It may seem like one of the most cliched reasons for two people, who honestly cannot stand each other, to have stayed together in married misery. However, in the many years of my Georgia Divorce practice, I have run into this unhealthy mindset more times than I care to think about. I say "unhealthy" because as an attorney and parent I have seen nothing but harm coming from such decisions. If parents think that just having the fabled two parent home under which their children can spend their days is, in and of itself, a positive aspect, they are simply deluding themselves. One thing I have learned, both in my practice and in my home, is that kids, even really young kids, absorb and understand so much more of their surroundings than which we ever give them credit. This includes that fact that Mom and Dad are not happy together.
We all want the best for our kids. Unfortunately, we cannot tell our kids how to behave and then do something else. If you want to show them how a loving and committed relationship should look, you need to show them. Period, end of story. If you stay together merely because you think it is the right thing to do, or that your religious beliefs demand it, or simply because it is easier to stay together, than not, you are doing your best for your children, or yourself.
Does that mean a Georgia Divorce is the answer? Not necessarily. Working on your relationship might help. Trying to figure out what brought you together in the first place is a good place to start.
Strange advice from a Divorce Attonrney? Maybe, but your relationship can be affecting more people than you and your spouse. Keep that in mind if you are in a loveless marriage.
Sunday, March 27, 2011
Sunday, February 20, 2011
Property Division in Georgia
"Georgia is an 'equitable distribution' state for purposes of splitting up marital assets." These words flow out of my mouth several times a week when speaking with new divorce clients. Invariably I get a somewhat quizzical look from the person sitting on the other side of my desk. Basically, I go on to explain, a judge or jury is empowered to divide your assets and debts in a manner that seems fair and reasonable, under the circumstances. Of course, this is not an exact science and a tremendous number of factors can be, and often are, drawn into a final determination. Frankly, to call this issue “gray” is a gross understatement. However, it is often in this “gray” area that attorneys earn their fees.
The first step in establishing an “equitable distribution” of the marital assets is to determine what are martial assets. I often have clients admit, rather sheepishly, that, for one reason or another, their house, car, etc. is titled in the other spouse’s name. They often assume that this takes the asset in question out of the marital asset equation. Now, do not get me stated on what assuming means. This is a family blog after all. (pun very much intended). Generally speaking, any asset that was taken ownership of during the marriage, and was not a specific gift or inheritance of one party, will be considered a joint marital asset. Similarly, if one of the parties had an asset prior to the marriage, it is his/hers, unless the asset grew in value during the marriage, at least in part, due to the efforts of the other spouse.
The bottom line is that establishing what asset is marital is a crucial step in the divorce process. To assist lawyers and their clients in making this determination, the State of Georgia requires that both parties fill out a Domestic Relations Financial Affidavit. This affidavit will be a fairly concise listing of all of the parties’ assets, liabilities, and monthly expenses. Honestly, I have recommended filling out such an affidavit to friends and clients who were not going through a divorce, just so they could get a better handle on their financial status. The portion on monthly expenses is often the most eye opening.
This early analysis of the financial condition of the marriage can often be a good first step toward finding certain common ground for the parties to move their divorce forward, or it can be the opening salvo in a bitter dispute that involves what would otherwise be deemed fairly unimportant assets.
The purpose of the Financial Affidavit is to achieve as close to full financial disclosure as possible in order to move the parties toward a settlement. (Good faith mistakes are made and assets are sometimes forgotten) In part, a lawyer’s responsibility to his client is to filter the facts and circumstances of the particular case and to advise the client as to what he/she feels a judge or jury might decide is “equitable”. ) As many people are aware, the vast majority of cases settle prior to trial. If the parties can compromise on the nature of the martial assets then that is normally the “fairest” agreement they are likely to come by.
Needless to say (but I will anyway), every matter is different and needs to be evaluated on its' own merits. A host of other factors can be incorporated in an evaluation of your particular divorce situation. Give my office a call and we will be happy to sit down with you for a more formal analysis of your situation.
The first step in establishing an “equitable distribution” of the marital assets is to determine what are martial assets. I often have clients admit, rather sheepishly, that, for one reason or another, their house, car, etc. is titled in the other spouse’s name. They often assume that this takes the asset in question out of the marital asset equation. Now, do not get me stated on what assuming means. This is a family blog after all. (pun very much intended). Generally speaking, any asset that was taken ownership of during the marriage, and was not a specific gift or inheritance of one party, will be considered a joint marital asset. Similarly, if one of the parties had an asset prior to the marriage, it is his/hers, unless the asset grew in value during the marriage, at least in part, due to the efforts of the other spouse.
The bottom line is that establishing what asset is marital is a crucial step in the divorce process. To assist lawyers and their clients in making this determination, the State of Georgia requires that both parties fill out a Domestic Relations Financial Affidavit. This affidavit will be a fairly concise listing of all of the parties’ assets, liabilities, and monthly expenses. Honestly, I have recommended filling out such an affidavit to friends and clients who were not going through a divorce, just so they could get a better handle on their financial status. The portion on monthly expenses is often the most eye opening.
This early analysis of the financial condition of the marriage can often be a good first step toward finding certain common ground for the parties to move their divorce forward, or it can be the opening salvo in a bitter dispute that involves what would otherwise be deemed fairly unimportant assets.
The purpose of the Financial Affidavit is to achieve as close to full financial disclosure as possible in order to move the parties toward a settlement. (Good faith mistakes are made and assets are sometimes forgotten) In part, a lawyer’s responsibility to his client is to filter the facts and circumstances of the particular case and to advise the client as to what he/she feels a judge or jury might decide is “equitable”. ) As many people are aware, the vast majority of cases settle prior to trial. If the parties can compromise on the nature of the martial assets then that is normally the “fairest” agreement they are likely to come by.
Needless to say (but I will anyway), every matter is different and needs to be evaluated on its' own merits. A host of other factors can be incorporated in an evaluation of your particular divorce situation. Give my office a call and we will be happy to sit down with you for a more formal analysis of your situation.
Divorce- Choosing My Clients
Hello. It has been a while since I had some time to contribute to my blog. Business has been extremely strong and it has become increasingly difficult to devote the necessary time to sharing my thoughts and experiences with you. However, I had an interesting conversation with a friend over the weekend. He is divorced (several years in the past, and no, I did not represent him) and was asking me how often I get to represent someone about whose case I feel strongly or passionately about. I chuckled, and told him his question seems to presuppose that I am either ambivalent or hostile to my clients. I started to give some thought to how and why I choose to represent certain divorce and custody clients, and not others.
In reality, while I do not always agree with the course of action taken by my client, generally speaking, once I decide to accept an individual as a client of my firm, I invest a great deal of intellectual and emotional capital on the client. If I do not “believe” in their point of view, my advocacy suffers.
While I am seasoned enough to know that getting overly attached to a client’s cause can cloud perception and make appropriate counsel difficult, I do not adhere to the school of thought that requires that I remain emotionally distant from my clients. I will continue to pick my client’s carefully and to try to truly understand their needs and motivations. I believe this makes me a better lawyer; one worth hiring.
In reality, while I do not always agree with the course of action taken by my client, generally speaking, once I decide to accept an individual as a client of my firm, I invest a great deal of intellectual and emotional capital on the client. If I do not “believe” in their point of view, my advocacy suffers.
While I am seasoned enough to know that getting overly attached to a client’s cause can cloud perception and make appropriate counsel difficult, I do not adhere to the school of thought that requires that I remain emotionally distant from my clients. I will continue to pick my client’s carefully and to try to truly understand their needs and motivations. I believe this makes me a better lawyer; one worth hiring.
Divorce - Winning and Losing
As an Atlanta based Divorce Attorney at least once a week I am asked by a perspective client … “What is your record? How often do you win cases like mine?” Although I have been asked this question hundreds of times over the years, I still cannot help but wonder what they expect me to say. Invariably, I will advise the client that winning and losing is normally never as clear cut as they would think and that every case is different from the one that went before it and the ones that will follow. Real life Court battles are never as portrayed on TV, a zero-sum game with one party clearly coming out on top. Often you find your victories where you can or work feverishly to minimize the losses. Divorce lawyers often work in a world of gray. Then, a case comes along that forces you to reassess your perspective and re-define “wining” and “losing”.
I handled just such a case this week. It was a divorce matter. One minor child, 5 years old. Family home with a small amount of equity, no real joint debt and both parties are employed. I was hired by the mother, the father is representing himself. A pro se litigant is often a recipe for disaster, but I had high hopes. In a contested divorce matter the parties generally fight about only three things.
1-Custody and Visitation
2-Child Support
3-Division of Assets and Debts. Three was never a problem here and I never got the sense that 2 would be a sticking point. What was the problem. Both parties wanted primary physical custody and the parties, who had been separated for about four years, had been sharing custody 50/50 for almost the entire time. Even more frustrating (from an advocates point of view) was that both parties were good, attentive and loving parents. They both worked full time, but had enough flexibility in their schedules that they actually helped each other out for drop-offs and pick-ups. As their daughter is to enter kindergarten in the fall, each party was seeking to enroll her in an elementary school near where they live, on opposite sides of DeKalb County in metropolitan Atlanta. Both schools were good and had won many state awards.
I asked the Court for a Temporary Hearing so that we could ask the Judge to decide custody, while we worked the matter out. As I prepared for the hearing, the only facts that argued in my client’s favor was that the school near her home was arguably superior to the one closer to her husband, and because of where the schools and their work sites were located, the logistics of getting their daughter from one home to the other would be slightly easier if my client’s home was the primary residence. That was it. That was all I had. No drug use, no drinking, no violence in the home. No father that traveled for business, spent too much time at work or was otherwise disengaged. No, what we had was an almost dead heat. Evenly matched parents who both truly wanted what was best for their daughter.
I met with my client the day before the hearing. She reiterated her belief that, while her husband was an terrific father, with her daughter entering formal schooling, a more solid home foundation would be a better situation.
Upon my arrival at the hearing, the Judge asked us if we would be willing to sit down with a mediator before proceeding. I agreed, as I have found mediation to be a successful tool and did not relish moving forward with the arguments I had prepared for the hearing.
We sat down with the mediator and I took about five minutes to outline my client’s position. After I finished, the husband looked across the table at me and told us that he had done the research and he agreed that the school near my client would be the best choice for their daughter, he just wanted to spend as much time with her as possible and, if we agreed to shared custody, would be willing to do all the extra driving between his office, his home and school. My client looked at me and said “That would be great.”
That was it, case over. Well, we still had to arrive at a child support figure. That took about ten minutes. And we have tabled discussion of the equity in the home until after their daughter has started school.
The three of us left the Courthouse together and my client and her soon-to-be Ex-husband walked away together. When I said my goodbyes, they were still walking away, talking happily about their daughter’s impending start of kindergarten.
Now, I think again about the question at the beginning of this piece. I did not “win” this one for my client. We did not get the primary physical custody that she steadfastly maintained she wanted, up until the day of the hearing. That being said, as I remember them walking together, seeing them put their child first and realizing that although their marriage may have failed, they will be in each other’s lives for many years to come and that they are committed to working as partners for the betterment of their daughter; I cannot help but think I will put this one in the “win” column.
I handled just such a case this week. It was a divorce matter. One minor child, 5 years old. Family home with a small amount of equity, no real joint debt and both parties are employed. I was hired by the mother, the father is representing himself. A pro se litigant is often a recipe for disaster, but I had high hopes. In a contested divorce matter the parties generally fight about only three things.
1-Custody and Visitation
2-Child Support
3-Division of Assets and Debts. Three was never a problem here and I never got the sense that 2 would be a sticking point. What was the problem. Both parties wanted primary physical custody and the parties, who had been separated for about four years, had been sharing custody 50/50 for almost the entire time. Even more frustrating (from an advocates point of view) was that both parties were good, attentive and loving parents. They both worked full time, but had enough flexibility in their schedules that they actually helped each other out for drop-offs and pick-ups. As their daughter is to enter kindergarten in the fall, each party was seeking to enroll her in an elementary school near where they live, on opposite sides of DeKalb County in metropolitan Atlanta. Both schools were good and had won many state awards.
I asked the Court for a Temporary Hearing so that we could ask the Judge to decide custody, while we worked the matter out. As I prepared for the hearing, the only facts that argued in my client’s favor was that the school near her home was arguably superior to the one closer to her husband, and because of where the schools and their work sites were located, the logistics of getting their daughter from one home to the other would be slightly easier if my client’s home was the primary residence. That was it. That was all I had. No drug use, no drinking, no violence in the home. No father that traveled for business, spent too much time at work or was otherwise disengaged. No, what we had was an almost dead heat. Evenly matched parents who both truly wanted what was best for their daughter.
I met with my client the day before the hearing. She reiterated her belief that, while her husband was an terrific father, with her daughter entering formal schooling, a more solid home foundation would be a better situation.
Upon my arrival at the hearing, the Judge asked us if we would be willing to sit down with a mediator before proceeding. I agreed, as I have found mediation to be a successful tool and did not relish moving forward with the arguments I had prepared for the hearing.
We sat down with the mediator and I took about five minutes to outline my client’s position. After I finished, the husband looked across the table at me and told us that he had done the research and he agreed that the school near my client would be the best choice for their daughter, he just wanted to spend as much time with her as possible and, if we agreed to shared custody, would be willing to do all the extra driving between his office, his home and school. My client looked at me and said “That would be great.”
That was it, case over. Well, we still had to arrive at a child support figure. That took about ten minutes. And we have tabled discussion of the equity in the home until after their daughter has started school.
The three of us left the Courthouse together and my client and her soon-to-be Ex-husband walked away together. When I said my goodbyes, they were still walking away, talking happily about their daughter’s impending start of kindergarten.
Now, I think again about the question at the beginning of this piece. I did not “win” this one for my client. We did not get the primary physical custody that she steadfastly maintained she wanted, up until the day of the hearing. That being said, as I remember them walking together, seeing them put their child first and realizing that although their marriage may have failed, they will be in each other’s lives for many years to come and that they are committed to working as partners for the betterment of their daughter; I cannot help but think I will put this one in the “win” column.
Why We Get Divorced
I spend an awful lot of time contemplating divorce From a business prospective and from a sociological view, divorce occupies a great deal of my waking time. How we get together, why we split apart, it alternately fascinates and horrifies me. I guess it is hazard of my chosen profession, but, as an Atlanta Divorce Attorney, their are very real implications that need to be explored. In surfing the net recently, I stumbled across a posting on another website that contained an article citing a study from the Center for Disease Control that indicates that Forty-Three Percent Of First Marriages Break-Up Within 15 Years. It also indicated that that one in three first marriages end within ten years and one in five end within five years. While the findings are based on data from the 1995 National Survey of Family Growth, a study of 10,847 women 15-44 years of age and are of questionable timeliness, it did get me thinking about how our society views marriage, and subsequently divorce. (To read the entire article click here )
After practicing for nearly fifteen years and having gone through my own divorce ten years ago, my observational opinion is that two specific factors have led to the increase in the divorce rate is the rise of the two income homes and the increase in our life expectancy.
The first cause, the increase in two income homes, is really just another way of saying that our lives have grown increasingly complicated and hectic and failures to communicate (even if it is just that you do not have the time to communicate) are a sure fire way to end up in front of me, or one of my brethren of the bar. With both parents working, time to talk and parent comes at a premium and often take a back seat to the pressures of modern life.
Secondly, I think our concept of "until death do we part" was coined and incorporated into our national psyche generations ago, when the average person did not expect to easily live to over 77 years of age.
Today, I often get clients in my law office that are 50+ years old, have been married for in excess of 25 years and feel that they have 25-30 "good" years left and they want to find some new happiness. I truly believe that this is one of the root causes of what appears to be disposable marriages.
Of course, this is just my opinion. I could be wrong ;-)
After practicing for nearly fifteen years and having gone through my own divorce ten years ago, my observational opinion is that two specific factors have led to the increase in the divorce rate is the rise of the two income homes and the increase in our life expectancy.
The first cause, the increase in two income homes, is really just another way of saying that our lives have grown increasingly complicated and hectic and failures to communicate (even if it is just that you do not have the time to communicate) are a sure fire way to end up in front of me, or one of my brethren of the bar. With both parents working, time to talk and parent comes at a premium and often take a back seat to the pressures of modern life.
Secondly, I think our concept of "until death do we part" was coined and incorporated into our national psyche generations ago, when the average person did not expect to easily live to over 77 years of age.
Today, I often get clients in my law office that are 50+ years old, have been married for in excess of 25 years and feel that they have 25-30 "good" years left and they want to find some new happiness. I truly believe that this is one of the root causes of what appears to be disposable marriages.
Of course, this is just my opinion. I could be wrong ;-)
Uncontested Divorce? Really?
"My Divorce will be very simple, we are not fighting about anything." This is the beginning of the vast majority of the inquiries an uncontested divorce. Unfortunately, after asking a few questions of the prospective client, I usually tell them, "My friend, you have just not found out what you are fighting about yet." The reality is, no one wants to pay a lawyer by the hour to handle their divorce. Needless to say, I have yet to understand why people have a reluctance to pay me and my fellow members of the bar. ;-) Seriously though, when I begin questioning them with specificity on issues of child support, custody, division of assets and liabilities, it often dawns on them that what appeared as an open and shut matter, is now more complicated. Unfortunately, a professional hazard of a Divorce Attorney in Atlanta, or any other jurisdiction, is that we get to focus on the worst case scenarios. What can go wrong, often does, and proper planning and, yes, the spending of precious financial resources is usually necessary to avoid major problems going forward.
Bottom line, when an uncontested divorce is possible, we try to achieve it. However, when the facts presented do not lend themselves to a quick and relatively painless process, we prepare the client for the eventualities of the Divorce process; while keeping our eye on the bottom line financial reality of the individual client.
Remember, we offer free consultations on the phone and can usually get an idea of potentially how complicated your family law matter will be in a fairly short time. Give SHAPIRO LAW GROUP a call at 770-604-9292.
Bottom line, when an uncontested divorce is possible, we try to achieve it. However, when the facts presented do not lend themselves to a quick and relatively painless process, we prepare the client for the eventualities of the Divorce process; while keeping our eye on the bottom line financial reality of the individual client.
Remember, we offer free consultations on the phone and can usually get an idea of potentially how complicated your family law matter will be in a fairly short time. Give SHAPIRO LAW GROUP a call at 770-604-9292.
Child Support Modifications On The Rise
As a Divorce Lawyer in Metropolitan Atlanta, what once appeared as an unusual event, people forgoing divorce due to economic conditions, is now becoming more common. Certainly, couples willingness to spend funds on protracted litigation is becoming more the rule than ever in the past. That being said, I have seen a tremendous upsurge in parties seeking to modify their existing child support obligations. Georgia’s Child Support Guidelines recently joined the rest of the United States in apportioning support based, in part, on the income of both parents. This, along with a number of other financial factors, has created a more complex, but arguably more reasonable system for assessing support.
In Georgia, to modify child support you must make a showing of a substantial change in either parent’s income or financial status, or a change in the needs of the children. O.C.G.A. §19-6-15(k)(1). These days, the most common substantial change is the loss of a job,. However, it could also include significant reductions in pay, having to move a substantial distance from the minor children for work, or any number of other financial calamities that are befalling families in our current economic situation. It should also be noted that the substantial change must occur after the date of the original divorce decree or order establishing child support
It should be noted that you can only bring a modification action every two years after the date of the last modification. The exceptions to this are that you can bring a modification action :
(1) If the non-custodial parent has failed to exercise court ordered visitation;
(2) if the non-custodial parent has exercised more visitation than provided in the court order; or
(3) the modification action is based upon an involuntary loss of income. O.C.G.A. §19-6-15(k)(2)(A) – (C).
Also, always remember that verbal modifications between the parties have no force and effect (except in very limited circumstances) and if you want to properly effect a modification, the Court can only begin the process from the date you file an action and not from the date you lose your job, or suffer some other financial setback.
Give SHAPIRO LAW GROUP a call at 770-604-9292 to discuss the specifics of your matter
In Georgia, to modify child support you must make a showing of a substantial change in either parent’s income or financial status, or a change in the needs of the children. O.C.G.A. §19-6-15(k)(1). These days, the most common substantial change is the loss of a job,. However, it could also include significant reductions in pay, having to move a substantial distance from the minor children for work, or any number of other financial calamities that are befalling families in our current economic situation. It should also be noted that the substantial change must occur after the date of the original divorce decree or order establishing child support
It should be noted that you can only bring a modification action every two years after the date of the last modification. The exceptions to this are that you can bring a modification action :
(1) If the non-custodial parent has failed to exercise court ordered visitation;
(2) if the non-custodial parent has exercised more visitation than provided in the court order; or
(3) the modification action is based upon an involuntary loss of income. O.C.G.A. §19-6-15(k)(2)(A) – (C).
Also, always remember that verbal modifications between the parties have no force and effect (except in very limited circumstances) and if you want to properly effect a modification, the Court can only begin the process from the date you file an action and not from the date you lose your job, or suffer some other financial setback.
Give SHAPIRO LAW GROUP a call at 770-604-9292 to discuss the specifics of your matter
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