A Georgia Divorce Attorney Answers Your Questions
We have the answers to many questions about child custody, separation of assets, division of shared debt, and other concerns shared by divorcing spouses. Visit our FAQ page to find out what you can expect when you separate from your spouse.
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How does pet custody work in Georgia divorce cases?
Many people consider their pets as part of the family. However, the law categorizes pets as property to be divided during a divorce. In many cases, the pet is awarded to only one spouse, thus preventing the other spouse from seeing their pet. But some courts might take an approach that more resembles child custody than property division when it comes to pet custody.
If you are getting a divorce, consult with an attorney to go over the options you might have to determine custody of your pets. Call the Ward Law Firm at 770-383-1973.
How is pet custody determined in Georgia?
Georgia courts determine pet custody based on numerous factors. Because Georgia law considers pets as property, property division laws apply.
Georgia is an equitable division state, meaning that courts will divide the marital property in a fair and equitable manner. Equitable does not mean equal, so the court may not necessarily split the property down the middle.
The court will consider all of the couple’s marital property that is subject to division, and divide it in a way it deems fair and just. The pets are lumped in with the rest of the property. But this brings up an important point: when the pet was acquired can affect these cases
Marital vs. Separate Property
Marital property is property acquired during the marriage and is subject to division between the spouses during a divorce. Therefore, if the couple acquired the pet during the marriage, the court will consider it marital property to be divided with the rest of the marital property during divorce.
Any property obtained before the marriage, as well as gifts and inheritance during marriage, is separate property and will not be subject to division. If one spouse acquired the pet prior to marriage or if the pet was a gift to or the inheritance of one spouse during marriage, then it is not subject to division. It is the property of the spouse who acquired the pet or received it as a gift or inheritance.
Documentation of when you acquired the pet can be crucial in these cases, not only when it comes to custody of the pet, but ownership of any property.
Will the court make special considerations to determine pet custody?
As stated above, courts typically apply property division laws when determining pet custody. However, some courts will consider other factors when deciding who should get the pet. Some of these factors include:
- Which spouse is more responsible for caring for the pet
- Which spouse has closer relationship with the pet
- Which spouse spends more time with the pet
- Which spouse, if any, has been abusive or neglectful of the pet
It is important to gather documentation, photos, testimony, and other evidence to create a clear picture of your relationship with the pet, helping the court answer these questions.
Is joint pet custody an option?
In some cases, courts will award joint custody of the pet and come up with a shared pet custody agreement. While we are aware of such cases, we have never personally represented a client where this was the resolution to a question of pet custody.
While sharing custody of a pet may sound ideal, it can become complicated and cause hostility and disagreements in some cases. We encourage our clients to fully consider the property that matters most to them when getting a divorce, whether it be the house, investment properties, or even the family pet.
If you are getting divorced, call 770-383-1973 to schedule your REAL Case Analysis with the Ward Law Firm. We can discuss all matters relating to your divorce, including custody of your pets.
What is the Georgia divorce waiting period?
In order to file for divorce in Georgia, there are rules couples must follow. For example, the Georgia divorce waiting period requires couples filing under certain grounds to wait a certain amount of time.
Depending on the divorce grounds, couples may have to wait only a month, while some end up waiting at least a year or two.
Regardless of what grounds you file for divorce under, anyone filing for divorce in Georgia must have lived in the state for a minimum of six months. Essentially, this means that if you move to Georgia to get away from your spouse, you still must wait six months to file.
If your spouse moved out of state and you stayed, you are able to file in Georgia.
How do divorce grounds affect how long I have to wait?
Georgia has both fault and no-fault divorces. Fault divorces occur when one of the spouses requests a divorce based on certain grounds including:
For most couples filing for divorce based on fault grounds, there is generally no waiting period. However, the following grounds have their own specific time period criteria:
According to O.C.G.A. § 19-5-3(7), there must have been willful and continued desertion by a spouse for one year or more. Once the year is up, the abandoned spouse can then file a claim for divorce based on abandonment.
Incurable Mental Illness
Per O.C.G.A. § 19-5-3(11), one spouse must have spent the last two years in a mental health institution or under the constant care of a mental health professional in order to successfully assert this as a grounds for divorce.
No-fault divorces are just as they sound; to petition for divorce, neither spouse needs to prove fault. All the law requires is a state-approved reason for the divorce, such as “irreconcilable differences” or “irreparable breakdown of the marriage.”
According to O.C.G.A. § 19-5-3(13), no-fault divorces based on an irretrievably broken marriage require a 30-day waiting period from the date of filing.
30-Day “De Facto” Waiting Period for Both Fault and No-fault Divorces
While there is technically no waiting period for a fault-based divorce (aside from those we discussed above), petitioners must still wait 30 days after serving his or her spouse before the court is able to schedule a hearing date.
This is because after the plaintiff serves a defendant with papers, the defendant has a set time in which to file a responsive pleading or answer, usually 30 days. Georgia courts cannot schedule a trial until after the defendant’s time to respond has expired per O.C.G.A. § 9-11-40.
Therefore, there is a de facto waiting period of 30 days for both no-fault and fault-based divorce.
This may differ when the plaintiff serves the defendant by publication; this method gives the defendant 60 days to respond from the date of the first publication, per O.C.G.A. § 19-5-3(13).
Note: A judge may grant a divorce before the settlement period ends if one of the parties files a Motion for a Judgment on the Pleadings to skip the hearing. The parties must also sign and submit a complete settlement to the court.
Filing for divorce is just the first step in the divorce process. The waiting period is the minimum amount of time required for a divorce, but most divorces — especially if contested — take much longer. The additional time allows for couples to address property division and child custody issues.
The requirements for filing a divorce in Georgia can be complicated. Get help from the Ward Law Firm today.
Contact us to schedule your REAL Case Analysis: 770-383-1973
What Type of Experts Might You Need To Prepare and Present Your Case?
Divorce Lawyer Atlanta
This is Dave Ward from the Ward Law Firm and I protect business owners who are facing divorce and this is the last in our series on the three most frequently asked questions that I get from people who are facing divorce in Georgia and the four questions that people should be asking.
The last question that people should be asking is, what type or types of experts might I need in order to prepare and present my case? And this is important to ask at the outset because anytime you’re going to be involved with an expert, there’s preparation that has to be done and considerations that have to be made. First and foremost, experts are usually very, very expensive. So knowing at the outset that you may need to have somebody in a particular discipline whether that be a forensic accountant or a certified divorce financial analyst or a child’s psychologist or any other numbers of experts that might be needed in your case, it’s important to know that these people may be needed so you can plan appropriately for the expenses that are going to be involved. It also helps tailor the type of information that you need to be gathering and putting together to be able to present to that expert so they could perform their analysis of whatever it is that is covered by their particular field.
One of the most common experts that I see, particularly in cases that involve business owners, are either forensic accountants or certified divorce financial analysts and both of these are experts are highly skilled in using all manner of financial documentation including tax returns in order to pinpoint irregularities in parties’ incomes, or in their expenses including things that are related to businesses and business income and expenses. They can be instrumental in discovering hidden assets as well as establishing evaluations for closely held corporations and businesses. The more complex the cases – whether that’s due to a high network or the involvement of one or more business – the more likely it is that an expert of this type is probably going to be needed in your case. So knowing what type or types of experts you’re going to need is an essential part in preparing for a divorce.
Well we’ve just wrapped up our series on the three most frequently asked questions that I get from people who are facing a divorce as well as the four questions that people should be asking. If you’ve reached this point in the series then clearly there is something going on and I always tell people if you’re faced with the possibility of divorce, the first thing you should look to do is go and speak with an attorney. So if you’re facing the prospect of a divorce and you’d like to know how to start getting prepared, come in and we’ll conduct our real case analysis for you. We will review all of the facts of your case. We’re going to evaluate the legal issues that are present in your case, analyze the strategies that are available to you and give you a list of next steps that you can be working on as you start moving forward in the process. So contact us today at the number below.
Who is responsible for college tuition after divorce?
Some of the most difficult issues divorcing parents face involve the care of their children. Georgia courts will help determine which parent should have physical custody of the child and require that the non-custodial parent pay child support. While most parents know they will have to pay child support, many might be wondering whether they also have a legal duty to contribute financially to their child’s college tuition after divorce.
What does child support in Georgia cover?
Many people mistakenly believe that child support only covers the child’s basic necessities, such as food, clothing, and shelter. However, child support covers a variety of expenses, as discussed in the Georgia child support guidelines.
For example, child support may cover health care, entertainment costs, transportation, and school expenses, in addition to the basics. The idea is to make sure that children have the same opportunities that they would have if their parents were still together.
When do child support payments end?
Generally, parents must provide for their children until they legally enter adulthood. According to O.C.G.A. § 19-6-15(e), a parent’s child support obligation stops under the when the child turns 18, dies, marries, or is emancipated. However, support may continue until child is 20, if the child is still in high school.
Does a child support order include college tuition payments in Georgia?
College tuition costs are not usually part of a basic child support order, meaning that Georgia courts will likely unable to order a parent to contribute to a child’s college education.
However, not all parents are off the hook when it comes to paying for college. If a parent chooses to include a provision discussing these costs in their divorce contracts, the courts can enforce and honor those agreements. For example, if your spouse agrees to pay for your eight-year-old child’s future college expenses during your divorce, the courts will mandate that your ex-spouse pay tuition.
If you decide to include a college costs provision in your marital agreement, make sure that it is clear and specific. For example, you may include a condition that limits your contribution to colleges under a certain tuition amount per year.
The provision should also describe what expenses you agree to cover. If the provision is open-ended, courts could interpret college expenses to include not just tuition and room and board, but transportation, computer costs, insurance, books, and clothing allowances.
Contact a Gwinnett County Lawyer to Help You With Child Support Orders
When determining child custody and child support agreements, Georgia courts will focus on the best interests of the child. Gwinnett County child support attorney David Ward will ensure that both you and your children get what you rightly deserve.
Work with The Ward Law Firm for help drafting agreements and ensuring they are fair and in your and your child’s best interests.
Contact David at 770-383-1973 to schedule your REAL Case Analysis today.
Can a child choose which parent to live with in Georgia?
When Georgia parents get divorced, child custody is one of the main issues that needs addressing. The court will typically award one parent with physical custody of the child. However, after a certain age, a child can choose which parent to live with in Georgia.
At what age can a child choose which parent with which to live?
According to GA Code § 19-9-3(5), children who are 14 years old or older may choose which parent they want to live with primarily. Once the child has made a decision, he will have to sign an Affidavit of Custody Election and submit it to the court.
At what age will the court consider the child’s wishes?
Children between the ages of 11 and 14 may voice their opinions on custody arrangements per GA Code § 19-9-3(6). The court may consider this opinion when determining which parent will be the child’s primary custodian. However, the court is not obligated to go along with the child’s decision. Children in this age range do not have the final say on where they get to live.
Will the court always grant the child’s wishes at 14? When will it not grant the request?
Not always. The court has the right to go against the child’s wishes in order to protect the best interests of the child.
According to GA Code § 19-9-3(3), judges will consider a number of factors when determining the best interests of the child. Some of these factors include:
- Each parent’s home environment
- Each parent’s capacity to provide for the child’s basic needs
- The capacity to maintain stability in the child’s life
- The mental and physical health of both parents
- Each parent’s involvement in the child’s daily activities
- Evidence of substance abuse by either parent, family violence, or child abuse
- The emotional ties existing between the child and each parent
It is the court’s responsibility to place the child with the parent that can best ensure the child’s safety and well-being.
Is a child’s decision enough to modify a child custody order?
Parents may file a petition to modify a child custody order if there is a substantial change in circumstances that warrants a custody change.
Courts typically consider health complications, new jobs or relocation as significant changes. The courts may also consider a child’s selection of a parent after reaching the age of 14 a substantial change in circumstances, per GA Code § 19-9-3(5). As a result, a child custody agreement can require modification based on a child’s desire to live with one parent over the other.
However, a child can only make a custody selection once over a two-year period from the date of the last selection. The courts will still consider the best interests of the child before making any modifications.
Gwinnett County family law attorney David Ward knows how important child custody matters are for separating parents and has years of experience dealing with such cases. Please contact The Ward Law Firm at 770-383-1973 for your REAL Case Analysis.
Is alimony taxable for payors and recipients in Georgia?
Most people know what alimony is, but it is likely that most people have not considered the tax implications of receiving or paying alimony. For anyone going through a divorce, understanding whether alimony is taxable or not is essential to correctly filing your taxes.
Is alimony taxable in Georgia?
As far as taxes go, the U.S. tax code allows paying spouses to use alimony as a deduction on their taxes. At the same time, receiving spouses must include it when tallying their income for tax purposes.
When does the IRS consider a payment alimony?
As we stated above, you do need to report alimony payments as income, but those payments must meet strict guidelines for the IRS to consider them alimony payments:
- A divorce or separation agreement requires and dictates the payments
- The paying spouse and receiving spouse are not filing a joint return
- Payments are cash, check, or money order
- The order does not specify that the payments are “not alimony”
- The payer and recipient do not reside in the same household
- The payments are not child support
- The payments cease before or at the time of the recipient’s death
What do I need to know as the recipient of alimony payments?
If you currently receive alimony, federal tax codes require you to count these payments as a part of your income on your annual tax forms. Because of this, you must file a Form 1040. The Form 1040A and Form 1040EZ do not have the appropriate sections to record this information.
Record the total amount of alimony received during the year on line 11 of your Form 1040. Some people also opt to file a Schedule NEC instead. This is Form 1040NR. On this form, the amount of alimony received belongs on line 12.
What if I make alimony payments?
If you pay out alimony to your former spouse, you can deduct the total amount paid. This is true whether you itemize your deductions or opt for the standard deduction. It is important to note, however, that you also must file a Form 1040. The popular Form 1040EZ as well as the 1040A lack the space to record this type of payout.
In order to deduct this expense, you will need the total amount of alimony paid during the year, as well as your former spouse’s social security number or other taxpayer identification number. You will record the amount paid on line 31a of the Form 1040; record your former spouse’s information on line 31b.
How can David Ward help me?
It is important to note that we are not tax professionals and cannot offer tax advice based on your individual situation. We recommend taking your specific questions to a licensed Gwinnett County tax professional. However, we can help with any questions you have about divorce, alimony, or payment modifications.
Contact the Ward Law Firm at 770-383-1973 today to learn more about modifying or enforcing your current agreement.
What is a guardian ad litem for Georgia custody cases?
A divorce can be a frustrating and traumatizing experience for anyone involved, but this is especially true when it comes to the effect it has on children. Most parents will go out of their way to ensure no harm comes to their children during a child custody case, but if a judge is worried that the parents are not representing the child’s best interests, the judge may appoint what is called a guardian ad litem to the case.
Parties in the case may also agree to appoint a guardian ad litem for the duration of the case.
What is a guardian ad litem?
A guardian ad litem (GAL) is an individual, sometimes an attorney or mental health professional, who acts as the child’s voice throughout the child custody or child custody modification process. This ensures that the court is able to act in the child’s best interests. The guardian will then give her recommendation on what actions the court should take to uphold the best interests of the child.
If the GAL is not an attorney, she must be a Court Appointed Special Advocate (CASA). CASA training meets the requirements to be a GAL. She must also receive special training administered by the Office of the Child Advocate for the Protection of Children.
What does a guardian ad litem do?
To ensure the court acts in the best interests of the child, guardians ad litem must investigate all aspects of the case to determine the best custody choice for the child.
To represent the best interests of the child, the GAL may:
- Interview the child and any other involved parties (e.g., parents, family members, teachers, religious leaders, coaches, etc.)
- Request the child’s medical and educational records
- Request the child or parents undergo psychological testing
- Visit the child’s home
- Investigate relationships
After the GAL has conducted her investigation, she will draft a report with her recommendations. While the GAL will consider the child’s wishes, she will always act in the child’s best interests (e.g., if the child wants to live with one parent, but the GAL finds that parent has a substance abuse problem, she will go against the child’s wishes).
If the parents disagree with the GAL’s recommendation, they can each present witnesses and/or evidence as to why they disagree, but the judge has the final say.
Why is a guardian ad litem important to my Georgia child custody case?
Because Georgia courts take the recommendations of guardians ad litem very seriously, your entire case could rest on the GAL’s opinion of you. If the GAL believes you are an unfit parent, she may recommend that the judge award custody to your spouse and possibly even limit visitation.
To ensure that you protect your rights and your child’s best interests, enlist the help of a Gwinnett County child custody attorney. David Ward will represent you throughout your case and make sure the guardian is representing your child’s best interests.
Contact the Ward Law Firm to schedule your REAL Case Analysis today: 770-383-1973.
How Quickly Can I Expect To Get A Hearing When Facing Divorce?
This is Dave Ward of the Ward Law Firm and I protect business owners who are facing divorce.
The third question that people should be asking when facing a divorce is, “how quickly can I expect to get a hearing?”
Frequently when a divorce is being filed, there are a number of immediate concerns that need to be addressed. This is particularly true in situations where children are involved. When those things arise, there are always questions of is one party going to need to pay spousal support or child support, who has custody of the kids under what circumstances, who’s going to have visitation and all those of sorts of things, who’s going to get to stay where, and who needs to move someplace else.
For all these questions, the courts have set up something called the temporary hearing. At a temporary hearing, the sole purpose is to simply maintain the status quo until such time as the court has an opportunity to hear the case on all of its merits and in other words, to have a full blown trial.
Usually, you can request a temporary hearing at the time that it’s being filed but the court is almost never going to agree to set that before at least 30 plus days have elapsed and the reason is very simple, the case has to be served on the other party. It’s a lawsuit and like all lawsuits when somebody is being sued, they are entitled to be notified of the case and the court is going to make sure before it sets any hearings that adequate time is given to make sure that your spouse has been made aware of the fact that the case is pending and knows about hearing and has time to prepare for it. So that’s usually the fastest you’re going to get and there is one exception to that and that is in situations where there’s a bona fide emergency that the court must handle immediately.
Frequently, situations like that involve situations that really truly cannot wait at all and often times involve harm to one of the parties or to the party’s children. Now it’s important to remember that if you’re asking the court for an emergency hearing, what a court considers to be an emergency is very, very different from what you and I think are emergencies. Frequently, a court is only going to grant a request for an emergency hearing under the most dire of circumstances.
So for this reason, you shouldn’t assume that you’re going to be able to get one of these emergency hearings. More often than not, it’s usually going to be 30-40 days before you’re going to be able to have your first hearing which is why it’s important to make sure that you plan appropriately for handling that period of time that’s going to elapse from filing until that first hearing. And that’s the questions number three on our series of the questions that people should be asking when they’re facing divorce.
Should I Leave The Marital Home When Facing Divorce?
This is David Ward of the Ward Law Firm and I protect the business owner who’s facing divorce.
In this series, we’ve been talking about the three most frequently asked questions that I get from people and now we’re on to the questions that people should be asking. Question number two that people should be asking is “should I leave the marital home?” And the answer for this actually can vary from situation to situation.
If it’s your intent to keep the marital residence, frequently it’s recommended that you not leave it and while there is nothing to preclude the court from doing so, courts are usually reluctant to end the case with the final order ordering one spouse to leave so the other spouse can move back into a residence. So ultimately your best chances of keeping the marital residence if that’s what you’re interested in doing is not to leave it at all. But there are some important considerations that go into this decision to begin with and it’s important to remember that the decision to keep or not keep the marital residence really is a very important financial decision.
There are a number of factors that need to be considered before making the decision including is the residence under water or in other words, is it worth less than what is owed on the mortgage. Another consideration is whether or not you have sufficient income in order to support the residence, pay the associated cost including mortgage payments, insurance if there are homeowner’s dues, and those types of things and finally if you can afford to make any of the upcoming major repair such as replacing a roof, etc.
So the final note that I would have and this goes against what I had initially recommended about staying in the marital home and that has to do with situations involving domestic violence and if you’re in a situation where you are concerned for your safety or the safety of your children, nothing trumps that. If you are concerned for your safety, there are things that can be done to get your spouse out of the home but if you’re concerned for your safety or the safety of your children, leave the house now and we can deal with that once you’re in a position where we know that you’re going to be safe. Nothing, nothing is more important than the safety of yourself and your children. So that is the second question that people should be asking when they’re facing a divorce.
What Kind of Information Should You Be Gathering in a Divorce?
I’m David Ward from the Ward Law Firm and I help protect the business owners who are facing divorce.
In this series we’ve been talking about three most frequently asked questions that I get from people who are facing a divorce.
We are going to shift gears a little bit now and talk about the four questions that you should be asking. Question number one that you should be asking is what sort of information should I be gathering?
A divorce is a law suit. It’s just a particular kind of lawsuit. Like any other lawsuit if the case goes to trial or if you have a hearing you’re going to be required to prove your case and in order to do this you’re going to need evidence. In most cases often the best evidence comes in the form of either pictures or the subject of this question and that is documentation. There is no way to list every conceivable document that you may need, there are some that are common to virtually all divorce cases.
Number one would be a copy of any domestic contracts. What I mean by that is if you have either a prenuptial agreement or a postnuptial agreement, you’re going to want to have those documents. Copies of your last couple of years of income tax returns, bank statements for the last couple of years are also going to be extremely helpful to determine spending patterns etc. and that’s particularly important if you are concerned about money being suddenly moved or disappearing from accounts without any reasonable explanation for why those changes are occurring. Same with investment account statements and retirement account statements. Other statements that are also important would be mortgage statements. If you have car loans, or credit cards, having those statements. Virtually any type of loan agreement and off course for business owners keeping business records such as invoices, account statements, balance sheets, incoming cash flow statements, all the sort of documentation they would normally save as a business owner. Again finally what we mentioned earlier photographs that are related to the divorce. For most of these statements I suggest that people start by trying to gather at least three, last three years worth of statements. With many companies moving to electronic statements it’s become a whole lot easier to obtain these documents. However it is important to remember that passwords can be changed by your spouse which is why I usually suggest printing hard copies and putting them in a safe place where your spouse is not going to find them.