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.

Georgia Laws That Make You Go Hmmm…

ice-cream-pocketSweet Things

By Tammie Gruhn

You know how Georgians love their sweet things, but on Sunday you have to keep your ice cream cones out of your back pocket. Carrying ice cream in that pocket is against the law…but only on Sunday!

According to many sources on the internet, this is one of many stupid laws that remain on the books. Though there are indeed some silly laws in Georgia and all across the US, research has revealed this one to be nothing more than fun folklore! The origin of this particular faux law is in Lexington, KY, where horse thieves supposedly used this tactic to lure horses away from their rightful owners. If caught, the thief could claim he never touched the horse, it just followed him home. Apparently, Sunday was not a fun day for horse thieves in Lexington!

Just for fun and a little education along with way, we’ll continue to explore the crazy laws that may or may not exist in Georgia and elsewhere!

Celebrity Scenarios – Khloe and Lamar List their House for Sale

Leslie headshot outside_9797_10x10Is that Required?

By Leslie O’Neal

Following up last month’s blog post (and the continuing realization that every month’s blog could be dedicated to the family law issues arising from the Kardashian relationships), the divorce proceedings between Khloe and Lamar are moving along quickly.  Not even a month after Khloe filed for divorce from Lamar on the grounds of irreconcilable differences, the couple placed their 8,000 square foot home in Tarzana, California up for sale for a paltry $5.499 million.

It seems to be the commonplace in high profile divorces that the real estate assets are immediately sold.  In Georgia, it is not necessarily required that the marital residence be sold as part of the divorce proceedings.   Who is ultimately awarded the house can be an emotional issue during divorce cases, particularly if there are children involved.   Often the party to be awarded primary custody of the children will also want to be awarded the home so that the children are not uprooted from their environment in the middle of what is already a difficult time of transition for them.  Even if there aren’t minor children involved, sometimes the home has sentimental value to one party such that he or she wants to keep it at the conclusion of the case rather than sell it.

Generally, in order to be awarded the marital residence at the conclusion of a divorce case, three things have to happen.   First, the spouse being awarded the house has to have the ability to pay the monthly mortgage premium with his/her own income (which can include any spousal or child support he or she is awarded).   Second, if the other party’s name is on the mortgage, the spouse being awarded the house has to be able to refinance the mortgage within a reasonable period of time in order to remove the other spouse’s name from that debt.  Finally, if there is any equity in the home, the spouse being awarded the home must be able to cash out the other spouse for his/her equitable share of that equity, either through the refinance process or by offsetting the equity in the home with another asset.  Generally if any of these three criteria cannot be accomplished by the party desiring to keep the marital residence, the house will ultimately be placed on the market for sale, either by agreement of the parties or by Court Order.

Even if the parties agree that the house needs to be sold, the specifics of the sale can be difficult to maneuver, particularly if the divorce case is contentious.  Commonly, guidelines are established either by agreement or Court order which determine who the real estate agent will be, what the listing price will be, what offers or counter-offers must be accepted, what offers or counter-offers may be rejected, and how the closing costs will be paid.   It is not uncommon for the agreement outlining the parameters for the sale of the house to remain confidential rather than being filed with the Court; because if it becomes public record, the buyer’s agent could see the parameters and make the lowest possible offer that the sellers are required to accept.

Given that Khloe and Lamar’s marriage only lasted 4 years and didn’t result in any children, neither party likely had an emotional attachment to the house and they presumably reached a mutual agreement to sell it without being ordered to do so.

For the Good of the Order

LesleephotoSupplement Scams

By Leslee Champion

It’s that time of year again, you know, New Years resolutions. For most, the New Year is dedicated to shedding those holiday pounds and making promises for a healthier year ahead. If you are like me and dread the sight of a gym, you may be tempted to try dietary supplements. If Quick Trim can make the Kardashians skinny, it’s got to be legit right? Before you run to the nearest GNC there are a few things that might surprise you about these diet miracle makers. Did you know that dietary supplements are not approved by the government for safety and effectiveness before they are marketed? Unlike prescription drugs, which are heavily tested and regulated by the Federal Food and Drug Administration, dietary supplements (including vitamins, minerals, herbs, amino acids, and enzymes) are self-regulated by their own manufacturers and distributors. That’s right. Legally, the very same people selling the substance are responsible for testing its safety and effectiveness.

Because these products are not subject to regulation, you are at the mercy of the manufacturer.  That means you likely may purchase a product that doesn’t even work.  More concerning, many dietary supplements contain active ingredients that have strong biological effects in the body. The use of these products can cause serious injury or even death.  Gary Coody, R.Ph., FDA’s national health fraud coordinator warns that “products sometimes contain hidden drug ingredients that can be harmful when unknowingly taken by consumers.” In the past few years, FDA laboratories have found more than 100 weight-loss products, illegally marketed as dietary supplements that contained sibutramine, the active ingredient in the prescription weight-loss drug Meridia. In 2010, Meridia was withdrawn from the U.S. market after studies showed that it was associated with an increased risk of heart attack and stroke.

The FDA is permitted to ban a substance after it is proven to be unsafe. However, that doesn’t guarantee the product will stay off the shelves. Many manufacturers “reformulate” the same product with lesser amounts of the same harmful substance.  So what can you do to protect yourself? Be suspicious of the “miracle product” that claims to be a quick fix. It’s unlikely that you are going to lose “30 pounds in 30 days.” Be aware that the term natural doesn’t always mean safe.  And always ask your health-care provider for help in distinguishing between reliable and questionable information.

 

Dick & Jane’s Discovery

Justin cropped Super LawyerBy Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract, but had prevailed in avoiding an interlocutory injunction that would shut down his new company.  For this week, we look at the next phase of litigation, discovery.

From the outside, discovery often appears tedious, burdensome and voluminous.  Stories abound of “discovery wars” and lawyers burying opposing parties under a mountain of paper or hiding documents and witnesses.  This scene from “The Rainmaker” starring Matt Damon is Hollywood’s take:

 http://klipd.com/watch/the-rainmaker/deposition-scene

While these types of situations can and do happen and tend to give discovery a black-eye, the reality is that the discovery process is essential to litigation and can be the point in which many cases are won and lost.  Remember, the famous Courtroom scene from the same movie comes on cross-examination of the Insurance Company, Great Benefit, where Matt Damon has him reading from an internal document related to the value of bone marrow transplants; a document which would have been found in discovery.

Discovery generally occurs in three areas:  document production, written interrogatories and depositions. In document production, each party requests records from the other party which they belief to be reasonably calculated to lead to admissible evidence.  In our lawsuit, relevant documentation would include client and customer lists, e-mail and other correspondence from Dick and his business partners about the formation of the new company and correspondence to clients and customers,   Secondly, the parties exchange written discovery questions called interrogatories.  These questions are generally designed to gather broader amounts of information and sources of discovery.  For example, the lawyers in Dick’s case would ask Dick to identify all witnesses with knowledge about the new company and its clients and customers.  Finally, the parties can conduct depositions.  Depositions are usually an in-person examination (question and answer) done before a Court Reporter.  The proceeding is attended by all parties and taken under oath.  Depositions of the parties can be recorded  in order to gain information and also of parties and witnesses to preserve testimony.

Due to the discovery process, many of the questions and answers in a trial are known to all parties involved.  Although unexpected events and statements do occur at trial, true “AHA!” moments are rare.  Most of the exhibits have been seen and exchanged and most of the witnesses have already testified in some format.

While we are all used to powerful scenes in the Courtroom from movie scripts, it is discovery where the meat and bones of these scenes are made.  Hard work and lots of digging make a Courtroom scene like this possible:

http://www.youtube.com/watch?v=9EQPrFR9KRo

 

Dick & Jane – Preliminary Hearings

Justin cropped Super LawyerBy Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract.  We looked at the general dynamics of a Complaint and the various Courts in which a Complaint can be filed.  Recall that this Complaint made the rare request for a Temporary Restraining Order and Interlocutory Injunction.  In a sense, Dick’s former company was seeking an immediate Court order to shut down Dick and his company.

Temporary Restraining Orders and Interlocutory Injunctions are tough to obtain and rightfully so.  These orders can have the effect of giving one party an overwhelming victory in a case without the process of a lawsuit having played out.  If Dick’s former employer can shut down Dick’s new company while the case is pending, it is quite likely that before the case is ever final, Dick will be out of business anyway.  By contrast, if Dick can keep operating during the case, it is possible that the damage done to his former employer is too great to even calculate.

A Temporary Restraining Order is granted on a motion, usually without the other party being present.  This order is emergency in nature and lasts only 30 days.  Generally, the order is entered and a full hearing is scheduled.  At that hearing, the Judge can take evidence and consider the matter more fully and openly.  Following that hearing, an Interlocutory Injunction can be issued to govern the parties during the case.

The threshold for an Interlocutory Injunction is quite high.  The party bringing the motion must show that the damages absent the injunction would be irreparable, that it is not able to be remediated or reduced to monetary value.  Further, the party must show that they are likely to prevail on the merits of the underlying suit.  Finally, the party must show that on balance the entry of the injunction is fair and equitable.

In our case, Dick and his attorney must go all in for the injunction hearing.  As indicated, if the injunction issues, he could be out of business before the lawsuit is ever finished.  Dick should elect to attack the injunction on two fronts.  First, Dick can show that the injunction is not necessary because the damage caused is not irreparable.  If Dick has, in fact, violated his contract and taken business from his former employer, that amount of business should be quantifiable in dollars.  Thus, although potentially damaging, the harm is not irreparable.  Secondly, Dick can show that on balance, the entry of an injunction is not fair and equitable.  The injunction would prohibit (without determining the validity of the covenant not to compete) a customer from freely choosing where that customer would wish to do business.  Such an order is in restraint of free trade and against general public policy.

Dick should avoid the other component of an injunction argument and the former employer will likely focus all of their attention and effort in this area.  As discussed in our prior blog, due to the Constitutional Amendment of 2010 on covenants not to compete, the company’s position is much stronger on the merits and they are much more likely to prevail on the merits in some fashion.

For purposes of our story, Dick and his attorney are able to prevail and keep a Judge from entering an injunction shutting down Dick’s new company.  The case now proceeds into a second critical phase:  discovery.  Our next blog will review the various aspects of discovery including written discovery, document production and depositions.  The discovery process is where most cases can be won or lost.

Until then, Dick and Jane wish everyone a very Merry Christmas, Happy Holidays and a wonderful New Year!

Another Kardashian Marriage Bites the Dust

Leslie headshot outside_9797_10x10Why Didn’t Khloe Seek a Fault Grounds Divorce?

By Leslie O’Neal

It is becoming apparent that every monthly celebrity blog could be devoted to legal questions arising from the Kardashian family.  The most recent marriage to bite the dust is that of third daughter, Khloe, and her NBA player husband, Lamar Odom.   The two were famously married in September of 2009 after knowing each other for only one month.  However, despite their brief courtship, the two were commonly seen as the most stable and relatable of the Kardashian couples.   They documented their failed attempts to conceive and Lamar’s NBA struggles on their two-season reality show, “Khloe & Lamar”. 

Unfortunately, the marriage began to unravel in 2013 with rumors swirling that Lamar had relapsed into drug addiction, had moved out of the home the coupled shared, and was repeatedly unfaithful.   Khloe finally filed for divorce on December 13, 2013, citing irreconcilable differences.   With the rumor mill constantly swirling about Lamar’s poor conduct, why didn’t Khloe seek a fault grounds divorce?

In Georgia, there must be a statutorily recognized reason for a divorce.  Historically, that included one person being “at fault” for the demise of the marriage.  The twelve fault grounds for a divorce in Georgia are  1) intermarriage by persons within the prohibited degrees of affinity, 2) mental incapacity at the time of the marriage, 3) impotency at the time of the marriage, 4) fraud or duress in obtaining the marriage, 5) pregnancy of the wife by a man other than husband, at the time of the marriage, unknown by the husband, 6) adultery by either of the parties after marriage, 7) willful and continued desertion by either of the parties for the term of one year, 8) the conviction of either party for an offense involving moral turpitude and under which he or she is sentenced to imprisonment for more than two years, 9) habitual intoxication, 10) cruel treatment, 11) incurable mental illness, and 12) habitual drug addiction.

However, in 1973, Georgia introduced the “no fault” grounds of irreconcilable differences.  Irreconcilable differences is by far the most commonly used grounds for seeking a divorce in Georgia.   It is a common misconception that the “no fault” option means that conduct is not relevant to the issues in the divorce.   That is not the case.  The “no fault” option in Georgia simply means that either spouse is entitled to request a divorce without having to prove that the other spouse did something wrong.  One is entitled to a divorce by simply stating under oath that the marriage is irretrievably broken with no hope of reconciliation.

There are a number of reasons that Khloe would not benefit from seeking a fault grounds divorce from Lamar.  First, it draws more attention to the divorce proceedings because she would have to prove the misconduct alleged.  Additionally, proving misconduct on Lamar’s part may not have much of an effect on the issues of the divorce because the couple reportedly signed a Pre-Nuptial Agreement governing alimony and division of assets.  They also do not have to litigate custody or visitation because they did not have any children together.

Jane Seymour Files for Legal Separation

Leslie headshot outside_9797_10x13

Why Not a Divorce?

By Leslie O’Neal

Despite claiming that her marriage is irretrievably broken, former “Medicine Woman” star Jane Seymour appears to be in no real hurry to end her marriage to her husband of 20 years, James Keach.  On Monday, October 28, Seymour filed legal separation proceedings in L.A. County Superior Court.  According to her pleadings obtained by E! News, she identified the date of separation as “TBD”.   Seymour and her husband first announced back in April that they were separated and had been for several months.  This begs the question, if Seymour believes the marriage is irretrievably broken, what is the benefit of filing a legal separation instead of a divorce?

In Georgia, either spouse is entitled to pursue a legal separation action without formally requesting that the marriage be dissolved.  However, there are very few practical benefits to pursuing legal separation.  A legal separation lawsuit is often just perceived as delaying the inevitable because if the proceeding is pending and either party separately files for divorce, the entire legal separation proceeding is subject to immediate dismissal.  In other words, the parties must essentially start over, without regard to the time, money, and emotional energy they have applied to legal separation lawsuit.

One common reason that legal separation lawsuits are pursued as a short term solution is if the party initiating the action does not yet meet Georgia’s basic jurisdictional requirement for seeking a divorce.  Georgia law requires that the party initiating a divorce case be a resident of the state of Georgia for at least six (6) months preceding the filing of the divorce complaint, whereas legal separation lawsuits do not have this same requirement.  In some cases, the parties cannot meet this six (6) month threshold before they are in need of relief from the Court, often in the form of a temporary order governing child support, spousal support, parenting time, and/or exclusive use and possession of the marital home.

There are a few limited circumstances where a formal, legal separation might be an attractive long term option.  For example, a couple who is legally separated can still file their tax returns jointly.  Additionally, one spouse can continue to be eligible for the other spouse’s health insurance even if there is a legal separation.  And of course, some couples do not believe in divorce for personal or religious reasons, and would rather not ever pursue a complete dissolution of their marriage.   If both parties are content with a legal separation as a long term solution, they can negotiate or litigate nearly all issues that are traditionally negotiated and litigated in a divorce case.

Many of these circumstances presume that both parties are content with staying married to one another, at least on paper. However, given the current popularity of dating websites and the relative ease in communicating these days, it’s highly unusual to find a situation where neither party desires to move on with his or her life and possibly remarry.  And while it remains unclear whether Jane Seymour and her husband will ever file for divorce; given that Seymour is a former Bond girl, she’ll probably be tempted to get back on the dating scene eventually.

Dick & Jane – A Complaint is Filed

Justin cropped Super LawyerBy Justin O’Dell

When we last saw Dick and Jane, Dick had received a threatening letter related to his new start up company.  The letter threatened litigation should Dick fail to respond.  Although Dick retained Counsel and sent a thorough response, a lawsuit has been filed.  For the next few months, we will analyze the various parts of a typical lawsuit and ways in which Dick needs to respond.

A lawsuit is initiated by the Plaintiff filing a Complaint or Petition, a Summons and service of process.  The Complaint outlines the facts and allegations of the case and the specific legal bases upon which the Complaint is brought, i.e. “breach of contract.”  The Summons directs the Defendant to file an Answer within a specified time period or be subject to default.  Service of Process is the formal mechanism by which the Defendant is notified of the lawsuit.  Service must be made in strict compliance with Georgia law and can be handled by the Sheriff’s office, a private process server or can be coordinated and waived between the lawyers handling the case.  In our situation, because Dick has already retained counsel to respond to the demand letter, service of process was waived as a professional courtesy between the lawyers involved and Dick was spared the embarrassment of having the Sheriff show up at his place of business or home to deliver the papers.

The lawsuit against Dick was filed in the Superior Court of Cobb County.  The Superior Court is the Court of general jurisdiction for a County and each of the 159 Counties have a Superior Court.  Cobb County also has a State Court which is able to handle many, but not all types of litigation (cases involving felonies, divorce and equitable relief must be in the Superior Court).  Many smaller counties do not have a State Court.  Dick’s former employer is seeking an injunction and restraining order against Dick and his new company.  A restraining order and injunction is equitable relief, thus the Complaint is in the Superior Court.

The Superior Court, including the offices of the Clerk and the District Attorney, are now all located in the new Cobb County Courthouse on Haynes Street.  The Superior Court of Cobb County consists of 10 elected judges and four assisting Senior Judges.  The ten elected Judges are:

Chief Judge Adele Grubbs
Judge Robert Leonard
Judge Mary E. Staley
Judge James G. Bodiford
Judge S. Lark Ingram
Judge Robert Flournoy
Judge J. Stephen Schuster
Judge C. LaTain Kell
Judge Reuben Green

Judge Gregory Poole

 

The four assisting Senior Judges are: Judge Conley Ingram, Judge Grant Brantley, Judge George Kreeger and Judge Michael Stoddard.  Each Senior Judge assists on a one-week rotating basis.  The Senior Judges administer the jury oaths, call the daily uncontested divorce calendar, hear and consider temporary protective orders and hear and consider emergency matters.

In addition to the Senior Judges, the Cobb Superior Court Judges also designate one of the four Cobb Juvenile Court Judges as an assisting Superior Court Judge on a one-week rotating basis.  Each Judge receives the assistance of a Juvenile Court Judge once every ten weeks.  The Superior Court Judge is able to delegate any matters to that Judge for hearing.  Most of the Superior Court Judges use this time to delegate the regular criminal and domestic calendars while they are presiding over a lengthy criminal or civil jury trial.

Business litigation of this nature is often won or lost in two areas, both relate to preparation.  The first area of critical importance is the initial response and any immediate hearings.  The second area of critical importance is the discovery phase.

In Dick’s case, the request for a temporary restraining order and interlocutory injunction will require an immediate hearing.  Dick’s former employer wishes to shut Dick’s new enterprise down during the litigation.  Obviously, Dick wants to stay in business.  Believe it or not, the entire case could be won or lost in this hearing.  Fortunately for Dick, the burden upon his former employer is high.

Coming next month, we will discuss the hearing and see what happens. . .

Simon Cowell Sued in Socialite’s Divorce Drama

Leslie_ONeal_9797_8x12By Leslie O’Neal

Simon Cowell’s personal life has come under intense scrutiny in recent weeks with the revelation that he is expecting a child with Lauren Silverman, who is conspicuously still married to Cowell’s friend, Andrew Silverman.   Lauren Silverman initially claimed that she and her husband Andrew had been unhappy in their marriage for some time.  However, Andrew Silverman has a far different perspective on the situation.   The New York Post reports that when Andrew filed for divorce last month, he cited adultery as the cause for separation.  Evidently seeking to prove a point, he named Cowell as a co-respondent in the divorce case.   This begs the question; can a person be sued in someone else’s divorce case if that person committed adultery with one of the parties in the divorce?  It depends on if your State still enforces the legal theory of alienation of affection.

Alienation of Affection is an archaic legal theory dating back to times when a wife was considered the property of her husband, and it allows the husband to sue the home wrecker who destroyed his marriage. Most states have abolished alienation of affection lawsuits due to their archaic nature.  The only states that still enforce it are Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah.  Proponents in the holdout states say the threat of such legal action helps protect the sanctity of marriage.  In addition, because changing the law would require legislative action, many lawmakers are probably not inclined to get it abolished for fear of being branded as ‘pro-cheating’.

In reality, alienation of affection cases are most lucrative when the person who courted another person’s spouse happens to be wealthy.   CNN reports that juries in North Carolina have handed out awards in excess of $1 million on multiple occasions, with one woman obtaining a $9 million judgment against her husband’s mistress as recently as 2010 as reported by ABC News.  One notable Congressman in Mississippi named Chip Pickering conveniently stepped down from office in 2008, and then shortly thereafter his wife filed an alienation of affection lawsuit against his alleged mistress.  Not surprisingly, the case settled with confidentiality agreements in place. 

If you live in a state where the archaic alienation of affection law still exists, you’d better beware!  Luckily for Simon Cowell, Lauren and Andrew Silverman just settled their divorce case this week, so he is presumably off the hot-seat . . . for now.