Divorce: Temporary Hearing – What does Jane 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.

For this month, we will look at the temporary issues from the perspective of Jane. Jane’s primary concerns moving forward are as follows:

  • Maintaining stability & a routine for the children;
  • Making sure she has adequate funds to pay household expenses;
  • Making sure she has adequate funds to get through the costs of the divorce, including amounts to find out about assets;
  • Discovering information about the extent of Dick’s affair

In preparation for the temporary hearing, Jane should focus most on the children and the stability of the family. By presenting the case through that lens, all of her concerns above can be met. On a temporary basis, Jane would push for a determination that she has primary physical custody and joint legal custody of the children, with her having final decision making authority over legal decisions affecting the children’s healthcare, education, religion and general welfare. The Courts use a form document called a “Parenting Plan” to lay out the provisions controlling custody and visitation. It will be most important for Jane to come up with a realistic schedule for the children so that they can meet their academic and extracurricular requirements with minimal disruption. The Court will want to start the parties on a schedule that looks more and more like things will look when the parties are completely divorced. Jane may want to push for an order from the Court preventing Dick from introducing the children to any new love interests. On a temporary basis, a mutual order of this sort would not be out of the question.

From a financial standpoint, Jane will need to prepare a budget. The budget will document all of the household and children’s expenses. The budget is known as a Domestic Relations Financial Affidavit. The Court will look at the budget and determine the amount of money needed for Jane and the children and order that Dick pay the same. The Court can order that certain expenses be paid directly (like a mortgage) and that other funds are to be given to Jane for the payment of expenses.

Alimony is becoming increasingly harder and harder to obtain. Women of all walks of life are expected to work and contribute to the household expenses. On a temporary basis, the best argument for Jane to make is going to be to lay out a plan for the future. If Jane needs to go back for job training or schooling, she should present a plan to do so and ask for an award of money to pay for the same. The Courts are going to look much more favorably on Jane if she can present a logical plan to return to work as opposed to simply making a request for funds every month.

On the issue of attorney’s fees, Jane needs to outline the plan for litigating the case and, specifically, the amount of funds needed to get the case to a settlement posture. Courts are very receptive to the use of reasonable attorneys’ fees in order to get a case resolved and not subjected to a final trial. If Jane attempts to make the temporary hearing all about Dick’s affair and appears out for “vengeance” the Court is going to shoot her down. A Judge is not going to be inclined to allow Jane funds to go on the warpath. Jane will need a reasonable amount of money to use the discovery process to get a handle on the parties’ assets. One major issue will be determining the value of Dick’s new company (we will devote an entire blog post to this subject later). If Jane can outline a fee proposal designed to get this information, the Court would be inclined to grant the award.

It might be difficult for her to contemplate, but Jane will need to wrestle with the decision of selling the house. If the parties have equity in the house, a sale might be the only way to access the funds in order to divide them. This is particularly true if the parties do not have sufficient funds elsewhere to offset the value of the house. It might be tempting for Jane to enter into an agreement whereby she keeps the house and the equity in it and allows Dick to keep other assets in exchange. However, Jane should caution against becoming “house poor” or in a situation where she has a high, unaffordable mortgage payment and her savings is inaccessible due to being in the equity in the house. Jane will need to consider the needs of the children for stability and structure and determine if the house can or should be sold.

Next month, we will look at the same issues from Dick’s perspective. Dick must be very cautious about setting a precedent for payments and managing damage control.

Justin O’Dell & Leslie O’Neal Are Rising Stars

Rising Stars 2015 Super LawyersJustin O’Dell and Leslie O’Neal have been named Rising Stars for 2015 by Georgia Super Lawyers! No more than 2.5 per cent of the lawyers in Georgia are selected each year. For Justin O’Dell, this is his third year being selected and the first for Leslie O’Neal.

Good for Cobb

Good for cobbPrior to the SPLOST vote in November 2014, Justin O’Dell spent countless hours dedicating himself to the merits of its value to Cobb County. He knew that the continuation of the SPLOST would mean improvements in transportation, public safety and quality of life for all residents of Cobb. As co-chair of the effort to Secure Cobb’s Future, Justin understood that the needs of many should outweigh the negative few.

As a continuation of his efforts to secure a great future for residents of Cobb, Justin O’Dell has joined with other business leaders in the community in a grassroots initiative that will carry the torch for more progress. As Vice-Chair of the “Good for Cobb” Steering Committee, Justin will serve the community in promoting improvements through development and projects. Bringing the Braves to Cobb was just the beginning of many good things to come for the citizens of Cobb. From the courtroom to the community, Justin is committed to serving clients and community.


Leslie O’Neal Chairs Cobb Young Professionals

1380423_852264694815580_3567506577305390080_n“To be impactful and relevant economic, social and civic leaders in our communities.”

That is the vision of a dynamic group of young professional leaders in the Cobb Chamber of CommerceCobb Young Professionals is dedicated to cultivating leaders within the Cobb community who will thrive in the workplace and grow in their potential to contribute. O’Dell & O’Neal is proud to announce that Leslie O’Neal is the CYP Chair for 2015!

Cobb Young Professionals kicked off the new year at the Georgia Special Olympics Indoor Winter Games. They played basketball and cheered for the athletes, supporting a great organization in the spirit of training and competition for people with intellectual disabilities. At their kick-off celebration event, Leslie O’Neal announced many exciting and rewarding events and opportunities for CYP in 2015. We can’t wait to see how they develop their potential and strengthen Cobb County!

Justin O’Dell Receives 2015 Chairman’s Award

10410974_10204985281928258_8577167585810985675_nThe 2015 Chairman’s Award was presented to Justin O’Dell at the 73rd Cobb Chamber Annual Dinner Celebration. This award recognizes outstanding leadership, dedication, commitment, support and enthusiasm to the Cobb Chamber. Justin devoted much of his time to the renewal of the SPLOST, securing Cobb’s future as a leader in job creation, protecting our community and providing a quality of life that’s second to none.


Rock ‘n Renner Gearing Up for Battle

IMG_8925By Leslie O’Neal

While Chris Rock and Jeremy Renner have never shared time on the big screen, they currently have one thing in common: they are both dealing with newly filed divorce cases with the potential to get messy on the issue of custody.    Rock filed for divorce in New Jersey Superior Court on December 23, 2014.  In his Petition, Rock alleges that his wife of 20 years Malaak Compton-Rock “has repeatedly refused to permit [him] normal and usual access to the children, and has acted in a manner detrimental to the children’s best interests”.

Meanwhile Jeremy Renner’s Canadian model wife, Sonni Pacheco, filed for divorce against him in Los Angeles on December 5, 2014.  While she cited the standard “irreconcilable differences” ground for divorce in her initial Petition, she also included some not-so-standard requests, most notably her request that he be ordered to return her passport and that she be given “independence”.  E! News reports that Renner fears Pacheco plans to move back to Canada with their 22 month old daughter, Ava.  Needless to say, both Rock and Renner are reportedly prepared to seek custody of their children.

Renner and Rock’s state of uncertainty is not uncommon at the beginning of a divorce case when the parties have not yet had a hearing.  Thankfully, Georgia Courts put an immediate Order in place in all contested divorce cases which provides some basic rules that both parties are required to follow.  The Order is generally known as a Domestic Relations Standing Order, and prevents either party from removing the minor children from the jurisdiction, cancelling the other party’s health insurance, cutting off utilities in the home, and selling or transferring assets.

However despite the stability provided by the Standing Order, things can still be chaotic until a hearing takes place because there is no clear order establishing who has primary custody of the children, when visitation will take place, how much child support will be paid, and how the family’s bills will be paid.  Because these are generally considered issues of immediate importance, Georgia law permits parties in a domestic case to have a temporary hearing, typically at the beginning of the case, on the immediate issues that need to be addressed.  Because the temporary hearing is considered to be a shortened version of the final trial, the parties are prohibited from calling more than 1 witness (other than themselves) and the Court is instead permitted to consider written testimony from other witnesses (in the form of a sworn Affidavit) rather than live testimony.

The temporary hearing can have a huge impact on the ultimate outcome of the issues being litigated because it gives both parties a glimpse into how the Judge will react to various issues.  It also creates a status quo in the case on the issues of custody, visitation, and child support which can be challenge to overcome later in the proceedings.  It looks like for Rock and Renner, a temporary hearing cannot come soon enough in their cases.

Divorce: The Case is Filed, Now What?

Justin O'DellBy Justin O’Dell

As we continue to look at Dick and Jane and the topic of divorce, we will assume that both have met and selected counsel and that the process of divorce is underway.  This brings us to the filing of a divorce and what happens next.

Recall that our case involves a contested divorce (no settlement agreement reached before filing).  For those who do not recall the facts about this family, you can find them here:  https://odelloneal.com/blog/dick-and-jane/meet-dick-and-jane-2/.

The first issues, post-filing, for Dick and Jane are temporary issues.  In order to deal with these issues, Georgia law allows for a “temporary hearing.”  The purpose of a temporary hearing is to address the immediate needs of the parties and the children, specifically temporary custody, temporary child and spousal support, temporary use and possession of assets (including the house) and temporary payment of expenses.  The decisions on some of these issues can be quite different from the ultimate outcome in a divorce.  For example, on a temporary basis the Judge could order the wage earning party to continue to pay a variety of expenses directly, like mortgages and car payments.  Thus, issues like alimony and even child support may be addressed through the payment of direct expenses.  On a final basis, the Judge is going to expect each party to pay his or her own expenses and will deal with availability of funds through child and spousal support.  If the parties have a contested custody matter, the Judge may be inclined to consider alternative custody arrangements like shared/split parenting time or even “bird-nesting” (where the parents take turns living in the house with the children rather than the children moving from home to home).

Although Judges do not divide assets at a temporary hearing, it is not uncommon for the parties to be awarded temporary use and control of the same.  Those awards are generally an indication of where the asset is ultimately going to go.  For example, if a Judge awards Jane temporary use and possession of the marital residence on a temporary basis, the asset (if not sold) is going to probably remain with her in the final settlement.

A temporary hearing is also designed to ensure that each party has access to funds to secure adequate representation.  Georgia law allows an award to be made to the non-primary wage earning spouse from the marital estate or from the earnings of the other spouse for payment of her attorneys’ fees and litigation costs.  This allowance is recognition that it would be fundamentally unfair for one spouse to be forced into a settlement simply by being unable to afford the process or unable to conduct discovery regarding assets.

A temporary hearing is usually set anywhere from 30 – 45 days following the filing of the divorce, though this time can be longer in some counties than others.  Most parties are able to reach a temporary agreement without the intervention of a Court.  This is true even in instances where there are hotly contested issues in the case.  Many times, the temporary order is simply a reflection of the status quo.

One of the most underappreciated benefits of the temporary hearing can be the “venting” process.  In our case, Jane may be particularly upset about Dick’s alleged misconduct.  The lawyers in the case might be indicating a possible temporary resolution that would be workable for everyone.  Jane may feel that the resolution is unfair given “what he has done.”  In a temporary hearing, Jane can require Dick to get on the stand.  Dick can be compelled to answer questions about his conduct (or he can take the 5th Amendment and refuse, which in a civil case allows the Judge to assume an admission).  Jane can take the stand and discuss the impact and difficulty on her children and her family.  Most often, the Judge will then issue a decision somewhere along the lines predicted by the lawyers.  Maybe the Judge will direct a comment or two toward Dick about his behavior.  Maybe the Judge will direct a comment or two toward Jane about moving on and making sure the children are not alienated against their Father, regardless of his behavior.  Jane may feel some catharsis from having had a public moment.  Both parties may come to understand that they do not want to be in front of a Judge again.  Finally, both parties may come to believe that when the lawyers who they have hired and who have extensive experience in the field and with the Judge, both indicate and seem to agree on a potential outcome, they are probably pretty accurate.

For Dick and Jane, we are going to look at the goals for a temporary hearing in the next few months.  We will view the case from each perspective.  In order to set up the discussion, we will assume that Dick has been unfaithful and that Jane is aware of it.  However, unbeknownst to Dick, Jane also had an extramarital relationship that started about a year ago.  Hers never became physical, but was emotionally intimate, flirtatious through texts and social media.  It was also around this time that Jane withdrew from Dick physically and emotionally.  When confronted with the issue of his affair, Dick left the house to stay with his brother.  He has been seeing the children some on weekends and attending their activities.  Thus far, he has been maintaining all of the household expenses and giving Jane a few hundred dollars each month for expenses.  We shall see how the temporary issues unfold…..

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.

Divorce: Consultations and Meeting an Attorney

why-us1By Justin O’Dell

Starting this Fall, we switched our discussion of Dick and Jane to the topic of divorce.  This topic is going to be far ranging and extensive and we will also be looking at various issues from the perspectives of both Dick and of Jane.

We have been looking at the process of hiring and selecting a domestic lawyer to handle a divorce.  For this month, we will consider the initial consultation and the expectations of the client and lawyer in that initial meeting.

  1. Consultations May Not Be Free. This is probably one of the biggest areas of disconnect between the public and family law attorneys.  The majority of attorney advertising is done by personal injury law firms and criminal defense firms.  Personal injury firms are paid based on a contingent fee, usually one-third to forty percent of the money recovered to the client.  Since they do not charge by the hour, these firms almost always offer free consultations.  Criminal law is generally handled on a flat fee basis and free consultations are also the norm.  Since these firms advertise “free consultations” many people are led to believe that all lawyers offer free consultations.  Most domestic lawyers (and general civil lawyers) charge their clients by the hour.  If they spent much of their day giving free hours to consultations, they would not have time left over for paying clients.  Some family law lawyers have managed to find a way to offer free consultations, but most do not.
  2. How Much Will This All Cost? One question that is always asked during the initial consult is “How much is this going to cost me?”   The reality is that unless you walk in the door with a completed settlement agreement in hand, no one knows and no one can predict.  An experienced lawyer can look at the situation and generalize, but even a seasoned veteran attorney would be making nothing more than an educated guess.  The degree to which the couple chooses to fight will control the costs.  More important than “how much will this cost me?” a better question for your lawyer is “How do we keep costs under control on our end?”  There are a lot of aspects of divorce litigation that are optional, even if perhaps helpful.  For example, Jane might tell her lawyer that “I think Dick has hidden money.”   Jane’s lawyer can hire a forensic accountant to investigate.  However, if Dick is only earning $40,000 per year and the parties are living paycheck to paycheck, the most that Dick could likely squirrel away would be a few hundred or even a few thousand dollars.  Is it worth spending $5000 or more to try and find such a small sum?  Alternatively, Dick may have concerns that Jane has started seeing a new man since he and Jane separated.  Is it really worth spending thousands of dollars in discovery related to this new relationship, if it ultimately will have little bearing on the outcome?  The client and attorney should quickly try and develop a consensus about the overall plan for the divorce and discuss the various aspects of the case that need to be proven and spend resources and finances accordingly.
  3. The Retainer & Billing Process. Most domestic attorneys work on a retainer.  Many clients do not get an adequate explanation of the retainer in their initial consultation.  Most attorneys bill incrementally (in tenths of an hour).  Many clients do not get an adequate explanation of incremental billing in their initial consultation.  Some lawyers charge an initial retainer ($2,500.00 or $5,000.00), draw down against that retainer on a monthly bill and require that the retainer account be reinstated to that level each and every month.  Other lawyers will require the amount to be reinstated only when it hits zero.  For billing purposes, some lawyers bill in minimal increments of six or twelve minutes.  This means that a quick phone call or e-mail could be charged for that minimum.  It is important in the initial consultation that both the lawyer and the client have a clear understanding of how the relationship will be charged.
  4. How Will It Turn Out? Most clients come to a consultation expecting to find out “how this will all turn out?”  There are some areas where the domestic lawyer can offer opinions and thoughts regarding potential outcomes.  If certain variables are known (like each spouses’ gross income), then child support is fairly predictable due to Georgia’s Child Support Worksheet and calculator.  Other areas of dispute, like alimony, vary from County to County and even from Judge to Judge within a County.  These areas are also highly dependent upon the facts of the case and how those facts are presented to the Court.  Any prediction is nothing more than an experienced guess.  Instead of “how will it turn out?” the better question is “What kind of divorce am I going to have?”  The lawyer and client must be on the same page regarding the process of divorce.  Does the client want things settled quickly and without fighting (even if the client has to pay or give up more to their spouse)?  Does the client have certain issues that are “non-negotiable” like primary custody or protection of non-marital property?”  The more the client has in the “non-negotiable” column, the more likely the divorce will be a fight.

The first meeting with a lawyer is an important one.  Most often, the client wishes to receive answers to questions like cost and outcome.  The reality is that these issues, though important, are highly variable and highly unpredictable.  Rather than focus on costs and outcome, it is critical that both sides gain an understanding about the process of the divorce.   Over time, the process will help to control and manage both cost and outcome.