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.

In an initial custody dispute between the parents over the custody of a minor child, the sole question to be determined is what is in the best interests of the child.  This question can only be answered by a judge, as Georgia law prohibits juries from determining custody matters.  Essentially, there are no boundaries as to what a judge may look at in determining a child’s best interests, as the law provides that the judge may consider “any relevant factor.” 

 Unfortunately, each judge may have a different opinion as to what he or she finds relevant in any given case so it can be difficult to always accurately foresee how different factual scenarios will play out.  However, some generally important factors referenced by statute are as follows:

             (1)  The love, affection, bonding, and emotional ties existing between each parent and the child and between the child and any siblings or stepsiblings;

             (2)  The capacity and disposition of each parent to give the child love, affection, guidance and education; and to provide the child with food, clothing, medical care, along with other daily needs and necessities; 

             (3)  The home environment of each parent;

             (4)  The importance of continuity in the child’s life and the desirability of maintaining the continuity and stability;

             (5)  The mental and physical health of each parent;

             (6)  Each parent’s involvement in the child’s educational, social, and extracurricular activities;

             (7)  Each parent’s employment schedule and flexibility to care for the child;

             (8)  Each parent’s past performance and relative abilities for future performance of parenting responsibilities; and

             (9)  Any evidence of family violence, substance abuse, or sexual, mental or physical abuse or criminal history of either parent. 

 The judge has a wide range of discretion on how he or she wishes to weigh the combination of factors to determine what is in the best interests of the child, and the judge’s decision will rarely be overturned on appeal. 

 Once an award of custody has been made between the parents, it becomes a binding order of the court and cannot be modified unless there is a subsequent material change in the conditions and circumstances substantially affecting the interest and welfare of the child (such as relocation of the custodial parent).  If a judge finds that there has been a material change in circumstances, the judge must again apply the best interests of the child test to decide which parent shall be awarded custody. 

 As every custody case is unique, it is impossible to predict how a judge might rule.  The best you can do is to gather as much information as possible before trial in order to present a convincing argument that you are better suited than your opposing party to nurture and provide for the best interests of the child.    

*Special Thanks to Family Law Attorney Jordan Hendrick for his contribution.

If you have watched any television over the holiday season, you have undoubtedly been subjected to the seemingly never-ending barrage of jewelry commercials portraying husbands and boyfriends surprising their wives and girlfriends with fine rings, bracelets, necklaces, etc.  Of course, the jewelry companies are hoping to convince their male audience that the answer to happily ever after lies in their ability to give their significant other a perfect (and hopefully expensive) piece of jewelry.  What the jewelry companies don't worry about is this¦who gets to keep the jewelry if things do not work out as expected?  In 2009, I was involved in several cases where I had to answer that question.

The three most common scenarios that could lead to a dispute over who gets to keep expensive jewelry that was given as a gift during the course of a marital or premarital relationship are as follows:

(1)  A man gives a woman an engagement ring which she accepts but the marriage is called off before the wedding;

(2)  One spouse receives jewelry from the other spouse or the other spouse's family as part of the wedding ceremony but the marriage ends in divorce; or

(3)  One spouse receives jewelry from the other spouse as a Birthday or Christmas present but the marriage ends in divorce.

Normally, a gift given to one spouse by the other becomes the receiving spouse's separate property, meaning it is not subject to reconveyance or equitable division in the event of a future divorce.  Thus, in scenarios (2) and (3) above, the jewelry would generally remain in the hands of the spouse that received it as a gift.  The caveat is that under Georgia law, the person claiming the gift has the burden to prove that the donor intended the jewelry as an unconditional gift, that the gift was accepted, and that the gift was actually delivered or received.  Any factual dispute as to whether there was or was not a gift under the law must be decided by a judge or jury.

However, engagement rings are different because the law assumes that an engagement ring is only given in contemplation of marriage and is therefore subject to the implied condition that it is to be returned if the engagement is broken.  It should be noted though, if the woman attempts to give the ring back to the man and he refuses, the law will view this refusal as the man's intent to allow the woman to keep the ring unconditionally.  Therefore, if the man later changes his mind and asks for the ring back he will have no recourse.  This point was interestingly made by Justice Musmanno of the Supreme Court of Pennsylvania in a 1957 case:

A gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea.  If, after receiving the provisional gift, the donee refuses to leave the harbor, - if the anchor of contractual performance sticks in the sands of irresolution and procrastination the gift must be restored to the donor.  A fortiori would this be true when the donee not only refused to sail with the donor, but, on the contrary, walks up the gangplank of another ship arm in arm with the donor's rival.

So it appears that in normal circumstances, a disappointed fiance is entitled to recoup his jewelry expenses while a disappointed husband is not.

5 Reasons to Keep Your Options Open

You've probably thought about this a few times recently, but it used to be so much easier to find and keep a job! You would get hired by a terrific company, work hard and advance in the organization as you proved your worth. You could establish roots in the company, as well as in the community. That has all changed, and I'm now receiving many more questions about the importance of factoring the possibility of a future relocation into the divorce settlement agreement.

Economic experts have stated that as the US pulls out of this recession, there will be a need for only 90% of the previous workforce. This makes it more likely that you may need to relocate at some point to either keep or find a job. It is now much more important to contemplate the possibility of relocation during a divorce proceeding that includes child custody and visitation decisions.

If you are currently working on your settlement agreement, take the extra time (and money) to also include specifics of a long distance visitation schedule, along with a future relocation provision. As an example, visitation should be modified so that an out-of-state relocation does not put you (or your ex) in contempt. Or if child support is an issue, think about splitting travel expenses 50/50.

There are some enforcement challenges to consider, but here are five good reasons to include relocation and long distance visitation language in your agreement:

1. When you move, you will be able to do so without the threat of contempt charges.

2. In the event you need to move, your ex will have a tough time trying to contest that he/she isn't sure anymore.

3. You may be getting along just fine today, but what about if one of you gets remarried? If the language is already in place, then you won't have to worry about a 3^rd party's influence.

4. Your ex may not contest the custody, but may later decide to contest visitation. If you're contemplating relocation, you may be caught in limbo until your agreement is renegotiated.

5. It may avoid the necessity of having to hire an attorney when you do move away. If you just agree to agree on future details, you may get stuck having to hire attorneys again. So include the details!

Now here's the bad news. Even if your ex signs an agreement that allows for future relocation, it may still be contested just like any other aspect of your settlement agreement. However, the Court will look at what you have already agreed to and take that into account. Plus, you can proceed without having to worry about a contempt charge.