed the terms of settlement and are in agreement as to what those terms are, the divorce proceed uncontested.  The agreement should address all issues of division of property (both real and personal), assets, alimony and if the parties have children the agreement should also address custody and child support.

Keep in mind that the terms of an agreement will be unique to the parties’ particular circumstances.  When proceeding uncontested, remember that it is important that each party knows exactly what his or her rights are so that the agreement is fair and parties are protected.

Carrying In Cobb by Leslee Champion Hungerford

leslie2The Probate Court is not just for estates. It is also the place to go to get a weapons carry license. In order to obtain a weapons carry license there are a few requirements you must meet: you must 1)  be at least 21 years old (or over the age of 18 and an active duty service member), 2) submit to a criminal background check,  3) be photographed & fingerprinted, and 4) pay the requisite fee ($77.50 for Cobb County).

 

There are some restrictions to own can obtain a weapons carry license. O.C.G.A. §16-11-129, provides a list of individuals who  are prohibited from receiving a weapons carry license including, but not limited to, individuals convicted of a felony, individuals who are mentally incompetent, illegal aliens or undocumented citizens, individuals who have been dishonorably discharged from the Armed Forces,  or individuals who are unlawful users of or addicted to any controlled substance.

 

The weapons carry license permits an individual to carry a handgun and is valid for five years.  Georgia law additionally allows a person licensed to carry a handgun or weapon in another state whose laws recognize and give effect to a Georgia weapons carry license to carry a handgun in Georgia, but only while the licensee is not a resident of Georgia. Even with a weapons carry license there are certain places that are off-limits, including schools, airports, courthouses, jails/prisons, churches or places of worship, and within 150 feet of any polling place when elections are being conducted.

For more information regarding concealed weapons permits, contact the Cobb County Probate Court.

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.