Video Transcript:
No one ever gets married in hopes of getting a divorce.
But if life circumstances have brought you to that reality, I’m sure you’ve got thousands of questions, just like the clients that come into my office every day.
What will be your time with your children?
How do you divide assets?
How much it will it cost?
Do you even need an attorney?
Today, let’s discuss the divorce process in Georgia.
We’ll talk about the three major areas.
Such as property division, financials and support, and custody of children.
Let’s also discuss the difference between uncontested divorce and uncontested divorce.
And how do those work?
Let’s first talk about marital property division in your divorce case.
When two people get married, their finances, their property, all of that usually is merged together.
You generally have joint banking accounts.
Your names are on jointly on the home, on cars.
It sort of all gets combined.
But what do you do when you need to unravel that and pull those things apart?
You need to, of course, have full disclosure.
Disclosure is required in Georgia.
You can’t have hidden assets or just not tell the other party about an account or that you hit the lottery last night.
You do have to disclose all of your assets, all of your accounts, all of your property, and all of your debts and liabilities.
That’s generally done through a process that we call discovery that we’ll discuss later in the video.
In Georgia, title does not matter.
It doesn’t matter whose name the paycheck was in or whose name is on the retirement account, whose name is on the house, or whose name is on the car.
If those items were purchased, acquired, or crude during the marriage, then it is a marital asset and it is part of the case and it must be divided by a court.
But what about inherited property or maybe what’s considered your separate property?
Well, there are certainly items that you would not include in the marital estate.
If you owned a home prior to getting married, that is your separate property or premarital property.
If you inherited property or money and you never added your spouse’s name to that, that would be your separate property, that inheritance.
So you certainly want to identify any items that may be outside of the marital estate, such as separate, premarital, or inherited property.
Some people say, “Well, how do we value those things?”
I don’t mind if my spouse gets the home, but I certainly want my equity out of it.
So how do we determine a value?
Well, we do that all the time and that’s done by a licensed appraiser.
They would value the property, determine the fair market value.
If it’s a small business, then we have accountants who are certified that will value the business because you have to figure out how to come out of this process with an equity between the two of you, and that means what is fair and just.
Most people that come into my office say, “Oh, well, I know it’s 50/50 or he’ll get 50% or she’ll get 50%.
That’s not the law in Georgia.”
There are some states that that is the law, but it’s not in Georgia, but in the property division in Georgia to be an equitable division state.
And what that means is that a court has to decide what is fair and reasonable or fair and just under these circumstances.
So the court takes into account the conduct of the parties.
For example, if you have a case where one spouse has a severe gambling problem and has gambled away thousands of dollars of the marital assets, then perhaps it’s not fair and reasonable or equitable for that spouse to still get 50% of what’s left because there would be so much more, but for that spouse’s conduct and bad behavior with gambling.
So a court would take all of that into consideration when determining how the asset should be divided.
Quite often it is a 50/50 division, especially in a long-term marriage where all of the assets were obtained or purchased, built during the marriage.
Courts generally divide those assets 50/50, but it’s not the law.
Based on the conduct of the parties, the courts can do 60/40, 80/20, whatever a judge feels is appropriate under those circumstances.
The next major issue in a divorce are finances and support.
You may be a stay-at-home parent.
You may be the parent who’s worked to be the breadwinner.
How are finances going to work?
Well, on a temporary basis, there can be alimony awarded or spousal support, but it can also be awarded on a permanent basis.
Generally that’s done in very long-term marriages.
Courts look at a number of factors when determining spousal support.
Those are the need of the spouse asking for support.
Is it a stay-at-home parent or a parent that makes substantially less than the other spouse?
And what is the ability for the other spouse to pay?
Does that spouse earn substantial monies?
Does that spouse have other assets, such as inherited properties, that bring in income?
The courts consider a party’s standard of living a party’s expenses and a party’s obligations when determining if there’s going to be temporary support.
And that would be things like who pays the mortgage on a temporary basis, who pays car payments, insurance, things of that nature.
And also permanent alimony.
Alimony can be awarded for a certain period of time, such as for so many months or years following a divorce case, or even in a lump sum that is set to be due at a certain period of time.
Judges will make a decision based on the circumstances of that case as to what, if any, financial support, such as temporary or permanent alimony, would be awarded.
What about cases that involve minor children?
How is child support determined?
When Georgia, a child support worksheet is ran, and it takes into account both party’s income and special expenses, such as, what is the health insurance premium for the children?
Are there any private school or daycare tuition costs for the children?
And are there any major extracurricular expenses?
The parties can also reach an agreement to these things prior to putting these decisions in the hands of a judge.
You all certainly know your finances and the needs of your children better than a judge ever could.
You can decide how premiums for health insurance would be divided, or who’s going to carry the children on health insurance.
What about uncovered expenses, co-pays, deductibles, prescriptions, braces?
Well, you also can decide those things, or court can divide out those things for one party to pay and the other party to reimburse a certain percentage.
And child support would be ordered and awarded to the primary physical custodian.
That means the parent that primarily has the children in their care.
The amount is based on that child support worksheet taken into account, income of the parties, and those special expenses that we discussed.
We’ll discuss next what the primary physical custody and other custody considerations in a divorce will be.
The last major issue, certainly the most important, however, are children in a divorce.
What is custody in Georgia?
You’ve heard the terms primary custody, physical custody, legal.
What do those things mean?
Well, there are two types of custody in Georgia, physical and legal.
Physical is just what it sounds like.
Who are the children physically with what amount of time?
Courts do typically prefer there being a primary physical custodian, which means the children are in one parent’s care in one parent’s household throughout the school week, and the other parent would have every other weekend, maybe one evening during the week, half the holidays, and several weeks in the summer.
So the other parent certainly has a parenting time schedule, but they are with and in the care of the primary custodian most often.
There’s also joint physical custody, where the parties share equal time with the kids.
That certainly is less preferred in general by judges.
However, again, you know your children, and you know your work schedule and the involvement of the other spouse in the children’s lives.
Joint physical custody may work better for you and your family.
In that scenario, you could go maybe week by week, where one parent has the children for one week, and the other parent the following week.
You could also do something creative like a 2-2-3 schedule.
That’s often been found to be helpful for parents that are perhaps in the medical field and work 12-hour shifts or night shifts, things of that nature where they need to have certain days they can have the children, and then the children would be with the other parent based on their work schedule on other days.
So a court will certainly decide primary physical custody if you and your spouse are unable to.
The other area of custody is legal custody.
Legal custody is decision making, involvement in major decisions for the kids.
And Georgia recognizes four areas of major decisions.
And when we discuss major decisions, I don’t mean what time do the kids go to bed or what do they eat for dinner.
I mean a major decision in the area of extra curricular, medical, religion, and education.
There has to be, if the parents have joint legal custody, a good faith discussion between the two of them, they have to converse and try to listen to the others’ input as to those major areas and any major decisions that need to be made.
Like what school do the kids go to?
What daycare?
What pediatrician?
Things of that nature.
You have to give the opportunity to the other side to be heard and to be involved in those decisions.
However, if you just cannot see eye to eye and cannot reach an agreement, the court will appoint one of the parents as the tiebreaker parent to make those decisions.
More often than not, the parents do have joint legal custody.
There are some scenarios where there’s a parent who’s simply not involved in a child’s life or who makes very bad decisions in their own life and it’s not in the best interest of the children for that parent to be involved in decision making and then a parent can be assigned as the sole legal custodian.
If that is the case, then they do not make decisions with the other parent’s involvement.
They would determine the decision on their own.
When the courts are looking at who should be the primary physical custodian, the courts will look at the past history of the family.
Which parent has taken the children to the doctor?
Which parent stays home with them when the kids are sick?
Who gets them ready for school?
Who makes their lunch?
Who gets them bathed and ready for bed at night time?
It is the primary physical custodian that the court wants to maintain continuity for the kids and so the court would consider all of those factors when determining what’s in the best interest of the children.
In addition to caregiving responsibilities, the court will look at the parent’s availability.
What’s their work schedules?
What’s been their involvement with the kids in the past?
All of those things a court will take into account when determining the best interest of the kids and who should be the primary custodian of the children.
Next, let’s talk about the divorce process.
And it’s certainly different if the case is uncontested or contested.
So you’ll need to know the difference.
In an uncontested case, you and your spouse have resolved all the issues between you before you ever go into court.
You’ve resolved the division of your property.
Who gets the crop pots?
Who gets the family dog and the patio furniture?
How’s the retirement divided?
The banking accounts?
All of those things.
The house, all of the things you can think about, you’ve already addressed and resolved and reached an agreement with your spouse.
You’ve also resolved all of the finances, the support issues, and the custody of your children.
If your case is uncontested and you’ve reached an agreement as to all of those things, you can sign settlement documents, file those with the court, along with your divorce complaint, which initiates the case, and a judge can finalize your case in 31 days.
Then it’s over, said and done.
Not quite that same way in a contested divorce.
I have lots of cases that the parties cannot agree on a thing.
Those are the ones generally where they want to sling all the mud and tell you all the things that they won’t use against their spouse in court.
There is a reason why everyone thinks of family law as the Jerry Springer of law.
In a contested divorce, we would go ahead and file the case and have the other parties served by either the Sheriff’s Department or a private process server.
That initiates the case when we file the divorce complaint and have the other side served.
From there, you would get a temporary hearing.
A temporary hearing in a divorce case is where a judge would lay guidelines before everything explodes.
Who’s living in the house and who has to move out?
How do bills get paid on a temporary basis?
What parenting time and support is on a temporary basis?
The parties would operate under that temporary order until they have a final agreement or a final hearing to resolve the case and to be divorced.
In a contested divorce, you are not eligible to get a final hearing until six months has passed, so it is a pretty lengthy process.
So during the time between your temporary hearing and that temporary order and your final hearing, what happens during those months?
There’s a couple of things.
First, most jurisdictions across the state require mediation.
Mediation is a very good process.
It’s successful at settling cases about 80% of the time.
In mediation, the parties are usually divided into separate rooms with their respective attorneys, and a mediator goes back and forth and tries to negotiate, tries to brainstorm, play a little bit of devil’s advocate, sort of think outside the box to see where the parties are willing to negotiate, where they’re willing to compromise to reach an agreement.
If your case does not settle in mediation, then you’ll just move forward and wait for that final hearing date.
Also, during that time period between your temporary hearing and your final hearing, we go through what we call the discovery process, and I mentioned that a little bit earlier in the property division portion of this video.
The discovery process is where your attorney will serve on the other side a stack of documents, and it is questions they have to answer, like listing out all of their bank accounts so that you know that you’re aware of everything, asking the other side about any infidelities, asking the other side about retirement for pay information, things of that nature.
You also would request a notice to produce, and that is where they have to then give you copies of all those documents.
You want to know what they have in their retirement account, what they have in their separate banking accounts, things of that nature.
You can request phone records, text messaging, social media posts, all of that is done during the divorce process, because you need those items to fully negotiate when you go into a mediation, or you need those items when you are preparing for a final hearing, because it’s at a final hearing that a judge will make a final determination as to the children custody support and dividing out all of those property issues, your money, your house, the dog, the patio furniture, all of those fun things that parties often fight about in divorce cases.
So you may be wondering, what does that mean, a final hearing?
Well, in Georgia, we are only one of two states that still allow jury trials in a divorce case.
Now, very few cases actually go to a jury trial, but you do have that right-in option.
Often, if there is a case with substantial assets, business entities, things of that nature, there can be a demand for a jury trial.
And if a jury hears the case on a final basis, there are still things, however, that the jury doesn’t decide even in a jury trial, such as custody of your children.
That is still a decision that’s left up to the judge.
Most cases, however, don’t go to a jury trial.
They are heard at what we call a bench trial or a non-jury trial, and that’s where the judge hears the entirety of the case and makes a decision as to the resolution and division of all issues before the court.
As you can see, a divorce case in Georgia can quickly become messy and complex.
I would advise you to go meet with your local experienced family law attorney.
Let them look at your case, your circumstances, and advise you further.
Even in an uncontested case, there are complex documents such as parenting plans and child support addendums, child support worksheets, and settlement agreements.
Oh, my!
Where do you begin?
Sit down with an attorney, let them advise you, and walk you through the process.