Saturday, December 10, 2005


(This column will appear in the 12/15/05) THE ALBANY (GA.) JOURNAL)

Twenty-nine years ago, inside Courtroom 211 of the Dougherty County Courthouse, I stood in front of Judge Asa D. Kelley, Jr., quaking in my shoes. I was in a courtroom for the first time as a lawyer, and my mission (sent by Willie Lockette, now The Honorable Willie Lockette, Superior Court Judge) was to obtain divorce decrees in several uncontested cases for indigent clients of Georgia Legals Services. Law school doesn’t really prepare young lawyers for handling divorce cases, and even though I had taken a class in Family Law, virtually none of the course materials were remotely relevant to a domestic relations practice involving divorce, custody, support, adoption, and legitimation issues. But I made it through that morning in 1976, and a few thousand cases down the road, I can now look back and laugh at my youthful nervousness.

We’ve come a long way since those days, and by “we” I include the legislature, judges, and members of the bar. Joint custody agreements, almost unheard of 20 years ago (one superior court judge south of here flatly refused to approve any of them until his hand was forced by legislative enactment), are now routine, as well as custody awards to fathers in many cases. The pendulum has swung from one extreme to another on child support. In the 1970’s, it was not unusual to see awards in the realm of $20 to $35 weekly, barely enough to cover day care for moms (dads didn’t get custody very often then).

In spite of much of the publicity regarding domestic relations law, I often find that clients come into my office uninformed, or worse, misinformed, as to what their rights and responsibilities are. Here’s a few bits of information which may prove helpful to you or your friends. The only court with jurisdiction to hear these cases is the superior court in the county where the case is heard.

Child custody

Once upon a time, custody awards to the mother were automatic. Fathers would get “standard visitation” with their children, which typically included every other weekend, alternating and rotating holidays, and a week or two in the summer. The system had one virtue- predictability, but the main flaw was that the best interest of the children in being with the parent most capable of raising them was rarely considered.

In the last fifteen years, since Official Code of Georgia Annotated (OCGA) §19-9-6 was enacted by the Legislature, joint custody awards have been authorized. Since then joint legal custody awards have become fairly common, but joint physical custody, where each parent keeps the children roughly half the time, are necessarily rare due to geography or work schedules. Starting in the 1990’s, custody awards to fathers became more common as newer judges came to office who were more comfortable with the concept of a father raising children. Visitation awards are more creative, with many judges awarding weekday visitation in addition to weekends.

One misconception I’ve frequently encountered is that marital misconduct will be a factor in custody cases. Once upon a time judges took into consideration a spouse’s infidelity as a factor in raising children, but in the last few decades, factors such as parenting duties assumed by each spouse, domestic violence, alcohol or substance abuse, and quality of the extended family (grandparents and other family members who help take care of young children), are far more important.

Another misconception is that if a party doesn’t pay child support, he or she doesn’t have a right to exercise visitation. The two factors are unrelated in the law. A frequent complaint I have heard from the custodial parent is when a non-custodial parent doesn’t exercise visitation. The law can’t compel a parent to visit a child, but courts have great latitude in modifying visitation privileges when the children’s well being is affected.

One nice thing about practicing law in Albany is that most divorce lawyers recognize that children are better served by parents who settle their cases out of court, avoiding the emotional scars of a court battle over child custody, the amount of support, or who gets which pots and pans.

Child support

In contrast to the era before 1985, when child support awards were extremely low on the average, awards ranging from $100 to $250 a week are common under the guidelines set out in OCGA §19-6-15. That law set specific guidelines for courts to use in setting support- 17% to 23% of the non-custodial parent’s gross income for one child (“gross” means income before any deductions are taken out), 23% to 28% for two children, 25% to 32% for three, and so forth. Departures from the guidelines do occur- almost always lower- such as when the non-custodial parent has support obligations for other children, has joint custody or extended visitation, or is paying other family bills.

By court decision in contested cases or by agreement of the parties, the final divorce decree must include a provision for how health and hospitalization insurance will be handled, and the judge must also determine whether or not to enter an income deduction order that will cause support to be automatically deducted by an employer from the paycheck and sent to the state office in Atlanta which distributes support.

The advantage of this system has been a predictability which has promoted settlements, since each party’s attorney has a good idea as to what a judge will do once the custody issue is resolved. The disadvantage has been in cases where the non-custodial parent has high debts or living expenses, and the support award has caused a serious economic hardship. However, that law is about to undergo some radical changes, and we will all have to wait and see what the 2006 legislature does in that area.

Although occasionally parents complain when the parent receiving support does not spend all of the child support money on the children, so long as the children are clothed, fed, sheltered, and otherwise looked after, courts will not interfere in how support money is spent.

Spousal alimony

Spousal alimony, once fairly common when divorces involved housewives and employed husbands, is now a rare event, since working couples are the norm, and alimony is usually of limited duration when it is awarded. If a separation and divorce is caused by the adultery or desertion of one spouse, that spouse is precluded from receiving alimony. However, misconduct does not prevent a party from receiving an equitable division of marital property and debts

Who gets what property in a divorce?

The rule of division of property in Georgia differs from many other states which have “community property” (everything obtained during the marriage is divided equally). In Georgia, the courts use a standard called “equitable division,” which means pretty much whatever a judge or jury decides. (It should be noted that it is exceedingly rare for divorcing parties to submit their case to a jury, which under the law can be asked to resolve issues of child support, alimony, and division of marital property and debts.)

It doesn’t matter whose name is on an asset purchased during the marriage- a deed to a house or title to a car- if it was purchased during the marriage (or payments were made on it during the marriage) it is a marital asset, subject to the exceptions noted below.

Property owned prior to the marriage, such as the value of a profit sharing plan on the date of marriage, or the equity in a home on the date of marriage, is not considered a marital asset and is not subject to equitable division in a divorce, but the increase in value or equity attributable to additional payments (such as mortgage payments or additional employer contributions to a profit sharing plan) are marital assets subject to division in a divorce. Also considered non-marital assets are items of property acquired by gift (even from the spouse!), inheritance, or obtained as damages for compensation for personal injuries- except for damages attributable to lost wages, which would be a marital asset. If a party uses a previously owned asset (a prior home or a savings account, for instance), to acquire an asset during the marriage, the new asset is usually going to be considered pre-marital property.

I recently settled a divorce case where the wife owned the marital home prior to the current marriage, but during the marriage, the parties made substantial improvements costing tens of thousands of dollars and involving obtaining a second mortgage. The wife got to keep the home, but she had to make concessions in other areas to make up for the husband’s portion of the equity in the improvements on the property.

One misconception I have encountered over the years is that if a person is married for ten or more years to a member of the military, the non-military spouse is entitled to half of the military retirement pension as alimony or a division of property. It is true that back around 1980, Congress passed the Military Spouses Benefits Protection Act, partly in response to a United States Supreme Court decision that prevented the garnishment of military retirement benefits to pay spousal alimony.

However, as one Army wife divorcing her husband found out to her chagrin about 20 years ago, the law didn’t entitle her to receive one penny of her husband’s retirement- it only authorized a means of collecting the alimony or property division once a judge or jury made an award. She told the jury she wanted one-half of her husband’s Army retirement, which he was due to start receiving three months after the divorce trial. When I asked her why, she said because she had been married to him for over twenty years while he was serving in the Army. Then I asked her if she felt her husband should also be entitled to one-half of her pension, which would have been a fraction of her husband’s monthly payments, and which she wasn’t due to receive in over 15 years. She angrily said “No, that’s mine. I worked for it.” Her selfish stinginess earned her an alimony award of $0.

What is the status of an unmarried father?

One of the most common misconceptions I encounter comes from unmarried fathers who believe that once a paternity and child support order has been signed and entered by the Court, then they are the legal fathers of the child and have full rights to the child. Unfortunately, although the legislature has made some advances in recent years in laws regarding establishment of paternity, if a father wants to establish his legal rights to visitation and/or custody, he will have to marry the mother or file a petition for “Legitimation” in the superior court of the county where the legal custodian (usually the mother) of the child resides. Typically, orders of legitimation are routinely granted, but undue delay can be fatal. Over the past few years I have seen several legitimation petitions denied because a father waited years to file his petition, or because he failed to support the child or maintain a relationship with the child.

When should a stepparent adoption be filed?

Every so often I get a call from newlyweds wanting to have the new stepfather (almost never a stepmother in my practice) adopt the child(ren) of his wife. Stepparent adoptions are probably the most common of those granted by the courts, but couples should be aware that once the adoption is completed, it’s not like a store purchase where, if you don’t like the merchandise, you can take it back for a refund.

That may sound a bit callous, but when I get calls within a few weeks or months of a marriage, my usual response (with some exceptions) is to suggest that the couple wait at least a year to make sure the marriage is on solid footing before filing a stepparent adoption petition. I also make sure that they understand that once an order terminating the biological father’s parental rights is entered, the mother’s right to receive child support from the father is also terminated. Sometimes people want an adoption as a means to an end- getting a child on a father’s insurance plan, allowing a child to inherit, or changing a name. I try to ask what their reasons are for the adoption, and if a less permanent means can be utilized to accomplish it (most health insurance plans cover stepchildren living in the home, wills can be drafted to resolve inheritance issues, and a simple name change petition is a procedure that doesn’t change anyone’s legal rights or relationships), I explain what the alternatives are.

In closing anyone wishing to look up the law in this area can go to the following website:


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