Divorce
Divorce
Divorce
Every divorce brings a different set of facts and legal and practical circumstances. At Hackett & Wine, our attorneys have depth of experience in dealing with a myriad of financial and custody circumstances. We are empathetic yet practical about the strengths and weaknesses of our clients' cases. We understand that divorce impacts all members of a family and we are careful to guide our clients through the challenges they face toward the best and most reasonable outcome while preserving family relationships, whenever possible. When a divorce can be settled short of trial, our lawyers draft clear, thorough settlement agreements. These comprehensive documents reduce the need to return to court in the future and save our clients future time and attorney's fees. When we are unable to resolve divorce cases through negotiation, we prepare thoroughly for trial. We have a firm hand on the facts of your case and the law. We also employ experts, such as forensic accountants, when necessary to clearly and persuasively present your case in the most favorable manner possible to the Judge.
Divorce Procedure and Timing
Divorce Procedure and Timing
The facts and the timing of every divorce are different, which is why it is so important to consult with a knowledgeable family law attorney. Timing can very depending on the number of issues the spouses disagree about, the county in which the divorce is filed, the particular Judge that the divorce case is assigned to, whether mediation is employed or required, whether depositions are necessary, as well as countless other factors. Some divorces can be finalized in just thirty-one (31) days and others can take a year or more to litigate.
In a contested divorce, an initial petition or complaint for divorce is filed and the opposing party is either served with the complaint or acknowledges service of the complaint. Then, the party that was served with the complaint files an answer, either agreeing or disagreeing with the allegations contained in the complaint. Depending on the facts of the case, the parties then go through the discovery process, where formal or informal requests for information and documents are drafted and responded to. During this step, each party must fully disclose their financial assets, debts, and income. Conduct during the marriage is also generally asked about and responded to during this step in the process. In highly contentious cases, depositions may be taken during the discovery process. Where one party believes the other party is not fully disclosing assets, we may be forced to file and argue motions related to discovery, such as a motion to compel, in court. Sometimes we suggest the involvement of other parties in the divorce process during or after discovery such as financial experts. Other times, it is necessary to employ experts related to the children or custody situation such as a custody evaluator, co-parenting counselor, or a Guardian ad Litem. After the discovery process is complete and experts, when necessary, have provided their feedback to the parties and attorneys, the spouses generally exchange settlement offers and/or mediate to try to reach a comprehensive settlement of all issues in the case. Often, settlement negotiation or mediation is successful in settling all issues and the divorce can be finalized shortly after execution of a comprehensive settlement agreement. When mediation and negotiation fail, the case will be set for a final hearing for a Judge to make a determination about how assets and debts will be divided and/or what the custody situation will be for the children.
Our goal at Hackett & Wine is to provide you with a clear understanding of the procedure and time that your divorce will likely take. We provide you with an open line of communication and will provide feedback about how various strategies and legal options will impact your bottom line financially as well as the timing of finalization of your divorce.
Discovery
Discovery is a general term for the process of obtaining information that may be relevant in a divorce. Discovery is generally accomplished by requesting answers to questions and by requesting documents, particularly financial documents such as tax returns and pay stubs from your spouse. Discovery may also be used to pursue divorces on grounds such as adultery. Questions may be asked about conduct by either spouse during the course of a marriage and each spouse is required, under oath, to respond truthfully to those questions and to produce documents that pertain to requests.
Interrogatories
Interrogatories are questions that one spouse may ask another spouse during the course of a divorce or other family law proceeding. The questions are often designed to determine how one spouse perceives the other, what the spouses' relative strengths and weaknesses are, and to determine whether there is any "fault" basis available on which to pursue a divorce.
Request for Production of Documents
A Request for Production of Documents is a request asking for documents that pertain in some way to litigation concerning a divorce or other family law proceeding. These requests may be for financial documents, for documents documenting expenses, documents substantiating whether certain assets are separate or marital, or for any other reason that is relevant to the parties' marriage and divorce.
Request for Admissions
A Request for Admission is a formal request that requires your spouse or former spouse to admit or deny a certain alleged fact or circumstance. This discovery tool is particularly effective in gathering information and proving up a case involving adultery or other actions taken by a spouse, which directly impact custody. A Judge can draw a negative inference against a party who does not truthfully respond to a request for admission.
Equitable Division of Property/Assets & Debts
Equitable Division of Property/Assets & Debts
In Georgia, assets and debts are divided by a Court, or through agreement of the parties, through a principle called equitable division. Equitable division means that a court can look at a variety of factors in determining what is an equitable or fair division of the assets and the debts in a marriage. Equitable division does not necessarily mean that assets and debts are split 50/50 between the parties, as a Judge may look at the parties' respective incomes as well as conduct by each spouse during the course of the marriage in determining how to divide the property.
Separate Property/Premarital Assets
You will want to consult with a qualified family law attorney to discuss what property may be considered a premarital asset or your separate property, and therefore not part of equitable division during a divorce. Generally, personal property that you acquire prior to marriage, property that is inherited and not combined with other martial property, and some property that has not vested during the marriage may be considered your separate property. In some cases, one partner to a marriage may have contributed separate property, earnings, or inheritance into a real or other property purchased during the marriage. Courts will look at the intent of the parties, whether the separate assets was commingled, as well as additional factors when determining whether the property is marital or separate.
Division of Investment and Retirement Accounts or Financial Assets through QDRO/other division
We often handle division of retirement accounts, primarily through the drafting and execution of a QDRO. "QDRO" stands for "Qualified Domestic Relations Order". This is a special kind of Court Order, which is used to divide pension rights between divorcing spouses, or to collect alimony or child support from a pension or employee benefit Plan. A QDRO should also allocate tax responsibility for the division of a retirement plan. Many different retirement plans can be divided through use of a QDRO including private pension and benefit plans such as 401(k), 403(b), 457, defined benefit monthly payment, TIAA/CREF, etc. may be divided by QDRO's under a Federal law called "ERISA". Military retired pay, Federal and State civil service plans, and IRA's may also be divided by similar Orders.
QDROs are generally prepared by an attorney, sent to the entity handling the pension or retirement account for review and tentative approval, and then sent to the Superior Court Judge who presided over the divorce for execution. Once these steps have been accomplished the QDRO can be sent to the plan administrator so the funds can be disbursed to their designated recipients.
Alimony
Alimony
Alimony, or spousal support, is support given by one spouse to the other spouse during and/or after divorce. Alimony is most often an issue in a long marriage or in a marriage where one spouse is unemployed or where one spouse makes considerably less income than the other spouse. The amount of alimony awarded is discretionary on the part of the Judge. However, Judges look at the need of the receiving spouse and the ability to pay of the paying spouse. An award of alimony may be permanent or periodic (ending at some point in the future). Increasingly, courts are awarding periodic rehabilitative alimony so that the spouse that is currently earning less income can be "rehabilitated" to a point that they are able to fully financially support themselves. Rehabilitative alimony may take the form of payment for one spouse to attend school to obtain a degree or to receive a certification or license that will allow them to earn more income.
Custody & Visitation
Custody & Visitation
In Georgia, custody and visitation are determined by assessing the best interest of the child. Georgia law breaks custody into two groupings: physical custody, which refers to where the children spend their physical time and with what parent; and legal custody, which refers to communication between the parents and which parent has the authority to make major decisions as they relate to the children.
Legal Custody
Legal Custody
In most cases, when parents divorce in Georgia, they are awarded joint legal custody of their children. This means that they must discuss major decisions involving the children with the other parent and that they must at least attempt to make major decisions about the children together. Where parents cannot agree regarding major decisions involving the children, one parent is usually designated as having final decision-making authority or serves as the "tie-breaker". The sub-categories of legal custody in Georgia are education, medical care, religion, and extracurricular activities. Sometimes one parent is designated as the final decision-maker with respect to some categories (for example, education and religion), while the other parent is designated as the final decision-maker for other categories (for example, medical care and extracurricular activities). In other cases, particularly when one parent has not been significantly involved in a child's life, one parent may have sole legal custody and may make all major decisions involving the child.
Legal custody also pertains to the rights parents have to be involved with their children's doctors, teachers, and other professionals in their lives. When parents have joint legal custody, they have equal access to documents and service providers who serve the children, such as doctors and teachers. Joint legal custodians also have equal access to documents such as medical tests and diagnoses, report cards, and school schedules.
Physical Custody
Physical Custody
Physical custody refers to the actual living situation of the children. Parents are usually either designated as primary and secondary custodian, as joint physical custodians, or one parent may have primary or sole physical custody and the other parent may have visitation or supervised visitation. Devising a custody schedule is done through use of a parenting plan in Georgia. Each day of the year is accounted for, including holidays and breaks from school so that the children know which parent they will be with on any given day of the year.
In cases where parents disagree over the physical custody situation that would be best for the children, Judges look at a number of factors to make a determination about what is best. The factors considered by the Court are listed in O.C.G.A. §19-9-3. Parents by agreement, or Judges through and Order, may also employ experts to help investigate and determine what physical custody arrangement would be in the best interest of the children. Experts or investigators typically employed to make custody recommendations include Guardian ad Litems and Custody Evaluators. Sometimes co-parenting counselors also make suggestions about parenting plans that would serve the children's best interest.
Because the factors considered in making child custody determinations are so extensive and fact sensitive, it is important to consult with a knowledgeable child custody attorney if you have a custody question or issue.
Visitation
Visitation
Visitation is a term for parenting time for the non-custodial or non-primary parent. Visitation can be frequent and extensive, or very limited depending on the circumstances of the case. At times, visitation may have to be supervised by a third party for a minor child's protection or the protection of the parent exercising visitation.
At Hackett & Wine we are knowledgeable about various parenting time arrangements and how they impact children of various ages. We know and use a number of different visitation supervisors and can recommend supervised visitation services if they are necessary in your case.
Parenting Plan
Parenting Plan
In Georgia, a Parenting Plan must be filed with the Court in every divorce case involving minor children. The Parenting Plan details when the children will be in each parent's physical custody. It also addresses transportation of the child or children and how the parents will communicate with the child or children when they are spending time with the other parent. Parenting Plans are designed to reduce conflict in divorcing parent situations.
Affidavit of Election
Affidavit of Election
An Affidavit of Election is a statement made by a child electing which parent they prefer to live with. These statements are usually signed under oath, in front of a Notary Public. An Affidavit of Election can be a persuasive tool in determining which parent will receive primary physical custody of a child or children in a divorce or modification case.
In Georgia in all custody cases in which a child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. With younger children, specifically children between the ages of 11 and 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child's desires shall not be controlling.
It is our experience that certain courts and judges are more inclined than others to place greater weight on the desires of a minor child. It is therefore important to contact a family law attorney who is knowledgeable about the judges and jurisdiction where your case will proceed before filing an Affidavit of Election on behalf of your child or children.