Tag Archives: Divorce

Alimony Award After Pension Matures

Alimony Award After Pension MaturesAlimony Award After Pension MaturesIn this divorce action, the Georgia Supreme Court affirmed the judgment.  The parties settlement agreement awarded the Wife alimony in the amount of $1,250 per month, once her husband’s pension matures.  She complained that the Court made an error when it failed to utilize the time rule formula in determining the parties’ interest in the pension.  However the Court found that the Wife induced the alleged error in urging the trial court to evaluate and distribute the pension as alimony.

The Wife also complained that the Court made an error when it evaluated the alimony payment based on the assumption that the husband ceased participation in the pension plan beginning on August 31, 2009.  However, since the parties introduced evidence evaluating the pension as of that date and neither party took steps to obtain and present updated pension values as of the hearing date the court did not find an error.

Next, the Court found that the trial court did not abuse its discretion in dividing the parties’ marital assets; and the trial court did not err in ruling that the Wife would be entitled to claim at least one-half of the mortgage interest deduction in any calendar year, after awarding her the marital residence.

Finally, the Georgia Supreme Court found the trial court did not abuse its discretion in requiring Hammond to indemnify her husband and hold him harmless for the debts, which the trial court ordered her to pay, and the trial court did not abuse its discretion in awarding Hammond $4,074 in attorneys’ fees.

Alimony Award After Pension Matures – For more information abut his case see Hammond v. Hammond, S11F1978, (02/06/12)

Alimony Award After Pension Matures – If you have questions about an uncontested divorce and/or creating an Alimony award that is in compliance with Georgia law – Contact the Remboldt Law Firm at 404-348-4081 for a FREE phone consultation.

If you are considering an uncontested divorce, you may find the UNCONTESTED DIVORCE WORKSHEET helpful in moving forward with an uncontested divorce.

 

Divorce Settlement Agreement Mistake

Divorce Settlement Agreement MistakeDivorce Settlement Agreement Mistake –  What happens when you make a mistake drafting your settlement agreement?  Sometimes the consequences can be difficult to live with or you might need the court to help you enforce the provision and the provision deemed invalid.  So, it is very important to pay attention to how your divorce settlement agreement is drafted and try to not make a mistake.  Here’s an example of a time when things went wrong!

In the parties’ divorce settlement agreement, the Wife was awarded marital home along with mortgage obligation. The Wife was required to use her best efforts to refinance the home and pay the husband $20,000 for his interest after she refinanced it. If the house could not be refinanced and it was sold, the Wife was to pay the Husband $20,000.

This equitable division award was vacated by the appellate court for a couple of reasons,

(1) The Husband made an O.C.G.A. § 9-11-52 request for findings of fact from the trial court. A trial court is not required to make a finding of the value of a marital estate. However, when a § 9-11-52 request is made, the judgment must include sufficient findings to clarify the rationale of the trial court.

(2) The requirement of payment to the husband was considered indefinite because it was not required unless the wife refinanced or sold the home.

It is a divorce settlement agreement mistake when an obligation of a party relating to the settlement agreement extends for an indefinite period of time.  Therefore, make sure all your agreements have a beginning, and end time and a very specific task or term to make sure it is enforceable if you need the Court’s assistance.  For more information about this particular case see Arthur v. Arthur, 293 Ga. 63 (May 20, 2013).

If you have questions about a divorce settlement agreement mistake or if you considering filing a divorce, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.

Attorney Fees in Divorce Case

scalesAttorney Fees in Divorce Case – As a family law attorney a common question asked by my clients is can I get my attorney fees paid by the other party in a divorce?  The answer is sometimes, but I never suggest my client expect that the attorney fees in divorce case are paid by the other party.  Your attorney will have several statues of which may help you obtain attorney fees they are:

O.C.G.A § 19-6-2 applies only to cases involving alimony, divorce and alimony, or contempt of Court arising out of alimony or divorce and alimony cases, which have issues, such as those of property division, child custody and child visitation.    Generally speaking, if attorney fees are requested in a contempt action, a finding of contempt must be authorized to receive a property award of attorney’s fees.

O.C.G.A § 19-6-19 applies only to alimony modification actions and provides that an award of attorney’s fees may be available to the prevailing party “as the interest of justice may require”.

O.C.G.A § 19-6-22 applies in cases where the a person who is defending against alimony an alimony modification action.

O.C.G.A § 19-9-3(g) applies to cases where child custody is the issue, and may be used by the court to award fees and expenses for experts and a guardian ad litem as well as other costs (in addition to attorney fees).

O.C.G.A § 9-15-14.  applies to cases where a party was “substantially frivolous, substantially groundless, or substantially vexation, or was brought for purpose of “delay or harassment”.

If you have questions about attorney fees in divorce cases, you should discuss your particular concerns early in your case with your lawyer.  A lawyer will discuss your objectives and concerns to see if an award of attorney fees is a realistic goal and makes sense for you.

Attorney Fees in Divorce Case – For information about attorney fees – contact the Remboldt Law Firm for a free consultation at 404-348-4081.

Temporary Divorce Hearing Georgia

Temporary Divorce Hearing GeorgiaTemporary Divorce Hearing Georgia – A temporary hearing in a divorce is very different from an ordinary civil proceeding and different rules apply. Here are some of the differences.

1. Purpose: The purpose of a temporary hearing is to establish initial financial support, for example, temporary child support, alimony, attorney fees. No other issues of the case are relevant in a temporary hearing. For more information see O.C.G.A. 19-6-3.

2. Witness Testimony: During a temporary hearing each party and only one other witness per party may present oral testimony. However, other witnesses may testify via deposition or affidavit. For more information see Uniform Superior Court Rule 24.5(A).

3. Affidavits: Witness affidavits must be served upon the opposing party or counsel no less than twenty-four (24) hours prior to the hearing. For more information see Uniform Superior Court Rule 24.5(A).

4. Hearsay: The rules of evidence are only loosely applied during temporary hearings, for example the court may admit hearsay testimony. For more information see Gray v. Gray, 226 Ga. 767,768, 117 S.E.2d 575 (1970).

5. Domestic Relations Financial Affidavit.  The party seeking support must submit a DRFA within (15) days of the hearing and the other party must service theirs within (5) days of the hearing.  See Uniform Superior Court Rule 24.2.

6.  Child Support Worksheet.  If there are minor children involved in your divorce, both parties must present a child support worksheet.  Here is a link to the Georgia Child Support Worksheet.  The party requesting the worksheet must present it to the other party no later than (15) days prior to the hearing.  See Uniform Superior Court Rule 24.2.

7.  Minor Children.  Generally speaking minor children are not permitted to testify orally at the temporary hearing.  See Uniform Superior Court Rule 24.5 (B).

To prepare for a Temporary Hearing it is best to keep focused on the Judge and what he or she will need to make a decision in your favor at the Temporary Hearing.  Remember, the Judge isn’t interested in details of the divorce, only the those matters related to initial financial support, such as temporary child support, alimony, attorney fees.

For information about a Temporary Divorce Hearing Georgia, contact the Remboldt Law Firm for a free consultation at 404-348-4081.

You may find the Uncontested Divorce Worksheet helpful in moving forward with an uncontested divorce.

GA Supreme Court affirmed judgment in divorce case, holding that the trial court properly found that inherited funds were marital property.

The Supreme Court affirmed the judgment in the parties’ divorce case, holding that the trial court properly found that the two accounts which the husband established with inherited funds were marital property, since the accounts were transformed to marital property when the husband gave the wife an ownership interest in the property by establishing the accounts in both spouses’ names. Next, the trial court correctly found that the inherited real property was marital property, as the husband directed that the property be deeded to himself and his wife as tenants in common upon inheriting the property. Further, the trial court did not abuse its discretion in refusing to give the husband all of the couple’s interest in an apartment complex, notwithstanding the husband’s initiation of a separate legal action to enforce his interest in the property and his payment of legal fees arising therefrom, where the interests in the apartment complex were bought during the marriage with marital funds, and the wife acquired a separate and distinct interest with the purchase of the property. Finally, the trial judge did not erroneously or improperly state, after the conclusion of the wife’s case-in-chief but before the husband’s presentation of evidence, that he didn’t see why it shouldn’t be decided 50-50 . . . I’ve not heard all the evidence . . . I know you haven’t had [Husband] on direct examination. But I’ve got a very good feel from this case. The record established that the judge made these statements only after the husband testified extensively as an adverse witness and the husband’s counsel thoroughly questioned the wife on cross-examination; the trial judge was only indicating the conclusion he believed the evidence supported thus far; and the prohibition against judicial comment was meant to apply to comments made in front of a jury, not comments made during a bench trial.

Shaw v. Shaw, S11F1586 (01/09/2012)

Fulton County Daily Report, January 13, 2012

GA Rights of parties after divorce is granted are based not on settlement agreement, but on judgment itself.

Trial court’s grant of summary judgment to plaintiff’s former wife and her lawyer, affirmed, on claim alleging that defendants fraudulently induced plaintiff to sign unfair settlement agreement, and that lawyer breached his fiduciary duty, since plaintiff could not sue in tort for fraud or breach of fiduciary duty without first having final divorce decree set aside; rights of parties after divorce is granted are based not settlement agreement, but on judgment itself.

Jordan v. Jordan, A11A1207 (11/15/11)

Fulton County Daily Report, December 9, 2011

GA trial court erred in finding that wife’s trade account was marital property subject to equitable division.

Judgment partially reversed in parties’ divorce case, as trial court erred in finding that wife’s trade account was marital property subject to equitable division; evidence showed that wife brought account to marriage, no marital funds were placed into account and account’s value rose or fell with market, so approximately $74K left in account at end of marriage was wife’s separate property; trial court did not err in applying source of funds rule to husband’s office property and not to $210K that wife withdrew from her trade account during marriage and placed in parties’ joint account for real estate investment, since husband’s office property was relatively static asset, which could be more easily valued, and no evidence established total amount of non-marital and marital components of joint account; trial court did not err in crediting husband’s uncontradicted testimony that he contributed $20K in premarital funds to his office; wife would not complain about trial court’s valuation of husband’s non-marital interest in office or unencumbered land adjacent to marital home after she agreed to use of county tax records to determine value of parties’ various real estate properties.

Highsmith v. Highsmith, S11F1052 (09/12/11)

Fulton County Daily Report, September 23, 2011

 

GA Settlement agreement was not incorporated in her divorce decree.

Trial court’s determination in this action in equity that petitioner failed to exercise reasonable diligence in pursuing her equitable claim, affirmed; petitioner stated that alleged settlement agreement was supposed to have been incorporated in her divorce decree, but she failed to take any action to remedy that omission for 12 years, she took no action for five years after alleged pension payments became due but were not paid, she failed to act when payments she alleged were made under agreement were reduced in amount and paid only sporadically and she waited additional two years after alleged pension payments stopped altogether to bring this action seeking equitable relief in form of constructive trust.

Davis v. Davis, A10A2195 (07/06/11)

Fulton County Daily Report, July 22, 2011

 

GA Nunc pro tunc order, affirmed, in divorce case.

Nunc pro tunc order, affirmed, in divorce case, as trial court properly used such order to cause written judgment of divorce to relate back to date of original divorce hearing and ruling; on June 1, 2000, trial court issued final divorce decree, however decree was not filed with clerk until August 1, 2002 and meanwhile parties remarried on June 25, 2000; wife again filed for divorce on June 29, 2010, and at that time, parties learned that final decree in first divorce had not been filed until 2002; wife sought to amend 2000 judgment, husband sought to dismiss 2010 petition for divorce, and trial court amended order in 2000 case by entering order nunc pro tunc to ensure that it reflected true judgment rendered—that parties were to be divorced on June 1, 2000.

Maples v. Maples, S11F0919 (07/11/11)

Fulton County Daily Report, July 22, 2011

Father submitted himself to trial court’s personal jurisdcition of Dekalb County, GA

Judgment denying father’s motion to vacate judgment of divorce AFFIRMED, and judgment modifying father’s custody order, AFFIRMED; father’s contention that divorce court lacked jurisdiction based on residency of his children, whom he alleged resided in Ethiopia when divorce was filed and when divorce decreee was issued in 2006, was moot, since trial court entered 2010 custody modificaiton and parenting plan order, it was uncontested that children and their mother resided in Dekalb county then and father submitted himself to trial court’s personal jurisdcition when he filed his cusotdy modificaiton pleading and he appeared for hearing on same; father’s contention that trial court erred in failing to make jurisdictional findings regarding children’s home state in body of 2010 custody modificaiton and parenting plan on basis that Uniform Child Custody Jurisdiciton Act generally requires such findings, rejected, since there is no such authority where, as here, trial court did not decline jurisdiciton on basis of being inconvenient forum or stay matter because of another custody action in foreign jurisdiciton.

Wondium v. Getachew, S11A0647 (05/16/2011)