Child Support in Shared Custody

It is possible for the custodial parent to pay child support to the non-custodial parent.  A recent ruling by the Georgia Supreme Court confirmed that this highly unusual arrangement was possible under Georgia law.  The ruling also explained how calculations work for child support in shared custody.

First, in child support in shared custody cases one parent is designated the custodial parent and one parent is designated the non-custodial parent.  If one parent has more parenting time, then that parent is designated the custodial parent.  The other parent is designated the non-custodial parent.  If the parents have equal parenting time, then the parent with less income is designated the custodial parent and the parent with the greater income is designated the non-custodial parent.

When the parents have equal, or close to equal, parenting time, child support is first calculated in the normal way without regarding to parenting time.  The calculated amount will be the same as if the non-custodial parent visited with the child on alternating weekends, or had no parenting time at all.  Second, the court may then give a deviation from the calculated amount based on the non-custodial parent’s court ordered visitation with the child.  The deviation would reduce the non-custodial parent’s child support in shared custody obligation.

In the Georgia Supreme Court case, the father had 60% of the parenting time and the mother had 40% of the parenting time. The father is therefore the custodial parent and the mother is the non-custodial parent. Based on the parent’s respective incomes, the calculating amount of child support the mother would pay was $233.00 per month.  Because the mother had 40% percent of the parenting time, the court could allow a parenting time deviation, thereby reducing the mother’s child support obligation.

In its ruling, the Georgia Supreme Court made clear that the parenting time deviation could exceed the mother’s calculated child support obligation.  In other words, if the mother’s calculated child support obligation was $233.00 per month, the court could allow a $500.00 deviation, which would mean that the father had to pay child support to the mother in the amount of $267.00 per month.

The judge has broad discretion to make these deviation based on what is feels is best for the child.  Make sure that your financial statement is complete and accurate, so that the judge has reliable information.

Remedies for Contempt

If a party fails to do something the court has ordered them to do, the court can find them in contempt.  Contempt most often arises over a failure to pay child support, but it can involve a failure to do anything that the court has ordered.  Once a person is found in contempt they are ordered to jail for up to 20 days, but the court must set a purge.  A purge is something the person must do to avoid going to jail.  A purge can be payment of money, or it can be an action.  The court has many remedies for contempt. The person found in contempt can also be fined up to $1,000 and is also usually ordered to pay some or all of the other person’s attorney’s fees.

Two recent cases demonstrate the kinds of purges a court can fashion to remedy violations of its orders.  In one case, the Husband was ordered to turn over furniture to the wife.  When the Husbands failed to do so, and the furniture disappeared, the court found him in contempt and ordered him pay the fair market value of the furniture to the Wife.  But now the requirement to pay the money was not only an order; it was a purge that the Husband had to pay to avoid going to jail.  In the case, the Husband claimed that the court was not enforcing its order, it was modifying its order by requiring the Husband to pay money instead of turn over furniture.  But while the court cannot modify the order in a contempt action, it has broad discretion to craft a remedy.

In another case the Husband was awarded a jointly titled house and was ordered to refinance the joint mortgage in his own name within six months, or sell the property.  When the Husband did neither, the Wife sought contempt.  The court found the Husband in contempt.  To purge the contempt and avoid going to jail, the Husband was required to put the house up for sale immediately.  Again, he had to put the house up for sale and proceed with the sale, or go to jail.

Visitation can also be enforced by contempt.  If a parent fails to allow visitation or fails to return the child after visitation as required by the court order, that parent can be found in contempt and sent to jail.

Court orders must be followed.  Courts in Georgia require compliance with their orders and will not hesitate to send the disobedient party to jail.  If you are ever in a situation where you cannot comply with an order, or you have good reason for believing that compliance would be harmful to a child, seek the guidance of an experience family law lawyer immediately.

 

Jurisdiction and Venue

“Jurisdiction” involves placing a case in the correct state.  Should the case be in Georgia or another state?  “Venue” involves placing the case in the correct county in Georgia.  Should the case be in Glynn County or Camden County?

There are two types of jurisdiction: subject matter jurisdiction and personal jurisdiction.  In Georgia, the superior courts will generally have subject matter jurisdiction over family law matters.  For the court to have jurisdiction over a divorce there must a valid marriage and the person who files the case, the “Plaintiff,” must have been a resident of Georgia for six months.  For the court to have jurisdiction over a child custody matter, the child must have been a resident of Georgia for six months.

Jurisdiction and Venue are important threshold considerations when initiating any legal action.  Getting them wrong can lead to wasted time and money.

The court must have personal jurisdiction over the person against whom the case is filed, the “Defendant.”  For a Georgia court to have jurisdiction over a Defendant, the Defendant must reside in the state or have significant connections to the state, such as having recently lived in the state, owning a business in the state, or owning land in the state.  If you lived with your spouse in another state, the two of you separated, and you moved here but your spouse has never been to Georgia, the Georgia court may not have personal jurisdiction over your spouse.  If so, you will not be able to proceed with your divorce in Georgia.  You may have to seek your divorce in the state where your spouse is living.

The Defendant must object to personal jurisdiction at the time they file an answer to the complaint of the Plaintiff.  If the Defendant does not object to personal jurisdiction, then the Defendant has consented to personal jurisdiction and the case can go forward.

Problems with subject matter jurisdiction cannot be waived.  Subject matter jurisdiction is given by law and cannot be changed by anything the parties do or don’t do.

Venue is generally correct wherever the Defendant is living.  It is really just a matter of fairness and convenience.  If you want to sue them for a divorce, you have to go to where they are.

As with everything in the law, there are always exceptions and technicalities.  Be sure to consult with an experienced divorce attorney when contemplating any action.

 

Brunswick, Georgia, Divorce Lawyers

Lee S. Ashmore specializes in divorce and family law.  He has twenty years of experience in divorce practice.  He has litigated over five hundred family law cases and negotiated and drafted hundreds of settlement agreements.

Mr. Ashmore has extensive experience in divorce mediation.  He has completed training programs in both general mediation and divorce mediation. He has represented clients in hundreds of mediations and settlement conferences.

Mr. Ashmore has long been active in bar associations at the local, state, and national level.  He has been chair of the American Bar Association’s Family Law Litigation Committee.  He has been editor of the Committee’s newsletter.  He is currently a member of the American Bar Association’s Marital Property Committee.  Mr. Ashmore is a member of the Georgia Bar’s Family Law Section, and a member of the Glynn County Bar Association.

Brunswick, Georgia, divorce lawyers routinely travel a circuit, practicing family law in the Superior Courts of Glynn County, Camden County, Charlton County, Ware County, Pierce County, and McIntosh County.  These courts do not issue scheduling orders, or normally schedule mediation or settlement conferences in divorce and family law cases.  In difficult cases, lawyers can arrange mediation by choosing from a list of court approved mediators.

Divorce lawyers in Brunswick, Georgia, must also be ready to quickly prepare for hearings.  Courts in more congested areas of the county often take months to hold hearings, but courts in Southeast Georgia set in requested hearings quickly, usually within 45 days.  That means divorce lawyers must be on top of their cases and begin preparing for hearings as soon as they are retained.

Because hearings come up quickly and courts do not require mediation or settlement conferences, settlement discussions are often conducted in the hallway of the courthouse prior to the hearing.  Brunswick, Georgia, divorce lawyers must be prepared to negotiate settlement as well as to try the case before the judge.

Finding Hidden Income in Divorce

Usually, income in divorce is simple to establish.  We look at a person’s paystubs, W-2’s, and tax returns to determine income.  But sometimes a person’s income can be more difficult to determine.  If someone has their own business, is receiving income “under the table,” or has complicated financial arrangements that allow for hiding income we will need to do some forensic accounting to determine their income.

The Internal Revenue Service deals with this problem a lot.  A lot of people try to avoid paying taxes by hiding income.  Additionally, income derived from criminal enterprises is taxable and the IRS is often able to put criminals in jail to convicting them of tax evasion.  To establish hidden income, the IRS as developed three methods of calculating hidden.  These methods are useful in divorce cases.

When the person’s income leaves a definite paper trail, the “Specific Items Method” can be used.  With this method we examine business records, tax documents, and bank and investment statements.  We then add up the deposits.  The problem with this method is that these documents are either not available or the income does not appear in the documents. This method works when someone has their own business.  But if someone is dealing in cash and putting the money in their pockets, it will not show up in documents.

The Expenditure Method takes the opposite approach.  Instead of looking for deposits, we look for money spent.  Often the person will be magically spending far more than their claimed income.  Also, expenditures can be established by examining third party records.  If the person is paying by cash, sometimes the records can be subpoenaed from the third party who keeps records of payments received from the person.

If documents are not available, or do not adequately show income, we can try the Net Worth Method. We identify the person’s assets and subtract the person’s liabilities.  If the net worth has increased, say, $100,000 in one year, we can conclude that they had at least $100,000 of income that year.  This method can work for higher levels of hidden income.  Poor people who deal in cash spend it on consumables like food and gas without accumulating assets.

Identifying hidden income in divorce is often difficult and expensive.  It requires a lot of attorney time and often requires a forensic accounting.

 

How to Make a Judge Happy

You are much more likely to persuade a judge if you understand what the judge needs from you.  Judges are busy and have limited time to devote to your case.  You want to make it easy for them to rule in your favor.  Always try to do the following:

1.  Be organized.  Make sure you know what you are going to do and say.  Make sure you have any exhibits ready and in order.  Organization requires preparation and an understanding of what is important.  The law will often provide you with your organization.  The law usually provides a list of things that you need to prove, or that the judge needs to consider.  Organize your presentation in accordance with such lists.  Do not waste the judge’s time with a lot of irrelevant information.

2.  Explain the situation clearly to the judge.  Try to boil the whole thing down to a clear, concise story.  If the judge is confused, all you are doing is irritating the judge. At best, the judge now has to spend additional time figuring out what you are trying to say.  At worse, the judge will not be persuaded and will deny whatever relief you are seeking.

3.  Have a sensible solution.  Be ready to tell the judge what you want the judge to do.  Your solution should be reasonable and make sense.  You should be ready to explain how your solution comports with the law.  You want to give the judge a solution that the judge can simply adopt.

4.  Have a written order ready for the judge.  Not only does this save the judge time and effort, it also helps you focus on exactly what you are asking for.  Always ask yourself: if you were the judge, would you sign this order?  If the answer is no, rethink what you are proposing.

None of this guarantees that the judge will rule in your favor.  Judges are smart and experienced.  They make up their own minds.  But you want to make it as easy as possible for the judge to rule for you.

 

Supersedeas

What on earth does “supersedeas” mean?

When a trial court enters a final judgment, such as a judgment for divorce or a final order for child custody, either party has the right to appeal the judgment to the Court of Appeal.  When the appeal is made the final judgment or order does not take effect. It is stayed until a decision is made on the appeal.  The halting of the judgment or order while the appeal is underway is called “supersedeas.”

So what happens if (a) the trial court had previously issued a temporary order for child custody, visitation, child support, and alimony, (b) the trial court then issued a final judgment different from the temporary order, and (c) a party appeals the final judgment.  Does the temporary order continue in effect or should the parties start following the final judgment or order?

The answer is: (a) the new provision regarding custody and visitation should be followed; and (b) the prior, temporary provisions regarding child support and alimony should be followed.  But what if the final order switches custody and reverses the direction of the child support? Does the party who now has custody under the final order continue to pay child support under the temporary order?  Obviously, this would not make any sense because the child support money would be going away from the child rather than toward the child.  Yet this is what the law seems to require.

Fortunately, there is a solution to this problem:  the trial judge can order that the supersedeas stay does not apply.  The attorney representing the party who now has custody and should be receiving child support can ask the trial judge to make the new child support effective during an appeal.  Indeed, the attorney should also make this request anytime the final judgment or order benefits their client and an appeal is taken.  The judge can always deny the request, but it does not hurt to ask.

Making Divorce Mediation Work

While divorce mediation is an effective approach to settlement in family law cases, it is not foolproof.  Insurmountable problems can arise during divorce mediation that can frustrate settlement.  Here are a few commons problems and ways to avoid them:

Despite these problems, divorce mediation should usually be a focal point of the parties’ efforts, just like trial.  Preparation for mediation should be conducted as intently as preparation for trial.  This is true not only in an effort to secure the most favorable settlement, but also to lay the foundation for effective settlement negotiations in the mediation.

Prenuptial Agreements

Prenuptial agreements (also known as antenuptial agreements) are generally enforceable in Georgia.  These agreements are typically used when people who have accumulated substantial assets marry later in life.  Even though an individual’s property accumulated prior to the marriage does not automatically become marital property subject to division, people sometimes wish to specify what property they had before the marriage and provide for the treatment of that property.

Prenuptial agreements can also be used to simplify a divorce by providing how marital property will be divided should a divorce occur.  For example, an agreement that marital property will be divided evenly may simplify the divorce proceedings.

Prenuptial agreements should be discussed and prepared well before the wedding so that both parties have time to think about what they are doing.  Springing a fully drafted prenuptial agreement on someone the day before the wedding is not fair and will not be looked upon favorably by the court if the times comes to enforce the “agreement.”  Both parties should be represented by counsel and full disclosure of all assets and income is mandatory.

Judges do have discretion to reject a prenuptial agreement.  The court uses the following criteria in determining whether to enforce and prenuptial agreement:

If the judge finds that any of these criteria apply, the judge can declare the agreement void.

Of course, most people find it difficult to contemplate a divorce at the time they are getting married.  Often people who enter into a prenuptial agreement have been previously divorced.  The unpleasant experience of their prior divorce leads them to plan an easier exit from their next marriage.

Drafting Settlement Agreements, Part 2

The perils of drafting settlement agreements was illustrated by a recent decision of the Supreme Court of Georgia. When efforts to save their marriage had failed, wife drafted a six page agreement in letter form.  Both parties signed the agreement.  The agreement provided for alimony as follows,

“Up until all of our children have graduated from college, you commit to provide the following income for the children and me: Upon to a total annual gross income of US$500,000 you commit to giving 85% of your total annual income to me to provide for me and our children, after paying for the following items:

Above a total annual gross income of US$500,000 we agree that you would provide 50% of any amount over US$500,000 to me to provide for me and our children in addition to the above mentioned 85% of your total income that is US$500,000 or below. After all of our children have graduated from college, you agree to provide 50% of your total annual income to me, whether I remarry or not, whether I work or not.”

While this language may seem easy to understand, the Court found that this language was too vague to be enforceable.  The first provision lumps in child support and alimony, two different categories that must be dealt with separately.  The switch from the first arrangement to the second is premised on all of the parties’ children graduating from college, which may never happen.  Calculating husband’s income is not clear.  Different terms are used: “total annual income,” versus “total annual gross income.”  It is also not clear whether the list of deductions applies in the second arrangement.

While the court would not enforce the alimony provision, the court did enforce the provision in the letter agreement regarding property division.  The amount of alimony and child support would have to be set by the court independently, without an agreement between the parties.

It is very difficult for a layperson to draft an agreement that will be acceptable to the court.  The layperson simply cannot anticipate what the language will mean to a judge. On several occasions people have come to us with an agreement that they had drafted.  Fixing the problems in their agreement usually costs more than drafting the agreement correctly the first time. In this case wife may have let husband keep most of the property in order to get an alimony agreement favorable to her.  When the court enforced the property division and rejected the alimony, wife lost the property and probably will not get the alimony she bargained for.  The parties have already engaged in litigation over the enforceability of the agreement.  Now they must litigate alimony and child support.  All of this could have been avoided by having the agreement drafted correctly the first time.

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