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.

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.

What Happens If I Die Without A Will

Leslee Champion Hungerford - Attorney in Marietta, GAMany wonder what will happen to their belongings if they die without a will. If you die without a valid will while residing in the State of Georgia, you are said to have died “intestate.” In order to determine who will receive your property if you die intestate, the State of Georgia has established a number of laws (known as “intestacy laws” or “laws of intestate succession.”) Only assets that would have passed through your will are affected by intestate succession laws. Usually, this includes only assets that you own alone, in your own name. Many assets will not be affected by intestate succession including jointly held real property, life insurance proceeds, or funds in an IRA, 401(k) or other account in which you have designated the beneficiary by contract.

So the big question is who gets what? If you are married at the time of your death and you die without a will, what your spouse gets depends on whether or not you have living descendants – children, grandchildren, or great-grandchildren. If you do not have any descendants, your spouse will inherit all of your intestate property. However, if you do have descendants, they and your spouse will share your intestate property equally, except that your spouse’s share cannot be less than one-third (1/3). So, if you have one child with your spouse, they each will receive fifty percent (50%) of your estate. If you have four children and a spouse, your spouse will receive one-third (1/3) of your estate and the four children will share equally the remaining two-thirds (2/3).

If you die with no spouse but have children, your children will equally receive an “intestate share” of your property per stirpes. Per Stirpes is a Latin word meaning “by the branch.” An estate of a decedent is distributed per stirpes if each branch of the family is to receive an equal share of an estate. What this language means is that if you have two children and five grandchildren who survive you, then each of your children will receive a 1/2 share and the grandchildren will receive nothing. If, however, one of your children predeceases you and is the parent of three of the grandchildren, then the surviving child will receive a 1/2 share and each grandchild will receive a 1/6 share (in other words, the deceased child’s 1/2 share will be divided equally among the three children who have survived the deceased child: 1/2 divided by 3 = 1/6 each).

If you die without a spouse or children, your estate will then go to your parents. If you are not survived by parents, the next in line to inherit are siblings, followed by nieces and nephews, grandparents, aunts, uncles and cousins in that order.

Will the State get my property? People often ask if they do not have a will does that mean the state will get their property. The answer is, very unlikely. If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. Because the laws are designed to get your property to anyone who was even remotely related to you (i.e. those long lost cousins you haven’t seen in years), it is very unlikely that your property will ever escheat to the state.

The moral of this story is that everyone should have a will in place. Call or email us us to get started on your estate planning today!

(770) 405-0164 or info@odellneal.com

What’s in a Will?

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

What Property Is Included In A Will?

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

Who Can Receive Property From A Will?

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

What Is Required To Make A Will Legal?

Georgia law requires the following for a valid will:

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

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

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

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

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

Why Do You Need A Will?

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

Benefits of a having a Will include the following:

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

All is Fair in Love, But What About Divorce?

IMG_8618By Leslee Champion

Marcia Milliman may have stated it best when she said, “when love has vanished, there’s only money left to divide.” As nearly half of the marriages in the United States end in divorce, Courts are regularly faced with question of how to divide the martial property. Most states, including Georgia, provide for an equal distribution in dividing between the spouses any property acquired during their marriage through the labor of either party. Courts equally agree that property a spouse owned before the marriage began or acquired during the marriage through inheritance should remain with that spouse. It would seem these rules follow some idea of fairness in the marital relationship and according to the study, “Citizens’ Views About Fault in Property Division” by Sanford Braver and Ira Ellman, it appears most Americans generally agree with an equal split of property between the spouses. In fact, most respondents showed strong support for dividing property equally without regard to the spouses’ earnings, their relative contributions to the domestic labors, or their marital status.

But would the respondent’s division of the property change if marital misconduct was the reason behind the divorce? In their recent study, Bravers and Ellman asked the question of what effect adultery has on the public’s view of how marital property should be distributed. The participants in the study, over 600 citizens awaiting jury service in Arizona, were given 14 fact scenarios in which one of the spouses either admitted to or was accused of committing adultery. The participants were then asked to divide the couple’s property fairly. Interestingly, the study revealed that lay citizens generally support the leading American rule excluding fault from consideration in the allocation of property in divorces, even in cases where one spouse has been unfaithful. Even more surprising considering the long standing double standard between sexes, the respondents did not especially distinguish between adulterous wives and adulterous husbands. In fact, in the only scenario to receive any support for unequal distribution, the case in which one spouse admits adultery and offers no excuse of justification, men were found to have awarded less property than female respondents to the husband who admitted to cheating. The reasoning for not considering fault may be explained in the attitude questionnaire participants were required to complete. On average, respondents agreed that “marital relationships are too complicated for judges to figure out”, “courts would end up spending too much time and money”, and “divorcing spouses would often end up spending too much money for lawyers and other costs required to make such claims or to defend against them.” Bravers and Ellman suggests the reason behind these views might not be that individuals do not care about or condemn bad marital conduct, but because they appreciate limits in the law’s ability to deal with it.

Who Let the Dogs Out?

IMG_8618By Leslee Champion

For some, their pets are their children. So what happens to the family dog after a divorce? In most states, including Georgia, pets are treated as personal property. That is, the pet is treated as an “asset” and will be awarded to one party or the other depending on the facts and circumstances of the case. In determining who owns the pet, judges may consider factors such as who owned the pet prior to the marriage, who took care of the pet and who supported the pet financially. However, as pets are considered to be property in Georgia, individuals cannot be granted visitation with their pets.

Many find these laws to be too harsh, so it’s not surprising that many jurisdictions are changing the way they view pet custody laws. Recently several states have begun treating pets more like children, allowing divorced couples to divide ownership of the pet in a way that both parties get a chance to see their animal.  Like a child, these courts will look at what is in the best interest of the pet and determine custody, visitation, and even pet-support payments. In New York the Appellate Court awarded sole custody of the cat to a party Defendant, finding that the cat was a “feeling individual, who had “lived, prospered, loved and been loved” solely by the Defendant. (See Raymond v. Lachmann, 695 N.Y.S. 2d 308 (N.Y. App. Div. 1999)).  As Georgia still sees pets as property, the best approach for couples is to reach a mutual agreement on their pet issues and enter into a settlement agreement outlining the custody and visitation of the pet.

So, it could all come down to the question of who let the dogs out?

Who Pays for College?

IMG_8618By Leslee Champion

As you might have recently seen on the news, 18 year old Rachel Canning is suing her parents for financial support and college tuition. As the national average for public secondary education costs exceeds $13,000 (including tuition, fees, and room and board), you can understand why many children, and divorcing parents, have looked to the courts to force one or both parents to pay for these educational costs.

While parents have a duty to support their children until they reach the age of majority, most states, including Georgia, contain no legal provision requiring parents to contribute towards their children’s college expenses. In Georgia, a parents duty for child support, including educational expenses, will ordinarily terminate upon the child reaching the age of majority (18), getting married, dying, or becoming emancipated. (Code of Georgia Sec. 19-6-15(e)) However, the Georgia Code does allow the trial court, in its sound discretion, to require financial assistance to a child (not married or emancipated) who is enrolled in college, provided that the assistance shall not be required after the child is 20. So if you are lucky enough to get college parental support, you better graduate early, as the funds will likely end after your second year.

Additionally, parties are free to contract with each other to provide for their children’s educational expenses for longer periods and these contracts are enforceable by the courts. It should be noted however, that an intention to support a child beyond its minority will be found only if the agreement contains specific and unambiguous language to that effect. Without the parent’s consent, neither a court nor a jury can force that parent to support the child beyond the age of 18 (or for secondary school education up to age 20).

 

Is Facebook Causing More Divorces?

LesleephotoBy Leslee Champion

Facebook, the site that was once used for sharing party pics and finding long-lost friends is now the reason behind one-third of divorces. In a study by Divorce Online, 33% of all divorce filings in 2011 contained the word “Facebook,” an increase from the 20% back in 2008. Not surprisingly, the number-one reason why Facebook was at fault in these cases was due to “inappropriate messages to members of the opposite sex.” Other common complaints included cruel posts or comments between separated spouses or Facebook friends exposing a spouse’s inappropriate social media behavior to their partner.

In the state of Georgia, bad conduct by either party may be relevant and may also impact judgments in child custody, visitation, property division and alimony matters. So it should come as no surprise that spouses’ incriminating Facebook timelines are increasingly finding themselves as evidence in divorce proceedings. According to the American Academy of Matrimonial Lawyers, 81% of its members have seen a rise in the number of divorce cases involving information taken from social networking sites, and 66% cite Facebook as the primary source for online divorce evidence of marital discord and misconduct.

Facebook may be used as evidence for a multitude of family law issues. For example, a party’s posting may show expenditures that do not align with the claims the party is making regarding child support or maintenance. The party may be claiming non-payment of support due to financial inability to pay in the litigation, and yet the posting may show a lavish trip or expensive new purchase for a significant other. Similarly, a party’s profile may evidence his or her employment or employability, despite claims in a litigation of unemployment or inability to be employed. Facebook may also play a role in custody cases, as spouse may engage in an angry tirade against the other, thereby demonstrating an inability to get along and co-parent. Posted pictures or videos may reveal a night of heavy drinking, which may be used against a spouse in a custody battle. Notably, it is not only a party’s postings, but postings by friends or relatives of the party that may be evidence in a litigation.