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.

 

Posted with Blogsy

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.

 

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

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.

Follow @ballingerlaw

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.

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.