What Took So Long?

By Leslie O’Neal

What seemed to be the never-ending divorce battle between Kim Kardashian and Kris Humphries has finally reached its long awaited conclusion.  On June 3, 2013, the Los Angeles Superior Court granted a final decree of divorce, effectively dissolving their marriage in its entirety.   The couple was married only 72 days before Kardashian filed for divorce, but the divorce proceedings lasted nearly two years.  Both sides agreed that they had signed a Pre-Nuptial Agreement, which begs the question; what took so long?

Humphries spent the majority of the divorce proceedings pursuing an annulment rather than a divorce. Georgia law allows for an annulment if the Court declares the marriage void.  The most common way to convince a Court that a marriage in Georgia is void is if one of the parties was either unable to contract (such as a minor), or if one of the parties was fraudulently induced to contract.  Other reasons might be that one party to the marriage had a previous, undissolved marriage and therefore, was not eligible to marry in the first place.

Kris Humphries alleged that he was fraudulently induced by Kim Kardashian to marry her.  He pointed to the fact that their wedding was televised for her reality TV show to support his assertion that she induced him to marry her in order to gain publicity. Kardashian denied these claims, and testified in her deposition that she genuinely loved Humphries and that her reality show had nothing to do with her decision to marry him.  Because Humphries was seeking an annulment, he was entitled to engage in an extensive amount of discovery during the divorce case to prove his claims.

Discovery is common in divorce cases, and enables each party to obtain facts and evidence that could be used in the trial phase of the case.  Because discovery allows for the exploration of evidence which might be relevant to the case, rather than evidence which is truly relevant, it is very broad and allows each party to seek a wide-range of information.  Humphries was permitted to serve witness subpoenas and take the deposition testimony of Kardashian’s boyfriend, Kanye West, her mother, Kris Jenner, and others who were involved in the production of her reality show and the preparation of their wedding.  Scheduling depositions takes time to coordinate, and inevitably contributes to delay.

On the eve of trial, Humphries abandoned his desire to seek an annulment and entered into a Settlement Agreement with Kardashian, which allowed the couple to proceed with a standard Divorce Decree.  Luckily for Kardashian, this process was complete before the summer, as she is expecting a baby with her current boyfriend, Kanye West, in July.

 By Leslie O’Neal

On March 22, 2013, Former NFL player Kordell Stewart filed for divorce from his wife of nearly two years, Real Housewives of Atlanta‘s cast member Porsha Williams Stewart.  In her response to Stewart’s divorce filing, Porsha Stewart argued that she should be awarded alimony from Kordell Stewart.  Kordell Stewart has a different opinion, arguing that his wife does not need any support from him because he claims she is an able-bodied person, earning income and is capable of supporting herself.

The couple was married only 2 years.  During that two-year timeframe, Ms. Stewart was a cast member of the Real Housewives of Atlanta, presumably receiving income for her participation on the show.  Due to the relatively short length of the marriage and the income Ms. Stewart presumably receives, is alimony appropriate under Georgia law?

“Alimony” is derived from a Latin term meaning “to nourish,” or to supply the necessities of life.  Loyd v. Loyd, 183 Ga. 751, 752 (1937).  Alimony is authorized to be awarded to either party, with the two controlling factors being the needs of one spouse and the other spouse’s ability to pay.  A judge is never required to award alimony and in some cases is actually prohibited from awarding alimony, such as when one spouse’s adultery was the cause of the separation.

Once a Judge determines that there is a “need” and “ability to pay” sufficient to make an alimony award, the next questions are how much, and for how long.  There are no specific requirements or parameters regarding the duration or the amount of alimony and Judges are granted very wide latitude in making these determinations.  Some factors that the Court is encouraged to consider are the standard of living established during the marriage, the duration of the marriage, the age and condition of the parties, the financial resources of each party, and the time necessary for one party to gain employment.

In the Stewart divorce, Porsha Stewart’s quest for alimony will largely depend on what her needs are and what her income is.   Her needs can include mortgage(s), utilities, car payment(s), medical expenses, and other monthly expenses that are considered by the Court to be reasonable and consistent with the lifestyle of the marriage.  Her income from the Real Housewives of Atlanta will also play a role in an alimony determination because if she is able to meet all of her reasonable monthly expenses with her income alone, she will have a more difficult time obtaining an alimony award.   If the Court determines that an award of alimony is appropriate, it will not likely be an extended duration due to the short length of the marriage and her own financial resources.

By Leslie O’Neal

News of the suicide of Mindy McCready on February 17, 2013 left the country music world in a state of shock.  It was no secret that as part of her personal struggles, McCready had been involved in an ongoing, contested custody dispute with the father of her 6 year old son, Zander.   McCready also had another child, a 10 month old son named Zayne, whose father had committed suicide just 5 short weeks before McCready took her own life.  The tragic turn of events for the country music singer begs the question: what will happen to her children?

If the case of custody over her children were taking place in Georgia, the answer would seemingly be simple with respect to her 6 year old son, Zander.  Georgia law provides that if one parent dies, the surviving parent is the sole natural guardian, even if the parents were divorced and the deceased parent had sole custody.  Furthermore, even if the deceased parent had designated another person as the Guardian over the child in his or her Last Will and Testament, that designation would not be carried out if the minor child has a biological parent still living.  Therefore, in the case of McCready’s 6 year old son, his biological father would immediately resume the role of legal and physical custodian.

This will likely be an issue for McCready’s mother, who had temporary custodial rights over both minor children before McCready committed suicide.  Many wonder whether she would have the right to overcome Zander’s biological father’s rights.  In Georgia, upon Petition by a specified third party, the Court has the discretion to award custody to a third party, though the legal standard is much higher than that set out in a normal custody case.   Specifically, the third party would have to demonstrate that 1) the parental custody would harm the child and 2) that an award of custody to the third party would best promote the children’s health, welfare, and happiness.  The harm must either be physical, or long term emotional harm.  Furthermore, the only parties that may petition the court for custody under this legal standard are grandparents, great-grandparents, aunts, uncles, great uncles, great aunts, siblings, or adoptive parents.  Such a custody award to a third party must be based on the best interest of the children, with the legal presumption favoring the child’s biological parent.

Unfortunately, the situation is more complex for McCready’s youngest son, Zayne, who is only 10 months old.  Zayne’s biological father, David Wilson committed suicide in January, leaving him with no biological parent to immediately assume custody.   In Georgia, if both of the child’s biological parents are deceased, the Probate Court intervenes to appoint a Guardian for the minor.   If the deceased parent died with a valid Last Will & Testament that designated a guardian for the minor, that person would presumably receive letters of Guardianship over the minor and have all rights, powers, and duties of a permanent Guardian.  If a parent dies without a valid Last Will and Testament, the Probate Court must appoint a permanent Guardian for the minor child.  So as fans mourn the tragic ending for Mindy McCready, the legal battle over her two sons is likely just beginning.

by Leslie O’Neal

With the broadcast of the 55^th annual Grammy Awards on February 10, 2013, it seems that the relationship between Chris Brown and Rihanna has come full circle.  While the pair attended this award show arm in arm this year, it was the night before this very event in 2009 that Chris Brown was arrested on charges of domestic abuse against Rihanna.  Shortly thereafter, photographs of badly beaten Rihanna surfaced along with a detailed police report which confirmed rumors that Rihanna had been severely beaten, choked, even bitten by an enraged Brown.

The charges ultimately resulted in Brown being sentenced to 5 years of probation and 6 months of community service.  As part of his sentence, Brown was placed under a restraining order which prohibited him from coming in contact with Rihanna.

Regrettably, what developed thereafter is not uncommon in situations of domestic violence: reconciliation.  It began with Rihanna casually posting photographs of the two together, making public appearances, and even teaming up for a musical collaboration on Brown’s 5th studio album, Fortune.  Each outing further confirmed that she and Brown were on the brink of reconciliation.  This culminated just weeks ago, on February 6, 2013 when Rihanna accompanied Chris Brown to a Court appearance stemming from the very incident in which she was the victim.  If that weren’t a bold enough statement, she blew Brown a kiss in the Courtroom and left with him hand in hand.

Rihanna is now dismissive of the backlash over her decision and is recently quoted in Rolling Stone magazine as stating, “If it’s a mistake, it’s my mistake.”

Regardless of the public disdain over her decision to reconcile with her attacker, Rihanna’s actions would have significant legal implications if the initial incident had occurred in Georgia.  Often the first step for a victim to secure protection from an abuser is to seek a Protective Order from the Court on an emergency basis.  In order to do this, the alleged victim must file a Petition for Emergency Protective Order and present his/her allegations to a Court.  The alleged perpetrator would not be given notice of this hearing due to the emergency nature of the issue.  If the Court grants the Emergency Protective Order to the accuser, the opposing party is immediately served with a copy of the Order, prohibited from contacting the accuser, and a follow-up hearing is scheduled shortly thereafter so as to give the accused an opportunity to present his/her side of the story.

What happens between the preliminary hearing and the follow up hearing can have a substantial impact on whether the Protective Order is dismissed, or extended for a 12 month period.  Often the parties at issue are involved in a relationship not unlike Rihanna’s and Chris Browns relationship; complicated and emotional.   Victims are often in committed relationships with their attacker and in many instances, are financially dependent on them.   This situation can make reconciliation seem very tempting; particularly if it results in the victim avoiding court, avoiding attorney’s fees, and avoiding the cross-examination of the opposing attorney.

However, under Georgia law, in order to obtain an Emergency Protective Order, the victim must declare to the Court that he/she is in imminent fear of bodily harm.  If the accuser then voluntarily makes contact with the alleged abuser, whether it be as simple as a text message or as involved as an in person reconciliation, this act will be considered an admission by the accuser that he/she is not, in fact, in imminent fear of bodily harm.  Georgia Courts have little tolerance for this sort of back and forth behavior in the Protective Order context and will often dismiss the Protective Order in its entirety if even minimal contact has been initiated by the accuser.

So while Rihanna may dismiss her decision as “her mistake” to make, let’s hope she does not glamourize that decision for those watching.