Gingrich Divorce Documents Tell New Story

By Eric A. Ballinger

Today, documents were released to the media regarding Newt Gingrich's first divorce from Jackie Battley Gingrich.  The documents seem to show that the first Mrs. Gingrich fought the grant of the divorce because her husband would not admit that the marriage was irretrievably broken.  This contradicts statements that the Gingrich campaign has made indicating that his wife sought the divorce.  

While snippets of the pleadings filed in a high profile case can make for some interesting sound bites for the media, they do not tell the entire story.  The statements made can reflect a position taken by a party at one time during the case or could just be a part of some legal wrangling by the Warner's to get a better position with the Court.  Once the entire file is made avaiable to the public, the documents can be placed in thier proper context and wil unfold the entire story of the divorce.  Of course this will not fit into a 15 second sound bite or even a newspaper article.

Divorce and the Family Business

   While every divorce case comes with its own challenges, those cases involving people who own their own business have a unique set of challenges. The challenges come in the computation of income as well as the division of the business as an asset of the marriage. In handling the small business as a issue of a divorce, there are a number of methods that experienced lawyers use and experts to employ in order to insure that their clients interests are served.

    The income of a small business owner is a difficult issue that is often fraught with a great deal of emotion. Unlike a wage earner, there is no single document or series of documents that a party can point to support income of a small business owner.  While most small business owners pay themselves a salary, there profits of the business, over and above the salary, are taxed to the owner as income as well. This can be a sore subject because many business owners plow these profits back into the business in order to build the enterprise instead of taking this money home.  Another issue of contention with the small business owner is the benefits that a owner receives.  Most owner operators will pay their vehicles, cell phones, fuel and other reasonable related expenses from the business and write them off as company expenses or shareholder disbursements to be taxed at a lower rate. The main issue with regard to income in a business is the uncertainty. 

    While most successful business do show a track record of increasing revenues, expenses and incomes, the future holds a level of uncertainty that nobody is willing to predict.  This is especially true when those predictions are being used to assess child support and alimony.  Another issue that comes into play in determining the income of a family business is taking into account how much of that income is reflective of the efforts of the entire family member and not just the efforts the spouse that is taxed on the income as the, "front-man". In a divorce, a family business will lose the efforts of a spouse who has provided a critical roll in that business. 

    This raises several questions that will need to be answered. What sort of income should be attributed to the "unpaid" spouse leaving the business, what is the cost of replacing the efforts the former spouse put into the business and what is the loss to both the profitability and the value of the business due to the loss of a spouse who is also a key employee? The answers to these questions are just as important as the income of the owner but another critical piece of information is the value of the business.

    The significance of accurately determining income can not be underestimated. While income is the most significant factor in determining child support and alimony, mere tax documents and wage documents will not give a clear picture. Under Georgia law, income is calculated by a different formula than that used by the Internal Revenue Service to calculate taxes. In many cases, the deductions allowed for the purposes of Federal taxation are not allowed in calculating child support. The income the family business generates is most important for setting support as well as detaining the value of the enterprise as well.

    Determining the value of a family owned business is critical part of the dividing the assets of a marriage that owns a business. In many cases, the business can be the largest asset of the family, even greater than the house. The opinions of the value of a family owned business will vary greatly especially between the spouses who are vying for a favorable split of the marital assets. While most family businesses are service based and the value rests in the reputation of the owner as well as the ability of the business to generate a cash stream, some family businesses do have significant assets in property, equipment and customer base that can be transferred for value. Of course this presupposes a balance between transferable value of the business versus the income the business generates for its owner.

    While the value of the business is important, there are issues that arise out of that value. Is there any personal debt of either spouse attributable to purchase or investment in the business? Is that debt secured to any other assets of the marriage, such as the house? Does either spouse have a non-marital interest in the business as either an ownership acquired prior to the marriage or through inheritance? The answers to these questions are critical in insuring a good and equitable division of the business. 

    The issues raised here are the same issues that a judge will need the answers to in order to render the most accurate decision with regards to all of the major issues, child support, property division and alimony in a divorce where the is a small business. Yet, despite this need for financial details, many people choose to proceed with this complicated type of divorce on their own and try to answer these questions for the court based on emotion, opinion and biased speculation. Evidence of this caliber is not very helpful to a judge making these complex decisions and the court will choose err against the side that has the most access to the information it needs. To best present your position regarding a family business, it takes a qualified team.

    First, you need to have a lawyer who is experienced in business matters as well as family law. It is not recommended that the corporate attorney handle the divorce. In fact the corporate attorney may have a conflict of interest in representing both the business and one of the spouses. The best lawyer to handle the divorce needs to have some corporate experience, family law experience and experience handling divorces involving family owned businesses. Second, the team needs a forensic accountant who is experienced in business valuation.

    A forensic accountant can not only help to present the financial information the court needs to best set an accurate income, the accountant can run projections to establish an income for the non-compensated spouse and project the costs involved in replacing the productivity of losing that key employee. A forensic accountant can best place a value on the business both as of the date of the divorce as well as at the time of the marriage. Most importantly, a forensic accountant can accomplish this using Generally Accepted Accounting Principles (GAAP) that will be more credible with the court than the opinion of either party.

    In the event a family that owns a small business is going through a divorce, it is necessary to have the right team to represent the interests of each party. These cases present complexities over and above the divorce for a wage earner. It is important to pay special attention to the needs that this sort of case presents and have a team that can deal with these needs in addition to the other issues that the divorce case presents. This means having and experienced lawyer and a forensic accountant on the team.

Military Legal Assistance Program: The Bar Helping Heroes

On Veterans Day we take pause to remember those who have served and those who serve our country and defend our freedom. The State Bar of Georgia remembers our veterans every day through the Military Legal Assistance Program. Was created in 2009 out of the research and efforts of a committee of volunteers committed to help service members with legal issues reach out to qualified lawyers who can help them, in many cases on a pro-bono or reduced fee basis. Since that time, the program has gown to a cadre of lawyers throughout the State who stand ready to help out when called on.

Lawyers from the Military Legal Assistance Program handle hundreds of referrals in the areas of family law, debt relief, landlord tenant, employment law, disability and Veteran's benefits claims. These lawyers are located all over the State of Georgia and have a wide variety of practice concentrations. Many of the volunteer lawyers have prior military service or a loved one who is serving. Still many more are just willing to help serve our heroes. It is important that we all support our heroes who have committed and even laid down their lives to give us the freedom we so richly enjoy. Remember today that freedom is not free and we all need to help share the cost.

If you know of a service member or a veteran who has a need for legal services, please contact the Norman Zoller Military Legal Assistance Program Coordinator at normanz@gabar.org

Retirement Accounts and Divorce: Protecting Your Rights with a Qualified Domestic Relations Order

For most families, their retirement accounts are their largest asset. While Wall Street is showing signs of recovery, the housing market still suffers from losses. So, while most people are upside down in their house, their retirement accounts are increasing in value. For families going through a divorce, retirement assets can be the most sought after property of the marriage. Protecting this asset is critical.

Retirement accounts, such as 401(k)s are comprised of pre-tax dollars and are titled only in the name of the employee who has built the retirement account. What this means is that there are substantial penalties for removing these funds before reaching the age of fifty nine and a half. On the other hand, Georgia law provides that retirement accounts are subject to division in a divorce. Federal law recognizes that retirement accounts can be divided in a divorce and has created special provisions that allow for the division of the retirement accounts without incurring penalties.

In general, Federal Law provides that a retirement account may be divided in a divorce by a Qualified Domestic Relations Order, or QDRO for short, and avoid the tax penalties. A QDRO works by allowing the retirement plan administration to roll out of the employees retirement account and set up a separate account for the spouse. The retirement plan participant does not incur any tax penalties and the spouse has a retirement account of their own which they can roll over to a retirement vehicle of their choosing. If the spouse elects to take the money out of the retirement account, the spouse incurs the tax penalty.

A QDRO is a separate order from the actual divorce decree and is drawn so exacting specifications that identify the dates of marriage and divorce as well as identify the plan participant and the spouse. If these orders are not drawn to the specifics required by the Internal Revenue Service and the plan provider. If the order does not meet the specifications, the plan provider may reject the order. Many plans have specific forms they require over and above the Federal regulations. It is important, in order to protect this valuable asset to consult your attorney. There are also many lawyers who specialize in drafting QDROs and have experience with the many peculiarities of each individual plan.

Drafting Your Will: The Devil is in the Details

When putting your will together, going in to detail is the only way to truly insure your intent, protect your estate and prevent a hardships for your family and chosen executor. The market place is full of options for putting together a will such as forms from office supply stores, software packages and even online solutions. Most of these forms are legally sufficient and will accomplish your basic intent, so long as that intent is very basic. Many people make the mistake of believing that there estate is too simple to warrant a will with any detail. Most people figure that their executor is knowledgeable about their intentions and can carry them out.

The problem is that once a person dies, each heir has their own idea as to what deceased would have wanted. Much of your personal property will have some sort of significance to your relatives. Many times, the death of a loved one brings out the worst in people and relatives will squabble over the division of every stick of furniture in the house and every dime of the estate. These relatives will challenge your chosen executor every step of the way. Since the estate has to satisfy the fees of the executor as well as the legal expenses. If the will merely provides that the estate is to be divided between the heirs, then the executor may end up having no choice but to sell every item and split the cash.

Here are some ways to try to litigation-proof your will:

1. Choose a good executor: Your executor needs to have good head for business. While it may hurt some feeling of your relatives for not being chosen, the executor will be called on to make some very important business decisions in disposing your estate. This person also needs to be able to stand up to all of your heirs to make sure your written intent is carried out. This person needs to have the strength and stamina to decide when to go to court or how to best settle your estate. Further, resist the temptation to name more than one person as executor. It is nearly impossible to manage by committee and the same holds true for an estate. While it might seem diplomatic to spread the power out amongst the heirs, if they cannot agree on how to handle the estate, the legal battles that will ensue between them can drain the estate before it is even divided.
   
2. Carefully select a guardian for your minor children: The person you name in your will is the person who may very well raise your children. If you do not select a guardian one may very well be decided by the State or the Courts. The person you select should be willing and capable of raising your children the way you would like to see them raised. Do you want your children to go to college, do you want them to be nurtured in the arts. Make sure your guardian is somebody who will insure your wishes. Make sure your guardian is willing to insure your children have a relationship with their entire family. The death of a parent is a huge loss for a child at any age, but the loss of the rest of the family can only serve to compound the problem.
   
3. Set up trusts: Under Georgia law, assets left to minors must be placed in a trust or a conservatorship. While the law does provide some direction as to how those assets are to be used before the child reaches the age of majority, those directions are broad and do not take into account what the minor will be able to do with the assets when they reach the age of eighteen. Most eighteen year olds are not equipped to handle large sums of money or assets. However, with a carefully drawn trust, you can direct how the money is to be used and when, if at all the money is to be disbursed. With careful drafting of the trust, you can insure that your wishes are carried out with specificity. Furthermore, trusts are not just for minors but can be set up for persons who are not wise with money or even to shelter heirs from other consequences.
   
4. Make specific bequeaths and devises: Do not trust your executor to make sure that your personal property and real property is going to get into the hands you want to see it go. The best way to insure that happens is to put it in your will. Making a list is not enough, even with the best intentioned executor. If the list is not a part of the will, then it is not legally enforceable. If the heirs end up in a dispute, the Probate Court may have no other choice but to order all of the property sold.
   

The most important thing is that a will should be a specific document that clearly spells out your desires with regard to your estate. The best way to do this is to sit down with a lawyer who is trained and experienced in not only drafting wills but has handled disputed estate cases. An experienced lawyer can point out the possibilities of problems and can lead you to draft a will that will insure your intent is carried out and prevent your heirs form having anything to dispute.

Flag Flap

While I was walking the Saturday morning when I grabbed my copy of the newspaper and noticed that for the first time in my life the words, "Solicitor General" were in the banner headline. If asked, most people do not even know what a Solicitor General does. For all he has done in the community, David Cannon, Jr. has never made the top new. Not for the drunk drivers he gets off the streets, not for the closure he brings to the families of vehicular homicides, not for his work starting a accountablity court for drunk driving and drug offenders. He never makes the papers for improving the efficiencey of government, cutting costs or saving money for taxpayers. He didn't grab a headline when the Supreme Court gave him an award for community service nor a single photograph for the countless hours he spends performing thankless menial tasks for the citizens of this county.

No, my friend made the headlines for the most ridiculous news flap of 2011. David asked his community service workers to remove some three thousand flags that were scattered about square in Downtown Canton. While the task proved to be bigger that expected and storing all those flags posed a logistical nightmare, the publicity stunt that followed from the so-called patriots who are outraged has blown this incident way out of proportion. It is safe to say that this flap has gotten more press, air time and bandwidth than the original tribute and certainly more than the "retirement ceremony" that was canceled.

It is real easy to wrap yourself in the flag, post one on your Facebook page and call yourself a patriot. It takes no courage to use a pseudonym to snipe at a public figure that had a bad day. It takes real courage to walk out in front of a television camera or to grant an interview with a critical press, to admit you made a mistake and applogize for taking action in hopes to serve the community. This is why David Cannon is a leader in the community and why I am proud to call him my friend

Decision Fatigue: What You Need to Know About Court Before You Go to Court.

The New York Times
Do You Suffer From Decision Fatigue?

Thinking about taking that case to the Judge? Before you step foot in the Courtroom, be sure to read a most recent article by John Tierney in the New York Times Do You Suffer From Decision Fatigue? This article highlights the wear and tear that the act of making decisions through the day has on the mind. While we are all called on to make various decisions through the day, however making difficult is at the heart of a judge's job description. The article makes a case study of judges hearing Israeli parole cases. The writer shows that the outcome of the hearings in very similar cases produced very different results as the day wore upon the judges hearing the cases. Tierney shows that the act of making a decision actually drains the mind of energy during the day, even if the body cannot tell it is getting tired. The more decisions the brain is called on to make, the mind begins to take shortcuts. One shortcut is the brain becomes more reckless producing bad decisions such as e-mailing that tirade to all 140 co-workers. The other shortcut the brain takes is to avoid making decisions by either procrastination or maintaining a perceived status quo. Either way, the results are less than desirable and get worse as the day wears on the brain. The study further shows that blood glucose levels have an effect on decision making. So the lower the blood sugar level of the decision maker, the more the decision maker suffers from decision fatigue. In other words, those decisions made after meals and snacks were much better reasoned.

So what does this have to do with going to court? Judges are ultimately decision makers called on to make tough decisions every day. In today's litigious society, the typical docket is packed with cases for the Court to hear on that given day. This is especially true in domestic relations calendars where it is common for there to be more cases scheduled than hours during the day. From the get go, the Judge is called on to make decision in a rapid fire setting. Normally the court will hear the short and more routine cases first and handle the longer more complex cases later in the day. That means by the time the Court gets to hear the complex divorce and custody case, the Judge has made many decisions. Once the hearing begins, the court will be called on to make decision about evidentiary and procedural rulings so that by the time the judge is actually deciding the ultimate issues in the case, the judge has been taxed to make hundreds of decisions during the day. Decision fatigue can set in.

But aren't judges educated professionals? How can they let this effect the outcome of a case? There is no escaping the fact that judges are human as well and are subject the same fatigue as everybody else. The study in this article comes as no surprise to judges. The Court routinely and repeatedly advises and encourages people to resolve their cases before the need of having a hearing. Parties need to understand the effects that wear and tear that court has on the judge hearing their case. The best way to deal with the possible effects of decision fatigue on judges is to resolve their case while they are still in control.

Alternative dispute resolution is one means to avoid the effects of decision fatigue. While mediation takes the wear and tear of decision making off the judge and places it on the parties, mediation is scheduled for a time when all involved can be well rested and ready to handle the multiple decisions needed to resolve their matters. Also, mediation usually takes place in a relaxed atmosphere that allows for snacks to replenish those crucial blood glucose levels. Arbitration is like having a judge that you can schedule at the convenience of the parties. This means the decision maker can go straight into hearing that complex case without deciding array of smaller cases first. Arbitration is also less formal that court, allowing for more frequent breaks and rests.

There are also a number of things that can help to reduce the strain brought on by decision fatigue. Parties and counsel can reduce the levels friction, thus reducing the number of times the judge has to rule on preliminary issues. The parties can also narrow the issues for hearings in order reduce the number of issues left for the judge to decide. Finally, the parties may wish to allow the court to take the ultimate issue under advisement, allowing the court to delay actually making the decision to a time when the judge is more refreshed and producing a better result. While decision fatigue is humanly impossible to eliminate, it is something that all concerned should take into consideration before stepping foot into a courtroom.

Child Custody of Relatives: Helping to Raise Your Family’s Children

In these times more and more people are called upon to help raise the children of their family members. There are any number of situations arise where a relative needs to get guardianship or custody of children. At this time there are parents on military deployment overseas, parents tied up in the criminal justice system or even parents who are just not capable or fit to raise their own children. While this is a time honored tradition of family taking care of its own, in the modern legal climate there is a need to formalize the arrangement through the courts. Even in situations where all of the principle players agree, there it is best to solidify the arrangement with a court order.
There are many situations where a relative will need to present a court order to perform some of the most routine actions that a guardian needs to take in order to raise children. Enrollment in school, authorizing medical treatment, signing up for extracurricular activities and even signing a permission slip all requires the signature of a parent. In the absence of the parent signature, a court order of guardianship or custody is required. Further, having a court order will allow a person acting in the roll of a parent to take advantage of certain benefits available for dependent such as health insurance through group plan of an employer.
Depending on the situation, there are a number of options available to a relative to obtain a court order. One such option is to obtain Letters of Temporary Guardianship through the Probate Court. These letters or order allows the guardian the legal authority to act in the roll of a parent. Temporary Guardianship requires the consent of the parents and can be terminated at any time by the parents. These are perfect in situations where the parents agree that the children need to live with a third party. What happens if the parents do not agree that a third party stepping in s the best for the child? There are two other options that much more drastic in nature but can.
First, a third party can seek temporary custody through the Juvenile Court on the basis that the child is deprived. If the Juvenile Court finds a child is deprived of its essential needs of health education and welfare, the Juvenile Court can award a third party temporary custody for up to two years. If the Juvenile Court judge finds deprivations exists and awards custody, the Judge establishes a checklist or plan of action to take in order to for the children to be reunited with the parents. If the plan is not completed by the parents, the court can extend custody, however there is a limit. Because the Juvenile Court is strongly associated with the Department of Family and Children Services, the plan may include services offered by children's watchdog agency. Also, parents who are in court for deprivation may be eligible to a court appointed attorney if they cannot afford one, but there is no reciprocal for the relative seeking custody.
Second, a relative may seek permanent custody through the Superior Court. Certain relatives such as grandparents, aunts, uncles and even siblings can petition the court for custody of the minor children of their relations. To be granted custody, the relative must show first that there is harm will come to the child unless the parent child relationship is altered and then second the relative must show that it is in the best interest of the child to be placed in the custody of the relative. A Superior Court order remains in effect until the child reaches the age of eighteen. While custody may be returned to the parent, there is not a specific plan laid out by the Court for the child to be returned to the parent and the parent has to file a new case to take the child to modify the custodial order to the relative in the county of residence of the legal custodian.
Getting custody of a relative's children is not an easy prospect. Due to the stigma of court proceedings, many times the parents are not willing to let the children go to a relative with a court order, no matter how temporary the situation. The matters can become emotional for all involved. The parent child relationship is a constitutional right and the burden of proof required to alter that relationship is very high, clear and convincing evidence. It is the highest standard in any civil case. These matters should not be entered into lightly.

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It's Official: Casey Anthony More Hated Than O.J. Simpson

Americans have a love hate relationship with their criminal justice system. While we are very proud of our system that presumes innocence until proven guilty, we revile those who are found innocent that we have presumed guilty. According to the New York Post and Reuters, Casey Anthony has just made it to the top of the list of most hated people according to Americans participating in the poll. Ms. Anthony was propelled to celebrity status when she was charged with the murder of her own daughter, mainly due to the fact that she partied for a month before reporting the child missing. Then insuring that her own star will never fade, she was acquitted of the murder charge.

Ms. Anthony's status as most reviled is an endorsement for the American Criminal justice system. Right behind her is former football star O.J? Simpson who was also acquitted of a murder charge eighteen years ago. The Simpson trial proved that with enough money and a star studded team of lawyers innocence could be brought. However, Casey Anthony was defended by a team of court appointed and pro-bono lawyers representing a woman who could not afford to defend herself against the resources of the government that was willing to spare no expense to convict her.

Before Ms. Anthony stepped one foot into the courtroom, the media and pundits like Nancy Grace had convicted her of the the carve of murder. Yet a jury heard weeks of testimony, poured over hundreds of exhibits and heard both sides to exhaustion. The jury deliberated in this case, not just for hours but for days, and returned it's verdict of not guilty. Yes, despite the opinion of the expert pundits, the men and women who were actually sworn to fairly listen to all of the evidence decided that the government failed to prove its case for murder against Ms. Anthony. For that, she will always be hated.

Ms. Anthony's most hated status is proof that the system can work. Regardless of your opinion of Ms. Anthony, the verdict in her case is proof that the jury system is not merely a rubber stamp for the government or public opinion.

Your Facebook Page Could Hurt Your Case

There is a modern wisdom, "Be careful what you post, it could come back to haunt you in the courtroom." In this day where everybody has access to social media through Facebook, Twitter, Myspace and even blogs, it is astonishing the things that people are willing to put on line. Some people are willing to make statements they would never dream of stating in person or even in a letter. Still even more will communicate the most intimate secrets in a public "wall" page or chat room. Online users are willing to admit everything from extramarital affairs to criminal conduct. Spouses will bicker with one another on Facebook and carry on a torrid affairs all the while their "friended" children can read. Every day these same people are surprised when they are confronted with the details of their behavior in the form of printouts of their social media activity.

Social media is not private. No matter how much you restrict the access of the material you post, it will still come back to haunt you in court. First, social media outlets routinely cooperate with law enforcement agencies and will provide information to investigators and prosecutors. Second, social media posts are subject to subpoena and would be tuned over to an attorney who is not working on your side. Third, no matter how private your settings, there is inevitably somebody on your list of friends who is going to share your innermost secrets with somebody you would rather not find out.

However, for all the same reasons, social media is a goldmine for investigating just about any kind of case. Many people do not bother to secure their posts and are willing to gloat, brag and boast about anything and create some valuable sources of evidence. It is important to secure this evidence as soon as it becomes available. In many cases valuable evidence is posted and can be lost just as quickly as soon as the author realizes the vulnerability of their private thoughts. Make sure to save and print these valuable nuggets of evidence as soon as they come into your possession.

Before your post, think twice. Think about how you will feel answering questions about the post in court. What you put up on Facebook or any other social media outlet can and will effect your case and usually negatively. The best course of action is to not post.

What Effect Does Fault Have in a Divorce?

by: Eric A. Ballinger, Esq.

The issue of fault is a complex when it comes to divorce. It usually is the straw that breaks the camel's back with regard to ending the marital relationship. While some refuse to recognize role that their own fault plays in the dissolution of their marriage, many are surprised at the roll that fault plays in the outcome of their divorce. In the modern divorce, fault plays a roll in determining the outcome of a divorce case, but it is not the sole decisive fact.

Into the late Sixties, fault was an essential element in a divorce case. Until the Georgia legislature adopted the "no fault" ground for divorce, there was a requirement of fault by one party for a spouses to divorce, even if they agreed that the marriage should be dissolved. In the modern divorce, there is no requirement of a finding of fault for the parties to divorce, however the issue of fault is legally relevant in deciding the issues that are ancillary to the divorce, division of assets and debts, alimony and even child custody.

Usually fault, adultery, alcoholism, drug addiction, abusive behavior and the like, are the facts that motivate a spouse to seek a divorce. These are usually the most emotional issues of the divorce and motivate the parties to press the issue. However, fault is not the only issue the court takes into consideration in deciding the issues before it and fault must be put into perspective. Many litigants are surprised when they find out that even in the face of a partner that has committed the most despicable acts, divorce is rarely a "winner takes all" proposition and there are no punitive damages in a divorce.

When reviewing the facts in a divorce case, it is important to look at the case from the through the lens that the judge sees the case. One thing to take into consideration is that divorce cases are heard by Superior Court judges. These are the same judges that hear murder, rape and child molestation cases as well in addition to their civil case load. This gives the judge hearing a divorce case a much different perspective than most civil litigants who have never experienced this sort of in their life.

In addition, the Court is weighing many other aspects in deciding the divorce case as well. A mother may have committed adultery, but still is a loving parent who has never exposed the children to her indiscretions. A Father may be a unemployed deadbeat, but if he has no money, how can he pay alimony? A husband may be a functional alcoholic but how will the children feel if he is cut out of their lives? A man my have brutalized his wife during the marriage but what is to be gained if he is left on the street destitute?

The Court also looks at the effect that marital fault has on the break up of the marriage. Is the fault complained of really the cause of the break up of the marriage or is is some remote act from years gone by? The truth of the matter that judges are used to hearing the many gripes that spouses have about each other and figure that in a divorce there is usually more then enough blame to go around. If the fault is from years gone by, the court will very likely treat the act as condoned. On the other hand, if one spouse catches the other in serious misconduct and acts decisively on it, the Court can will treat the issues seriously.

Most importantly, the Court looks at the fault issues as they may effect the minor children of the parties. While judges rarely loose sleep over what happens between adults, they are always looking out for the best interest of the children involved. Children that are exposed to alcohol, drug abuse, violence and even adulterous relationships are at risk. Regardless of the what has transpired between the parents, the Courts will take decisive action to protect children from these sorts of risks.

The effect that the fault issues will have on each divorce case varies. Much of it depends on the evidence presented. It also depends on the individual judge hearing the case. While evidence of fault is not the most important facts the Court needs to hear, it certainly will help the judge decide which of the two parties to inconvenience the most. It is important to consult an experienced family lawyer to help you put the issue of fault into persecutive for your divorce case.

Adoption: Helping to Grow Families.

By: John A. Early, Esq.

Adoption starts as a simple concept: bring child into a family. However, brining that simple concept to fruition is a complex legal path. This article will attempt to inform individuals wishing to travel that path of what they can expect if they choose to adopt.

To begin, note that adoption proceedings take place in the Superior Court of the county where the adoptee resides. The proceedings are very private matters, and courts conduct the adoption process "in camera," which means person not party to the adoption are disallowed from attending. Also, be aware the Georgia Department of Human Resources is the state agency that oversees adoptions. The Department exercises custody and care for those children in need of adoption and helps guide the court when determine proper placement for the child. In the processes of adoption, the Department and the Superior Court will work hand-and-hand to assure the adoption is in the best interest of the child.

The first step in the adoption processes is making sure the adopter is eligible to adopt the adoptee. While most people would see no reason for this type of assessment because common sense dictates the appropriate qualities of both adopter and adoptee, Georgia decided to remove all doubt from the issue by setting the legal parameters for adoption. For a person to adopt another in Georgia, the law requires the person be at least 25-years-old, at least 10-years-older than the adoptee, a residence of Georgia for six months, and financially, physically, and mentally able to have permanent custody of the adoptee. Further, in the event a married person seeks an adoption, then both spouses must petition for the adoption. The only exception to this rule is the "stepparent adoption rule," which allows a stepparent to adopt his or her spouse's child without severing the relationship between the spouse and child.

The second step involves the surrender or termination of parental rights between the biological parents and the child. The parent-child relationship is sacrosanct in Georgia. Before a third party is allowed to adjust that relationship by adopting the child, both biological parents must surrender their parental rights or have their parental rights terminated. The only exception to this rule is that is in cases where the "stepparent adoption rule" discussed above because the spouse of the stepparent does not have to surrender or terminate his or her rights for the stepparent to adopt the spouse's child.

However, in most cases, the biological parents must have either surrendered their parental rights or a court must have terminated their parental rights. The choice to surrender parental rights is solely within the power of the biological parent. The choice must be freely and voluntarily made. In the event both parents choose to surrender their rights to the child, then Georgia Department of Human Resources enters the picture, and will assume custody of the child pending an adoption.

The other means of severing the relationship between biological parent and child is by termination of parental rights. The termination processes, as it title implies, is not consensual, but occurs in those cases where the court determines the mother and/or father is unfit. A court will terminate the parental rights of a biological parent if the court finds there is misconduct on the part of the parent whose rights are being terminated and the court finds termination is in the best interest of the child. If both a court terminates both parents' rights, then the Department will assume custody of the child pending the adoption.

Once the parental rights of the biological parents are terminated or surrendered, a person may petition the Superior Court for adoption of the child. The petition phase involves three steps: filing a proper petition with the Superior Court, responding to objections to the adoption if any are filed, and an investigation of the petitioner by the Department of Human Resource. Because the petition requires adhering to a great many statutory requirements, the petitioner is encouraged to seek legal counsel in drafting and submitting an adoption petition. Once the petition is on file with the Superior Court, the biological parents and relatives are given an opportunity to object to the adoption. The court must here these objections when determining whether the adoption is in the best interest of the child. If the court finds the objections are without merit, then the process continues. Finally, the Department will conduct an investigation into the petitioner, reviewing his or her background, financial status, family status, and other relative information. The Department provides this investigation to the court to assist it in arriving at its determination.

If the Superior Court grants the adoption, it will issue a Decree of Adoption. The Decree has the effect of forever severing the parental connection between the biological parent or parents and the child. Further, the Decree creates a binding relationship between the adopter and adopter akin to the relationship to a biological parent and child. After the decree, the Court seals all the matters relating to the adoption, and the adopted child is thereafter considered and treated as if it were the biological child of the adopter.

The path between desiring and achieving an adoption is long and circuitous. Any person seeking adoption is encouraged to seek the advice of counsel. However, with the assistance of an skilled attorney, navigation of the adoption processes is not only possible, it is done every day, bringing children into families.

The Right to Remain Silent

We have all heard the words over and over on television programs. "You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford one, one will be appointed to you at no charge." These words have been so stirred into our popular lexicon that there meaning has evaporated. For the most part, we are more worried about having our rights read than what our rights really really mean. In reality, the Miranda rights are seldom read at the time of an arrest and are only required to be read when the police are going to question a suspect.

The right to remain silent, or the right against self incrimination, is one of our most important constitutional safeguards. It is guaranteed to us both by the Fifth Amendment as well as the Constitution of the State of Georgia. The right against self incrimination frees us as Americans from hours of harassing, arduous and even tortuous interrogation by the agents of our government. However, this right is most important in its subtleties. It is easy to remember to, "take the fifth" when a uniformed police officer is screaming in your face. It is another thing to keep that same right in perspective when a detective is just trying to get you "tell your side of the story" in order to "clear up the details of the case".

Most people fall into the trap and decide to speak with law enforcement. It is human nature. Most of us are raised to respect authority and law enforcement is indeed authority. Further, most of us feel that if we can only explain the details of the situation, we can "square this situation away". However that is rarely the case. Law enforcement officers are trained to investigate in a very methodical manner. By the time they are calling people in questioning or interviews, they have developed a picture in their mind as what happened and the interrogation is designed to obtain facts that support the theory law enforcement has already developed. If anything, the police are striving to get a confession to bolster an already weak case.

If you are contacted by law enforcement and they want you to come and answer questions, the best thing to do is to contact a lawyer. If you cannot afford to have a lawyer come with you, then decline to speak with the police at all. You still may be arrested for the charges, but chances are, you would have been arrested had you spoken with the police. The difference is your chances of beating the case are much better.

Top Ten Common Mistakes People Make Getting a Divorce

By Eric A. Ballinger

10. If I ignore this problem, it will go away. The truth of the matter is that is your spouse has mentioned the words, "I want a divorce." This is a serious problem and it will not go away with time. Usually, one spouse is much more emotionally ready for divorce than the other and that spouse enters into the case with a distinct advantage. The better prepared spouse begins taking calculated action while the emotionally unprepared spouse is usually reacting and mostly out of emotion. If your spouse is threatening an end to the marriage, that is a wakeup call. You need to either work to improve your marriage or get ready for the end.

 

9. I'm moving out of the house. It is no surprise that a divorce ratchets up the tension at home and moving out seems like the easy answer. While moving out of the house will put an end to the arguments and restore your own personal privacy, you put your divorce case at a tactical disadvantage. Strategically, the marital residence is the high ground and should be held on to dearly. During the divorce case you will need access to financial records and to inventory of personal property, all of which is located at your home. Moving out of the house will entail taking your kids from their home they are familiar with or leaving them behind with your spouse. Either action will damage your argument for custody. You either rip the children form all that's familiar to them or you leave the children with the parent you think should not have custody. You also take the incentive away from your spouse to resolve the divorce. The spouse left in the house has all of the benefits of being divorced without any of the costs. Unless you are in fear for life or limb, it is best to remain in the house is until you are advised by counsel or ordered by a judge.

 

8. It's my money, I'm taking it out of the bank. Financially, going through a divorce is a balancing act. On one hand you do not want to leave your finances exposed and open to a spouse whom you no longer trust, however you do not want to leave your spouse destitute either. Once a divorce is filed, State law and Court orders dictate that you cannot spend money or dispose of your assets, except in the ordinary course of business. Once the proceedings are underway, every penny that has come in and out of the marriage will be scrutinized by the lawyers and the judge. The Court has the authority to order that funds be replaced, even if they no longer exist. The party that gets heavy handed with the money is often penalized by the court as a way to level the playing field. On the other hand, you want to secure enough funds to handle the situation. Securing funds in order to retain a lawyer, obtain separate housing and cover other expenses in the early stages of the divorce is an important part of your strategy.

 

7. Wait until my spouse's boss hears about this. When your spouse has been caught in some sort of misconduct, especially if it involves their job, there is an overwhelming urge to expose the behavior to their boss, co-workers and even friends to somehow make the situation right. The reality is, most of us know our spouses well enough to know plenty of juicy tid bits that we would not want shared with our employers, co-workers and friends. Despite the burning urge, this is a bad idea. It is never a good idea to shoot the goose that lays the golden eggs. Most of the issues in a divorce are income driven; child support, alimony and division of debts. If your other half loses their job or their income is reduced due to some action of your own, that financial burden is going to fall back to you. In a divorce, discretion is the better strategy. You want your spouse to come out of the process making as much money as he or she can, so that money can work for you.

 

6. It's going to make me look better if I wait and let my spouse file. It is a common fallacy that it looks better if your spouse is the one that asked for the divorce. While some people would rather not file for moral and religious reasons, there is no real benefit to waiting for the other spouse to file. In fact, there are certain tactical advantages in the courtroom that make it advantageous to be the party plaintiff. While the Plaintiff carries the burden of proof, the Plaintiff gets the first and last word in front of the judge. This is a very powerful advantage in the courtroom. Further, there is some peace of mind to take a proactive stance in what is one of the most disruptive events in your life. The sooner you take action, the sooner you can put your divorce behind you and move on with your life.

 

5. I'm not giving that !@#$% a dime. A common mistake people make in getting a divorce is being able to separate their angst for their spouse and the money they pay for the support of the children. One of the hardest thing to do is to write a check to the person you are the angriest with. However, not financially supporting the children is a huge mistake. It is against the law to leave your children in a state of want and can lead to criminal prosecution. Further, judges take a dim view of people who do not help out their children financially. There are ways to ease the pain of support and insure that your children are receiving the benefit of your financial support. If there is no order for support, you can always provide support by directly paying for items such as mortgage, vehicles and utilities or by providing in kind support by buying groceries and supplies. Once an order is entered requiring a specified amount that is what is required and failure to pay support can result in further unpleasant consequences with the Court.

 

4. The kids don't need to see my spouse. This is the converse to mistake number five. Sometimes it is just very hard to send your children to spend time with the person you are the angriest with. There are certain circumstances where it is not appropriate for children to be around the other parent, however that sort of determination should be made only after careful consideration and sound counsel. Divorce is toughest on children and when one of their parents is no longer in their life, it can be as emotionally difficult as having a parent die. Children do not understand the conflicts between adults and often blame themselves. What the Courts look for in a custodial parent somebody who is going to facilitate the children maintaining a relationship with both parents.

 

3. Let me share my perspective with the kids so they understand. No matter what age they are, your children will rarely, if ever, understand why you are getting a divorce. Most certainly they do not need to get involved with the divorce. However, it never fails, parents always feel the need to justify their position to the children as if they were the jury that decides the case. Young children do not understand divorce and have a tendency to blame themselves when their parents split up. As children get older, they tend to see divorce as grown up business and just do not want to get involved. It is a terribly cruel thing to force a child of any age to pick between their two parents.

 

2. My spouse wouldn't do that to me. Naiveté in a divorce is almost as bad as open hostility. Many people walk into a divorce believing that their spouse is incapable of doing the sort of cruel acts and misconduct that permeate these sorts of cases. While the hostility of divorce can be bad, turning a blind eye can leaves a party vulnerable. Many of the hurtful acts that go on in a marriage can have devastating effects on the minor children of a marriage. They can also lead to making poor strategic and tactical decisions in handling the divorce, which can be very costly. In handling your case, you only get one chance and no "do over". Vigilance and prudence are very important.

 

1. I can handle this without a lawyer. The biggest mistake people make in their divorce is trying to handle the case without a lawyer. Even if your case is completely un-contested, you need a lawyer to insure that the documents are drafted properly and to guide you through the process. A divorce encompasses every aspect of your life, custody of your children, title to your home, payment of your debts and division of all of your assets. Even if your spouse has hired an attorney, it pays to have the documents reviewed by an experienced family lawyer whom you trust. They can insure that the documents not only accurately reflect your agreement but also are drawn properly to be enforced in the future. If your case is contested, your lawyer can help you identify and frame the issues to present your best case to the Courts in your jurisdiction.

 

For more information visit our website or contact us.

Expungement: Protecting Your Record

By: John Early, Esq.
If you have ever applied for a job, college, professional school, the military or a position with any state or federal agency, you probably had to agree to a criminal background check. Why? Several reasons jump out. One would be the inquisitive nature of your potential employer or supervisor. Another would be the organization's concerns about the liability issues involved in allowing a person convicted of a crime into their respective group. Still another would be the organization's intent on using the criminal record as a means of weeding out applicants. Facilitating these reasons is the relative ease of obtaining a background check that shows arrests, charges and dispositions at both the state and federal level. The bottom line is that if you apply, they will ask.
With the inevitability of having to produce a criminal background check, your past is more important than ever. You do not want a poor decision from ten years ago to be the reason a decider passes over your resume, application or the like. Thus, maintaining a clean and clear background is paramount. The easiest way to keep your background spotless is to avoid trouble. However, reality tells us that lapses in judgment are far too common to be completely avoided. Accordingly, you should take the necessary steps to prevent those lapses from becoming a permanent part of your criminal record.
In Georgia, there are three ways to help protect your record after a lapse of judgment: an expungement, a plea under the First Offender Act, and a Pardon and Restoration of Rights. Each has a different impact on your record, and each will be addressed below. First, however, a brief explanation on how a lapse of judgment becomes part of your record will help elucidate how the three means of protecting your record work. In Georgia, if you are arrested for a felony or misdemeanor, as well as a host of lessor offenses, a record of your arrest, along with information sufficient to identify you, is sent to the Georgia Crime Information Center (GCIC). GCIC is a repository for all criminal arrest in Georgia, and once GCIC has your arrest in hand, it creates a file with your name on it. In this file, which is electronically stored, GCIC continues to document every subsequent detail involving your record. Besides the details of the arrest, GCIC records the charges stemming from the arrest, i.e. whether the prosecutor accused you of armed robbery or DUI, the disposition of those charges, i.e. whether the charge resulted in a dismissal, a plea or a conviction. Further, GCIC keeps the record alive and well to tack on any subsequent arrest, charge or dispositions which may occur. In essence, GCIC becomes a sponge that soaks up every detail of your case as it tracks its way through the system. GCIC then disseminates your record to the National Crime Information Center (NCIC) run by the FBI, who in turn disseminates it to state agencies all over the country. Thus, an arrest and conviction in Tifton, GA, for possession of marijuana will show up on your criminal background check regardless of whether it is run in Dalton, GA or Kalamazoo, MI.
How do you keep your arrest from following you to Kalamazoo? The best means is an expungement. An expungement erases your GCIC file, completely deleting the expunged arrest, charge and disposition. Further, if your record or a portion thereof is expunged, GCIC, the arresting agency and the prosecuting agency must destroy all the material involved in your case, including photos, fingerprints, evidence, accusations and indictments. That portion of your record, in effect, vanishes. You can seek an expungement in two situations: (1) if there has been a mistake on your record or (2) if you take the proper measures soon after your arrest. The first situation does not occur too often. GCIC is studious about keeping proper records. However, if there is a mistake on your record, you can move the Superior Court in the county where the alleged mistake occurred to purge the record. Such action will take a petition to the court and a hearing, but if there is a false accusation following you around, the investment is worth it. The second is more applicable to most cases. It is possible to maneuver your case down avenues which will allow you to eventual obtain a complete expungement, erasing the arrest, charge and disposition from your GCIC file. The avenues include Pre-Trial Diversion Programs, having the case dismissed before the prosecutor accuses/indicts the case, and reaching agreements with the prosecutor which expressly allow expungements. However, the time frame for obtaining such relief is brief, and if you have been convicted of an offense, it is important to have counsel expeditiously act to help guide your case on a path towards an expungement. Waiting will result in the chance for an expungement expiring, and a permanent entry into your GCIC record. If your case is successful maneuvered, you can walk away from the experience without having your arrest, charge and disposition follow you for the rest of your life.
The other two means of purging your record are First Offender Plea and Pardon with Restoration of Rights. First Offender is a plea offer from the prosecutor which allows you to plead guilty, but adjudication of guilt is withheld during a period of probation. If you successfully complete the period of probation without violation, then the First Offender statute says you cannot be treated as having a felony conviction. A note is made in your GCIC file to the effect that you have successfully completed First Offender and according to Georgia law, do not have a conviction. Although your record is not expunged under First Offender, the statute does help a person avoid the collateral effects of a felony conviction such as loss of the right to vote or possess, handle and transport a firearm. Whether a person can plea under First Offender is a question for the judge and the prosecutor, but whether you want to plea under First Offender is a question which you will want counsel to help guide you. First Offender does have some onerous rules coupled with it, and before you submit to the terms of First Offender, you will want a full understanding of what is ahead.
The final means is a Pardon and Restoration of Rights. This form of relief is one you request after a conviction and serving the entire sentence. A Pardon with Restoration of Rights is equivalent to the state forgiving you. If you obtain a Pardon, an official notation is made on your GCIC record that the state of Georgia is forgiving you for a past offense. The Pardon, however, stops short of forgetting the offense, which will still remain on your GCIC record. For person convicted of crime which had collateral effects such as losing the right to vote or own a handgun, a Pardon with Restoration of Rights can restore the lost privilege. Pardons and Restorations of Rights are given out by the Georgia Board of Pardon and Paroles. The application processes is available on the Pardon and Paroles website. To obtain a Pardon, the applicant must show he or she has successfully completed his or her sentence, he or she has been an upstanding member of the community, and several other prerequisites.
Today, your criminal record will be part of your application processes. To help protect yourself from a lapse of judgment becoming an indelible addition to your record, you should avail yourself to the means Georgia provides which keep your GCIC file clear. Your record will follow you for life. However, if you successfully use the current Georgia law, a lapse in judgment does not have to. If you have questions, you should speak to an attorney who has experience in criminal law and expungement.

Alimony: Does it still Exist?

By Eric Ballinger
During the initial consultation in divorce cases, alimony is one of the most important issues. Wives often ask the question, "Am I entitled to alimony?" while husbands are often demonstrative, "I'm not willing to pay alimony." Still yet, there who ask, "Does alimony still exist?" No matter what the questions are, the subject of alimony is very emotional. As married couples are beginning to split up the financial reality of one family severing into two separate households soon sets in. Clients on either side of the alimony questions, the paying or the receiving, are asking themselves, "how am I going to make it?" These are the hard questions that the Courts are called on to make in divorce cases every day. Alimony is still the law in Georgia and it is a reality the divorce litigants need to consider in planning for a divorce.


The term alimony comes from the Latin, "to nourish". The legal concept of alimony is born out of the husband's obligation to support his wife, even after the dissolution of the marriage through his "fault". Much of the law on the subject stems from the time when all divorce was based on the fault of one party or the other. The wife was not entitled to alimony if the divorce was based upon her fault, and hence the wife's adultery and desertion of the marriage was a bar to her receiving alimony. The traditional concepts eroded in the 1970s with the advent of the "no fault" divorce along with the women entering the workforce at with wage earning capacity approaching that of men. Until the middle 1970's, alimony was only available to women, however changes to Georgia law allowed for main to make a claim for alimony.


There are two aspects of alimony, temporary and permanent. Temporary alimony is a tool designed to level the playing field in a divorce. It allows the Court to maintain the financial status quo of the family, maintaining the marital assets such as the mortgage on the home, insuring the utilities are paid and debts are kept current. It also allows the Court to insure that each party is adequately represented by counsel by apportioning an award of attorney's fees and legal expenses from the party with the most resources. Fault is not an issue in temporary alimony. On the other hand, permanent alimony is an allowance awarded from the separate property of one spouse for the support of the other. Alimony can be awarded either in a lump sum or as periodic payments. It can be awarded for a lifetime or for a specified period of time.


The issue of alimony is one aspect of divorce that seems to be shrouded in a great deal of myth. Much of this myth is propagated by celebrity divorces as well as popular depiction of divorce in television and the movies. Much of this mythic view of alimony comes from the early twentieth century notion of the stay at home wife and mother divorced by the philandering husband. In this traditional paradigm, the wife receives an alimony award sufficient to maintain her lifestyle while the husband is left in state of near poverty as punishment for stepping outside the bonds of marriage. The more realistic and modern application of alimony is to allow a spouse leaving the marriage some level of financial security for a reasonable period of time to allow that spouse an opportunity to get back on his or her feet and establish their own household. The application of alimony is dependent on facts and circumstances of each marriage and each spouse.


Alimony should not to be confused with the division of assets. Alimony is awarded from the separate assets of each of the parties, whether it is the separate property from before, during or after t to keep the he marriage, including the wages of the obligated spouse. Sometimes, the Court will award alimony in lieu of and equitable division of property. This occurs in cases where the marital assets are needed by one spouse to generate income, such as business assets, and it is ore expedient for the Court to allow the obligated party the income generating property and award alimony to the other spouse. Furthermore, alimony is not intended to be the punitive damages for fault in a divorce. While alimony usually feels punitive to the obligated party, the Court is not authorized to punish a party in a divorce, no matter how egregious their conduct.


Most parties ask the question, "how much will alimony be?" That is a tough question because unlike child support, there is no formula or worksheet. The decision of whether or not to award alimony and how much to award is left to the finder of fact; either a judge or jury. Georgia law provides for eight factors in determining alimony:

(1) The standard of living established during the marriage;

(2) The duration of the marriage;

(3) The age and the physical and emotional condition of both parties;

(4) The financial resources of each party;

(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;

(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;

(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and

(8) Such other relevant factors as the court deems equitable and proper.

Ga. Code Ann., § 19-6-5. While these factors allow each of the parties to address a number any number of issues regarding their marriage, to include the length of the marriage, the ability for the requesting party to earn income and the conduct of each of the parties during the marriage. These factors boil down most saliently to the balancing of the needs of the receiving party against the ability to pay of the obligated party.


One of the toughest issues to tackle is the ability of the obligated spouse to pay. Most divorces have their roots in the financial straits of the husband and wife. While there is often no doubt that a wife is in need alimony, the husband has a diminished ability to pay due to economic misfortune, a job loss of his own fault or even an intentional suppression of income in order to evade paying support in the first place. For a party seeking alimony, it is important to stress not only the financial needs, but to prove the obligated party has the ability to pay, even if they are hiding it. For a spouse defending against a claim for alimony, it is important to stress that the supposed needs are frivolous in nature and to prove good solid income figures and that any decreases in income are not of your own creation.


In Georgia, judges have a great deal of discretion in making an award of alimony and very rarely are these decisions set aside by appellate courts. Each judge approaches the issue differently based upon their own personal experiences both on and off the bench. Different judges can take the same set of facts an come to very different conclusions. In circumstances where a judge is very hostile to your position, alimony is one issue in a divorce that can be decided by a jury, but this is a decision that needs to be made with a great deal of discernment. Jury trials are expensive and time consuming. Court backlogs could delay trial for even years and juries typically are not well disposed to hearing personal drama of divorce cases.


It is important seek the advice of a seasoned family lawyer regarding the question of alimony. A lawyer with experience handling divorce cases in the jurisdiction that will hear your case will be familiar with the propensities of your judge and is skilled in presenting your case in the light that best advocates for your position. An experienced lawyer can help you decide if it best for your to have a bench trial or a jury trial. An experiment family lawyer can give you the best advice about alimony as it applies to your case.For more information, see our website.