Family law is an extremely broad area of practice. There is no area of the law which is more personal or more critical. Issues in family law effect the welfare of children, earnings and earning potential of spouses and the accumulated wealth of the family. Family law cases can range from a simple divorce with a pre-determined agreement to a outright struggle over custody, support and property division. Individuals with privately owned business or substantial separate property (property accumulated pre-marriage or by gift and inheritance) present highly complicated valuation issues for property division. Conduct also creates an issue between parties.
A client may have committed adultery and acts of infidelity and be desiring of making sure to protect the relationship with the children and the property and wealth to provide for them. By contrast, a client may have discovered the misconduct and be facing a complete and total surprise breakdown of the family unit. In these situations, the client may desire to make sure that their own financial situation is secure and that any children are insulated from a new relationship. Clients also may find themselves in situations of parental drug use and seek to restrict custody and visitation appropriately. Clients who have had custody and visitation restricted due to drug and alcohol issues need a path to recovery and restoration of their relationship with the children.
Post-divorce family law cases can present a variety of issues. Sometimes spouses stop paying or complying with Court orders. Contempt actions are required, including those involving incarceration, to ensure compliance. In some case, the non-paying spouse is unable to pay due to job loss or other financial changes. In these cases, a strong defense to the action in order to provide for a reasonable means to catch up is in order. Clients also face situations whereby the original custody, visitation and support provisions are no longer workable due to changes in residence, job or family situations such as remarriage. In these instances, a modification action helps to find a workable result for the existing family dynamics.
The legal standard in Georgia for a court to make a custody determination is what is in the best interest of the child or children involved. The courts will use this standard to determine legal custody, which establishes how important decisions will be made regarding the child’s upbringing, as well as physical custody, which establishes who the child will be with at any given point in time. Because the legal standard in Georgia is so broad, it is important to seek guidance from an experienced family law attorney so that the most important and relevant facts to your situation are presented to the Court. For example, if you are the parent who has traditionally handled the day to day schedules and tasks for the minor children, it is important to make sure that the Court is aware of those facts not just through your own testimony, but also by obtaining school records, medical records, and other documentation to evidence your involvement in the children’s day to day lives. Likewise, if the other parent has been increasingly absent from the minor children’s lives, or has made decisions that demonstrate that he or she is not putting the children’s needs first, that information needs to be properly gathered and presented to the Court so that an appropriate custody determination can be made. The attorneys at O’Dell & O’Neal understand the importance in ensuring that a custody determination is made that serves the children’s best interest while also insulating the children from the custody dispute.
Visitation schedules can be difficult to establish for even cooperative parents because there are so many factors to consider. Additionally, there can be hurdles to overcome such as long distances between the parents, children with hectic and often conflicting schedules, and situations where supervised visitation is appropriate. It is important to seek guidance and feedback from an experienced family law attorney who can craft a realistic and creative visitation arrangement that suits the needs of your unique circumstances.
Georgia adopted new child support guidelines in 2007 that completely overhauled the way that courts calculate child support. These new guidelines allow for numerous considerations beyond just the parties’ income. For example, if your child has exceptional educational expenses such as private school tuition, uniforms, or private tutoring, those expenses can be factored into a child support award. Likewise, if your child requires daycare, after school care, or summer childcare, those expenses are required to be considered by the court in calculating a child support amount. There are many other expenses associated with a minor child that can be included in a child support calculation if the court determines that they are extraordinary. It is important to seek guidance from attorney who is familiar with these new laws and can present the court with an organized presentation of the income of each party and expenses associated with the children so that a fair and equitable child support award is made.
It is not uncommon for one spouse in a marriage to have devoted their time and energy to the career and earning potential their spouse, often times to the exclusion of their own earning potential. Alimony and spousal support are designed to compensate for such a scenario by providing either short term or long-term support. Alimony and spousal support can be in the form of lump sum payments or over time payments.
Division of Property (including asset valuation)
The Judge (or jury) is ordered to make an “equitable” division of property. Equitable does not mean equal or 50/50 and Judges do not have to divide every asset. Judges can award all of one account or asset to one spouse and all of another to the other spouse. Dividing property is based on any number of factors, including, but not limited to the conduct of the parties, each party’s separate assets and financial status, each party’s income and earning capacity and each party’s debts and future needs. Only property which is acquired during the marriage (other than by gift or inheritance) is subject to division. Property owned prior to the marriage (which still exists or can be traced) and property inherited or received by separate gift belongs to that spouse.
Attorneys fees can be a daunting aspect of a divorce or family law dispute. Fortunately, courts in Georgia have the authority to award one party attorney’s fees from the other party under a number of different circumstances. In a divorce case, courts will often require the superior wage-earning spouse to provide attorneys fees to the inferior wage earning spouse in order to level the playing field and ensure that both parties have equal access to legal counsel. Courts will also take into consideration the conduct of each party. If one party’s misconduct was the direct cause of the divorce, the Court can take that misconduct into account in making its attorneys fee award. Also, if either party unnecessarily drags out the divorce proceeding or takes unreasonable positions, the Court can punish that party by making him or her pay the other party’s legal fees.
Modifications of Custody
It is not uncommon for a previously agreed upon custody arrangement to become unworkable or unrealistic due to changes in circumstances. For example, if one party decides to relocate, that can have a drastic affect on the custody arrangement between two parents. If one parent remarries, their new spouse inevitably plays a significant role in a child’s life and that can prove to create new issues that were not contemplated when the original custody agreement was reached. Additionally, as children grow older, they tend to become more opinionated about where they want to spend there time. All of these factors can present the need for the parties to revisit their initial custody order.
Modifications of Support
There are several different types of modification actions associated with child support and alimony. The paying party can seek a downward modification of his or her child support and/or alimony obligation if he or she has experienced an involuntary loss in income and change in financial circumstances, or if the party receiving the support has enjoyed an increase in income and financial circumstances. Likewise, the receiving party can seek an upward modification of his or her child support and/or alimony obligation if he or she has experienced an involuntary loss of income and change in financial circumstances, or if the party paying the support has enjoyed an increase in income and financial circumstances. Additionally, if either party seeks a modification of custody of minor children and is successful in gaining custody, the court is almost certainly going to revisit the previous child support award.
It can be incredibly frustrating to have received a Court Order or entered into an agreement regarding child support, alimony, visitation, or property division only for the other party to violate the order or agreement. The person in violation of the order or agreement must be held accountable through the pursuit of a contempt action. A contempt action is generally a condensed legal proceeding and can result in the non-complying party being held in willful contempt, being incarcerated, and paying the other party’s attorneys fees due to their noncompliance.
Other Domestic Issues
Paternity & Father’s Rights
That process of establishing a father’s legal rights generally begins with obtaining a paternity test to confirm the father’s belief that the child is his. While it can be an uncomfortable topic to bring up, it is important that a paternity test be conducted before a father commits himself to raising and financially supporting a child. Once a paternity test has been successfully conducted, it is important for a father to have an experienced attorney to advocate for custodial rights so that he is involved in important decisions associated with the minor child’s upbringing, including the child’s education, medical issues, religious upbringing, and participation in extracurricular activities. In conjuction with establishing custodial rights, a visitation schedule should also be established to determine when the father will be entitled to parenting time with the minor child without the unnecessary interference from the other parent.
Prenuptial & Postnuptial Agreements
While the topic of a prenuptial agreement can be somewhat awkward to address, particularly given the timing, they can be an invaluable component to a marriage. Pre-nuptial agreements facilitate important pre-marital discussions regarding financial expectations that may not have otherwise occurred and also ensure that each party enters the marriage with a full understanding of their rights from the very beginning. Moreover, in the unfortunate event of a divorce, a pre-nuptial agreement can save both parties an incredible amount of time, energy, and financial resources because many critical issues have already been resolved. It is, however, possible to have a pre-nuptial or post-nuptial agreement set aside for a number of reasons, including inherent unfairness. It is important to seek the advice of an experienced attorney who is familiar with Georgia’s ever changing laws on pre-nuptial agreements so that your pre-nuptial agreement is drafted properly and is not subject to being challenged at a later date. Likewise, if you have previously entered into a pre-nuptial or post-nuptial agreement that was forced upon you or that is inherently unfair, it is certainly possible to challenge the validity and enforceability of that document through the court system.
Victims of domestic violence have many options within the court system for ensuring their future safety. It is imperative for victims of domestic violence who are in imminent fear for their personal safefy or for the safety of a child to take immediate action by filing an Emergency Petition for a Protective Order against the perpetrator. If the Petition is granted, the Court will order the perpetrator to stay a certain number of yards away from the victim on a temporary basis, and will quickly schedule a court date to allow the perpetrator an opportunity to tell his or her side of the story. It is important for both parties to be adequately represented at this court date to ensure that the victim’s protection is extended if the violence did in fact, occur, and in those instances where the defendant has been wrongfully accused, to vigorously defend and protect his or her rights.
LGBT Legal Issues
Same-sex couples face unique challenges in establishing Domestic Partnerships in Georgia and we are here to help. Every client is entitled to the highest level of professionalism and service and we can offer expert legal guidance to address those issues. Whether a same-sex couple is entering into a Domestic Partnership or making a decision to end a relationship, we can assist and guide you through the process. We will make sure that your interests are protected, including those of your children. Often, Georgia courts do not treat gay parents the same as opposite-sex parents and we will strive for fairness and equality in those outcomes. Biological parents are given rights by Georgia law that are not extended to non-biological parents and we can explain what other options exist for you. In the event of illness, incapacitation or death, your needs will be best protected with legal documents that ensure financial security and the power to make decisions. We are skilled in preparing and executing Wills, Powers of Attorney and Advanced Healthcare Directives to carry out you or your partner’s wishes should it become necessary. To address all these issues that may have a different and more creative resolution for LGBT couples and individuals, we offer the following legal services:
- Establishing a Domestic Partnership
- Child Custody
- Spousal/Child Support
- Division of Property
- Wills and Powers of Attorney
- Advanced Healthcare Directives