You and your ex-spouse had a “dream” divorce.   There was no yelling, no name calling, no arguments regarding the kids, parenting plan or child support.  Heck, your Ex didn’t even have an issue refinancing the house and getting you off the mortgage and the deed.  Neither of you wanted alimony, but you sure did appreciate him/her offering to pay off that $10,000.00 credit card bill in your name that you both ran up during the marriage.  Things went so smoothly, you never even thought about getting an attorney.  You and your Ex went to the court’s website, printed and filled out the paperwork and filed it.  A couple of months later, your divorce was finalized, and the Judge signed an order incorporating your “filled in” Settlement Agreement, including the paragraph about the credit card bill.  Ah, SWEET FREEDOM!

 It’s been a year (or two) and you’re finally ready to get that new house, car or furniture you’ve been waiting for.  The finance guy comes back into the office… “Mr./Mrs. Smith, I’m sorry but we can’t approve your mortgage (car loan, credit card application).  You’ve got a rather substantial delinquency on your credit report.”  Your eyes get big as you scan over the credit report the finance department just pulled on you.  You lose your breath and shout, “That’s impossible!  The only credit card I ever had…” Your voice fades out when you realize that your oh so helpful ex-spouse hasn’t paid the credit card bill for several months.  You knew he/she had some recent financial issues, but since they hadn’t brought it up, you assumed the credit card bill was still being timely paid.  You call your Ex and question them about the credit card payments.  “Sorry, I have other more important bills to pay right now,” they say.  They go on to add, “I gave the credit card company your information so you can deal with them directly.”  You hang up the phone in shock and ask yourself,   “Now what am I going to do?!”

The family law attorneys at Stearns-Montgomery & Proctor deal with these types of situations on a regular basis.  Your remedy for relief would be a Motion for Contempt against your Ex, usually filed in the county where the actual divorce took place.  Contempt is defined by Georgia Divorce, Alimony and Child Custody as “a ‘willful’ refusal to comply with a judgment or order of the court.  In other words, once the Judge in your case signed the Order, both you and your ex-spouse became legally obligated to comply with the terms set out in the Settlement Agreement you signed.  A contempt action can apply to an action (or inaction) of your Ex, including, but certainly not limited to visitation or parenting issues, or to monetary issues like the non-payment of alimony, child support, and yes, even that pesky credit card bill.

 O.C.G.A. §19-6-28(a) states that the Court has “the power to punish the respondent who violates any order of the court…”  Once one of our caring family law attorneys has tried to settle the matter with your Ex outside of court, if the matter remains unresolved, the more aggressive action of filing a Motion for Contempt can be pursued.  Millner v. Millner, 260 Ga. 495 (1990), Killingsworth v. Killingsworth, 286 Ga. 234 (2009), Paisley v. Huddlestun, 244 Ga. 418 (1979), and Beach v. Beach, 224 Ga. 701 (1968) all deal with various types of contempt actions.  Some examples of contempt from these cases are:  non-payment of bills or marital debt, failure to pay gift tax liability, failure to pay equity due to the other party from the marital home, and failure to pay attorney fees.

 Additionally, there may be other questions regarding the credit card you need addressed.  For example, “Will the credit card company honor our divorce decree?”, “What do I do if the credit card company sues me when my Ex is responsible for paying the bill?”, or “I went ahead and paid off the credit card myself, does that mean my Ex is off the hook?” Stearns-Montgomery & Proctor  has attorneys in our offices that can help you answer all of these questions, give you legal advice on how to deal with a credit card company or a 3^rd party collection agency, and any other issues which may arise if your Ex isn’t holding up their end of the divorce decree. 

 Special thanks to Atlanta Family Law Attorney Janné Y. McKamey for her contributions to this article.  If you have questions about what to do when your ex-spouse doesn’t pay those marital debts as ordered to by the court, contact Ms. McKamey today about your case.  770-426-1148

If you relocated to Georgia with your ‘significant other,’ a Georgia court may find that even though the two of you never had an official ceremony or obtained a marriage license, he or she may still be your “husband” or “wife” – and entitled to all the benefits and burdens that come along with the title.

Recently, in Norman v. Ault, No. S10F0874, the Georgia Supreme Court emphasized that despite the statute that discontinued ‘common law’ marriages created within Georgia after January 1, 1997, Georgia courts still enforce ‘common law’ marriages “established under the laws of another state.”

The case involved Debbie Jean Ault and James A. Norman, whom, at least according to Debbie, had entered into a ‘common law’ marriage in Alabama, before they relocated together to Georgia. 

Though they never officially married, in her case against her former beau, Ms. Ault sought a “divorce, alimony, and an equitable division of the parties’ assets and debts.”  At trial, Debbie presented evidence that the parties had cohabitated (during which they shared a bedroom and split the household chores), had publicly referred to each other as the other’s “spouse,” and had engaged in sexual relations exclusively with one another.  At one point, it even appears that a deed had been executed, in which property was conveyed to Mr. Norman, his daughter, and his “Wife, Debbie J. Norman.” 

Though James vigorously disagreed that these facts suggested that the parties had entered into a ‘common law’ marriage, the court found that, in light of all the evidence presented that Mr. Norman had, in fact, intended to enter into such a marriage in Alabama.  Ms. Ault was awarded $54,000 as lump sum alimony.

Based on Georgia law, if you relocated here from a jurisdiction that recognizes ‘common law’ marriages, you may still found to be in such a marriage.  Whether a Georgia court will find that your relationship rises to the level of a ‘common law’ marriage depends on the particular facts of your case and the law of the state/country in which your ‘common law’ marriage was potentially created.  Keep in mind that even if you did not relocate to Georgia from elsewhere, you may still have a ‘common law’ spouse if your relationship pre-dates January 1, 1997.

Presently, in the U.S., common law marriages can be created in Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, Texas, and the District of Columbia.

Contact one of our Atlanta Family Law Attorneys  if you need assistance in assessing your potential rights and responsibilities in light of Georgia’s stance on ‘common law’ marriages. 

*Special Thanks to Candice Blain for her contribution to this article*

In a highly unusual move, a judge ordered a mother jailed for interfering with ex-husband's visitation with his children. In Lauren R. v Ted R. Justice Robert Ross ordered to the mother to report to jail for repeatedly violating the...

 View the full post by clicking this link:

  http://divorce.clementlaw.com/2010/06/articles/child-custody/mother-jailed-for-alienating-daughters-from-dad/

  I think courts should take this step prior to the relationship being irreversibly damaged, as is seemingly the case in this instance.  I would imagine that once parental rights have been interfered with more than 3 or 4 times, courts should look seriously at jail time for this type of flagrant contempt, perhaps starting with one night per instance of interference. Please share your comments.

 *Special Thanks to Family Law Attorney Janne McKamey for her contribution to this article.

Call today to speak with one of our Atlanta Child Custody attorneys about your case! 

YOU GOT SERVED!!  What does it mean to be “served” according to Georgia law and what do you do if you are served with process?   

  Every civil lawsuit (including domestic relations cases such as divorce and child support modification) requires what is called service of process.  The purpose of service is of course, to notify the person being sued, also known as the “Defendant” or “Respondent,” that a lawsuit has been filed against him or her and that some response or defense is necessary to protect his or her legal rights.  This right to notice is known as “constitutional due process” or “due process of law.”    

 In order to obtain personal jurisdiction over a Defendant, the lawsuit must be personally served on the Defendant by a sheriff’s deputy or a qualified process server.  In cases that are not contested or where the Defendant is made aware that a lawsuit is pending, the Defendant may choose to sign an acknowledgment of service forgoing the potential embarrassment or humiliation of being served by an official looking “process server” or sheriff’s deputy.   

 Once a Defendant is served with the lawsuit, he or she should seek legal counsel immediately to ensure that a proper responsive pleading is filed.  Georgia law specifically provides that a party that fails to file a responsive pleading after service is deemed to waive his/her right to all future notices, including notices of time and place of trial and entry of judgment.  In plain language, if you do not file a responsive pleading the other party will go to the judge and get whatever relief  they are requesting, whether they are entitled to it or not.  Once a judgment is entered, it can be difficult to get it set aside, even if it is unfair or blatantly factually incorrect. 

 It is extremely important to retain or at least consult with an attorney if you are served with legal papers.  In most cases if you are served with a lawsuit, whether the suit involves divorce, money damages, injunctive relief, pain and suffering, or any other claim under the law, the clock starts ticking on the date of service and you have a limited time, usually thirty (30) days, to take the appropriate response.  While it may seem expensive, intimidating, or inconvenient to seek legal advice or representation just because another individual has decided to file a lawsuit against you, it is important to recognize that failing to properly respond could have a significant negative effect on your life (a judgment for damages, child support, child custody, etc.).  Further, even after you are served it is important to take appropriate action to make sure that all other parties to the lawsuit are notified of your defenses and to make sure that you receive notification of all future court proceedings. 

Special thanks to Family Law Attorney Jordan Hendrick for this contribution to this article. If you have been served, contact Mr. Hendrick today about your case. 770-426-1148

House Bill 1055 adopted by the Georgia House of Representatives and the Georgia State Senate and signed into law May 14, 2010, by Governor Sonny Perdue caused all court costs to increase effective that day.

 Pursuant to the above, attached please find a list of court cost fee increases from the Fulton County Daily Report, the Fulton County’s official court record.

In summary, the court costs increased as follows:

• ·         An additional fee of $125  will be added to the existing court filing fee in both the superior and the state courts.  Each county in the superior court system charges a different court filing fee.  Consequently, the new filing fee is the existing fee plus $125.00 with the total varying by county;
• ·         The fee to file a civil matter in magistrate increases to $22 per case from $20 per case;
• ·         The fee to prepare a record and transcript to the Georgia Supreme Court and the Georgia Court of Appeals increases to $10.00 per page from $1.50 per page;
• ·         The fee for a sheriff to serve a copy of the process and return the original in civil cases increases to $50.00 per copy from $25.00 per copy;
• ·         In probate court, a petition or motion for attorney’s fees increases to $70.00 from $50.00;
• ·         Uncertified copies of documents in superior court increases to $0.50 per page from $0.25 per page.

 While we are shocked and appalled at the fee increase, we are required by law to comply.  

Special thanks to Cheryl Rogers for her contribution to this article.

Are Prenuptial Agreements enforceable in Georgia?  (Part II of a II Part Series)

 As usual, the best way to illustrate the current state of the law is to give an example by way of recent precedent.  One particularly illustrative case is Mallen v. Mallen, a case decided by the Georgia Supreme Court in 2005.  In Mallen, the Supreme Court upheld a prenuptial agreement after an in-depth examination of the facts on the record, which were fairly sympathetic and arguably in favor for the wife to set the agreement aside. 

 In Mallen, the Husband filed for divorce after eighteen (18) years of marriage and four children and requested the trial court to enforce the prenuptial agreement between the parties.  The facts showed that the Husband, who was a wealthy and educated businessman, and the Wife, who was a hostess at a restaurant and had a high school education, had lived together for about four years (unmarried) when the Wife got pregnant with their first child.   While the Wife was at a clinic to terminate the pregnancy, the Husband called her and asked her not to go through with it and to marry him instead.  The Wife agreed and left the clinic.

 A few days later, and ten (10) days before the planned wedding, the Husband asked the Wife to sign a prenuptial agreement prepared by his attorney telling her the agreement was “just a formality” and that he “would always take care of her.”  The Wife took the agreement to an attorney whom the Husband had allegedly paid to review the agreement but the attorney did not have time to give it his full attention before the wedding. 

 As a result, the Wife then met with the Husband and his attorney on her own (e.g., without legal representation) about the agreement on more than one occasion.  The Wife ultimately signed the agreement after a life insurance benefit was increased and alimony provisions were modified slightly.  At the time of the agreement, it was undisputed that the Wife had a net worth of approximately $10,000.00 and the Husband had a net worth of approximately $8,500,000.00.  In 2002, when the Husband filed for divorce, the Husband’s net worth had increased to $22,700,000.00.  Nevertheless, the agreement only provided alimony in the amount of $2,900.00 a month for four (4) years.  Further, the agreement provided that the Husband was entitled to all the assets with which he entered the marriage and all assets accumulated during the marriage.  Significantly, the agreement also contained a financial statement that set out the Husband’s assets and liabilities (but not his income). 

 The trial court upheld the agreement and the Supreme Court affirmed.  The Supreme Court found

 (1)        That there was no fraud (the Wife should not have relied on the Husband’s statements but on the plain meaning of the agreement she signed);

(2)        That there was no duress (the “threat” of not going through with the wedding was not enough);

(3)        That there was a sufficient disclosure of assets even though the Husband did not disclose his income because it was evident from the four years of living together and the Husband’s assets on his financial disclosure that he was a wealthy man of means;

 (4)        The agreement was not unconscionable just because of the great disparities in the financial status and business experience of the parties (or because the Wife did not have an attorney); and

 (5)        That the fact that the Husband’s net worth increased by 14 million dollars during the marriage was not a change of circumstances as to render the enforcement of the agreement unfair or unreasonable because the Wife could have easily anticipated that the Husband’s wealth would grow over the ensuing years (the continued disparity of their respective financial conditions was foreseeable). 

 In light of this case, it is apparent that yes, a Georgia court will indeed uphold a properly drafted prenuptial agreement, even one presented at the 11^th hour that allows for a party with significant assets to maintain essentially all of his/her wealth while providing a minimal amount of support for the other party.   

*Special thanks for Atlanta Family Law Attorney Jordan Hendrick for his contribution to this article.

Click here to listen to Atlanta Child Custody Attorney Mary Stearns-Montgomery on parental alienation!

 It seems that whenever a client calls to inquire about a prenuptial agreement (also known as an antenuptial agreement), that their initial concern is whether such an agreement will hold up under judicial scrutiny.  Recent case law answers this question with a resounding “yes”….as long as the agreement is drafted prudently by a knowledgeable attorney. 

 Until 1982, prenuptial agreements were rejected by Georgia courts as a matter of law because they were deemed to be contrary to public policy.  This changed with the landmark Georgia Supreme Court decision of Scherer v. Scherer, in which the Court held that due to certain undeniable changes in societal norms (i.e., the advent of “no fault divorce” and the increased percentage of marriages ending in divorce), the Court could no longer justify this strict rule invalidating all prenuptial agreements.  Instead, the Court determined that persons may establish their rights by contract prior to marriage as long as certain prerequisites are met. These prerequisites are referred to as the “Scherer factors” or the “Scherer test.” 

 The Scherer factors are:

 (1)        Was the prenuptial agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts?

 (2)        Is the agreement unconscionable?

 (3)        Have the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair and unreasonable (and were any changes in circumstances foreseeable)? 

 While these factors may seem daunting upon initial review, case law has appeared to prove over time that courts will review the factors with an eye towards enforcing the agreement as long as a “full and fair” disclosure of the parties’ financial condition (including income) is made prior to execution of the agreement.  The Georgia Supreme Court has even suggested that a “fairly simple and effective method of proving disclosure is to attach a net worth schedule of assets, liabilities, and income to the agreement itself.” 

 In other words, it appears that the most important step in making sure the prenuptial agreement will be enforceable down the road is to make sure that before signing the agreement, you can prove that both parties had a “general idea of the character and extent of the financial assets and income of the other.”  If this is done properly, then it would be rather difficult for a party to later make a persuasive argument for fraud, duress, mistake, nondisclosure, misrepresentation, unconscionability, or unreasonableness. 

 In particular, it is worth pointing out here that the burden to show duress or unconscionability is especially high in our state.  For duress, the law is well-settled that the mere fact that one party insists on a prenuptial agreement as a condition of marriage does not constitute duress that would void an agreement.  Contrarily, to succeed on a claim of duress, a party would have to show threats of bodily or other harm, or other forms of coercion that would actually overcome the mind and will of the other person and induce him or her to sign the agreement contrary to his or her own free will. 

Further, in order to show that a contract is unconscionable, a party would have to show that the prenuptial agreement between the parties is one that “no sane person not acting under a delusion would make and that no honest person would take advantage of.”  In this regard, it has been specifically held that a prenuptial agreement will not be rendered unconscionable just because it perpetuates an already existing disparity in the financial condition of the parties prior to marriage.  

Your ex-spouse may still be a beneficiary of your estate.  Have you changed all of your beneficiary designations? – Whether it is for your retirement benefits or your life insurance, if you don’t remember to change your beneficiary forms when you get divorced your spouse will remain the beneficiary. 

It goes without saying that it is important for your divorce lawyer to carefully craft a settlement agreement to submit to the court in your divorce case so that the agreement accurately reflects the intentions of you and your spouse.  However, when it comes to your life insurance policies and employee benefits such as retirement plans, stock plans, and life insurance proceeds, while your lawyer may be able to include certain protective language in your agreement, it is up to you to ensure that your benefits are distributed properly.  You can do this by contacting your benefit provider and filling out the requisite forms to change your designated beneficiary so that your ex-spouse is no longer listed as the person to receive the benefits in the event of your death.  While the divorce is pending you are typically prohibited from doing this.

 I have seen several cases where a party to a divorce passes away after the divorce without having remembered to change their designated benefit beneficiary forms.  Unfortunately, due to a complicated set of Federal laws known as ERISA, in all likelihood the benefit company is going to distribute the deceased spouse’s benefit proceeds to the ex-spouse REGARDLESS OF WHAT THE DIVORCE SETTLEMENT AGREEMENT SAYS.  Under Federal law, the benefit company is essentially only required to pay out any accrued benefits to whoever is named on the company’s forms, even if that person may have waived his or her right to the benefits in a divorce proceeding.  After the benefits are distributed, the estate of the deceased spouse then has to sue the ex-spouse to claim the benefit proceeds under the divorce agreement. 

 If the attorney carefully worded the divorce agreement then Georgia law is clear that the ex-spouse must give the money back to the estate.  However, because of the ERISA loophole there is the potential the ex-spouse will have the opportunity to spend all the money before the estate takes legal action, if the deceased spouse never got around to changing his or her beneficiary forms.  Further, if the divorce agreement was not drafted properly – that is the agreement did not include an “explicit waiver of [a] party’s interest” – then there is always the chance the courts will rule in favor of the ex-spouse. 

 This entire headache can be avoided if you remember to change your beneficiary forms so that your benefit company knows exactly who you want your benefits paid to in the event of your death.  As previously mentioned, this is one aspect of the divorce process that your attorney cannot handle for you.  If you do not know who to put as your beneficiary, contact a trust and estate planning attorney who can advise you or some alternate options. 

 

Thirty years is the initial term of most mortgages, so in a divorce situation it is generally of utmost importance for both parties to reach an agreement that specifically establishes a workable method to dispose of the marital mortgage.  The idea is to not only to legally separate yourself from your spouse, but also from all marital debt so that you can start your new life without worrying about previous obligations. 

Unfortunately, getting released from liability for the mortgage is a problem, especially in today’s market.   And when a divorce is added to the equation, it becomes even more complicated because (1) the courts become involved and must approve the basic terms for any future sale or refinance of the marital home; and (2) bankruptcy laws surrounding divorce obligations have gotten stricter over the past few years. 

Unless the parties agree to sell the marital residence together at the time of the divorce or separation, one party or the other will be awarded possession and legal title to the house subject to the mortgage in both parties’ names.  The party no longer having possession or title to the marital residence is still liable for the mortgage until the mortgage is paid off by virtue of a refinancing or sale.  That means both parties’ credit will continue to reflect this debt and be affected by the possibility of late payments even though only one party will have the right to reside in the house.  For this reason, it is important for both parties in a divorce to carefully consider their options as to potentially satisfying the marital mortgage by agreement before jumping straight into court.

 Typically it is not unreasonable for both parties to agree that the person with possession of the marital residence “shall refinance the mortgage on the marital residence releasing the other party from liability”.  However, simply including a provision to refinance the marital residence is not enough.  Here’s why:

The Courts are limited in their power to enforce such a provision.  The remedy for the trial court is simply.  Either:

 1. A hefty fine each day until the mortgage is refinanced.  (I have seen as much as $1500 per day suggested by the Court) 

 2. Incarceration in the local jail until the refinancing is completed.

Neither party wants either of these results.   Be sure your attorney drafts a settlement agreement to provide for the possibility that the mortgage may not be refinanced.  Detail will be critical at this point.  The detail should cover the following:

1. Exclusive ownership.  Transferring the asset back to the other party so that they can participate in the sale or rental of the property, if that becomes necessary.  This means allowing occupancy or possession to both parties.
2. Costs of Sale or Rental.  Costs to cover maintaining the house while it is in limbo and the expenses associated with a sale will help move the process quickly past the obstacles anyone faces when selling a home.  Such detail would possibly include:

   a.       List the house for sale with a real estate broker selected;

   b.      A method for calculating the price;

   c.       Cooperation during a sale including to pursue the sale in a good faith and expeditious manner;

            d.      Acceptable terms of sale.  For instance, a cash offer of 95% of the list price must be accepted.

* Special thanks to Atlanta Family Law Attorney Jordan Hendrick for his contribution on this article.