Category Archives: Property Settlement

Prenuptial Agreement Financial Disclosure

Prenuptial Agreement Financial DisclosuPrenuptial Agreement Financial Disclosurere – What is the difference between an agreement made in contemplation of divorce or a contract made in contemplation of marriage?  The case of Lawrence v. Lawrence, S09A1370 (November 9, 2009) helps us sort this question out. 

The parties began dating in July 2001.  Mrs. Lawrence (wife) was an office worker and Mr. Lawrence (husband) owned the building where she worked.  After a year and a half of dating, the couple moved in together and they were married two years later.  

A month before the wedding, the couple executed an agreement.  The agreement was drafted by the husband’s attorney and stated that each were aware of the other’s financial position and income and that Wife had the right to have her own attorney look over the agreement but she elected to sign without one.  

Three years later the wife filed for divorce and the trial court upholds the agreement, the wife appeals and the Supreme court affirms.  

Prenuptial Agreement Financial Disclosure – here’s what the court found.  

First, the Wife argued the prenuptial agreement was void because it was not attested by at least two witnesses as required by a contract made in contemplation of marriage.  Additionally, the Court has repeatedly found that agreements that report to settle alimony issues are classified under Georgia law as a contract made in contemplation of divorce (antinuptial) and not a contract made in contemplation of marriage (prenuptial).  Here, the agreement at issues was clearly a contract made in contemplation of divorce because it addressed the issue of alimony and was not a attested by at least two witnesses.

The wife further argues the agreement is void because it failed to disclose the husband’s financial status.  Under Georgia law to enforce a prenuptial agreement there must be mutual disclosure of full and fair disclosure of the assets of the parties prior to the execution of the agreement.  Here, even through the wife never saw a financial statement or other form of documentation of the husband’s financial condition before signing the agreement, the record in this case supports the trial court determination that there was adequate pre-execution disclosure in that the parties because before they were married,   So what did the court consider?

The court looked at the fact that the parties dated for a year and a half and then lived together for over two years before they got married.  The Wife worked in the building the husband owned.  there are several other factors which would disclosed to the wife the husband’s financial status, such as the 6,000 square foot  house where they lived, the trips they have taken and the money that was spent.  

the court found that since there was no evidence of the husband having any income or assets which the wife was unaware, the court found that there was a full and fair disclosure of the husband’s financial condition prior to the execution of the agreement. 

Justice Hunstein and Chief Judge Williams dissented.

If you have questions about an uncontested divorce or Prenuptial Agreements – 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.

 

 

 

 

Marital or Separate Property?

Marital or Separate PropertyMarital or Separate Property? The case of Shaw v Shaw gives us an indication of how a court would rule in some common scenarios.

Marital or Separate Property? The Bank Accounts: There were two bank accounts established by Husband with inherited funds. The Husband titled the account in both his name and Wife’s name. The Supreme Court affirmed the trial court finding that the two accounts, established with inherited funds, were marital property, since the accounts were transformed from separate property to marital property when the husband gave the wife an ownership interest in the property by establishing the accounts in both spouses’ names.

Marital or Separate Property? The Real Property: The Husband inherited some real property. The property was separate property but became marital property when he directed that the property be deeded to himself and his wife as tenants in common upon inheriting the property. The Supreme Court of Georgia affirmed the trial court’s finding the inherited real property was marital property and subject to the equitable division of marital assets.

Is it Marital or Separate Property? The Apartment Complex. This property was purchased during the marriage with marital funds, therefore the Wife acquired a separate and district interest in the property. Therefore the trial court did not abuse its discretion in refusing to give the husband all of the couple’s interest in an apartment complex. Even though the husband initiation of a separate legal action to enforce his interest in the property and his payment of legal fees arising therefrom.

Trial Note: The trial judge, as the trier of fact, stated after 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.

For more information about this case see Shaw v. Shaw, S11F1586 (01/09/2012).

If you have questions about an uncontested divorce – 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.

 

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.

 

Uncontested Divorce Division of Property

Uncontested Divorce Division of PropertyUncontested Divorce Division of Propertywhat property is divide in an uncontested divorce?  Only real and personal property and assets acquired by the parties during the marriage are subject to equitable property division.  A property interest brought to the marriage by one of the marital partners is a non-marital asset and it is not subject to the equitable division since it was not generated by the marriage. (see Payson v. Payson, 274 Ga. 231 (2001) and Bloomfield v. Bloomfield, 282 Ga. 108 (2007).

The last date on which assets may be acquired so as to be marital assets is the date of the final decree of separate maintenance or the date of the decree of divorce.  (see Friedman v. Friedman, 259 Ga. 530 (1989)

Property acquired during the marriage by either party by gift, inheritance, bequest, or devise remains the separate property of the party that acquired it; and is not subject to equitable division unless the appreciation in the value was caused by efforts of the other party during the marriage. (see Halpern v. Halpern, 256 Ga. 639 (1987).

However, Property does not become a marital asset simply because one of the spouses obtains it during the marriage.  (Dasher v. Dasher, 283 Ga. 436 (2008)).

Gifts between spouses of marital property remain marital property, subject to equitable division.  Also, a gift to a marital couple will become marital property absent evidence of the contrary intent by the donor.  However, a gifts of one souse by the other spouse becomes separate property of the recipient spouse.    (see Bailey v. Bailey 250 Ga. 15 (1992) and McArthur V. McArthur, 256 Ga. 762 (1987).

In a case where the marital residence was purchased by one party prior to the marriage, the other party would be entitled to an equitable share of the net increase in the equity in the marital home attributable to marital funds.  (see Thomas v. Thomas, 259 Ga. 73 (1989)).

Uncontested Divorce Division of Property – If you have questions about an Uncontested Divorce Division of Property or you need help with completing an uncontested divorce – Contact the  Remboldt Law Firm at 404-348-4081.

Additionally, for more information on the Georgia Child Support Calculation Gross Income – you may find the Georgia Child Support Worksheet helpful.  Also, if you are considering an uncontested divorce, you may find the Uncontested Divorce Worksheet helpful in moving forward with an uncontested divorce.

Child Support Worksheet Calculation

child support worksheet calculationChild Support Worksheet Calculation.  You may find the Georgia Child Support Worksheet helpful.  But also how does the court view the child support worksheet calculations?  Here’s a case where there were many issues and the court addressed each one.

First, the Court is required to make a written finding to support its deviation from the presumptive amount of child support for extraordinary educational expenses (there’s a space on the worksheet – you need to use it!) and this is one of the purposes of the Child Support Addendum.

If one party does not work, you should impute a monthly gross income based on a 40-hour workweek at the national minimum wage.  This is also used if the party has no viable way to calculate their income.

The court allows for prorating of the husband’s responsibility for the basic child support obligation before proceeding through the remainder of the steps in calculating his monthly child support obligation;

There is no requirement to enter written findings regarding low income if there is no deviation for such;

A party is not entitled to a specific deviation for the child’s extracurricular expenses if they agreed at trial to pay for these expenses and offered no evidence as to the amount in the settlement agreement.

It is ok to enter into a security agreement and collateral pledge to guarantee the payments required by the divorce decree.

If you have questions about how to make the Georgia Child Support Worksheet Calculation, the Child Support Addendum – or For more information, contact the Remboldt Law Firm at 404-348-4081 for a free consultation.

You may find the Georgia Child Support Worksheet helpful.  Also, if you are considering an uncontested divorce, you may find the Uncontested Divorce Worksheet helpful in moving forward with an uncontested divorce.

Brogdon v. Brogdon, S11F1975 (02/27/12)

Fulton County Daily Report, March 2, 2012

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.

Sources of Funds and Baseline Value

Sources of Funds and Baseline Value.  Without Baseline Value Of Property Calculation of Appreciation In Value Impracticable.  In the case of Pina v. Pina, the parties married in 1998, and Wife filed a complaint for divorce on December 10, 2008. At issue was equitable division of real property the Wife purchased prior to the marriage. In 2005, she transferred the property into a Trust for the benefit of her three children, two of whom are Husband’s children.  The trial court ruled that the property is the Wife’s separate property, but that Husband has an equitable interest in the property because mortgage payments,  repairs, and improvements on the property were made with marital funds, and because Husband worked on the property during the marriage. However, only the subsequent increase in the net equity attributable to marital contributions is a marital asset, subject to equitable division.

However, considering the lack of evidence of the value of the maintenance work performed by Husband, the testimony of Wife that he was paid for this work, the fact that Husband used a portion of the property rent-free as a commercial recording studio, and the fact that the property paid for the mortgage through its own rents, the trial court had evidentiary support for its finding that any increased value in the property attributable to Husband’s contributions and the expenditure of marital funds was nominal “Calculation of appreciation in value of property during marriage was impractical due to lack ofbaseline value.”

Sources of Funds and Baseline Value.  Pina v. Pina, 290 Ga. 878 (April 24, 2012)