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.


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.

The Award for 2015’s Friendliest Divorce by Leslie O’Neal

2015 saw the demise of some of Hollywood’s biggest power couples.  Although Tinseltown isn’t exactly known for longevity when it comes to marriage, there certainly seemed to be a noticeable spike in the divorce rate this year.  It started with the announcement that power couple Ben Affleck and Jennifer Garner are parting ways after 10 years of marriage.  Soon after, Gwen Stefani and Gavin Rossdale separated after a 12 year marriage, and then Gwen’s fellow Judge on The Voice, Blake Shelton, devastated country music fans when it was revealed that he and Miranda Lambert were splitting.  The year finished up with the surprising announcements that Kate Beckinsale & Len Wiseman were divorcing, as were Yolanda Foster & David Foster and Halle Berry & Oliver Martinez.

Thankfully, not all of this year’s splits were ugly, as they tend to be when high incomes, high net worth, and public images are at stake.  Yolanda and David Foster released a joint statement to the press praising one another for the time they spent together.  Blake and Miranda took the “uncontested divorce” approach, which means that they had already agreed on all terms of their separation and finalized everything before they announced their split and filed for divorce in July, 2015.

But the award this year for the friendliest celebrity divorce for 2015 goes to . . . Ben Affleck and Jennifer Garner!  Bennifer has taken a refreshingly cooperative approach to this new chapter in their family.  They are not just being cordial to one another – they are still acting as though they are practically married – presumably for the sake of their children.  Six months after they publically announced their split, Affleck and Garner continue to live in the same house (despite clearly having the money to afford two separate homes).  They have even vacationed together as a family for the Thanksgiving and Christmas holidays.

While this type of friendly living arrangement is not very common, it’s an approach that can work in certain circumstances.  Many couples choose to  live in the same house for a short period of time so that the children don’t have to relocate every other weekend to visit whichever parent has moved out.  This is typically an option only when both parents still get along fairly well, but is not a long term solution.  Some couples cannot afford for one party to move out and have no choice but to stay in the same home until the house sells or their lease terminates.  Another option many couples try is what’s known as “nesting,” which is when the children remain in the home 100% of the time and the parents rotate in and out depending on whose parenting time it is.  If, however, a divorce case becomes contested enough that the parties find themselves in a courtroom; the Judge will not likely impose any of these shared housing scenarios, as their success rates are relatively low.  A judge will almost always order one party to relocate if it is at all financially feasible or if either parent has a local relative that they can live with temporarily.

It appears that Ben and Jen certainly see the benefits of these approaches, at least temporarily.   All of this friendly behavior not only benefits the children, but also benefits the parties’ bank accounts!  Less fighting means that the issues are resolved quicker, less money goes to us divorce attorneys, and both sides avoid the emotional turmoil of a courtroom battle filled with hurtful accusations.   Sounds so simple, doesn’t it?  Unfortunately, those who have wrestled with a divorce case of their own can probably agree that being friendly to the person you are divorcing falls into the old “easier said than done” category…..But here’s to Bennifer for showing us that a divorce can be friendly for the children’s sake, and here’s hoping that celebrity marriages fare better in 2016.


“Dick and Jane” Mediation 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.  Prior to a final trial in the case, the parties will be required to attend mediation in an effort to resolve the case.
Mediation is not the same as arbitration, though the two are frequently confused.  Arbitration is where the parties agree to submit the case (or parts of the case) to a binding decision by a third party that they have chosen or whom has been appointed.  Arbitration is an option for resolving a divorce, particularly in instances where the parties wish to maintain privacy and/or would like someone with unique experience or expertise to consider all or part of the case.  Mediation, on the other hand, is a settlement conference that may or may not result in an agreement.  Either party is free to terminate mediation at any time and for any reason.  Neither party can be compelled or forced to agree to anything at mediation.

Despite being non-binding, mediation is overwhelmingly successful at getting cases resolved.  Cobb County’s Office of Dispute Resolution generally reports an annual settlement rate of 60 – 75% in domestic relations cases.  The actual settlement rate attributable to mediation is likely higher as a number of cases settle in the days leading up to mediation or settle after mediation due to the progress made in that setting.
Mediation begins with the selection or appointment of a “neutral” or mediator who will facilitate the process.  Mediators in domestic cases are usually, but are not required to be, lawyers.  Many mediators are retired Judges from the Superior Court who bring with them years of experience in trying and deciding domestic cases.  Mediators receive initial training through the Georgia Office of Dispute Resolution and also have to maintain annual continuing education requirements.
The selection of a mediator is essential to the mediation process.  Dick and Jane won’t likely know anything about the mediator and his/her mediation style.  The lawyers for each will have a memory bank upon which to draw and will likely have conversations about possible mediators.  Some mediators have a laid back, facilitative style whereby they are able to pass settlement offers between parties and massage each party toward the other party’s viewpoint.  Other mediators respond well to emotional outbursts and have a “counselor” type approach and are able to listen and provide sympathetic ear toward the hurt, anger or frustration being displayed, while also encouraging the party to let that emotion drop and keep the process moving.  Lastly, some mediators are the more forceful “suck it up and get over yourself” type, who can provide each party with an effective dose of what the unsympathetic reaction of a Judge is likely to be.

Mediation will generally start in a group session.  The mediator will review the mediation process, the rules and the role of the mediator.  The parties and lawyers are all asked to sign an agreement indicating that they have read and understand the rules of mediation.  Most important among the mediation rules is confidentiality.  In order for settlement conferences to be productive, both sides must be comfortable making compromises.  If a party felt that a compromise could be admitted in Court, the process would break down quickly.  For that reason, any admission or compromise or settlement proposal made in mediation is confidential and not available for use in Court.

Some mediators allow for each side to make a general statement in the group session of the issues to be resolved.  However, this process can be detrimental to the mediation atmosphere.  Often times, the lawyer or the party will become accusatory and argumentative regarding their position on the issue.  For this reason, many mediators and lawyers prefer to skip the overview portion of the joint session and move immediately to the caucus portion.

During caucus, the mediator meets with each party and his/her lawyer privately.  In that meeting, the mediator wants to know three pieces of critical information:
1) What are the issues to be decided? (i.e. alimony, custody, child support, specific property division)
2) What is that party’s position on each of the foregoing?
3) What are going to be the stickiest issues or possible barriers to getting a deal done today?

Of the foregoing, the third item is critical to success.  There are some barriers and issues which will torpedo a mediation faster than others.  Some issues cannot, by their nature, be compromised.  For example, if the issue being determined is related to custody and the Mother truly believes that the Father is abusing the child and wants no visitation or strictly supervised visitation, but the Father adamantly denies the abuse and wishes to have extended visitation, it will be difficult to compromise the relative positions.  Alternatively, the parties may not have values on property or business interests completed.  The parties may be unwilling or unable to approximate values and cannot productively mediate the case.
It is essential that each party arrive to mediation prepared to settle, but also prepared in general.  Mediation, even if unsuccessful, can be treated as a dry run for trial and used to gain insight into the positions of the other party and to glean a reaction from a neutral third party.

Next month, we will move Dick and Jane on to a final trial?  The question to consider will be – judge or jury?justin2


DICK & JANE “Divorce: Discovery – Part II” by Justin O’Dell

As we continue to look at Dick and Jane and the topic of divorce, recall that the process is underway and we have moved past the temporary hearing into the discovery phase. Our last article looked at discovery goals from Jane’s standpoint. For this month, we look at the process from Dick’s perspective.

No doubt, the first issue for Dick will be addressing the issue of his affair. We have analyzed Jane’s ability to question Dick about the affair and his use of privilege to limit the amount of discovery to be had. In response, Dick will probably throw out a few questions about extra-marital conduct toward Jane. It is surprising to many people to see what the other person may or may not reveal. In the end, the affair discussion may create emotion and grab attention, but ultimately conduct by either spouse is probably not going to have an overwhelming impact on the outcome, unless one party can establish a negative effect on the children or the diversion of marital money in furtherance of the misconduct. Still, the existence of the adultery and the desire to keep it out of the public realm can be a strong source of motivation to reach a settlement.

Dick’s primary concern is going to be on his company and the valuation issue. Since he is in control of the corporate information, he is going to have the advantage in working through the valuation process. It will be important that Dick provide thorough and responsive discovery to Jane’s attorney and expert. Although there is an overwhelming temptation to hide issues related to the company, they are usually exposed and more financially painful in the long term. Quite often, Dick can have his financial valuation expert work cooperatively with Jane’s financial valuation expert in order to educate and correct erroneous assumptions.

Lastly, Dick’s discovery of Jane will need to focus on her employability and future goals. As the Court approaches the issue of alimony, most Judges are going to expect that Jane has a plan for the future. If Jane is sitting back with an attitude that she does not need/expect/plan to get any form of employment, she is going to be penalized. Dick will need to discover Jane’s efforts to obtain employment, job prospects, interviews and the like. He can then use this information in response to her alimony case.

Next month, we will look at the mediation process and what happens at a Court ordered settlement conference with an expert mediator.

Khloe and Lamar: It’s Complicated. by Leslie O’Neal

The Kardashian clan just can’t seem to stay out of the headlines these days (not that they are trying….). But this Fall has been especially difficult for the media-loving family.  On October 13, 2015, Khloe’s estranged husband, Lamar Odom was found unconscious at a brothel in Nevada and rushed to a Las Vegas hospital.  He was placed in a medically-induced coma for several days after opiates and cocaine were found in his system.  The news of his condition was grim at first, and Khloe and her crew immediately rushed to his side.

What was revealed a short time later was that despite having separated over two years ago, Khloe and Lamar are still legally married.   Khloe originally filed for divorce in December of 2013.  For the first year of the divorce process, US Weekly reported that things remained unresolved because Khloe was unable to even track Lamar down to get him to sign anything.  He was reportedly still hoping for reconciliation at the time, despite that Khloe had begun seeing other people – then rapper French Montana and now NBA star James Harden.  It was later reported that Khloe and Lamar signed a tentative settlement agreement this past summer, though an official divorce decree had never been entered by a judge and the case was still pending.  Lamar’s sudden and critical medical condition, coupled with their still married status, placed Khloe in the unexpected position of being charged with making medical decisions on Lamar’s behalf.  Similarly in Georgia, if one spouse designates the other on his/her Healthcare Directives form without modifying it, that designation will remain even if a divorce case is pending.

Because recent reports show that Lamar is slowing improving, it seems that the estranged couple avoided an even bigger legal challenge, which is what happens when one party passes away unexpectedly during a divorce proceeding.   Even if a divorce case is pending, the death of one party terminates the divorce proceeding instantly because there is no longer a marriage to dissolve.  This can be a significant game changer in terms of asset division, particularly if there are assets solely titled in the name of the deceased spouse.  Suddenly the assets in deceased party’s name are governed not by equitable division principles under divorce law – which would presumably allow the surviving spouse to receive half of the assets – but rather by the terms of the Last Will & Testament of the deceased spouse.  So if the deceased spouse modified his or her will to leave out the other party, or had never included the other party in his/her Will at all, the surviving spouse would not receive any of the asset that he/she would’ve previously been entitled to under the divorce case.  That spouse would have to Petition the Probate Court for support from the decedent’s Estate.

Thankfully for Lamar and Khloe, their situation looks to be on the mend.  Lamar’s medical condition is reportedly improving, and the couple are reconciling – at least from a legal standpoint that is.  On October 21, 2015 Khloe formally dismissed her divorce petition, leaving the couple right back where they started.  Hopefully for these two, they can work through the complications and patch things up in more ways than one.


Divorce: Discovery

As we continue to look at Dick and Jane and the topic of divorce, recall that the process is underway and we have moved past the temporary hearing into the discovery phase. This month and next, we will look into the discovery process and determine the information that each side will need to have to move the case into a posture for settlement or a final trial.

From Jane’s standpoint, the discovery process will center on two areas, the first of which will be personal to her but ultimately of little long term benefit to the Court and the second of which will be critical to resolution of the case by settlement or trial. Unfortunately, too many litigants become obsessed with the former and minimize efforts on the latter.

First, Jane is undoubtedly going to want information on the subject matter of Dick’s affair. There is no issue that this subject is relevant to the issue of divorce, but not to the extent that Jane might think. One’s emotion side drives this quest for information and it is not uncommon for someone in Jane’s position to seek answers to these questions:

  1. Who is she?
  2. When did it start?
  3. How long as it been going on?
  4. Is Dick intending to stay in a relationship with this person or was it a “fling?”
  5. Why did this happen?

While many of these questions are critical for Jane to resolve in order to move past the emotional issue of the affair, many of these answers will have little relevance in Court. Judges are very accustomed to hearing about misconduct and tend to try keep focused on the incomes of the parties and assets to be divided. The Court will want to be aware that an affair occurred, but usually only needs to know:

  1. When did the affair start?

    If the affair is post-separation, it did not cause the divorce unless it can be shown that the affair or relationship was contemplated or “in the works” prior to the separation. If the affair was 5 years before the separation and ended as quickly as it happened, it probably is not the cause of separation either.

  2. Has Dick used marital funds in furtherance of the relationship?
  3. Is the relationship ongoing and does it have the potential to impact the children?

It is not uncommon for one spouse to ask the Court for an order prohibiting Dick from keeping the children away from individuals with whom he was romantically involved. For many years, the Court would enter these prohibitions as a matter of course, particularly in cases where an affair had occurred. However, a series of appellate decisions in Georgia have consistently held that a blanket restriction on contact with members of the opposite sex or individuals with whom a party is in a romantic relationship is overly broad and unenforceable unless there is a specific finding that the situation or introduction would have a harmful effect on the children. Some appellate examples include:

  • Ward v. Ward, 289 Ga. 250, 250–51(1), 710 S.E.2d 555 (2011) (holding that trial court abused its discretion in amending visitation provision in final decree to provide that mother “ ‘shall not have any overnight male guests while the minor children are present’ ” because the provision would prohibit the mother “from having visitors with whom she has no romantic relationship”);
  • Arnold v. Arnold, 275 Ga. 354, 354, 566 S.E.2d 679 (2002) (holding that trial court abused its discretion in prohibiting children “from any contact with a certain named friend of Wife” when there was “no evidence that the relationship between Wife and her friend was or will be harmful to the children, or that they ever engaged in any inappropriate conduct in the presence of the children”);
  • Brandenburg v. Brandenburg, 274 Ga. 183, 184(1), 551 S.E.2d 721 (2001) (holding that trial court abused its discretion in prohibiting father from exercising visitation with children in the presence of his girlfriend, even if the two should marry, when there was no “evidence that such relationship had or likely would have a deleterious effect on the children beyond that normally associated with divorce or a parent’s remarriage”);
  • Mongerson v. Mongerson, 285 Ga. 554, 556(2), 678 S.E.2d 891 (2009) (holding that trial court erred in prohibiting husband “from exposing the children to his homosexual partners and their friends,” which was “an arbitrary classification based on sexual orientation” but holding that trial court’s decision to prohibit children’s exposure to paternal grandparents was not an abuse of discretion when evidence showed that grandparents “had been physically and emotionally abusive of the children”), overruled on other grounds by Simmons v. Simmons, 288 Ga. 670, 706 S.E.2d 456 (2011).

The second area of discovery which is far more critical to the case and is often minimized by the party is the financial aspects of valuing Dick’s company. In an upcoming blog, we will devote an entire discussion to the process of valuing a marital business. In the context of this discussion and the initial discovery requests, Jane needs to be highly focused on the operation of the business more than the financial outputs. Most often, a party will request information about the numbers, for example:

  1. Profit and loss statements;
  2. Financial statements;
  3. Tax returns;
  4. Bank records; and
  5. Balance sheets.

This information is certainly sufficient for generating a value of the company. In fact, if limited to this information there would be little point in Dick and Jane hiring opposing financial valuation experts. On this information alone, the generally accepted standards of the valuation industry would cause most valuation experts to generate a result that is not substantially different from one another. However, the financial records only tell a portion of the story. For reasons we will discuss in greater detail, it is far more important that Jane gain an accurate picture of the following:

  1. Largest customer and percent of revenue;
  2. Market share data, including industry competitors;
  3. Covenants not to compete among key employees;
  4. Previous value statements of enterprise v. personal goodwill;
  5. Executive compensation packages; and
  6. Recurring v. Non-recurring revenue items.

This information will be critical in “moving the needle” up or down and will generate the adjustments made by a valuation expert. This is where some subjectivity can enter the process and Jane’s attorney will need to be armed with information to bolster her expert and attack the expert retained by Dick.

Next month, we will look at the discovery process from Dick’s standpoint. Dick’s major concern should be balancing the provision of information against his own self-interest.

Pamela Anderson Seeks a Restraining Order Against Husband

Pamela Anderson and Husband Rick Salomon’s relationship has certainly seen its ups and downs. Anderson has married the professional poker player twice, filed for divorce three times, and each has sought an annulment from the other on at least one occasion. However, Anderson’s most recent divorce filing on February 11, 2015 was accompanied by a request for a temporary restraining Order for the purpose of protecting her safety. Anderson alleged in her Restraining Order Petition that “[Salomon] is controlling, physically, verbally and financially abusive.” She continued that “[h]is anger towards me has increased and escalated, and his attempts to contact me both directly and indirectly, is disturbing my peace. I respectfully request that the court grant my request for a restraining order that [Salomon] be restrained from contacting me, either directly or indirectly, and a spousal support award”. After reviewing the allegations of her Petition, a Los Angeles Judge granted Anderson’s request for a Temporary Restraining Order against Salomon and scheduled a Court date for April 3.

Domestic violence allegations such as these have been given greater exposure over the past year due to other high profile incidents, most notably those related to NFL running back Ray Rice and the ensuing backlash against the NFL for its admitted mishandling of the incident. The NFL has placed a renewed focus on making domestic violence a serious discussion topic and has waged a commercial campaign to spotlight the issue. However, in Rice’s case, the victim did not seek immediate help, and is still in a relationship with Rice. In Anderson’s case, however, immediate action was taken, which highlights one important and effective option a victim has to secure immediate protection through the legal system.

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 and present his/her allegations to the Court. The alleged abuser 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, as was the case for Anderson on March 13, the opposing party is immediately served with a copy of the Order, prohibited from contacting the accuser, and a follow-up hearing is scheduled for shortly thereafter. At the follow-up hearing, each side will present his/her case to the court and will be permitted to call any witnesses he/she has available. If the Court finds in favor of the victim, the Court will extend the Protective Order for a longer period of time, typically at least twelve months. As part of that extended protective Order, the abuser is not permitted to come within a certain number of feet of the victim, is not permitted to contact the victim either directly or indirectly, and is not permitted to possess a firearm.

The Court is also permitted to award child support and/or spousal support to the victim at a protective Order hearing. This is particularly important because often victims are fearful to seek this type of court issued protection because they are financially dependent on their abuser. Thankfully for Anderson and Salomon, they do not have children together so the Court need not deal with those issues at their April 3 protective Order hearing. While it remains to be seen what the Court will do with Anderson’s allegations once Salomon gets to present his side of the case, it appears to be safe to say that the third time is not going to be the charm for these two.

Divorce: Temporary Hearing – What does Dick need?

As we continue to look at Dick and Jane and the topic of divorce, recall that the process is underway. As we move through the process, we are going to examine each phase from the perspective of Dick and from the perspective of Jane. Last month, we looked at the temporary hearing from Jane’s perspective. This month, we approach the same hearing from Dick’s standpoint.

Dick’s primary concerns moving forward are as follows:

  1. Maintaining contact and a relationship with his children;
  2. Making sure that the funds he earns support Jane and the children but don’t prohibit him from providing for them either;
  3. Minimizing the financial impact of the divorce and avoiding funding a “war chest” for the attorneys;
  4. Shielding his marital indiscretions from the case.

Just as Jane should view all of her goals at the temporary hearing through the lens of family stability, Dick should have the same approach.

On a temporary basis, he may be willing to concede that Jane is the primary physical custodian but he should ensure joint legal custody. Dick may have some subject areas of legal custody over which he would like to have final decision making authority. For example, he may feel strongly about public v. private school, certain medical treatments of the children or their religious upbringing. The Court may not decide final legal custody on a temporary basis, but if Dick does not make these areas known at this phase, he will lose out on his ability to do so later.

The parenting time and visitation schedule will be an important opportunity for Dick to demonstrate his role as a parent and Father. If he bites off too much time and cannot keep it up due to work conflicts, he will play right into Jane’s arguments. If he takes too little time, he runs the risk of becoming a “Disneyland Dad” or guy that just sees his kids every other weekend, but is not really involved in their lives. The best outcome would be for Dick to try and obtain visitation time that blends weekends and weekdays so as to give him quality time and involvement with the children. Schedules like Thursday after school until returning to school on Monday morning one weekend and Thursday after school until returning to school on Friday morning the next weekend are becoming increasingly popular with the Courts. The schedule is predictable and structured and minimizes back and forth for the children. In addition, the children are exchanged through the school, rather than in a parents driveway (which can be tense and lead to disputes).

Financially, Dick needs to step up at the temporary hearing and support the family, but he must be prudent in doing so. The temporary order should be structured so that it is just that, temporary. Most Judges and Courts are going to expect Jane to seek some level of employment. If she is receiving all of the funds that she needs or wants on a monthly basis, she may not be inclined to push for work. From Dick’s standpoint, he would be best to volunteer to pay certain monthly expenses (mortgage, utilities, car note and insurance, etc…) directly rather than just giving the money to Jane. On a temporary basis, all of the foregoing is commonplace. This creates a feeling that this structure is not permanent and will be revised on a final basis. On the contrary, if Dick were just to pay over a sum of money each month in gross support, a precedent could be created for a final order.

Attorney’s fees and the payment of Jane’s attorneys will be a major struggle for Dick. If he cuts off funds to Jane completely, she cannot obtain adequate representation and the case will bog down. On the other end of the spectrum, if she has or receives a large amount of funds, she may be inclined to start a major battle.   Dick should concede that some fees may be appropriate (particularly in light of his misconduct problem) so as to appear reasonable, but should push that additional attorney’s fees be borne by the parties individually or be paid equally utilizing marital assets as the source. Some Judges will state that it is very necessary that both spouses (regardless of fault) need to “feel the pain” of the divorce process if they choose to keep fighting. The goal of every Judge is for the parties to settle the case themselves. If one side is paying 100% of the costs on both sides of the fight, the non-paying side has no incentive to ever end it.

Next month, we will look at the discovery process from Dick and from Jane. We will focus on what each side needs to gain by way of information, particularly as it relates to the valuation of the marital business.

Fulton County Judge Grants Rapper Ludacris Full Custody Of 13 Month Old Daughter After Year Long Court Battle

The 14 month legal battle between rapper Ludacris – whose legal name is Chris Bridges – and Tamika Fuller over custody of their 13 month old daughter, Cai Bella Bridges has reached a dramatic conclusion. The lawsuit started in December of 2013, with Ludacris filing a Petition in Fulton County Superior Court seeking a legal legitimation of his daughter. Fuller filed a counterclaim requesting that she be awarded a sizeable sum of monthly child support from the rapper.

The final trial took place in January of 2015. During the proceedings Ludacris cited Fuller’s poor parenting over her other child from a previous relationship as a primary reason for him to be awarded primary custody of Cai Bella. Fuller countered by revealing that Ludacris had requested that she have an abortion and bribed her in an effort to get her to terminate the pregnancy. Fuller also accused Ludacris of manufacturing his current marriage in an effort to appear more stable. The Court also heard from a Court appointed Guardian ad Litem, who had conducted an independent investigation of both parents. Following all of the testimony, Judge Doris Downs awarded Ludacris primary physical custody and granted the parties joint legal custody.

What remains unclear is whether Ludacris will still be ordered to pay child support to Fuller. Under a previous temporary ruling in the case, the rapper was ordered to pay $7,000/month to Fuller. However, based on the Court’s final custody Order granting him primary custody, his attorneys may be seeking to eliminate his child support obligation all together, or possibly even order Fuller to pay child support to him.

If they do pursue this option, there is no guarantee that they will prevail. It is possible in Georgia for a custodial parent to still be required to pay child support to the non-custodial parent. Georgia law allows the Superior Court Judge to exercise his or her own discretion to determine whether the best interests of the child would be served by money being paid to the noncustodial parent to allow for proper visitation. Such an anomaly generally only occurs when the incomes between the parties are so disparate that it would be unfair to the child to have such radically different living environments between the two households. This legal loophole in Georgia is likely Tamika Fuller’s only chance at this point at getting any money out of the wealthy rapper.