Debtor's Rights

In these tough economic times it hard for many North Georgians to pay their bills. Unfortunately creditors are not very understanding and the incessant dunning can be very unnerving at best and creates much stress in the household. However when the creditors turn to filling law suits, it can only ratchet up the problems. When creditors start to take legal action they are taking collections to a whole new level that that results in draconian measures to extract the money from the debtor. Debtors who know their rights can protect themselves from the aggressive tactics used by collections agencies and their attorneys.

 

Collections agencies are known for their aggressive tactics. The constant calling and degrading attitude of bill collectors is a hallmark of the trade. Collectors have one aim and that is to get the debtor on the phone to get a payment and they will do or say anything to accomplish that end. One tactic is to threaten repossession, repossession and foreclosure. When collections agencies turn the accounts over to their lawyers, they are just as aggressive and they have one aim, to collect money. Collectors and their lawyers know very well that debtors have rights, but they will push the envelope on those rights to see what they can get away with.

 

The fact is that there are guidelines that creditors must follow on in all of their actions. Bill collectors are subject to the Federal regulations of the Fair Debt Collection Act which sets boundaries for the collectors and very stiff penalties if they cross those lines. There are also Georgia and Federal laws that govern the process of repossession and foreclosure. The law includes notice requirement and certain steps that a creditor must take to protect the debtor’s interest in the property. While creditors will try to take every short cut they can get away with, the knowledgeable debtor can use the process to work with creditors to create a mutually beneficial outcome.

 

When the creditors turn around and sue the debtors there are still rights that every debtor enjoys under the due process of law guaranteed by the Constitution. Creditors that can successfully bring a law suit to judgment can collect money from debtors by garnishing wages and bank accounts as well as levying on property and personal possessions. They may even be able to collect their attorneys fees for the trouble of collection. However the creditors have to be able to prove their case in court with legally admissible evidence. The truth is that many creditors do not have the evidence they need to prove their case.

 

The greatest tool that collectors and their lawyers have is fear and hopelessness. Out of despair, many believe that since they owe money that there is nothing they can do. The biggest mistake many debtors make is to ignore the collectors until it is too late. One of the hardest things in the law is to undo a court order. When a debtor receives a garnishment notice, it may be too late to take steps to their rights. A debtor educated on their rights is proactive and takes steps insure that they are not preyed upon by the collectors.

 

While a letter threatening legal action is not a lawsuit, when a debtors are served with a summons, they needs to take action. The worst thing to do it to throw the papers in the trash out of despair. In Georgia, if a summons has not been answered in forty-five days, the matter is in default and a judgment will issue, even if the debtor never really owed the money. A debtor that finds them self facing a lawsuit should contact a lawyer. While it may not be affordable to hire a lawyer for the case, the lawyer can answer questions and give advise on how to handle the case. For the price of a small consultation fee, many lawyers will coach a debtor through answering the suit and presenting the case in the courtroom. There are many websites and even workshops available to help debtors understand their rights.

 

Facing creditors can be stressful and frightening situation, debtors need to know their rights. Taking the time to learn the rights and protections available to all debtors under the law is time well invested. A debtor that knows their rights can level the playing field and protect their family from the misfortunes of the bad economy.

 

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October is Domestic Violence Awareness Month

This month it will be hard to miss the purple ribbons about Cherokee County as agencies and individuals promote awareness to a serious issue that plagues many households in our community. While the issue is far more pervasive than most can imagine, these victims are not alone and there are places and people they can turn to.

Family Violence is criminal behavior that cuts across all socio-economic layers and touches the lives of old and young, men and women, gay and straight and even rich and poor. One in five teens report that they are involved in a relationship where they have suffered physical, sexual or emotional abuse. Violence is not something that people outgrow in a relationship but only get s worse as a battering partner seeks to manipulate and control their partner.

Physical and mental abuse in the home is not related specifically to a alcoholics or drug abuse but is a separate and distinct problem. It is a condition that is borne of an acceptance in the use of violence means of control of another person. This situation is only magnified when children are involved. While they may not be the target of the violence, children raised in a violent atmosphere are more likely to grow up believing that violence in the family is acceptable, creating another generations of victims and abusers.

 




Violence within a relationship is something of a stigma that society has swept under the rug. For batterers it is acceptable to punish their partner to keep them in line while many of the victims believe that they deserve the treatment inflicted upon them. Family violence is a cycle in a relationship that builds a level of tension in the relationship until there is a explosive climax of violence followed by a relative calm. Many victims will provoke the violence in order to get to the following calm. The victims of Domestic Violence feel trapped in this cyclic pattern of tension, violence and calm.

The greatest misunderstanding about Domestic Violence is that the victims can just escape if they wanted to. The socio-economic pressures weigh heavily against the victim of Domestic Violence who wants to leave the relationship. Victims are usually isolated financially without the means to help while clergy and counselors emphasize the benefits of preserving the relationship. For many, the social stigma of becoming a victim prevents them from reaching outside the relationship for help while other victims are isolated from the community, family and friends by their batterers. In either case, the victims face a community that is not willing to accept the truth about the batterer or that real problem exists.

In Cherokee County there are resources for victims to turn to. The Cherokee Family Violence Center offers a crisis hotline and a shelter to accept the victims fleeing a violent relationship. Once there, the staff offers counselors that can help victims obtain restraining orders against their abusers, obtain financial resources to get the family on its feet and look for employment. There is counseling available to victims and their non-offending family members to help cope with the emotional impact of the violence. The Cherokee County Family Violence Center Center has the countries’ first Transitional Housing program that can place qualified families in to safe, stable affordable housing to help a family wracked by violence achieve independence.

The month of October is more than just a time to remember those who have endured or are still trapped by Domestic Violence but to become more aware of its presence in our community and society. A society that is aware of its signs and its impacts will make this crime socially unacceptable and make it possible to break the cycle of violence that many families live in.

 

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Substance Abuse and Child Custody

 



The risks to children with a chemically dependent parent are countless. Intoxicated parents have a diminished capacity to supervise and protect children. They can even engage in risky behavior such as driving under the influence with the children in a vehicle or bring children into dangerous situations. Intoxication can lead to violent behavior, leading children to witness domestic abuse or even leading to become the victims of violence themselves. Even worse, children will follow the example of the chemically addicted parent and become addicts themselves



Addiction is often the cause of the disintegration of the relationship between the parents. Aside from symptoms such as abuse, neglect and habitual intoxication, chemical dependence takes a financial toll on a family. Chemical addiction is expensive and draws a great deal of family resources from household necessities to pay for the drug of choice. In many cases, the chemically addicted parent loses their job, becomes unemployable and is a financial burden on the household.



However, children in these situations love their parents, warts and all, just as any other child does. Most do not understand what is going on with between their parents and and are left wondering why they do not get to see one of their parents. While the sober parent is left in the situation of trying to protect the children from a bad situation, children often resent that parent and blame them “running off” the other parent. The emotional impacts on the children can run very deep.



There are a number of resources that the Courts can use to help children and families in situations with chemical dependent parents. The Courts can allow a child to see a chemically dependent parent with supervision. While many times these visits are supervised by a trusted relative or friend, the Court can rely on professional supervisors. Professional supervisors are usually trained and can supervise the interaction between the parent and child in a neutral setting or even sometimes in a clinical setting. While professionals come with some level of expense these supervisors can provide reporting back to the Courts insuring safety and guidance for future visits.

Supervised visits are usually augmented with a regimen of substance abuse counseling and drug testing. A good counselor can make the difference and bring an addict back from the brink of self destruction. When treatment is court ordered as a part of a parenting plan, it gives the treatment some teeth and makes it mandatory as a matter of law. Testing also is a significant part of the parenting plan for an addict. It not only insures compliance with the treatment but it insures that the children are not placed in the hands of an intoxicated parent. Many plans require testing both before and after a visit to insure that the parent did not consume any substances during the time with the children.



Successful participation in substance abuse treatment and testing in most instances will result in a relaxation of supervision requirements. As parents learn how to cope with their addictions, they are able to more engage in a less restrictive relationship with their children. However, there is always a heavy burden placed on the parent that is not addicted to remain ever vigilant to protect the children. This parent too can suffer a great emotional toll.



Overcoming chemical addiction is never easy for a family, especially as that family breaks up. Placing the interests of the children first is always the concern of the Court as well as the obligation of the parents. Courts can help the parents maintain an appropriate relationship with their children and protect their safety. There is no quick easy answer to dealing with a chemical dependency issue but with treatment, supervision, testing and patience the situation can become manageable. To best deal with this situation, consult an experienced child custody lawyer.

 

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Enforcement of Islamic Dowry

by Eric A. Ballinger

    In a traditional Islamic marriage, it is customary for a written contract containing provisions for a dowry. This is not similar to the Western concept of dowry where the family of the bride pays the groom to take the hand of their daughter. In the custom of the Islamic world, the groom pays the dowry to his bride as her own property in the event of the death of the groom or divorce. There is no doubt that these written marriage contracts are enforceable under the Shari 'a or Islamic law, but are there are questions as to their enforceability in civil courts in the Untied States.

 

    The enforcement of these contracts is met with some controversy. Some groups contend that enforcement of nominal amounts in dowry agreements deprive women of remedies available to them under state law theories of recovery regarding equitable division of property or community property as well as alimony. ¹ On the other side, there are contentions that many dowry agreements amount to a windfall to a wife on the entry of a divorce.

 

The appellate courts in Georgia have yet to deal with the issue, however courts in other jurisdictions have ruled in such cases with some surprising results. These agreements that are grounded in centuries old religious tradition and written in vague terms compared to formally drafted ante-nuptial agreements may see unenforceable. However in the application of neutral principles of law, these agreements may be enforceable under Georgia law. The Islamic marriage contract contemplates the payment of a dowry upon the death of the husband or divorce. While these agreements may be construed as contracts in contemplation of marriage, the implication of divorce may very well render the agreement as a contract in contemplation of divorce and subject it to the rules of contract construction. Furthermore, if these agreements are deemed to be valid ante-nuptial agreements, then the courts will have to determine their enforceability in accordance with the case law on subject.

 

Just as in Western culture, marriage is an important part of the Islamic world, however it comes with its own traditions and taboos. Prior to marriage, a man and woman are not allowed to be alone together. While the Koran espouses that marriage is a joinder of equal partners with separate roles, it is generally recognized that the husband plays a dominant role in the marriage.² A Muslim man may marry a woman of equal or lower status than him and is free to marry an non-Muslim. Women are prohibited from marrying a non-Muslim and must marry equal or above their station in life.³ While an Islamic marriage ceremony involves a cleric or Imam, marriage in Islam is contractual in nature and not sacramental.⁴

 

Under the Shari 'a, to constitute a valid marriage contract, there must be an offer and an acceptance.⁵ Generally, the groom makes the offer to the wife through her representative, her father, grandfather or uncle. While the Islamic law requires that wife is free to accept or reject the contract, culturally young women are under a great deal of pressure to accept marriage contracts from men who the family deems to be acceptable.⁶ An essential element of the Islamic marriage contract is the dowry, also known as mahr, sadaq, ujr or fareeda.⁷ In some cases the dowry is pledged to the wife upon the formal engagement of the couple.

 

The dowry is money or goods that the husband pays to the wife and becomes her property upon the marriage of the parties. There is no law specifying the amount required and value is based on the, "age, beauty and virginity of the bride".⁸ According to Islamic law, the dowry is irrevocable by the husband and cannot be claimed by the wife's family.⁹ The intent of the dowry it to provide for the wife in the event of the divorce as Islamic law allows for the husband a great deal of latitude to divorce his wife. There are two parts to the dowry. The first is the prompt and it is payable at the time of the marriage ceremony. The second is the deferred and it is payable to the wife at the time of the death of the husband or divorce.¹⁰ It is usual for the family to negotiate a nominal prompt and a large deferred to make divorce more difficult for the husband.

 

Islam does not promote divorce and considers a marriage to be a life-long bond. Because the husband is deemed to carry the financial burden in the marriage, Shari 'a gives the husband broad discretion to divorce his wife.¹¹ A husband need only pronounce the talaq, "I divorce thee…" three times in order to end the marriage.¹² On the other hand, in order for the husband to be free to marry again, Islamic law requires that he pay the deferred portion of the dowry in full.¹³ A wife may divorce her husband, however if she so chooses, she will forfeit her dowry and may have to repay the prompt portion back to the husband.¹⁴ In a divorce sought by a wife, called a khul' a, it is understood that the wife is to reimburse the husband for what he has put out for her. ¹⁵

 

While the marriage contract in an Islamic ceremony is certainly enforceable in Islamic countries and amongst clerics who minister to the faithful, there is some question as to the enforcement of these contracts in civil courts in the United States. While some contend there is bias against Moslems in this country, the issues raised in in enforcement concern whether or not the courts can enforce religious based contracts, First Amendment issues, whether or not the agreements meet the criteria for valid contracts and whether or not the agreements meet the requirement for a valid pre-nuptial agreement. Courts around the country have addressed the issue of the Islamic dowry and in some cases enforced the provisions.

 

In 1985 the Appellate Division of the Supreme Court of New York in Aziz v. Aziz¹⁶ enforced the dowry provisions of and Islamic marriage contract, holding that they could enforce the non-religious portions of a religious agreement. The New York court looked to similar rulings where Jewish marriage agreements were determined to be enforceable.¹⁷ Likewise, the appellate court in Florida upheld the award of $50,000 judgment to the wife under a sadaq in Alrilich v. Elchahal,¹⁸ finding that the contract was a valid ante-nuptial agreement.

 

On the other hand, the Court of Appeals in California declined to enforce the provisions where wife had filed for divorce in Dajani v. Dajani.¹⁹ The Court applied principles of Islamic law and tradition that hold that the wife forfeits her dowry if she chooses to divorce her husband. The Court also applied state law principles involving ante-nuptial agreements, holding that the enforcement of the agreement would promote profiteering through divorce.

 

The application of the First Amendment to the enforcement of the Islamic marriage contract in the civil courts was raised in the New Jersey Superior Court in Odatalla v. Odatalla.²⁰ In this case, a bride and groom entered into arms length negotiations along with witnesses, all of which was captured on video and After the documents were signed and witnessed, the ceremony took place. The trial court enforced the dowry, giving a judgment in favor of the wife. The husband appealed, contending that the enforcing the contract violated the Establishment clause of the First Amendment and the dowry portions did not meet the requirements of a contract under New Jersey law.

 

The New Jersey appellate court looked to the United States Supreme Court decision in Jones v. Wolf
²¹ for guidance in applying "neutral-principles" of law. Jones arises out of property dispute between two factions of a Georgia church congregation. While one faction sued in civil court for a determination of ownership of the church property, the other group objected, contending that civil courts have no authority to decide church ownership based on doctrinal issues. Justice Blackmun, writing for the majority held;

We cannot agree, however, that the First Amendment requires that States to adopt a rule of compulsory deference to religious authority resolving church property disputes, even when no doctrinal controversy is involved.²²

 

The Supreme Court applied a "neutral-principles" approach, claiming its advantages are completely secular and flexible enough to accommodate all forms of religious organizations. "The method relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges." ²³ "Furthermore, the neutral-principles analysis shares the peculiar genius in ordering private rights and obligations to reflect the intentions of the parties."²⁴

 

The New Jersey court in Odatalla held that the application of the neutral principles analysis in the issue of Islamic dowry was a logical extension of the Jones v. Wolf analysis.²⁵ In applying neutral principles of contract law, the Court was able determine that the marriage contract did meet the state law requirements of a contract and was enforceable.

 

There has been some issue as to the enforceability of the dowry provisions as a valid ante-nuptial agreement. In Texas, the appellate court reversed and remanded the trial court's decision to enforce the provisions of the mahr in Ahmed v. Ahmed.²⁶ While the parties did participate in an Islamic marriage ceremony complete with a mahr agreement, the uncontroverted evidence was that the parties did participate in a civil ceremony six months prior to the Islamic ceremony and as such the agreement was not made prior to the marriage. The appellate court found that there was no sufficient evidence to enforce the agreement as a post-nuptial agreement in that there was no provision as to whether the mahr was to be paid out of the separate property of the husband or the marital property.²⁷

 

In Zawahiri v. Alwattar
²⁸ the Ohio appellate courts refused to enforce the Islamic marriage contract both on the grounds that it violated the Establishment Clause of the First Amendment and it did not meet the requirements under Ohio law for a valid pre-nuptial agreement. The court can only enforce a pre-nuptial agreement if 1) the parties entered into it without fraud, duress, coercion or overreaching; 2) there was a full disclosure of the nature, value and extent of the prospective spouse's property; and 3) the terms do no promote or encourage divorce or profiteering by divorce.²⁹ The Court also pointed out that prenuptial agreements also must meet all of the requirements of a contract, to include an offer, acceptance, contractual capacity, consideration and manifestation of mutual assent.³⁰

 

The court found that the marriage contract was not discussed until the day of the marriage after the guests had arrived. After a hurried negotiation the husband agreed to a postponed mahr because he was embarrassed and stressed. As such, the court found that the agreement was entered due to overreaching or coercion.³¹

 

In 2010 the Washington Court of Appeals reversed the trial courts enforcement of the mahr in Obaidi v. Qayoum.³² The Court held that the trial court erred in applying Islamic law and principles of fault to the application of the mahr agreement. ³³ The Court applied neutral principles as set out in Jones v. Wolf and found that the contract was not enforceable as it was negotiated fifteen minutes before the ceremony, prior to that the husband had never heard of a mahr and the agreement was written in Farsi, which the husband neither spoke or wrote. The appellate court even took into consideration that the trial court made findings that the husband may have been under duress.³⁴

 

However, in Rahman v. Hassain ³⁵, the appellate court in New Jersey once again enforced the provisions of the mahr, requiring the wife to refund the dowry she was paid. The court found that the wife's pre-existing mental health conditions was an impediment to marriage under Islamic law and the interpretation of Shari 'a that she would have to return the money.

 

While the appellate courts in Georgia have yet to deal with the issue of the Islamic dowry, the application of neutral principles of Georgia law will give the court some level of direction and guidance to determine the enforceability of such an agreement. The Georgia Code provides that contracts in contemplation of marriage are to be liberally construed to carry out the intent of the parties and th is no requirement of any specific language, only that the contract must be signed by the parties to be married and in the presence of two witnesses.³⁶ Shari 'a requires that the contract for marriage must bear two witnesses in order to attest to the existence of the marriage, to make sure that the relationship is not illicit. However the Supreme Court of Georgia has held in Lawrence v. Lawrence
³⁷ that a contract that references provisions for alimony and property division is a contract in contemplation of divorce and not subject to the same rules of construction.

 

The Supreme Court of Georgia ruled in Cousins v. Cousins ³⁸
that where parties enter into a martial settlement agreement, the its meaning and effect should be determined according to the usual rules of contract construction. The Georgia Code provides that construction of the contract is a question of law for the courts to determine.³⁹ The cardinal rule of contract construction is to take the document as a whole to determine the intentions of the parties. ⁴⁰ This can be difficult as most Islamic marriage contracts are hastily written at the close to the time of the ceremony and are short on details. That would open the contract to the statutory rules of contract construction to include the inadmissibility of parole evidence to explain the terms of the written agreement.⁴¹ Further, some may argue that the terms of the written agreement lack and consideration. In order to form a contract under Georgia law, there is required valuable consideration.⁴² While there may be some question as to consideration in the Islamic marriage documents, the Georgia code provides that marriage in and of itself can be valuable consideration for a contract.⁴³

 

If the courts determine the requirements are met for the existence of a contract, the three-pronged test for enforceability set out in the Scherer v. Scherer
⁴⁴ must be applied. (1) was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) Is the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable? ⁴⁵ Only of the answer to all three questions is "no" can the agreement be considered enforceable. However, given the appropriate facts and circumstances, the Islamic marriage contract can be considered enforceable under Georgia law, applying neutral principles as outlined in Jones v. Wolf.⁴⁶

 

However, in protection of the economically disadvantaged party, the Georgia Supreme Court has found ante-nuptial agreements unenforceable where the economically advantaged party has failed to disclose their income and assets prior to the marriage. ⁴⁷ In fact there is an affirmative duty of each party to disclose the material facts and there is no requirement that the other spouse exercise due diligence to determine the assets of the other.⁴⁸ On the other hand, persons planning marriage are not in a confidential relationship and each must exercise ordinary diligence in verifying contract terms. ⁴⁹ If the parties enter into the agreement with full knowledge of each other's economic status the agreement may be enforceable, despite the financial disparity. ⁵⁰

 

While the courts thought the United States have made desperate rulings on the issue of the enfocement of the Islamic dowry, they have generally followed the same logic through the determination whether or not to enforce the contract. They have cleared the issue of the First Amendment by applying neutral principles to and looked to the non-religious portions of the agreement. In doing so, the courts look to the agreement to determine of the agreement meets the requirement of the contract under state law and then determines if the agreement is enforceable as an ante-nuptial agreement. The courts have on few circumstances relied on the Muslim traditions and Shari 'a to determine the intent of the parties, neutral principles of contract and family law decide these cases.

 

The Georgia Appellate Courts have yet to decide the issues of the enforceability of Islamic marriage contracts and dowry provisions, the Courts are well equipped with the tools it needs to decide the issues. The clear guidance from other jurisdictions points for the Courts to interpret these religious documents in using the existing laws regarding contracts and ante-nuptial agreements.

 

 

Notes

1. Bleckhorn, Lindsey E., Islamic Marriage Contracts in American Courts: Interpreting Mahr Agreements as Prenuptials and Their Effect on Muslim Women Southern California Law Review Volume 76, page 189. (2002)
   
2. El-Alimi, Dawoud, Marriage
   Modern Muslim Society Marshall Cavendish Corporation. 2011 p. 44.
   
3. Id. @ p. 45.
   
4. Smith, Jane I., Islam in America Columbia University Press, New York. (1999) p.118
   
5. El-Alimi, Id. @ p.45
   
6. El-Alimi, Id. @ p.45
   
7. El-Alimi, Id. @ p.47
   
8. Smith, Id @ p.119
   
9. El-Alimi @ p. 48
   
10. El-Alimi @ p. 48
    
11. Al-Sheha, Abdul Rahman (Translated by Mohammed Said Dabas) King Fahd National Library. (2000) p. 102
    
12. El-Alimi, Id. @ p. 58
    
13. El-Alimi, Id. @ p. 58
    
14. El-Alimi, Id. @ p. 59
    
15. Al-Sheba, Id @ p. 103
    
16. Aziz v. Aziz, 127 Misc. 2d 1013, 488 N.Y.S. 2d 123 (1985).
    
17. Hurwitz v. Hurwitz, 216 A.D. 362, 215 N.Y.S. 184 (1926).
    
18. Akilieh v. Elchahal, 666 So. 2d. 246 (1996).
    
19. 
    Dajani v. Dajani, 251 Cal. Rptr. 871, 204 Cal. App 3^rd 1387 (1988).
    
20. Odatalla v. Odatalla, 355 N.J. Super. 810 A2d. 305 (2002).
    
21. Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed. 2d 775 (1979).
    
22. Jones v. Wolf, Id. @ 605.
    
23. Jones v. Wolf, Id. @ 603.
    
24. Jones v. Wolf, Id. @603.
    
25. Odatalla v. Odatalla, Id @ 96.
    
26. Ahmed v. Ahmed, 261 S.W. 3d 190 (2008)
    
27. Ahmend v. Ahmed, Id. @195.
    
28. Zawahira v. Alwattar, 2008 Ohio 3473 (2008)
    
29. Zawahira v. Alwattar, Id. @ 3479.
    
30. Zawahira v. Alwattar, Id. @ 3479
    
31. Zawahira v. Alwattar, Id. @ 3483
    
32. Obaidi v. Obaidi, 154 Wash. App. 609, 226 P. 3d 787 (2010).
    
33. Obaidi v. Obaidi, Id. @ 790
    
34. Obaidi v. Obaidi, Id. @ 791
    
35. Rahman v. Hossain, Docket No. A5191-08T3 Superior Court of New Jersey, Appellate Division (2010).
    
36. O.C.G.A. § 19-6-63
    
37. Lawrence v. Lawrence, 286 Ga. 309, 687 E.E. 2d 421 (2009).
    
38. Cousins v. Cousins, 253 Ga. 30, 315 S.E. 2d 420 (1984).
    
39. Dohn v. Dohn, 276 Ga. 826, 584 S.E. 2d 250 (2003).
    
40. Carlos v. Lane, 275 Ga. 674, 571, S.E. 2d 736 (2002).
    
41. O.C.G.A. § 13-3-2
    
42. O.C.G.A. § 13-3-40
    
43. O.C.G.A. § 19-6-60
    
44. Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662 (1982).
    
45. Scherer v. Scherer, Id. @ 641.
    
46. Jones v. Wolf, Id @ 603.
    
47. Alexander v. Alexander, 279 Ga. 116, 279 S.E. 2d 48 (2005); Corbett v. Corbett, 280 Ga. 369, 628 S.E. 2d 585 (2006).
    
48. Blige v. Blige, 283 Ga. 65, 656 S.E. 2d 822 (2008).
    
49. Mallen v. Mallen, 280 Ga. 43, 622 S.E. 2d 812 (2005).
    
50. Dove v. Dove, 285 Ga. 647, 680 S.E. 2d 839 (2009).

The End of Spousal Privilege in Georgia

Lawmakers in Georgia are poised to change the balance of power in the prosecution of domestic violence. The Georgia House of Representatives approved HB 711 last month and sent it on to the Georgia Senate. The bill was approved without change and sent to the governor’s desk. Once it goes into effect, HB 711 will allow prosecutors to compel victims of domestic violence to testify against their abusive spouse. It also protects the communications between victims of domestic violence and sexual abuse and the agencies that are created to help them.

This changes an age-old loophole in the law that made it much more difficult for prosecutors to obtain convictions against battering spouses. The loophole, coupled with an 8-year-old opinion from the Supreme Court of the United States, severely tied the hands of domestic violence prosecutors and allowed batterers to go free. In recognition of the sanctity of marriage, a spouse has a general privilege as not to be compelled to testify against one another in criminal proceedings. This privilege became abused in the prosecution of domestic violence cases. Spouses, generally under pressure from their abusers, could refuse to take the stand to testify against the attacker.

Until 2004, prosecutors were able to get around this privilege with some creative legal maneuvering. Once spouses exercised their privilege to refuse to testify, the witness could be deemed to be legally unavailable, allowing the admission of hearsay statements of the victim to 911 operators and law enforcement officers at trial. This exception to the hearsay rule allowed prosecutors to present some very powerful evidence. But the noticeable absence of the victim on the witness stand or the noticeable presence of the victim in support of the batterer sent an equally powerful message to a jury as well.

In 2004, prosecutors were dealt another blow when the Supreme Court held in Crawford v. Washington that the admission of hearsay statements of unavailable witnesses was a violation of the Sixth Amendment in that an accused has a right to confront his accuser in court. This left prosecutors without a witness to many brutal attacks, trying to piece together cases with photographs of injuries and 911 recordings.

The new law will allow prosecutors to compel these victims to take the stand against their abusive spouses. Even if they fail to testify honestly, once these witnesses have testified, their prior inconsistent statements to law enforcement can be admitted to as evidence in trial. According to Solicitor General David Cannon, Jr., “Georgia was the last state to allow this privilege in domestic violence cases, but this bill will allow us to put some real teeth into prosecuting these cases. We will be able to make a difference.”

Eric Ballinger is private practicing attorney in Canton, GA. He serves as the attorney training coordinator for the Cherokee Family Violence Center and handles may pro-bono cases each year for victims of domestic violence.

 

Protect Indigent Defense Funding

Indigent defense is never a popular topic with lawmakers or the public. The concept of the government paying to help criminals go free runs contrary to conservative values. However, indigent defense is closely aligned with the most essential of conservative values: liberty and the regulation of government power.

The criminal justice system in the United States is the best anywhere. When our government chooses to accuse a person of a crime and restrict his or her liberty, there is a process the government must follow. Citizens, in the form of a jury, make the decision. While the government is represented by a lawyer to present its case, the accused is also represented a lawyer to challenge the government. When the two sides are matched, ultimately what the jury hears is the truth.

Yet many in this country are unable to afford to hire a lawyer or prepare a defense. Crime, for the most part, mainly affects the poorer members of our society. A society where liberty and justice is only available to those who can afford it runs contrary to core conservative values. It is why the effective assistance of counsel is guaranteed to all under the Sixth Amendment to the United States Constitution ever since Gideon v. Wainwright.

Our system is designed to protect its citizens from an overzealous government. If government is able to run roughshod over the poorest and weakest members of society, our society cannot be free. The men and women who work in the public defenders office and represent indigent persons accused of crimes act as a check and balance to government power on a daily basis.

However, indigent defense comes at a significant cost to the government. In this day and age of government cutbacks, the Georgia Public Defender Standards Council must struggle like every other government agency for funding.

In 2004, the General Assembly created the Georgia Public Defender Standards Council to ensure effective counsel for the poor. In order to fund this constitutional mandate, the Legislature also imposed an additional $15 charge on civil court filing fees. While these fees have generated between $41 million and $44 million annually, the state has only budgeted between $35 million to $38 million for indigent defense. This year, Gov. Nathan Deal has proposed a budget of $40 million for indigent defense. There is no guarantee that this level of funding will continue in future administrations.

Rep. Rich Golick (R-Smyrna), chairman of the House Judiciary Non-Civil Committee, has proposed a constitutional amendment to ensure funding for indigent defense. HR 977 provides that the funds that collected from the civil filing fee add-on be used to support indigent defense and not other budget items. This resolution has made it out of committee and is going to the floor of the General Assembly. A two-thirds majority is required to approve a constitutional amendment and send it to the general public for a vote. All those who support liberty and justice for all should contact their representative to support this important amendment
.

 

Changes to the Garnishment Laws: Corporations Need Not Answer Through A Lawyer

On Feb. 7, Gov. Nathan Deal signed HB 683 in to law, effectively eliminating the requirement that corporations have a lawyer represent them to answer a garnishment.

This new law is lauded as removing an unnecessary regulation on business. While this change to the law does help cut some amount of bureaucracy and expense for business, but it is not without some pitfalls. A garnishment is a legal proceeding and if it not handled properly can come with some very expensive consequences for business.

Garnishments are a routine part of operating a business. It is a legal process that allows a creditor who has received a judgment in a court to have the money taken from that person’s wages or bank accounts. Employers and banks respond to garnishment proceeding for creditors collecting from their employees and customers as a part on a regular basis. Most of the information required for a response to a garnishment is administrative in nature, such as payroll information and account balances. These tasks can and in the past have been handled by bookkeeper or payroll clerk. In fact, this is how most businesses have handled garnishments in Georgia up until 2011.

On Sept. 12, 2011, the Supreme Court of Georgia approved a formal advisory opinion of the State Bar of Georgia's Unauthorized Practice of Law Committee that interpreted the current law, as it is written, to prohibit non-lawyers from answering garnishments on behalf of corporations. This ruling had a profound effect on employers and banks that are most likely to answer garnishments. Justice David Nahmias, following the recommendations of the State Bar of Georgia on the issue, recommended that those interested should seek to modify either current Georgia State Law or the Court Rules.

HB 683 did just that, giving clerical workers and agents the authority to file a garnishment on behalf of the corporate entity. While this comes as a great relief and savings to business, garnishments should not be seen as just routine paperwork. A garnishment is a legal proceeding pending in a court, and as such, as procedures that must be followed. Failure to follow those procedures and meet the specific deadlines can result in the creditor taking a judgment against the employer or the bank for the amount owed to the creditor. This could have the effect of the employer or the bank taking the place of the original debtor. While there are some provisions in the law that give the corporation some relief, those measures are time sensitive and procedurally driven and may cost the creditor out of pocket as well.

The law allows for an employer or bank to deduct up to $50 for legal fees to answer a garnishment. While this probably will not cover the cost of hiring an attorney to answer the garnishment, it may cover the cost of getting some sound legal advice to make sure the garnishment is answered correctly.

 

Cracking the DUI Code

There is a controversy brewing in how law enforcement makes cases for driving under the influence, and that controversy is coming to a head. For a number of years, criminal defense lawyers have been mounting an attack on the breath testing device used in Georgia to detect the level of alcohol in the blood stream of suspected drunk drivers. Now, defenders are closer than ever to cracking the code.

At the heart of the controversy is the Intoxilyzer 5000, the device approved by the  state as the official breath testing device since 1995. The device is manufactured by CMI, Inc. a company out of Kentucky, and is used in several jurisdictions as well as government agencies and private firms. The device is designed to scan a sample of deep lung air with ultraviolet light and detect the amount of alcohol in the air. Internal software called the source code calculates the amount of alcohol in the bloodstream.

While the base models of the Intoxilyzer 5000 all work on the same principle, the model used in Georgia is unique in its features. CMI manufactures the device to meet specifications selected by theGeorgia Bureau of Investigation Division of Forensic Sciences and selects some features while rejecting others.

The device is supposed to be equipped with certain failsafes to prevent false readings. These include detection for radio frequency interference, a means to rule out mouth alcohol as opposed to deep lung breath alcohol, and filters to rule out substances that could mimic alcohol in the test. Some of the options rejected by the state include a feature that allows the device to capture and seal a breath sample for independent testing as well as the ability to download results to keep a database of test results.

Defense lawyers have been skeptical of the Intoxilyzer 5000 since it was proposed by the GBI. On his website, noted Atlanta DUI lawyer William "Bubba" Head said that the device was originally manufactured in 1982, before the advent of cell phones and other devices that cause low level radio frequency and effect the accuracy of the test results. Defense lawyers have also noted other problems over the years to include issues with the volume of air required to provide a sufficient sample and the effects that some substances (smokeless tobacco, gum or mints) in the mouth have on (the test's) accuracy.

One of the biggest red flags to defense lawyers is the extent which CMI has gone to protect is proprietary device. All repairs and maintenance on the Intoxilyzer 5000 must be done by the manufacturer at its facility in Kentucky. Nobody in Georgia knows how the device works, not even the technicians who are charged to inspect, calibrate and certify each machine every quarter. Defense lawyers want to get ahold of the device to see if it works the way the manufacturer claims. However, CMI refuses to sell an Intoxilyzer to any third party.

At the heart of the controversy is the source code or the computer program that operates the Intoxilyzer. Thomas Workman, Jr, an engineer and computer programmer from Massachusetts with experience working for Xerox, Texas Instruments, Hewlett-Packard and IBM device emulation, contends that the source code for the Intoxilyzer 5000 consists of some 60,000 lines of code, making it highly probable there is a flaw somewhere in the programming. This has prompted defense lawyers to subpoena the computer program that runs the Intoxilyzer as well as the engineers that write the code. This is not so simple.

Because CMI and its employees are located in Kentucky, they are not subject to direct subpoenas from the Georgia courts. There is a two step process. First, the courts in Georgia must find that the out of state witness is material or necessary to the case. Second, the court in Kentucky must order the witness to appear in Georgia. CMI and prosecutors have fought these "source code motions" vigorously here in Georgia as well as in other states. In Georgia, the Prosecuting Attorneys Council, an agency that assists and coordinates the various prosecuting agencies throughout the state, has an attorney who is a resource to help prosecutors fight these motions.

Last year, defense lawyers received some help from the Supreme Court of Georgia on this issue. In June 2011, the Supreme Court issued opinions in Yeary v. State and Davenport v. State, which addressed the issue of materiality of the source code and gave the green light to forward the subpoenas on to the courts in Kentucky. Before long, defense lawyers will crack the DUI code and be able to put the Intoxilyzer 5000 to the test.  

To what end will the production of the source code bring? While prosecutors who stand by the reliability of the Intoxilyzer 5000 contend that it is a bit like the dog who catches the car, defense lawyers contend that the code will expose the flaws in the device. For many, this is an issue that goes beyond the prosecution of driving under the influence. It goes to transparency of government. If the government is going to use a computer program to arrest, convict and incarcerate its citizens, the government should disclose its methods and means.

 

Ryan Brunn: It's Only Just Begun

This week's indictment of Ryan Brunn is just the beginning of the quest for justice for Jorelys Rivera.The 13-count indictment gives the public a sickening glimpse of the last minutes of this 7-year-old Canton Elementary student, yet authorities are still tight-lipped about the evidence that ties the 20-year-old maintenance worker to the crime.In order to indict the case, District Attorney Garry Moss presented evidence to convince the 23-member Grand Jury that there was probable cause, or reason to believe, that Brunn committed the crimes alleged.As the weeks progress, prosecutors and law enforcement will continue to prepare their case for arraignment and trial while Brunn and his lawyers look at every aspect of this case to challenge the allegations of the government.In high profile cases, especially those that may involve the death penalty, both prosecutors and defense lawyers will work vigilantly to make sure that due process guaranteed by the United States Constitution is flawlessly followed.While many would prefer swift justice be meted out, the process ensures the guarantee of justice for all. It is often said, "The wheels of justice grind slow, but they grind fine."While justice will move forward, it will come with a substantial cost. Prosecuting and defending such a high profile murder case will come at a high cost to the taxpayers of Cherokee County and the state of Georgia. Yet that cost will pale compared to the price that the family of Jorelys Rivera pays as they are forced to relive the gruesome tragedy already visited upon them.

 

To find out more go to http://ballingerlaw.com

Criminal Justice Reform: A Challenge for the 2012 Legislative Session

Each year, criminal justice is a serious concern for the Georgia Legislature.  Fighting crime is always an important platform for lawmakers, however with costs increasing and budgets tightening, changes need to be made to the $1 billion a year corrections system. While costs of corrections are increasing, many question whether or not business as usual is effective.

House Bill 265 from the 2011 session of the General Assembly created the Special Council for Criminal Justice Reform for Georgians. The Council, made up of appointees from the Governor, Lieutenant Governor, Speaker of the House and the Chief Justice of the Supreme Court of Georgia, was established to address the spiraling costs of crime and punishment. With help from the Pew Charitable Trusts, they were tasked to identify the current problems and make recommendations on how to best use the state resources. The Council made its report to the legislature on Nov. 1, 2011.

The Council found that prison population in the past two decades has doubled to nearly 56,000 inmates, placing 1 in every 70 adult Georgians behind bars. Projections show that by 2016, that inmate population will grow to 60,000.

Georgia’s prisons are already operating at 107 percent capacity. Much of this space is presently being taken by non-violent offenders. Yet this rising prison population is not deterring crime as recidivism—offenders returning to the community to commit new crime—remains unchanged.

Similarly, the Council found the state’s community based corrections systems are stretched to the point of becoming ineffective. As of 2010, there were 156,000 probationers and 22,000 parolees supervised in Georgia. Those charged with supervising these offenders are without the tools to rehabilitate as the services and programs that the officers refer offenders—particularly substance abuse and mental heath services—are insufficient and in some cases non-existent.

Overall, the Council found that business as usual in the criminal justice system in Georgia is going to break Georgians and needs to become more effective in preventing recidivism. In its November 2011 report, the Council made a three part recommendation that called for improving public safety and holding offenders accountable; focusing expensive prison beds on serious offenders; and examining the priorities of reinvestment of funds in the criminal justice system.

The overall plan outlined in the report calls on the system to strengthen community based corrections (probation and parole; allowing for increased supervision; and more resources for rehabilitation). The Council also saw a great deal of benefit in “accountability courts” that use a carrot and stick approach of intensive court supervision over a period of rehabilitation.

Offenders in these accountability court programs see a judge routinely and interact with a panel of counselors, probation officers and drug testing personnel on a daily basis. Offenders that are making progress are rewarded while offenders that slip spend short periods in jail. These courts presently function in several counties as “Drug Court” and “DUI Court” and are enjoying very successful numbers in both rehabilitation and preventing recidivism at costs far less than incarceration.  Accountability courts received attention last year as Governor Deal’s son, a Hall County Superior Court judge, oversees the drug court in that county.

While strengthening community based programs offers more opportunity for rehabilitation to non-violent offenders, it frees up the expensive bed space for serious violent offenders that need to be removed from society. To effectuate such changes will require a reinvestment of the funds spent on the criminal justice system. Money will need to be focused on community based treatment for mental health and drug treatment as well as funds to establish the statewide system of accountability courts.

Now, the task of breaking the centuries old model of crime and punishment in the State of Georgia is laid at the feet of the Georgia General Assembly just in time for the 2012 session. Implementing these changes is not only going to require a reinvestment of funds but also a change in the mindset of the many people and agencies that operate the criminal justice system. While many of the players are resistant to change, it is clear that Georgia can no longer afford business as usual.