Answers to many common questions
Should I seek a divorce – or just a separation?
Most divorces begin with an informal separation which is followed by a period of legal separation after a divorce is filed. If you are undecided as to whether you wish to repair or end your relationship, it is critical that you work with both an experienced family law attorney and a qualified therapist.
Working with the therapist will help you decide whether you wish to repair your relationship or if a divorce is necessary.
An experienced family law attorney will provide information, education and guidance to help you evaluate your situation, explain what the divorce process will entail, and outline what the possible outcomes may be.
We also strongly recommend that you retain the support of a trusted mental health specialist throughout the entire process, to help you arrive at the end result in the healthiest, most positive manner possible.
What is the divorce process?
This process varies greatly depending on the circumstances. But in general, the process begins with one spouse filing what is called a “Complaint for Divorce”. . The complaint can be served to the other spouse, either by agreement or, in the case of difficult circumstances, by an officer of the law. That spouse then has 30 days to file a response.
Along the way, either party can request a hearing before a judge to resolve matters of child support, custody or spousal support on a temporary basis. In rare cases, certain jurisdictions require that the parties to a divorce action participate in mediation before a temporary hearing may be scheduled.
During the initial phase of a divorce, it is important to obtain all the relevant information to:
Confirm the grounds for divorce
Determine the issues unique to each individual client’s case
And develop a case strategy for moving forward.
This process is known as “discovery.”
After obtaining the relevant case information, the parties may exchange settlement offers or attend a formal mediation, which is a process involving a neutral party, whose purpose is to, hopefully, help the spouses reach an agreement without the necessity of a formal court hearing. Such settlements include an agreement on all issues in the divorce, such as custody of children, alimony and child support, division of property, etc.
If spouses cannot come to agreement as to all of the issues, the divorce must go to trial before a judge or a jury. Although jury trials in divorce are somewhat uncommon, Georgia remains one of only a few states which allows a party to request a jury trial should they desire one.
By Georgia law, a divorce may be granted 31 days after service upon the non-filing spouse. Such short time frame typically applies only to uncontested divorces.
How long your divorce could take depends on the particular facts and circumstances of the case. That is why our process allows us, as early as the initial meeting, to identify any issues which may shorten, or lengthen the divorce process. If, for instance, the spouses cannot agree on one or more part of their divorce, for instance, alimony, child support, child custody and visitation, or if there are complex financial circumstances, we will identify such issues as the outset so that we may develop the best possible strategy for your individual case and needs.
A divorce is only finalized when booth spouses agree on every aspect of their divorce. How well the spouses work together to resolve their issues and differences has a direct effect on the length of the process, the cost to both parties, and also to the long-term relationship between ex-spouses. This latter is very important when both share custody and responsibility for their children.
How can I get through this as quickly and painlessly as possible?
The willingness and ability of the spouses to work together to reach an agreement, will directly affect the length – and cost – of the divorce.
Working to remove anger and emotion from the process, concentrating on the practical details and being willing to compromise, is key to an efficient and cost effective process.
It is important to remember that, if there are children involved, the parents will have to collaborate effectively for their care. And, if the divorce process is angry, painful and difficult, that pain will likely remain in the relationship and will affect the lives of the children. Anger and emotion may also directly affect a former spouses willingness to pay alimony and child support as required.
What about future support for me and my children?
After joint financial assets are split, there are essentially two kinds of support that an former spouse may receive: alimony and child support.
In Georgia, alimony is deemed to be “rehabilitative” in nature, meaning that it is designed to allow a spouse to become self-supporting. The duration and amount of alimony is determined by the particular facts and circumstances of your case, with each such determination made on a case by case basis. Since we practice exclusively in the area of family law however, we know firsthand the factors which contribute to an award of alimony, just as we know firsthand which jurisdictions, as well as which Judges, are more or less inclined to award alimony.
Child support is, as it sounds, paid specifically to support the children in every aspect of their daily living, including such factors such as work related child care costs, educational costs and health and medical costs and expenses. In Georgia, child support is determined based on an “income shares” model of support, meaning that each parent is responsible for contributing towards the support of the children based on his/her respective income.
If you and your spouse have children either below the “age of majority,” or of the age of majority who have not yet graduated from high school and who are currently enrolled in school, then child support is determined based on the Georgia Child Support Guidelines using the child support calculator.
If we determine that child support is an issue in your case, based on your responses to the Intake Questionnaire that we will ask you to fill out in advance our meeting, we will fully explain the child support statutes to you at our first meeting. We will take care to insure that you not only have a working knowledge as to how such laws will impact you and your children, but that you leave our office with a guideline for what you can expect to either receive, or pay, for the support of your children.
What will happen to our home and other property?
A divorce is usually the result of failure of trust between the spouses. This means that coming to an agreement on the division of assets without the help of an experienced family law attorney is unlikely, or may end up unfair to one spouse or the other. That is why is it crucial that we discuss, in detail, the particular facts and circumstances of your case so that we may help achieve the best result possible for you and your family, not just in the short term, but for the years ahead. Crucial to such decisions are questions as to how the home was purchased; whether either spouse has a pre-marital interest in the home or the funds used to purchase such home; how the carrying costs associated with the home (such as mortgage; any home equity lines of credit; utilities; HOA fees, etc.) are paid while the divorce is pending. Through discussions such as this, we work with you to consider factors related to who retains the home, less in an emotional sense, and more in the sense of a financial transaction which can help you to secure your family’s future.
We understand that the decision as to who remains in the home pending a divorce involves many variables, particularly in cases involving child custody issues. Because of this, we work with you to address the financial issues as completely as possible from the beginning, keeping in mind that who retains the home may change as the case progresses.
If you own your own business, we will help you determine how your business interests will be considered in your divorce. When necessary, we employ Forensic Accountants to assist in assessing the value of your business in order to determine what division, if any, is appropriate in connection with your divorce.
How will our debts be handled?
Often, how debts and assets will be handled relate directly to the income generated by each spouse during the marriage, as well as the respective financial requirements of each spouse while the case is pending. Perhaps the single most important financial document you will complete during your divorce process is your monthly budget, or Domestic Relations Financial Affidavit (DRFA for short). We will work closely with you to draft, revise, prepare and complete your DRFA so that you have the most accurate information related to both you needs and your expenses moving forward. Where appropriate, we enlist the aid of tax specialists, Accountants and Certified Financial Planners to help you make the best decision possible for your financial future. Your attorney will work to assure that your financial position after the divorce is as stable as possible.
What will happen to the money in our retirement plans?
How funds in a specific retirement plan are handled depends largely on what type of plan is involved. We will work with you to first determine the type of retirement plan, then we will look at when such retirement savings were earned, and whether all or part of such retirement is subject to equitable division as a result of having been earned during the marriage. To the extent any such assets were earned during the marriage, they are subject to “equitable division,” meaning they are subject to being divided between parties.
Depending on the type of retirement plan, such division may require more than simply an agreement as to how such funds are divided. If, for example, the funds are held in a 401k; 403B or such other tax deferred account, then they will require the approval, and entry, of a Qualified Domestic Relations Order. The divisions of such accounts depends also on the weight a party places on future assets, meaning assets which may not be readily liquidated without a penalty, as well as the other financial considerations. Working together, we will help you determine your short term and long term goals so that you can best determine what works for you now and down the road. There are sometimes other retirement assets, such as annuities and insurance, that must also be divided. We will help you obtain a fair share of each and every such asset so that you are protected not just today, but for years to come.
How will assets I brought into the marriage be handled?
In principle, assets you had before the marriage will still belong to you after the divorce. However, there are many complexities in this area relating to how those assets contributed to the lifestyle of the family during the marriage and several other factors. The most important thing to remember is that you need to make us aware of each and every asset you own, as well as how you came to own such asset. Arming us with all the information we need will allow us to make the absolute best recommendation for protecting your financial interests.
Where and with whom will our children live?
The legal standard for custody determinations is “the best interests of the child.” Therapists and custody evaluators may be called in to help determine this. Children ages 11 to 14 may be allowed to “weigh in” as to who their primary custodial parent will be. Oftentimes, therapists, counselors, and other professionals may be utilized in order to determine what is in a particular child’s “best interests” when it comes to custody.
We work with you to determine the various factors relating to custody, and children 14 and older can decide with which parent they wish to primarily live. Although such “elections” were historically given great weight and deference, changes in the law in recent years has clarified that the signing of an Affidavit of Election is but one of many factors the court may consider when determining which parent has primary custody.
Under Georgia law, no preference is to be given to a particular parent based solely on either the gender of that parent, or the gender of the child. Instead, the court will look to such things as which parent has historically been responsible for health and educational decisions and day to day care of the children; which parent is more familiar with the particular needs of the child; which parent is most likely to facilitate a relationship between the child and the other parent, as well as a host of other considerations, in order to determine which custodial placement in in the best interests of the child.
We understand that just as each and every child is unique, each and every parenting plan is unique. That is why we begin any divorce, or modification of custody action, by exploring the dynamics of your parenting style and that of your family in order to advise you on how to achieve your long term parenting goals.
Who will be making decisions about the children?
As any parent knows, parenting involves decisions which impact not only a child’s day to day life, but also their future . Such decisions can run the gamut from the selection of a particular school or course of study to the choice of a particular medical provider or course of treatment, and even which sports or extracurricular activities a child may be involved in.
Hopefully, you and your ex-spouse can remain friendly enough to make such decisions together but in the event that there is a disagreement, one parent must be designated as having “tie breaking” authority. That is why we firmly believe that having as much information about you and your family up front is critical to helping you to develop the most detailed and workable parenting plan not only for you, but more importantly for your child.
Can I take my children out of state?
In most jurisdictions within the state of Georgia, once an action for divorce is filed, a Standing Order is issued requiring that the parties not remove a child from the state of Georgia until such time as the action is finalized. The only exception to the Standing Order usually relates to regularly scheduled trips or vacations.
A part of most custody agreements relates to where the children live, and the access the ex-spouse has to his or her children. In most situations, part of the agreement is that the children will remain within visiting distance and in the same court jurisdiction. Any out-of-state move must be approved by the courts. However, when the primary caregiver is given full custody and the ex-spouse has no visitation rights, there is no limitation on where the children may live.