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.

Johnny Depp is Headed for an Ugly Divorce Battle by Leslie O’Neal

odell3The marriage of Johnny Depp to Amber Heard is coming to a bitter and very public end.  The Pirates of the Caribbean star reportedly first met the lesser known actress on the set of their movie “The Rum Diary” in 2009.  The pair married in 2015, and Heard filed for divorce just 15 short months later.  Less than a week after filing her divorce petition,  Heard personally appeared in Los Angeles Superior Court, along with her attorney, and filed a request for a temporary restraining Order against Depp for the purpose of protecting her safety.


Heard alleged in her Restraining Order Petition that Depp threw her cellphone at her, pulled her hair, hit her repeatedly, and grabbed her face.  Heard’s further testified that she “endured excessive emotional, verbal and physical abuse from Johnny, which has included angry, hostile, humiliating and threatening assaults to [her] whenever [she] questioned his authority or disagreed with him.” To support her assertions, Heard’s attorney submitted photographs of bruising on Heard’s face, alleged to be caused by Depp.


After reviewing the allegations of her Petition,  Judge Carl H. Moor granted Heard’s request for a Temporary Restraining Order against Depp, though he rejected Heard’s request that Depp attend a year’s worth of anger management classes and that the protective order extend to her Yorkshire terrier.  Judge Moor scheduled a follow-up court date for June 17, at which point Depp will have the opportunity to appear and defend himself, which can include calling any witnesses he has available to disprove Heard’s allegations.


The process for a Protective Order in California is very similar to the Protective Order process for victims in Georgia.  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 in the Superior Court of the County where the Defendant resides.  The alleged abuser would not be given notice of this hearing in Georgia due to the emergency nature of the issue.  As was the case in Heard’s California hearing, if a Georgia court believes the allegations present a potential risk to the accuser’s safety, it will grant an Emergency Protective Order to the accuser and schedule follow-up hearing to allow the accused to present his/her side of the case.  If the Court finds in favor of the accuser at the follow-up hearing, the Court will extend the emergency Protective Order for a longer period of time, typically at least twelve months, and prohibit contact of any kind between the parties.


Unfortunately for Depp, the upcoming Protective Order hearing on June 17 isn’t the only challenge he faces in his looming divorce battle.  Heard has also requested that the Court grant her an award of $50,000 per month in support.  This request remains outstanding, and is being made despite the brevity of the marriage and the fact that the couple have no children together.  Courts in Georgia have the authority to award temporary and permanent alimony in divorce cases, although this is done on a case by case basis with the Court considering several different factors, such as the standard of living established during the marriage, the length of the marriage, the age and condition of the parties, the financial resources of each party, and the time necessary for the parties to gain employment.   Regardless of whether the Court grants Heard’s alimony request, it’s safe to say that this is shaping up to be one expensive celebrity divorce case.

Kurt Cobain’s Daughter Hoping to Protect Her Massive Inheritance by Leslie O’Neal

Although many may not know Frances Bean Cobain, her late father Kurt Cobain emerged as a household name after his band, Nirvana, became the poster children for the grunge movement in the 1990s.  Following his tragic death in 1994, the bulk of his estate, which is rumored to be in excess of $400 million, was left to his only daughter, Frances Bean, who was only 20 months old at the time.   Now 23 years old, Frances Bean has just filed for divorce from her husband of less than two years, citing irreconcilable differences.  In her initial petition, she clarifies that she intends to preserve her inheritance from her father’s estate and believes that her spouse should not be entitled to any of it.  Perhaps in an effort to ensure that her husband does not make a play at this asset, Cobain’s divorce petition hints that she is willing to pay him spousal support despite the brevity of the union.

In Georgia, the law is relatively clear that inheritance that one spouse receives from a parent or third party either prior to or during the marriage is characterized as “separate property” and is not considered marital property subject to equitable division in a divorce case.  Likewise, property brought into the marriage by one spouse that was generated by or acquired by that spouse prior to marriage is “premarital property” and is also not subject to equitable division in a divorce.

Things become less clear, however, when one party either receives an inheritance, or owns an asset from prior to the marriage, and then either comingles those separate or premarital funds in an account with other marital funds, or invests the separate or premarital funds in an asset that is jointly titled.  Georgia used to recognize the “source of funds” rule, which allowed for the return of a separate or premarital portion of an asset so long as the party seeking preservation of that asset could clearly trace the pre-marital or separate funds.  However, in 2005, the Georgia Supreme Court made a substantial change to the manner in which Georgia viewed separate or pre-marital funds that had been comingled or jointly titled.   In Lerch v. Lerch, 278 Ga. 885 (2005), the Court ruled that when a spouse places a premarital or separate asset into an investment that includes the name of the other spouse, that act manifests an intent to gift that separate or premarital asset to the marriage.   So unless there is some definitive evidence of a contrary intent (such as a Last Will & Treatment or a Post-Nuptial Agreement), it is now far more difficult to convince a court to classify any portion of a jointly titled asset as separate or premarital property.

In Cobain’s case, her inheritance falls under both categories because she not only inherited the funds from her father’s estate, making it a separate asset, but she also acquired the funds prior to the marriage, making it pre-marital asset as well.  If this case were being litigated in Georgia, the issue of her inheritance would hinge on how she titled that inheritance during her brief marriage.  Hopefully for Cobain’s sake, she was careful to do this since it appears she neglected to have a Pre-Nuptial Agreement signed.



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.

Georgia Laws That Make You Go Hmmm…

ice-cream-pocketSweet Things

By Tammie Gruhn

You know how Georgians love their sweet things, but on Sunday you have to keep your ice cream cones out of your back pocket. Carrying ice cream in that pocket is against the law…but only on Sunday!

According to many sources on the internet, this is one of many stupid laws that remain on the books. Though there are indeed some silly laws in Georgia and all across the US, research has revealed this one to be nothing more than fun folklore! The origin of this particular faux law is in Lexington, KY, where horse thieves supposedly used this tactic to lure horses away from their rightful owners. If caught, the thief could claim he never touched the horse, it just followed him home. Apparently, Sunday was not a fun day for horse thieves in Lexington!

Just for fun and a little education along with way, we’ll continue to explore the crazy laws that may or may not exist in Georgia and elsewhere!

Celebrity Scenarios – Khloe and Lamar List their House for Sale

Leslie headshot outside_9797_10x10Is that Required?

By Leslie O’Neal

Following up last month’s blog post (and the continuing realization that every month’s blog could be dedicated to the family law issues arising from the Kardashian relationships), the divorce proceedings between Khloe and Lamar are moving along quickly.  Not even a month after Khloe filed for divorce from Lamar on the grounds of irreconcilable differences, the couple placed their 8,000 square foot home in Tarzana, California up for sale for a paltry $5.499 million.

It seems to be the commonplace in high profile divorces that the real estate assets are immediately sold.  In Georgia, it is not necessarily required that the marital residence be sold as part of the divorce proceedings.   Who is ultimately awarded the house can be an emotional issue during divorce cases, particularly if there are children involved.   Often the party to be awarded primary custody of the children will also want to be awarded the home so that the children are not uprooted from their environment in the middle of what is already a difficult time of transition for them.  Even if there aren’t minor children involved, sometimes the home has sentimental value to one party such that he or she wants to keep it at the conclusion of the case rather than sell it.

Generally, in order to be awarded the marital residence at the conclusion of a divorce case, three things have to happen.   First, the spouse being awarded the house has to have the ability to pay the monthly mortgage premium with his/her own income (which can include any spousal or child support he or she is awarded).   Second, if the other party’s name is on the mortgage, the spouse being awarded the house has to be able to refinance the mortgage within a reasonable period of time in order to remove the other spouse’s name from that debt.  Finally, if there is any equity in the home, the spouse being awarded the home must be able to cash out the other spouse for his/her equitable share of that equity, either through the refinance process or by offsetting the equity in the home with another asset.  Generally if any of these three criteria cannot be accomplished by the party desiring to keep the marital residence, the house will ultimately be placed on the market for sale, either by agreement of the parties or by Court Order.

Even if the parties agree that the house needs to be sold, the specifics of the sale can be difficult to maneuver, particularly if the divorce case is contentious.  Commonly, guidelines are established either by agreement or Court order which determine who the real estate agent will be, what the listing price will be, what offers or counter-offers must be accepted, what offers or counter-offers may be rejected, and how the closing costs will be paid.   It is not uncommon for the agreement outlining the parameters for the sale of the house to remain confidential rather than being filed with the Court; because if it becomes public record, the buyer’s agent could see the parameters and make the lowest possible offer that the sellers are required to accept.

Given that Khloe and Lamar’s marriage only lasted 4 years and didn’t result in any children, neither party likely had an emotional attachment to the house and they presumably reached a mutual agreement to sell it without being ordered to do so.

For the Good of the Order

LesleephotoSupplement Scams

By Leslee Champion

It’s that time of year again, you know, New Years resolutions. For most, the New Year is dedicated to shedding those holiday pounds and making promises for a healthier year ahead. If you are like me and dread the sight of a gym, you may be tempted to try dietary supplements. If Quick Trim can make the Kardashians skinny, it’s got to be legit right? Before you run to the nearest GNC there are a few things that might surprise you about these diet miracle makers. Did you know that dietary supplements are not approved by the government for safety and effectiveness before they are marketed? Unlike prescription drugs, which are heavily tested and regulated by the Federal Food and Drug Administration, dietary supplements (including vitamins, minerals, herbs, amino acids, and enzymes) are self-regulated by their own manufacturers and distributors. That’s right. Legally, the very same people selling the substance are responsible for testing its safety and effectiveness.

Because these products are not subject to regulation, you are at the mercy of the manufacturer.  That means you likely may purchase a product that doesn’t even work.  More concerning, many dietary supplements contain active ingredients that have strong biological effects in the body. The use of these products can cause serious injury or even death.  Gary Coody, R.Ph., FDA’s national health fraud coordinator warns that “products sometimes contain hidden drug ingredients that can be harmful when unknowingly taken by consumers.” In the past few years, FDA laboratories have found more than 100 weight-loss products, illegally marketed as dietary supplements that contained sibutramine, the active ingredient in the prescription weight-loss drug Meridia. In 2010, Meridia was withdrawn from the U.S. market after studies showed that it was associated with an increased risk of heart attack and stroke.

The FDA is permitted to ban a substance after it is proven to be unsafe. However, that doesn’t guarantee the product will stay off the shelves. Many manufacturers “reformulate” the same product with lesser amounts of the same harmful substance.  So what can you do to protect yourself? Be suspicious of the “miracle product” that claims to be a quick fix. It’s unlikely that you are going to lose “30 pounds in 30 days.” Be aware that the term natural doesn’t always mean safe.  And always ask your health-care provider for help in distinguishing between reliable and questionable information.


Dick & Jane’s Discovery

Justin cropped Super LawyerBy Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract, but had prevailed in avoiding an interlocutory injunction that would shut down his new company.  For this week, we look at the next phase of litigation, discovery.

From the outside, discovery often appears tedious, burdensome and voluminous.  Stories abound of “discovery wars” and lawyers burying opposing parties under a mountain of paper or hiding documents and witnesses.  This scene from “The Rainmaker” starring Matt Damon is Hollywood’s take:

While these types of situations can and do happen and tend to give discovery a black-eye, the reality is that the discovery process is essential to litigation and can be the point in which many cases are won and lost.  Remember, the famous Courtroom scene from the same movie comes on cross-examination of the Insurance Company, Great Benefit, where Matt Damon has him reading from an internal document related to the value of bone marrow transplants; a document which would have been found in discovery.

Discovery generally occurs in three areas:  document production, written interrogatories and depositions. In document production, each party requests records from the other party which they belief to be reasonably calculated to lead to admissible evidence.  In our lawsuit, relevant documentation would include client and customer lists, e-mail and other correspondence from Dick and his business partners about the formation of the new company and correspondence to clients and customers,   Secondly, the parties exchange written discovery questions called interrogatories.  These questions are generally designed to gather broader amounts of information and sources of discovery.  For example, the lawyers in Dick’s case would ask Dick to identify all witnesses with knowledge about the new company and its clients and customers.  Finally, the parties can conduct depositions.  Depositions are usually an in-person examination (question and answer) done before a Court Reporter.  The proceeding is attended by all parties and taken under oath.  Depositions of the parties can be recorded  in order to gain information and also of parties and witnesses to preserve testimony.

Due to the discovery process, many of the questions and answers in a trial are known to all parties involved.  Although unexpected events and statements do occur at trial, true “AHA!” moments are rare.  Most of the exhibits have been seen and exchanged and most of the witnesses have already testified in some format.

While we are all used to powerful scenes in the Courtroom from movie scripts, it is discovery where the meat and bones of these scenes are made.  Hard work and lots of digging make a Courtroom scene like this possible:


Dick & Jane – Preliminary Hearings

Justin cropped Super LawyerBy Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract.  We looked at the general dynamics of a Complaint and the various Courts in which a Complaint can be filed.  Recall that this Complaint made the rare request for a Temporary Restraining Order and Interlocutory Injunction.  In a sense, Dick’s former company was seeking an immediate Court order to shut down Dick and his company.

Temporary Restraining Orders and Interlocutory Injunctions are tough to obtain and rightfully so.  These orders can have the effect of giving one party an overwhelming victory in a case without the process of a lawsuit having played out.  If Dick’s former employer can shut down Dick’s new company while the case is pending, it is quite likely that before the case is ever final, Dick will be out of business anyway.  By contrast, if Dick can keep operating during the case, it is possible that the damage done to his former employer is too great to even calculate.

A Temporary Restraining Order is granted on a motion, usually without the other party being present.  This order is emergency in nature and lasts only 30 days.  Generally, the order is entered and a full hearing is scheduled.  At that hearing, the Judge can take evidence and consider the matter more fully and openly.  Following that hearing, an Interlocutory Injunction can be issued to govern the parties during the case.

The threshold for an Interlocutory Injunction is quite high.  The party bringing the motion must show that the damages absent the injunction would be irreparable, that it is not able to be remediated or reduced to monetary value.  Further, the party must show that they are likely to prevail on the merits of the underlying suit.  Finally, the party must show that on balance the entry of the injunction is fair and equitable.

In our case, Dick and his attorney must go all in for the injunction hearing.  As indicated, if the injunction issues, he could be out of business before the lawsuit is ever finished.  Dick should elect to attack the injunction on two fronts.  First, Dick can show that the injunction is not necessary because the damage caused is not irreparable.  If Dick has, in fact, violated his contract and taken business from his former employer, that amount of business should be quantifiable in dollars.  Thus, although potentially damaging, the harm is not irreparable.  Secondly, Dick can show that on balance, the entry of an injunction is not fair and equitable.  The injunction would prohibit (without determining the validity of the covenant not to compete) a customer from freely choosing where that customer would wish to do business.  Such an order is in restraint of free trade and against general public policy.

Dick should avoid the other component of an injunction argument and the former employer will likely focus all of their attention and effort in this area.  As discussed in our prior blog, due to the Constitutional Amendment of 2010 on covenants not to compete, the company’s position is much stronger on the merits and they are much more likely to prevail on the merits in some fashion.

For purposes of our story, Dick and his attorney are able to prevail and keep a Judge from entering an injunction shutting down Dick’s new company.  The case now proceeds into a second critical phase:  discovery.  Our next blog will review the various aspects of discovery including written discovery, document production and depositions.  The discovery process is where most cases can be won or lost.

Until then, Dick and Jane wish everyone a very Merry Christmas, Happy Holidays and a wonderful New Year!