The following article, entitled "Family Law Basics for the Non-Family Law Practitioner", was published in the Georgia Bar Journal, Vol. 2, No. 3, December 1996.
Family Law Basics for the Non-Family Law Practitioner
By Jody A. Miller
Many attorneys who deal with clients on a consistent basis throughout the year, such as business attorneys and estate planners, are often asked questions by about family law. This article is intended to provide the non-family law practitioner a practical, practice tips primer on the general aspects of several areas of family law. This article should be of benefit to those attorneys not familiar with the specifics of family law but who wish to give clients some general advice before referring the matter to a family law attorney, if the situation warrants that type of action.
A. MUST (SHOULD) I MOVE OUT OF THE HOME IF MY SPOUSE ASKS ME TO?
One spouse may not force the other to leave the marital home on request. Particularly where custody issues may be involved, a parent should act only after obtaining the advice of a family law attorney before moving out of the marital home. Parents who want joint or sole custody of their children should not move out of the house too quickly. Leaving the marital home prior to a divorce would not usually be considered abandonment, but it would not be helpful to a father's case to leave the house. Until a court order is entered resolving the issue, both parties have an equal right to stay in the house, and be with and care for the children. In a custody dispute, the parent who left the house may be questioned very closely about his or her reasons for leaving the children. One of the major factors in determining custody litigation is who has been the primary day-to-day caretaker of the children, which is difficult to do when a parent is not living with the children. I usually advise clients that if there is any way to remain in the home that is what they should do. Once a parent moves out of the marital home, it can be very difficult for him or her to return; some attorneys even advise clients whose spouses have voluntarily departed that they should change the locks to prevent the spouse's return. Without a court order granting possession of the home, one spouse cannot legally prohibit the other from entering the marital home, but it is not illegal to change the locks and it makes it more difficult for the departed spouse to return.
It is also wise to consult a tax advisor before moving out. A spouse who moves out and does not contribute to the mortgage payments might not be entitled to the interest deduction on his or her taxes. Tax considerations will come into play where children are involved. Other situations that commonly call for the advice of a CPA or tax attorney are a division of the marital home, a qualified plan such as a 401(k), and alimony.
B. WHAT ARE MY REMEDIES IN THE CASE OF FAMILY VIOLENCE?
If there is a family violence situation it is often very difficult if not impossible to stay in the marital home. If the violence is not necessarily life threatening but rather is in the nature of threats, assault, or simple battery, instead of leaving the home the threatened spouse should immediately file a family violence petition with the appropriate court. Most victims of family violence file petitions pro se. Such a client should go to the Magistrate or Superior Court (check any court clerk's office to make sure which court handles family violence issues) of the county of residence of the defendant spouse, fill out a family violence petition, and swear in front of a judge that the allegations in the family violence petition are true. Upon hearing the petitioner and being convinced that his or her story is true, the judge will issue an immediate ex parte temporary restraining order, which usually prohibits the defendant spouse from coming to the house, the petitioner's place of work, or from contacting the petitioner in any other way. The defendant spouse will be served with the restraining order, and within 10 days but no later than 30 days, a hearing will be held to determine whether the order shall continue. A family violence temporary restraining order can remain in effect for up to six months, and can provide for child support, spousal support, and possession of the marital home, among other things.2 One can file a family violence petition prior to, simultaneously with, or after filing a petition for divorce. Under the family violence statute all felonies and the offenses of battery, simply battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, and criminal trespass constitute family violence.3 Most judges will not grant a family violence petition and restraining order unless the violence is recent, and each judge has his or her own definition of what "recent" means. Usually the violence must take place within the few weeks or months immediately prior to filing the family violence petition.
If the violence is severe or life-threatening the parent should seriously consider leaving the home and taking the children. The best place to go is usually with a family member or close friend who has the room temporarily; if this option is not available, then the petitioner should contact one the many resources available for counseling and temporary shelter. Of course, the spouse who has been the victim of violence should also file a family violence petition in addition to leaving the home.
Calling the police to report the family violence is another option in the case of severe or life-threatening violence, or even in the case of assault or battery, which are criminal violations. First, however, a complaining spouse should contact an attorney and be advised as to the differences between a civil and a criminal action. There are advantages and disadvantages to both. For example, a criminal action is prosecuted by the state, therefore the complaining spouse need not hire (and pay for) a private attorney, but the burden of proof is higher in criminal cases, and the defendant spouse may plea bargain to a level that not satisfactory to the complaining spouse. A state prosecutor might also decide, for any number of reasons, not to go forward with prosecuting the case. In the civil arena, the burden of proof is less, and the complaining spouse might have a little more control over what he or she would like to ask the court to do; however, the civil arena is more expensive because the complaining spouse has to hire a private attorney to pursue the action.
C. I'M NOT SURE I REALLY WANT A FINAL DIVORCE; CAN I GET A LEGAL SEPARATION?
In Georgia, there is no such thing as a "legal separation." The two options available to parties who wish to obtain a court order dealing with separation issues are a suit for separate maintenance and an action for divorce. There are important distinctions between a suit for separate maintenance and a suit for divorce. One important difference is that a suit for separate maintenance has no residence requirement, whereas in a suit for divorce the petitioner must be a resident of Georgia for a minimum of six months prior to filing the divorce petition.4 Therefore, if a couple has recently moved to Georgia and shortly thereafter separated, one way to establish spousal and child support quickly without waiting for six months is an action for separate maintenance.
A suit for separate maintenance may also be appropriate as a long-term arrangement when the client, for personal reasons, wants to live separately and receive spousal and child support and custody, but does not want to file for divorce. However, a suit for separate maintenance usually does not address the issue of property or debt division.5 Further, a suit for separate maintenance must demand only permanent alimony, not temporary alimony, so that a suit for separate maintenance in which alimony is awarded could bar a further alimony award in a subsequent divorce action.6 Another drawback is that the parties usually end up wanting to get a divorce anyway, so the client pays twice -- once for the separate maintenance suit and once more for the divorce suit.
D. CAN I GET SUPPORT FROM MY SPOUSE WHILE I WAIT FOR THE DIVORCE TO BE FINAL?
In a contested divorce, a temporary hearing can be requested by the filing spouse to address the issues of temporary alimony, child support, custody, attorney's fees, and possession of the marital home until the final hearing. The temporary hearing can be placed on a calendar rather quickly, sometimes within a few weeks of the filing of the petition for divorce. Temporary alimony and attorney's fees are essentially the same thing -- an award of temporary support for the purpose of "leveling the playing field" and allowing each spouse an equal financial opportunity to litigate the case.7 The merits of the case are not at issue;8 temporary alimony, including attorney's fees, expenses of litigation and child support, are designed to allow a spouse to effectively contest the issues and protect his or her interest in the pending divorce proceeding.
A spouse who wishes to request temporary alimony should be advised that uncondoned adultery or abandonment is a bar to temporary alimony, and also that a prior agreement for support from the other spouse will bar entitlement to temporary alimony.9 Temporary alimony may be in the form of cash payments, the payment of household bills, in-kind payments, or use and possession of the other spouse's property, and can include temporary possession of the marital home.10
The custody issue should be taken very seriously in the temporary hearing because it could affect the award of the marital home, and also could set the stage for a developing custody dispute as the case progresses. When custody is at issue, it is not unusual for the spouse retaining physical custody of the children to be awarded possession of the marital home; not too many judges would force a custodial parent and the children out of the home in which they have been living as a family; continuity is important to a lot of judges at this stage, and uprooting children from their home is unusual. If the children seem well-adjusted during the period of temporary custody, the judge might decide not to significantly change the custody provisions from the temporary to the final order. Judges sometimes do not want to upset the status quo when it comes to children, and if the divorce litigation takes a significant length of time, the children might become very settled, and the judge could be less willing to vary from the temporary decision.
Whether temporary alimony is awarded, and the amount, is within the discretion of the judge. If both parties have a roughly equal estate, leaving both on equal financial footing when it comes to litigating the case, temporary alimony might be refused. Some factors judges might consider are the needs of the requesting spouse and children, social standing, existing comforts and standard of living, and the factual cause of the separation. A judge has the power to award temporary alimony from the date of separation, prior to the filing of the petition for divorce, to the date of the final judgment.11 A judge may not make a final adjudication of property rights in a temporary hearing.12
The rules of evidence are more relaxed in a temporary than a final hearing. For example, hearsay is admissible at a temporary hearing. The witnesses are limited to the parties involved plus one additional witness for each party. Additional testimony is presented through affidavits or depositions. In custody disputes, parents can use the affidavits of teachers, coaches, neighbors, friends, and others. It is a good idea to request a temporary hearing as soon as possible, particularly if one party fears the other may remove the children from the jurisdiction or dispose of property. In addition, if a temporary order is favorable to your client, the other party may feel considerable pressure to settle the case or may realize that his or her expectations are unreasonable. Temporary hearings should be brief, reasonable, and uncomplicated. This is the time to make sure that the judge forms a favorable first impression of your client. Tell the judge exactly what your client wants. If there are issues that need explanations by an expert, such as tax consequences or custody issues, present this testimony through as many affidavits as needed.
E. MY SPOUSE DID NOT WANT ME TO WORK WHILE WE WERE MARRIED; WON'T HE OR SHE HAVE TO PAY ME ALIMONY?
Permanent alimony differs from temporary alimony in that permanent alimony is an award of one party's separate estate for the support of the other when living separately.13 Permanent alimony is awarded in accordance with the needs of the requesting spouse and the ability of the other spouse to pay,14 and it may be awarded in cases of divorce, voluntary separation, or abandonment. A custodial parent will almost always receive child support in a contested case; the issue of alimony is not as clear. Other than in cases of adultery or abandonment, which are a bar to alimony,15 any spouse can ask for alimony. In such a case, the court should consider the conduct of each party toward the other.16 Again, if support provisions have already been made through a prior agreement between the parties, permanent alimony might be barred; this is a significant consideration that clients must be aware of.
O.C.G.A. § 19-6-5 sets forth the factors to consider in determining the amount alimony awarded: "(1) The standard of living established during the marriage; (2) The duration of the marriage; (3) The age and the physical and emotional condition of both parties; (4) The financial resources of each party; (5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him [or her] to find appropriate employment; (6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party; (7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties, and (8) such other relevant factors as the court deems equitable and proper". Standard of living and position in community are also factors. The amount of alimony awarded must reflect the needs of the requesting spouse and the ability of the obligated spouse to pay, however, and when using the above guidelines to determine the amount of alimony the fact finder must not make an award inconsistent with need or ability to pay.17 Many attorneys are of the opinion that today, alimony is getting more difficult to win; if the marriage is short-term, there are no children, and both parties have the ability to support themselves separately, the battle for alimony may be uphill. In the case of an extreme financial difference between the parties, so-called "rehabilitative alimony" may be awarded, which is short-term alimony for the purpose of allowing the less fortunate spouse to have time to get back on his or her feet -- get a job, go back to school, etc.
Permanent alimony can be lump-sum or periodic,18 and attorneys should be aware of the consequences of each. Periodic alimony ceases upon remarriage or death of the payee spouse unless otherwise stated in the order,19 whereas a lump-sum award does not.20 Also, periodic alimony is generally modifiable, whereas lump-sum alimony is not.21 In-kind alimony (lump-sum alimony awarded in the form of property, rather than cash payments) also is not canceled by remarriage of the parties.22 There are differences in the tax consequences of the two forms; a tax practitioner should always be consulted.
Voluntary cohabitation of the payee spouse with a third party in a meretricious arrangement is grounds for the cessation of alimony,23 although it does not require cessation.24 Practitioners are strongly cautioned to consult the latest case law on the subject of meretricious relationships; there is often disagreement as to exactly what a "meretricious" relationship is, and an obligated spouse who unilaterally decides to cease alimony payments upon perceiving that the payee spouse is "living" with someone else does so at his or her own risk.
From the viewpoint of the obligated spouse, alimony should almost never be awarded as a joint payment to children and spouse. The obligated spouse may want to prorate the amount of alimony when the children reach majority, but where there is no mathematical basis for proration, proration is not possible.25 The obligated spouse will have to pay the same sum indefinitely.26 However, a joint award may be modified based on changed financial circumstances, and may also be modified from a joint award to a per capita award.27 In order to avoid confusion (and an unhappy client in the future) it is always very important to clearly distinguish alimony from child support in the order.
F. DO I HAVE TO PAY CHILD SUPPORT IF MY SPOUSE IS WILLING TO WAIVE IT?
One of the most controversial areas of family law is child support. Minor children are entitled by law to the support of both parents,28 and one parent cannot contract away the right of a child to receive child support; the support belongs to the child, not the parent.29 In general, the noncustodial parent will be ordered to pay child support in some amount. While the outcome of any litigation is never predictable, I do not know of any judge that will approve an agreement between divorcing parents that does not provide for child support; in fact I have seen judges require even parents on public aid to make child support payments. The legislature has recently tightened the requirements on judges deciding cases involving child support. Even in divorces that begin and remain uncontested, the judge must make specific findings in the final judgment and decree as to the income of both parties, and that the child support is within the state guidelines.30 There must also be a finding of fact as to the existence or non-existence of special circumstances justifying an award of child support outside the guidelines.31
G. HOW IS THE AMOUNT OF CHILD SUPPORT DETERMINED?
The statutory child support guidelines establish a rebuttable presumption that an award of child support is correct based on a percentage of gross income paid by the obligated parent. For one child, the percentage is 17% to 23% of his or her gross income for child support; for two children, the range is 23% to 28%; for three children it is 25% to 32%; for four children it is 29% to 35%; and for five or more children it is 31% to 37%.32 The applicable code section, O.C.G.A. § 19-6-15, sets out the guidelines, and also lists several factors which might be used to convince a judge that the child support should be set below (or above) the guidelines.
It is important for attorneys to be involved and creative in the process of determining child support when trying to help the parties reach an agreement. Although most judges will not approve an agreement without any child support at all, I have seen judges approve a child support agreement where the payments are as little as one-half to two-thirds the suggested guideline amount, but only where the statutory exceptions are carefully enumerated and substantiated in the agreement, as well as in the final judgment and decree. Factors such as shared custodial arrangements, high income of the custodial parent, high debt structure of the non-custodial parent, high visitation and transportation expenses, special medical or educations needs of the children, and historical spending on the children at great variance from the guidelines are commonly cited exceptions.33 Attorneys of obligated parents should also attempt to have the amount of monthly child support reduced by the amount of any health and medical insurance premiums that the obligated parent is ordered or agrees to provide.
Obligated parents also need to know that "extras" voluntarily provided to children by non-custodial parents, such as gifts, allowances, clothes, and money for extracurricular activities, cannot be deducted from monthly child support, and there is no right to a "credit" against future child support for voluntary overpayments.34 Parties who informally vary from the child support order without prior court approval, even by mutual agreement, run the risk that the agreement will later be disapproved by the court. Clients should be warned that it is very dangerous legally to vary from the child support order. An obligated parent who acts in reliance on an agreement to lower or even abolish child support may find that the ex-spouse has filed a contempt petition for non-payment of child support and that the agreement is not valid and unenforceable. An informal agreement between the parties to modify the custody order so that the non-custodial parent assumes custody and is relieved from child support is also highly risky. The parent having the child currently living with him or her is still technically obligated to pay child support to the other parent according to the court order. If there is an agreement by the parties to modify the original custody or child support order, it must be submitted to and approved by the court, or the original order will likely be enforced.
Generally, absent agreement to the contrary, child support is payable until the child reaches the age of majority (eighteen years in Georgia), is emancipated, or marries. The death of the obligated parent extinguishes the obligation for child support, absent an agreement otherwise, and the death of the custodial parent automatically vests custody in the surviving parent.35 A court cannot require a parent to support the child beyond the age of majority (i.e., provide for a college education)36 although a parent can agree to do so and will be bound by such agreement,37 nor can a parent be ordered to place funds in a trust during the child's minority for use after the child reaches the age of majority.38 A parent can be required to pay child support until the child reaches the age of twenty years, as long as the child is still attending secondary school.39 If child support is awarded to multiple children as a group, it cannot be prorated as each child reaches the age of majority; therefore, from the viewpoint of the obligated spouse, child support should always be payable as a certain amount per child per month (or week) rather than one group award to all of the children.
H. THE HOUSE IS IN OUR NAMES JOINTLY, BUT I MADE ALL THE MORTGAGE PAYMENTS FROM MY SALARY BECAUSE MY SPOUSE DOES NOT WORK; DONT I GET TO KEEP THE HOUSE?
Property division is another sometimes hotly contested and controversial area of family law. Georgia is not a community property state, but Georgia recognizes the concept of marital property and requires that such property be "equitably" divided upon divorce.40 If the parties cannot agree on a property division, the judge (or jury) will decide on the division of marital property in a manner deemed fair or equitable; property is not necessarily divided "50-50", as it is in a community property state.
The first step in property division is to determine what assets are marital property. This is not always as easy as it sounds. A general rule is that whatever the parties acquired during the marriage is marital property subject to equitable division, whereas each party's separate estate consists of the assets they brought into the marriage and is not subject to equitable division.41 While this can sometimes be fairly straightforward, such as an automobile purchased before the marriage and completely paid for and maintained by that party, it can also be complicated and not very clear. For example, one party may have purchased a house before the marriage but after the marriage the other party invested significant amounts of time or money in maintaining or improving the house or making mortgage payments. Marital property funds that are added to a pension plan, 401(k), or IRA begun before the marriage may also present difficulties. Another complicated situation is that of personal injury claims arising during the marriage. As a very general rule, a personal injury award for economic damages (lost wages, medical bills, etc.) is marital property, while an award for pain and suffering is considered that spouse's separate estate.42
The status of property as separate or marital may be altered by the intentions of the parties. Generally, property acquired by one spouse alone by inheritance or gift is that person's separate property, even if acquired during the marriage.43 As in most areas of the law, there are exceptions to these general rules, and that, coupled with the amount of discretion judges and juries have in property division, can make litigation involving property division very research-intensive and unpredictable, and sometimes unwise to engage in. There is a lot of case law considering the subject of what is and what is not marital property, and usually the best a lawyer can do is find the case law that supports his or her position and make the strongest possible argument. Reasonable, equitable, common-sense arguments seem to go a long way toward convincing judges, rather than case law alone.
Any property that is not mentioned in an agreement or a final judgment and decree remains titled as it was before the divorce.44 For example, a boat that was titled in the name of both parties and not specifically dealt with during the litigation remains titled in both names; if it was in the name of one spouse alone, it belongs to that spouse after the divorce. Attorneys should be very careful to deal with all property during a divorce; it could make for a very bad situation if, after a hotly contested divorce, the parties find that they unwittingly remain "partners" in ownership of an asset, or if one party is left without an asset he or she feels entitled to but will not receive because it is titled in the other spouse. in negotiating an agreement, it should always be stated that each party understands that all property in their respective possession at the execution of the agreement will remain as is. If that is not the intention of the parties, any property still remaining to be transferred after the execution of the agreement should be mentioned specifically in the agreement.
"Where equitable division of property is an issue, the conduct of the parties, both during the marriage and with reference to the cause of the divorce, is relevant and admissible."45 Certain conduct, however, is not a bar to equitable division, as it might be to alimony. For example, a spouse engaging in adultery, or with "unclean hands," is still entitled to equitable division of property.46 Evidence of conduct of the parties during the marriage is admissible and relevant on the issue of whether to grant alimony.47 There is a distinction, however, between evidence of conduct during the marriage, conduct causing the parties to separate, and post-separation conduct. Post-separation conduct is most likely to be considered relevant only if it prevented reconciliation. The spouse seeking alimony is barred entirely if he or she has engaged IN uncondoned adultery or desertion that caused the separation.48
I. MY SPOUSE HAS TAKEN MONEY OUT OF OUR JOINT CHECKING ACCOUNT TO PAY FOR HIS OR HER LAWYER, BEFORE I WAS TOLD ABOUT THE DIVORCE; IS THIS LEGALLY PERMISSIBLE?
According to the joint bank account statutes, a joint owner of a bank account cannot "take" the contributions of another owner of the account; each co-owner of a joint bank account is entitled to his or her own contributions.49 Practically, however, there may not be a satisfactory remedy for the spouse that alleges that his or her own funds were taken from the joint account. The wronged spouse may have to track the entire history of the account to show the origin of the contributions. If the account had been in use for any length of time with a significant number of deposits and withdrawals it would probably be impossible to track the funds in a way that would separate the contributions made by the parties. The best practical remedy might be to litigate the issue of property division during the divorce proceedings and try to argue that a certain transfer was fraudulent, or that the confiscation and use of jointly-held property by one spouse should be considered when dividing the remaining property. Once a divorce petition is filed each party is prohibited by statute from transferring personal property, other than in the payment of preexisting debts.50 This restriction applies to real property only if a lis pendens notice is filed during the pendency of the divorce.51 An attorney who is unaware of the need to file a lis pendens notice may risk a bar complaint or malpractice claim for allowing real property to be sold or indebted after a divorce petition is filed. Many judges supplement the statutory protection against property transfers by issuing a standing order at the time a divorce petition is filed that specifically prohibits the parties from transferring property or removing children from the jurisdiction.
Family law is constantly evolving, highly emotionally charged, and deals with extremely private and sensitive issues. The reality is that fact finders (whether juries or judges) are people with their own experiences and sense of what is fair and equitable, and litigation concerning such issues as custody, alimony, and property division can have surprising and unpredictable results. As with most litigation, it is usually far better when the parties can come to some agreement on all the issues rather than subjecting themselves to the uncertainty of the courtroom.