Family Law & Divorce

Familiy Law & Divorce

The law office of Garnett Harrison located in Camden County, Georgia is ready to assist you with dependable advice and experienced representation in family matters whether divorce, paternity, property division issues or social security claims. Garnett Harrison will work with you to ensure a successful outcome by clarifying the confusion of divorce, paternity or custody issues to help you reach your objectives.

We provide representation for:

  • Divorce and legal separation
  • Military divorce
  • Child support, child custody, visitation rights, alimony, and paternity cases
  • Grandparent and relative custody
  • Property division problems
  • Annulment
  • Domestic violence
  • Partnership Protection and Advanced Directives such as Power of Attorney; Living Will, Last Will and Testament
  • Social Security Disability
Divorce
The law firm of Garnett Harrison, P.C. practices in the areas of family and marital law and dependency in Camden, McIntosh, and Glynn counties in Georgia. This practice includes divorce, paternity, modifications, custody, visitation, child support, alimony, equitable distribution, domestic violence hearings, child abuse and neglect. We also serve the needs of military divorce and family law clients at Kings Bay Naval Station.

Garnett Harrison has more than 30 years of experience in family law practice to assist you on issues such as:

Custody There is no decision more important to a parent other than custody. Custody not only includes where children live but it includes access to children by both parents. A good lawyer who is able to develop and present your case is critical. The Court considers many factors in determining the primary custodian. (Official Code of Georgia Annotated 19-9-3(3) a-q, http://www.law.justia.com/georgia/codes/19-9.html).
Military and Civil Service Divorce Garnett Harrison’s dealing with military and civil service personnel over the years has given her the experience needed to obtain for you your share of military pension and retirement benefits as part of the marital estate regardless of being in active duty or already retired. Military spouses’ rights are recognized pursuant to Uniformed Services Former Spouses’ Protection Act (http://www.dod.mil/dfas).

We offer free consultation. Please contact our office at 912-882-1131 to schedule an appointment at your convenience.

Alimony and Cohabitation The judge has the authority to grant or deny alimony. Once alimony is granted it can change over time to be increased or decreased depending on many factors. Garnett Harrison will assist you to modify the alimony assignment, for example, upon the death, the remarriage of the spouse receiving the alimony, or cohabitation of an unmarried former spouse. The modification is based on the need of the receiving spouse and the other spouse”s ability to pay. The alimony could be granted on a permanent or temporary basis depending on the length of the marriage. Garnett Harrison can assist you with the procedures to obtain alimony or child support during a period of separation or abandonment without filing for a divorce. Please contact us at 912-882-1131 for more details and/or schedule an appointment and/or a free consultation.
Paternity Garnett Harrison represents either parent on paternity issues and helps unmarried mothers and fathers in issues concerning child support, custody or visitation. We will prepare and present your petition to the Superior Court to obtain and protect your rights to be a part of your child’s life and to act in your child’s best interests.
Child Custody for Grandparent and Relatives The court recognizes that grandparent and relatives can often provide the safest home for a child when parents have a drug or alcohol abuse problems or in cases involving parents’ criminal activity, mental or physical disability. The child’s custody for grandparents or relatives can be temporary or for an indefinite period of time which is a better alternative than having the children in a foster care home or a juvenile facility. If you find yourself in this situation, the law office of Garnett Harrison can assist you. Contact us to further discuss your situation.
We offer free consultations. Call us today at 912-882-1131
Frequently Asked Questions
Adoption FAQs
  • Am I required by federal or state law to readopt my child after completing an international adoption?
  • What if my child enters the United States on an IR-4 visa?  Do I still need to readopt?
  • Are there other reasons I might want to consider readopting my child once we are back home?
  • what happens if my family moves to a different state after international adoption or readoption?

Am I required by federal or state law to readopt my child after completing an international adoption? If your child was issued an IR-3 immigrant visa, you are not required under federal law to readopt your child, although your state law may require you to do so.

What if my child enters the United States on an IR-4 visa?  Do I still need to readopt? Yes.  Readoption or adoption is a requirement for all children entering the United States with an IR-4 visa where the adoption was not completed overseas.

Are there other reasons I might want to consider readopting my child once we are back home? Even if you’re not required to complete a readoption by law, you may still want to do so for practical reasons.  For example, readoption enables you to obtain a U.S. birth certificate from your state of residence for your child.  This will make obtaining certified copies of your child’s birth certificate much easier in the future.  A legal name change can also be completed during readoption in the U.S.

What happens if my family moves to a different state after international adoption or readoption? Not all states in the U.S. recognize a foreign adoption decree.  If you live in one of the states that does recognize the foreign decree, you should be fine.  However, if you subsequently move to a place that does not recognize foreign adoption decrees, you could experience complications.  For example, your child might not legally be recognized as your heir.  Readopting in your state prevents such issues, as all states recognize final adoption decrees from other states.

Annulment FAQs

  • What is an annulment?
  • What are the procedures for annulment?
  • Can I get an annulment if we have had a child together during the marriage?

What is an annulment? An annulment, in essence, sets aside the marriage as if it never existed.

What are the procedures for annulment? The procedures for annulment are very similar to the procedures for divorce.

Can I get an annulment if we have had a child together during the marriage?  Under O.C.G.A. Section 19-4-1, an annulment may not be granted if children were or are to be born as a result of the marriage. 

Cruel Treatment FAQs

  • Is cruel treatment a ground for divorce?
  • What is the definition of cruel treatment in the divorce context?

Is cruel treatment a ground for divorce?  Yes, cruel treatment is one the thirteen recognized grounds for divorce in Georgia.

What is the definition of cruel treatment in the divorce context?  Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health.

Alimony FAQs

  • What is alimony?

What is alimony?  Alimony is a support payment by one spouse to another which, based upon various factors may be appropriate in a particular case. Alimony is generally not available to a spouse who caused the dissolution of the marriage by their adultery or desertion. Alimony may be for a limited time period or until the spouse receiving alimony dies or remarries, or may be paid in one lump sum. Again, the court will review the Domestic Relations Financial Affidavit (which would have been completed during the divorce proceedings) when determining the issue of alimony. Factors the court will consider in determining alimony include the length of the marriage; health of each party; assets of each party; and the contributions of each party to homemaking, child raising, and career building of the other party.

Appeals FAQs

  • I am dissatisfied with the outcome of my domestic relations case. Can I file an appeal?
  • I am dissatisfied with the outcome of my divorce case. Can I file an appeal?
  • The court ordered me to pay an amount of child support which I believe is too high. Can I file an appeal?
  • The court ordered my ex-husband to pay child support to me, but I think the amount is too low. Can I file an appeal?
  • I am considering whether or not to file an appeal? How much time do I have to decide?
  • If I win an appeal, what happens next?
  • Can custody orders be appealed?
  • Are Child Custody Cases now directly appealable?
  • Do I need to have a transcript of the proceeding in order to appeal?

I am dissatisfied with the outcome of my domestic relations case. Can I file an appeal? Possibly. Your ability to file an appeal depends on the nature of your case. Certain cases are subject to direct appeal procedures, which means that Georgia law grants you the right to appeal. Other cases are subject to discretionary appeal procedures, which means that you must request and be given permission to file an appeal with the Georgia supreme Court or the Georgia Court of Appeals.

I am dissatisfied with the outcome of my divorce case. Can I file an appeal?  For the past few years, the Supreme Court of Georgia has implemented a Pilot Project for cases involving divorce and/or alimony. Under the Pilot Project, discretionary applications for appeal, which are timely filed from the final judgment and decree of divorce, will be automatically granted unless the application is found to be frivolous by the Court. The Court will deny frivolous applications, and the applicant as well as his or her attorney may be assessed a penalty of up to $2,500.00. Please check with an attorney to ensure this process is still in existence or has not been modified by the time you wish to file an appeal.

The Court ordered me to pay an amount of child support which I believe is too high. Can I file an appeal?  Child support cases are subject to discretionary appeal procedures, which means that you must request and be given permission from the appellate court to file an appeal. Time is of the essence and if you want to appeal, you should hire a lawyer immediately after you learn of the result you wish to challenge. In our firm, we require a new retainer to be paid within five (5) days of the date of the Order to be appealed. Once a “Change of Conditions” occurs, either party may file a request that the amount be modified, but that person must wait at least two (2) years to file a modification request from the date of the last Order on a previous request for modification by the same person.

The Court ordered my ex-husband to pay child support to me, but I think the amount is too low.  Can I file an appeal?  Child support cases are subject to discretionary appeal procedures, which means that you must request and be given permission from the appellate court to file an appeal. Time is of the essence and if you want to appeal, you should hire a lawyer immediately after you learn of the result you wish to challenge. In our firm, we require a new retainer to be paid within five (5) days of the date of the Order to be appealed. Once a “Change of Conditions” occurs, either party may file a request that the amount be modified, but that person must wait at least two (2) years to file a modification request from the date of the last Order on a previous request for modification by the same person.

I am considering whether or not to file an appeal? How much time do I have to decide?Generally, you must file your appeal or application for appeal within 30 days from the entry of a final order. If you hire an attorney to file the appeal, the attorney will need as much time as possible to prepare the appeal so hiring an attorney on the 29th day will likely make it impossible for the attorney to file an appeal. Our firm requires that we be hired and paid the agreed upon retainer within five (5) days of the complained of Order and that we be provided copies of all relevant documents. You will also be required to pay for the proceedings to be transcribed. That is a matter for you or your attorney to discuss with the Court Reporter from the proceeding. If there was no Court Reporter, it is very hard to appeal.

If I win an appeal, what happens next?  Many things can happen if you win an appeal. The appeals court can send the case back to the same judge to hear the whole case, or certain issues again. The appeals court can also give the trial judge specific instructions on legal issues and procedures to utilize when the judge rehears the case.

Can custody orders be appealed?  For cases filed on or after January 1, 2008, custody orders may now be more easily appealed because they are “directly appealable” which means they are no longer subject to the “discretionary appellate process.”

Are Child Custody Cases now directly appealable?  Yes, as of January 1, 2008, final custody orders are no longer subject to the “discretionary appellate process.”

Common Law Marriage FAQs

  • What is a common law marriage?
  • Are common law marriages still legal in Georgia?
  • How is a common law marriage established in Georgia?
  • Do we have to live together for a certain period of time to be “common law married?”
  • Do I need to obtain a divorce if I am “common law married?”
  • What was the reason for recognizing common law marriages?”
  • If I am considered common law married in another state which still recognizes common law marriages and I move to Georgia, will the state of Georgia recognize my marriage?

What is common law marriage?  A common law marriage simply means that the marriage was established without a license and ceremony.

Are common law marriages still legal in Georgia?  No, as of January 1, 1997. However, a common law marriage that was entered into prior to that date is valid and will be recognized.

How is a common law marriage established in Georgia?  For a couple who wants to show that they are considered common law married, they will need to show the following: Cohabitation – the parties must have lived together; Intent – the parties must have intended to be married and held themselves out as husband and wife; Holding out – the parties must present themselves to others as a married couple (i.e. they referred to each other as “my husband” or ” my wife,” used the same last name, or filed a joint tax return); Single – neither party can be married to someone else.

Do we have to live together for a certain period of time to be “common law married?”  No. There is no defined time requirement for living together. The controlling factor is not time together, but the intentions of the parties.

Do I need to obtain a divorce if I am “common law married?”  Yes. Once a valid common law marriage is established, you are considered married. Accordingly, your marriage can only be terminated through a court decreed divorce. There is no such thing as a common law divorce; a common law marriage must be terminated by the courts like any other marriage.

What was the reason for recognizing common law marriages?  The justification for recognizing common law marriage was so that the children of such a union would not be considered illegitimate.

If I am considered common law married in another state which still recognizes common law marriages and I move to Georgia, will the state of Georgia recognize my marriage?  Yes. Despite Georgia’s requirements for marriage, the Full Faith and Credit provision of the U.S. Constitution requires Georgia to recognize as legal, marriages consummated in another state under that state’s laws even though the common law marriage would not be valid under Georgia law.

Contempt/Enforcement of Orders FAQs

  • What is Contempt?
  • What are the defenses to Contempt?
  • What are Contempt cases usually about in family law?
  • What happens if the Court finds that someone is in Contempt?
  • Can the Court punish someone for Contempt?
  • Is Contempt the only way to enforce a Court Order?
  • How long does a Contempt case take?
  • What if I am falsely accused of Contempr?
  • How do I prevent being falsely accused?
  • Is it worth filing for Contempt?
  • Do I need a lawyer if I am accused of Contempt?
  • Does the same judge who heard the original case also hear the Contempt case?

What is Contempt?  Contempt means the willful violation of a Court Order.

What are the defenses to Contempt?  Either that you did not violate the Court Order, or that the violation was not willful.

What are Contempt cases usually about in family law?  They are usually about failure to comply with an Order requiring support payments (either alimony or child support). They can also be about the failure to follow Orders relating to custody or visitation.

What happens if the Court finds that someone is in Contempt?  The offender can be ordered to cooperate or face incarceration. The Court can even order incarceration until cooperation begins. This may mean payment of all or part of the support owed, or cooperation on terms of custody or visitation. The Court can also require the offender to pay the other side’s attorney’s fees.

Can the Court punish someone for Contempt?  Yes. The Court can not only take steps to ensure cooperation, it can also hold someone in criminal Contempt and punish them by making them pay a fine and/or serve up to twenty days in jail for each violation, as punishment (even if they decide to cooperate or pay all owed monies).

Is Contempt the only way to enforce a Court Order?  For the collection of arrears (past due support), there are other methods for collection such as garnishment of bank accounts, wages and other assets. Property of the payor can also be attached.

How long does a Contempt case take?  Typically Contempt cases are quicker that divorce or other family law cases since they focus on one or two straightforward issues (was there a violation of an Order and what should the Court do about it).

What if I am falsely accused of Contempt?  If the Court believes you have been falsely accused, the Court may order the opposing party to pay your lawyer’s fees.

Desertion FAQs

  • What is desertion?

What is desertion?  Desertion is one of the thirteen recognized grounds for divorce in Georgia. That is, the willful and continued desertion by either of the parties for one year.

Restraining Orders/Family Violence FAQs

  • My spouse or significant other has pushed me, what can I do?
  • What are the laws on “Family Violence?”
  • What about “Stalking?”
  • What if someone files a false family violence claim against me?
  • What happens to the children after a Family Violence case?

My spouse or significant other has pushed me, what can I do?  Unwanted touching is a crime. If someone has touched, pushed or restrained you against your will, you should consider calling the police. Obviously if it was truly harmless such as a tap on the shoulder to get your attention, you should not call the police. But any touching meant to cause harm or intimidate should be reported.

What are the laws on “Family Violence?”  Aside from the criminal process of arrest and trial, there exists a civil process. This process allows you to proceed to court and ask for an immediate restraining order to prevent the other party from coming near you. If the court grants such an order, the other party will be delivered notice of the order together with notice of a court date at which time each side will present their side of the case and the court will decide whether to dismiss the suit or to extend the restraining order beyond the court date. Also, such a restraining order carries other consequences such as impacting the defendant’s ability to carry a firearm.

What about “Stalking?”  Stalking (constantly following, calling or even emailing someone for the purpose of intimidation or harassment) is a crime, but it can also be the basis for the same type of relief sometimes granted in a Family Violence case (see FAQ on Family Violence).

What if someone files a false family violence claim against me?  This does happen. If you are accused of committing an act of family violence, you should hire an attorney and decide the best way to defend yourself in court. If the judge is convinced that you were falsely accused, the judge will dismiss the order and may even assess costs against the plaintiff.

What happens to the children after a Family Violence case?  The court, in a Family Violence proceeding, can also determine issues of custody, visitation and support. Be prepared with a suggestion for the court of what you would like to see happen after the trial.

Gay Marriage FAQs

  • Can gay couples be married in Georgia?
  • If I was married in another state, can I be divorced in Georgia?
  • Are domestic partnerships legal in Georgia?
  • Do employers or local governments in Georgia provide domestic partner benefits?
  • Can gay people adopt children in Georgia?
  • If gay people cannot get married in Georgia, is there some other way to form a legal relationship with your partner?
  • If I have a child with my partner and we both have custody rights, will the Georgia courts hear our case if our relationship is ending?
  • Can an attorney help me if I am ending a long term gay relationship?
  • Are gay people discriminated against or treated badly in the Court system in Georgia?
  • If I have questions about my legal rights or think I need an attorney, how do I contact the firm?

Can gay couples be married in Georgia?  No, a constitutional amendment was enacted that prohibits gay marriage in Georgia.

Georgia law (as of March 2008) is as follows: (a) It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state. (b) No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state. Any contractual rights granted by virtue of such license shall be unenforceable in the courts of this state and the courts of this state shall not have jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such marriage.

If I was married in another state, can I be divorced in Georgia?  No, not at this time, but see FAQ below regarding child custody.

Are domestic partnerships legal in Georgia?  No, the same constitutional amendment that prohibits gay marriage also prohibits gay couples from entering government recognized domestic partnerships.

Do employers or local governments in Georgia provide domestic partner benefits?  Yes, many employers [such as Delta Airlines] and some local governments [such as the City of Atlanta] do provide domestic partner benefits, such as insurance coverage. These benefits have been upheld by the Courts.

Can gay people adopt children in Georgia?  In Georgia, adoption remains at the discretion of Superior Court judges, but there is no legal prohibition on gay people adopting children simply because they are gay.

If gay people cannot get married in Georgia, is there some other way to form a legal relationship with your partner?  Yes, gay people may form relationships that are in some ways similar to marriage, such as owning property jointly, holding investment and retirement accounts jointly, and executing “reciprocal” wills, durable powers of attorney, powers of attorney for health care, health care surrogacies and living wills. Gay people can also enter contracts with each other that, if found legally sufficient, can govern the division of their property in the event that the relationship ends.

If I have a child with my partner and we both have custody rights, will the Georgia courts hear our case if our relationship is ending?  Yes, gay or straight, the Courts in Georgia will hear all issues of custody as between parents regardless of sexual orientation. Georgia Courts will also hear cases in which a gay person lives in the State with his or her child, but the other parent resides in another state, whether that other parent is gay or heterosexual.

Can an attorney help me if I am ending a long term gay relationship?  Yes, family law attorneys in Georgia represent gay people going through difficult break-ups. Even though the Courts cannot offer traditional assistance as they do with divorcing heterosexual people, gay people may have legal rights due to their ownership of property together, having children together, or voluntarily granting each other legal rights such as through a Power of Attorney. Ms. Harrison is also skilled at negotiation, mediation and arbitration, all of which may allow her to help you resolve your legal issues with little or no litigation.

Are gay people discriminated against or treated badly in the Court system in Georgia?  Our experience has been that gay people are treated with the same respect and sensitivity that heterosexual people are in the Georgia courts, although their legal rights are different from those of divorcing heterosexual couples.

Guardian Ad Litem (GAL) FAQs

  • What is a Guardian Ad Litem?
  • When is a Guardian Ad Litem recommended?
  • When is a Guardian Ad Litem not recommended?
  • A Guardian Ad Litem has been appointed in my case, what should I expect?
  • How much does a Guardian Ad Litem cost and who pays?
  • How should we select a Guardian Ad Litem?
  • Does Garnett Harrison, P.C. do Guardian Ad Litem work?

What is a Guardian Ad Litem?  A Guardian Ad Litem is an attorney appointed by the Court to represent the best interest of the children in a disputed custody or divorce case. The Guardian Ad Litem is not appointed to represent the child/ren directly, rather the Guardian Ad Litem is charged with advocating for the child/ren’s best interest. Georgia Uniform superior Court Rule 24.9 carefully outlines the qualifications and responsibilities of a Guardian Ad Litem. A Guardian Ad Litem is charged with conducting an investigation into the life of the child/ren and providing a report and recommendation to the Court for consideration.

When is a Guardian Ad Litem recommended?  Guardians Ad Litem are typically used when one party makes serious allegations about the ability of a parent to provide proper care for the child/ren or if the parties strongly disagree about who should be the primary caretaker for the child/ren.

When is a Guardian Ad Litem not recommended?  A Guardian Ad Litem would not be recommended for a couple who have already come to an agreement regarding custody and visitation. A Guardian Ad Litem would not be recommended for a couple with only minor disagreements as to the details regarding custody and visitation.

A Guardian Ad Litem has been appointed in my case, what should I expect?  The Guardian Ad Litem is obligated to conduct a thorough investigation into the life of the child/ren. This may include all or some of the following: home visits, individual parent consultations independent of your attorney, consults with your attorney, interviews with character witnesses, care providers, teachers and the child, review of relevant medical records, school records, and visitation records. The Guardian Ad Litem process can be arduous. The Guardian Ad Litem is appointed broad powers regarding access to information related to the child and it can at times feel intrusive. Parents should plan to be open and honest with the Guardian Ad Litem and do their best to provide the Guardian Ad Litem with all the materials and proof necessary for the Guardian Ad Litem to make an educated and responsible recommendation.

How much does a Guardian Ad Litem cost and who pays?  Most Guardians Ad Litem charge their standard hourly rate for the work they perform as a Guardian Ad Litem. The Guardian Ad Litem’s fees should be discussed in advance and clearly outlined in their fee agreement. The parties can agree who will pay for the Guardian Ad Litem or how the fees will be split. The Judge can order how much each party will pay the Guardian Ad Litem at the time the Guardian Ad Litem is appointed or at the conclusion of the case. If the parties cannot agree ultimately the Judge will decide how much each parent will pay the Guardian Ad Litem.

How should we select a Guardian Ad Litem?  Sometimes you don’t get much choice in a Guardian Ad Litem, the Court will simply appoint the Guardian Ad Litem they feel would be best for your family. However, if you have the choice, you and your attorney should work together to consider the best choice for your family. You will want to look at the experience and the reputation the Guardian Ad Litem has in the community. You want a Guardian Ad Litem who will respect your child/ren, remain neutral as between the two parents, and provide a timely and thorough report and recommendation to the Court.

Does Garnett Harrison, P.C. do Guardian Ad Litem work?  Yes, Ms. Harrison is the appointed Guardian Ad Litem for Camden County, Georgia.

Mediation FAQS

Ms. Harrison is a certified Mediator and Arbiter as she has completed the courses required by the State Bar of Georgia. However, her strength as a mediator, is that she brings the perspective of a family law attorney who has been there, tried cases, advised litigants and is familiar with the local courts, judges and particular rules and customs of each court.

Preserving Fragile Relationships  Serving as a mediator is gratifying for Ms. Harrison since a successful mediation will usually save both parties thousands of dollars in legal fees in addition to preventing even further deterioration of the relationship between the parties. This concept becomes even more important when children are involved since parents who litigate usually find it difficult, if not impossible, to communicate after the litigation.

Realistic Compromise  As an active practicing family law attorney, Ms. Harrison is able to engage in “reality testing” to enhance the mediation process. In essence this allows both parties to get an idea of what may happen if the case is decided by a judge or jury, thus giving you a better idea of whether a mediated resolution which may be “on the table” is worth considering.

Avoiding Costly Legal Fees   Ms. Harrison’s hourly rates as a mediator are $200.00 per hour. This cost is usually split evenly by the parties, but that is subject to the agreement of the parties. Payment is due at the conclusion of the mediation and there is a two hour minimum.

Impartial Arbiters  Parties are welcome to come to mediation with or without an attorney. However, if you already have an attorney, you are encouraged to discuss mediation in depth with your attorney before the process begins. When Ms. Harrison acts as a mediator, she does not act as an attorney for either party and does not give legal advice. The only legal advice upon which a participant in mediation should rely is that of their own, independent attorney.

Modification of support FAQs

  • I am currently paying child support to the mother of my child, and I recently lost my job. Will the court reduce my child support obligation?
  • I am currently receiving child support from the father of my child, and I know that he just got a large raise from his employer. Will the court increase his child support obligation based upon his raise?
  • I am currently paying child support to my ex-wife for my daughter, and I am thinking about asking my girlfriend to become my new wife. If we were to get married, can my ex-wife seek an increase in child support based on my future wife’s income?
  • What factors does the court consider when determining whether to increase or decrease a parent’s child support obligation?
  • If the child for which I have been paying child support elects to live with me, can I stop paying child support?
  • How often can I file to reduce/increase a child support obligation?
  • Where should I file an action to modify child support?
  • My ex-spouse has filed a Motion for Contempt against me for failure to pay child support. In response to that claim, can I file an action to reduce my child support obligation?
  • If I file an action to modify my child support obligation downward, can my ex-spouse be ordered to pay my attorney’s fees?
  • My ex-spouse and I reached a verbal agreement that he or she would pay me more child support. Is it necessary for me to file any action with the Court with respect to the increase?
  • If I file an action tomorrow to increase my ex-spouse’s child support obligation, will the increase be retroactive to the date I filed the case?
  • Can I reduce my child support payment when the oldest child graduates without filing a case?
  • I have heard about the new Georgia Child Support Guidelines which became effective in January, 2007. What changed as far as modification?

I am currently paying child support to the mother of my child, and I recently lost my job.  Will the court reduce my child support obligation?  Under the current law regarding the modification of child support, loss of income may be a basis for lowering your child support obligation. Generally, in an action to modify child support, either upward or downward, a party must establish that there has been a substantial change in income or financial status of either party since the date of the original support order. Once this threshold requirement is met, your obligation to pay child support is reconsidered under the appropriate child support guidelines.

I am currently receiving child support from the father of my child, and I know that he just got a large raise from his employer. Will the court increase his child support obligation based upon his raise?  Under the current law regarding the modification of child support, increase in the obligor’s income may be a basis for increasing his child support obligation. Generally, in an action to modify child support, either upward or downward, a party must establish that there has been a substantial change in income or financial status of either party since the date of the original support order. Once this threshold requirement is met, the father’s obligation to pay child support is reconsidered under the appropriate child support guidelines.

I am currently paying child support to my ex-wife for my daughter, and I am thinking about asking my girlfriend to become my new wife. If we were to get married, can my ex-wife seek an increase in child support based on my future wife’s income?  If an upward change in your financial status can be proven by your ex-wife as a result of your remarriage and contributions by your new spouse to pay expenses, there is a possibility that your child support obligation could be increased. On the other hand, your remarriage may result in a downward change in your financial situation based on your contributions to the support and care for your new spouse, children and/or other dependents. Generally, in an action to modify child support, either upward or downward, a party must establish that there has been a substantial change in income or financial status of either party since the date of the original support order. Therefore, the impact of your remarriage depends on the specific details of your case.

What factors does the court consider when determining whether to increase or decrease a parent’s child support obligation?  If you are paying or receiving child support pursuant to an order entered on or after July 1, 1986, in an action to modify child support, either upward or downward, a party must establish that there has been a substantial change in income or financial status of either party since the date of the original support order. Once this threshold requirement is met, your obligation to pay child support is reconsidered under the appropriate child support guidelines.

If the child for which I have been paying child support elects to live with me, can I stop paying child support?  Technically, until such time as your child support obligation is terminated pursuant to an Order of the Court, you are required to continue paying support to the child/s mother. However, depending upon the specific facts of your case, there is a high probability that a court would terminate your child support obligation if custody of the child is changed to you.

How often can I file to reduce/increase a child support obligation?  You can file for a modification of child support at any time after the original order establishing the support obligation has been entered. However, once child support has been modified by the court as a result of an action filed by you, you cannot file another action for modification for two (2) years from the date of the final order modifying support. If, on the other hand, the court modified child support pursuant to an action brought by your child’s other parent, there would be no limitation on when you could file for modification.

Where should I file an action to modify child support?  If the party against whom you are filing the action resides in the State of Georgia, you must file the case in the county where the party/defendant against whom you are filing resides. If the party lives outside the State of Georgia, you may be able to file in the county where you reside depending upon the specific facts of your case.

My ex-spouse has filed a Motion for Contempt against me for failure to pay child support. In response to that claim, can I file an action to reduce my child support obligation?  Unless your ex-spouse consents, you cannot file a claim for modification of child support under the same case number as the contempt action, and you would have to file a separate action for modification in the appropriate court.

If I file an action to modify my child support obligation downward, can my ex-spouse be ordered to pay my attorney’s fees?  Generally, in an action for the modification of child support, the court may award attorney’s fees, costs and expenses of litigation to the “prevailing” party, regardless of who files the case. However, where the obligated party, i.e., someone like yourself, files for a downward modification of child support, the law also provides that the court can require you to pay your ex-spouse’s fees and expenses for having to defend the case. Ultimately, it’s entirely within the court’s providence to award fees or not.

My ex-spouse and I reached a verbal agreement that he or she would pay me more child support. Is it necessary for me to file any action with the court with respect to the increase?Yes. Until the court modifies the original order on child support, your ex-spouse is not under any obligation to pay the increased amount, and if he fails to pay that support, you would have no remedy under the original order to enforce payment.

If I file an action tomorrow to increase my ex-spouse’s child support obligation, will the increase be retroactive to the date I filed the case?  No. Any modification of child support, upward or downward, is effective as of the date of the order establishing the modification except in certain situations where the change is warranted due to an involuntary loss of income.

Can I reduce my child support payment when the oldest child graduates without filing a case?  No. Only a court can modify your child support obligation. While a Court would likely reduce your obligation when a child graduates, you must ask the Court to lower the obligation. Of course, if the other parent consents, this may be done by agreement.

I have heard about the new Georgia Child support Guidelines which became effective in January, 2007. What changed as far as modification?  Without knowing all the details of your case, we cannot answer that question affirmatively or negatively. The new law still requires a “Change of Circumstances” before the court may consider a possible revision of the child support amount. If such a change has occurred, the court may revise the child support amount. Generally most believe that child support awards will be lower under the new guidelines as compared to the current guidelines at least for people with higher incomes.

Legitimation FAQs

  • Am I required by federal or state law to readopt my child after completing an international adoption?
  • What if my child enters the United States on an IR-4 visa? Do I still need to readopt?
  • Are there other reasons I might want to consider readopting my child once we are back home?
  • What happens if my family moves to a different state after international adoption or readoption?

Am I required by federal or state law to readopt my child after completing an international adoption? If your child was issued an IR-3 immigrant visa, you are not required under federal law to readopt your child, although your state law may require you to do so.

What if my child enters the United States on an IR-4 visa? Do I still need to readopt?  Yes. Readoption or adoption is a requirement for all children entering the United States with an IR-4 visa, where the adoption was not completed overseas.

Are there other reasons I might want to consider readopting my child once we are back home?  Even if you’re not required to complete a readoption by law, you may still want to do so for practical reasons. For example, readoption enables you to obtain a U.S. birth certificate from your state of residence for your child. This will make obtaining certified copies of you child’s birth certificate much easier in the future. A legal name change can also be completed during readoption in the U.S.

What happens if my family moves to a different state after international adoption or readoption?  Not all states in the U.S. recognize a foreign adoption decree. If you live in one of the states that does recognize the foreign decree, you should be fine. However, if you subsequently move to a place that does not recognize foreign adoption decrees, you could experience complications. For example, your child might not legally be recognized as your heir. Readopting in your state prevents such issues, as all states recognize final adoption decrees from other states.

Modification of Custody/Visitation FAQs

  • What is joint custody?
  • What is legal custody?
  • What is physical custody?
  • How does the Court decide custody?
  • Can the Court use a Guardian Ad Litem (GAL) in custody cases in Georgia?
  • Can the Court use a psychologist to help in its decision?
  • Can grandparents be awarded custody or visitation rights?
  • Where can I read the new custody statute?
  • My fourteen (14) year old daughter told me that she now wants to live with me instead of her mother. Can she?
  • How often can a 14 year old change his/her mind?
  • Can I seek a modification of custody requesting that all three of my children live with me based on my fourteen (14) year old (oldest) child’s election?
  • My twelve (12) year old son has told me that he wants to live with me instead of his father. Is his desire sufficient to change custody to me?
  • Recently, my eight (8) year old son, who lives with his mother, has been doing poorly in school and his teachers have reported to me that he often comes to school in dirty clothes and with wet hair. Can I seek a change of custody for these reasons?
  • What factors does the Court consider when determining whether to change a prior custody order?
  • What factors does the Court consider when determining whether to change a prior visitation order?
  • How often can I file to change custody? Visitation?
  • My ex-husband recently, within the last 6 months, moved from Georgia to California with our 3 year old daughter. Where should I file an action to change custody to me?
  • If I file an action to modify custody, can my ex-spouse be ordered to pay my attorney’s fees?

What is Joint Custody?  Joint custody means that both parents have the right to make decisions affecting the children and the right to have the children live with them. Obviously this is vague. Thus with respect to decision making, the Court (or the parties if they can reach an agreement) will either award sole legal custody to one side so that if the parties do not concur about a child related decision, one parent can make the decision, or, the Court may award joint legal custody, but designate one party to make the final decision on some or all of the decisions (education, medical, religious, extra curricular and so on). With respect to physical custody, there must be more specificity than just “joint” or “sole” custody so regardless of the label, the Court (or the parties if they can reach an agreement) will specify dates and times for the child(ren) to be with each parent. These times will be termed periods of custody, parenting time or visitation depending on the Court. The parent with the majority of time is the custodial parent, but may be referred to as the primary custodial parent.

What is Legal Custody?  Please review the answer to the FAQ about Joint Custody. Legal custody is the term used for the parent who is authorized to make the decisions regarding the child’s welfare (education, medical, religious, extra curricular and so on). Usually there is a requirement that the parties try to cooperate to reach mutual decisions, but if this is unsuccessful, the legal custodian makes the decisions. It is often helpful to designate both parents as joint legal custodians so that physicians, school administrators and the like will have no reason to withhold copies of the children’s records from either party.

What is Physical Custody?  Please review the answer to the FAQ about Joint Custody. Physical custody is the term used for the parent with whom the child(ren) are to live with the majority of the time. Regardless of whether a parent is awarded sole or joint physical custody, a schedule of dates and times for the child(ren) to be with each parent should be prepared and made a party of any custody order. As mentioned in the earlier FAQ, there must be more specificity that just “joint” or “sole” custody.

Tax Rules for Divorced or Separated Individuals FAQs

  • Are there tax ramifications in a divorce?
  • Am I allowed to use a different accountant than the one my spouse and I used together during the marriage?
  • The IRS has released updated publications and forms that help divorced and divorcing people.

Are there tax ramifications in a divorce?  There are almost always tax ramifications in a divorce; however, Ms. Harrison, like most attorneys, does not dispense tax advice, except that each client should consult with a Certified Public Account or Tax Lawyer before entering into any agreement or Consent Order, and even before they begin negotiating any form of settlement. Often an agreement or other result has tax consequences that are not obvious to the average litigant. Ms. Harrison maintains good relationships with many tax professionals and when needed and with the client’s authorization, will hire one for the case. But regardless of which law firm you hire, Ms. Harrison strongly suggests you meet with a tax professional and understand all the potential tax consequences of a divorce or other family law matter.

Am I allowed to use a different accountant than the one my spouse and I used together during the marriage?  Yes. And you should at least consider consulting with a different tax expert, even if you decide to continue using the same one your spouse does. A second opinion is always recommended.

Tax Rules for Divorced or Separated Individuals  The IRS publication 504 addresses many of these questions.

The IRS has released updated publications and forms that help divorced and divorcing people.

  • Income tax filing status
  • the right to claim tax exemptions
  • how to protect against tax liabilities arising from FOC intercepts or tax refunds on joint returns when, in fact the intercept is for child support arrearages of only one spouse and some of the tax refund belongs to the other spouse
  • how to claim “innocent spouse” relief from liability caused by unreported income by the other spouse is now available

Other recently published and/or updated publications or IRS Forms that family lawyers’ clients will find helpful and informative are:  

Injured Spouse Relief: IRS Form 8379 is filed by one spouse (the injured spouse) on a jointly filed tax return when the joint overpayment expected was applied (offset) to a past-due obligation of the other spouse (e.g., a tax intercept for unpaid child support arrearages). This is how the injured spouse recovers her tax refund.

IRS Publication 971. How to Claim Innocent Spouse Relief. [Revised February 2011]

Innocent Spouse Relief: IRS Form 8857 is used to request exemption from tax liabilities caused by the under-reporting of income by the other spouse on a joint return filed during the marriage.

Other recently revised publications of interest to those recently divorced or divorcing are these:

Publication 501: Exemptions, Standard Deduction, and Filing Information [Published January 5, 2011]

Publication 544: Sales and Other Dispositions of Property, including transfers to spouse, rollovers or retirement accounts

Publication 555: Community Property, including information about how to handle income from separate property [Revised December 2010]

 Splitting Up

DIVORCE AFTER 50

Watch out for the Big Traps

Divorce rates among those age 50 and older more than doubled between 1990 and 2008, according to researchers at Bowling Green State University.  These older couples now account for one-quarter of all US divorces.

splitting up after age 50 can be particularly problematic for those with limited assets and limited time to recover financially.  And those who divorce after age 50 but before Medicare eligibility kicks in at age 65 may struggle to obtain affordable health insurance.

Here’s what you or someone close to you might need to know to get the best possible settlement in a divorce after age 50…

RETIREMENT PLANS

An IRA ar a 401(k) might be in the name of just one spouse, but the other spouse has a legal right to claim a share in a divorce.  In community property states, both partners are considered joint owners of these accounts.  In noncommunity property states, these assets will be divided according to the divorce agreement.  A divorce decree can include language that spells out how the retirement plan’s sponsors should divide the benefits.  It’s crucial that older divorcees obtain a fair share of this money – retirement savings often are an older couple’s most valuable asset.

Four things that older people should consider before agreeing to a division of retirement plan assets…

   1.  Taxes.  Divorce attorneys tend to pay little attention to future taxation of retirement plan   withdrawals.  Remind your attorney that these taxes must be taken into account when dividing assets.     Exception:  Money can be withdrawn tax-free from Roth IRA accounts in retirement.

2.  Fluctuating asset values.  It typically takes months for a divorce to be finalized.  If the divorce agreement is poorly written, a sharp swing in asset values during this time could result in an unintended and unfair division as assets.     Example:  a divorce agreement gives the wife $100,000 from her husband’s $400,000 401(k), plus the couple’s house.  The value of that 401(k) falls by $120,000 in a market downturn before the divorce is finalized, leaving the wife with 38% of its value rather that the intended 25%, and the husband with no house and only $180,000 in savings with retirement looming.  Ask your attorney to explain how the proposed division of assets would be affected if your portfolio were to rise or fall by 25% or 30% before the agreement is finalized.  If the result seems unfair, suggest dividing retirement savings by a percentage rather than specifying that one partner receive a certain dollar amount.

3.  Pension Plan Rules.  Many older Americans still have traditional defined-benefit pensions – pensions that pay a steady monthly income during retirement.  Former spouses typically are entitled to a share of this money, but the rules are complicated.  A divorce court can issue a “qualified domestic relations order” (QDRO) to the retirement plan’s sponsor spelling out how benefits are to be divided.  If your spouse has a defined-benefit plan, obtain a copy of the summary plan description from the employer or plan administrator.  Plan rules sometimes specify that an ex cannot claim benefits as an “alternate payee” until the plan member retires, even if the plan member works for many years beyond normal retirement age.  If so, ask your attorney to attempt to negotiate for alimony or some other compensation to make up for your lost pension income should your ex work past normal retirement age.  Also, if your former spouse’s pension pays joint and survivor benefits, scan the plan rules to determine whether the original spouse or a later spouse is considered the survivor if the plan member remarries.  If it’s the new spouse, have your attorney take this into account when dividing assets.  If your’re the divorcing spouse who has the pension plan and you intend to remarry, be aware that your new spouse might not receive the survivor benefits you expect – check the plan rules for details.

4.  Transfer of assets.  Make sure that any money shifted from your partner’s IRA or 401(k) to your IRA when assets are divided is handled as a trustee-to-trustee transfer.  You could incur penalties and taxes if these assets pass through your hands.

LIFE INSURANCE

Many older couples have been paying into life insurance policies for years, and such policies can be valuable assets.  But when couples appear headed toward divorce, partners who are insured sometimes stop paying these premiums – they see little reason to pay for a policy that only benefits the soon-to-be ex.

If you are the spouse who is insured, do not stop paying these premiums.  This policy can be a useful bargaining chip in your divorce.  Agreeing to continue funding it might let you obtain a larger share of other assets or reduce your future alimony payments.

If you are the spouse who is not insured, explain to your spouse that he/she can use this policy as a bargaining chip, as discussed above, and seek an agreement that it will continue to be funded.

If the relationship is too strained for such an agreement, obtain a court order to this effect.  You want an agreement in place before the next premium is due – even one missed payment could forfeit the coverage.

Alternative:  Suggest that the policy be altered to benefit the children, not the ex.

HEALTH INSURANCE

It has become extremely difficult and expensive for people in their 50s or early 60s to obtain individual health insurance.  Contact issuers immediately to find out just how expensive it will be as soon as possible.  Take these costs fully into account in the settlement.

Among the potential options…

COBRA rules let divorcees continue to receive coverage through an ex-spouse’s employer group plan for up to 36 months.  Contact the plan administrator within 60 days after the divorce is finalized.  Your divorce agreement should specify whether you or your spouse is responsible for paying the COBRA premiums.  Warning:  Obtain an agreement – or, if necessary, a court order – from your spouse agreeing not to deop you from the employer’s group plan.

Delay finalizing your divorce until you turn 65 and qualify for Medicare – or until you turn 62 if COBRA is available to bridge the remaining 36-month gap.  Read your health insurance paln’s rules carefully before attempting this, however.  Some plans require that spouses live under the same roof to qualify for coverage.

THE HOME

Some older divorcees decide, I just want the house…he/she can have the 401(k).  That may be a bad idea, given the real estate market’s recent uncertainty.  You could get stuck in a home that is larger than you need and that you cannot sell at a reasonable price.  It’s wiser to seek a diversified portfolio of assets in the divorce, even if that means selling the home and splitting the proceeds.  If it cannot be sold at a reasonable price or in a timely manner in this real estate market, you and your ex could agree to…

Rent the house out until prices rebound.  The divorce agreement should specify how this rent will divided, who will pay home-related expenses until it is sold and how the proceeds of the eventual sale will be split.

Have one spouse continue to live in the home until it is sold.  This spouse could pay rent to the other and pay home owner expenses.

BENEFICIARY DESIGNATIONS

Update the beneficiary designations in your investment accounts and estate plan as soon as divorce seems inevitable.  Ex-spouses are automatically removed as beneficiaries in some states, but this won’t occur until the divorce is finalized.  Exception:  Some states issue automatic restraining orders preventing the alteration of beneficiary designations until the details of the divorce are agreed upon.  In other states, attorneys might obtain restraining orders preventing this.

RELOCATION

Older couples often move to different states or even different countries when they retire.  If you suspect that your marriage could be headed for divorce, speak with a family law attorney before relocating.  Divorce laws in the new state or country might be less advantageous to you than the laws where you currently reside.  If so, it might make sense to postpone or refuse relocation.

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     Bottom Line/Personal interviewed Janice L. Green, JD, an attorney specializing in divorce and family law.  She is a partner with Farris & Green in Austin, Texas, and author of Divorce After 50:  Your Guide to the Unique Legal & Financial Challenges (Nolo).www.JaniceLGreen.com.

Bottom Line/Personal, Volume 33 Number 4, February 15, 2012

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Social Security Statements Go Online

Your Social Security information is now at your fingertips.  The Social Security Administration website has added a new feature, My Social Security, which allows you to set up your personal page and access it at any time.  It includes an online version of the statement that used to be mailed every year, plus estimates of your future retirement benefits, life-time earnings to date, and the total Social Security and Medicare taxes you’vc paid.  To open an account, go to socialsecurity.gov/mystatement and answer a series of questions to verify your identity, then create a user name and password.

Email: info@garnettlawoffice.com