Earlier this week Katie Holmes and Tom Cruise announced that they had reached a settlement in their divorce.   When Ms. Holmes filed for divorce it caused quite a  ruckus especially since Mr. Cruise was in Iceland shooting a film and about to celebrate his fiftieth birthday.  Within eleven days, the parties had reached an agreement. They have not disclosed the details of said agreement.    As unfortunate as a quick settlement might have been for the celebrity news organizations, it offers us family law counselors an excellent opportunity for a “teachable moment”.

 

Plan it.   It is clear by the surprise factor and the swiftness of the settlement, that Ms. Holmes did not wake up one morning, hire an attorney, and file for divorce.   Extricating yourself from an unhappy marriage does not happen overnight and a little planning goes a long way.   No one is necessarily advocating you hire three law firms in three different states and use a disposable mobile phone to put your divorce in motion but planning may help provide some control over the outcome.  Many people are reluctant to speak to an attorney until they are served with divorce papers or until a triggering moment occurs (i.e. a domestic violence issue, one party moves out, etc.).  If your marriage is worth saving, speaking to an attorney early on will not doom it. Both Elizabeth and I refer clients to marriage therapists.   But making decisions in the heat of the moment will have a long term impact on your life, the lives of your children, and your finances.

 

Make it Quick. I would love to say that the Holmes v. Cruise divorce was quick and painless but since I don’t know them personally I cannot accurately judge their pain.  But quick it was. So why is quick good? The longer your case ends up in litigation the worse things get.   No matter how much planning you have done, divorce is stressful.  People gain weight. They may get depressed. Some even start drinking or develop erratic behavior.   A barrier to quick is that parties want to argue about every little possession (i.e. an extension cord in the garage). Focus on your children, valuable assets and the other items that are irreplaceable such as antiques and gifts from your grandmother.   The money you save on attorneys and therapists will pay for the replaceable things.

 

Keep it Private.   I would love to get my hands on that settlement agreement.  I would love to see Katie Holmes on Anderson Cooper dishing the details of Tom Cruise, Scientology, and why his wives divorce him when they are 33 years old.  But I will have to keep my gawking to the B-list celebs of Teen Mom fame.   Although most Georgians do not have the paparazzi chasing them, you still should keep your divorce private.  Do not publicize your divorce on Facebook. Do not tweet about your spouse on Twitter.  Do not blog about the idiocy of their friends.  Yes, it may be fun, but it will undo any planning you have done and will not contribute to achieving a swift divorce.  If you have children, it will make a spectacle of their lives and that will not play well in front of a Superior Court judge.

 

If you are thinking about divorce or in the middle of one, we hope that you remember Katie and Tom as your matter progresses.  Do some planning, make it quick (and hopefully as painless as possible) and that you keep it between you and your spouse.

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AuthorAdriana Torriente

The New York Times reported yesterday that Ravgen, a company specializing in prenatal diagnostics, has developed  a test to establish paternity prior to a child’s birth.   Currently, a child’s paternity may be determined before birth but the available tests carry a small risk of miscarriage.   The new test takes blood samples from both the pregnant mother and the presumed father.   The test analyzes the mother’s blood which has fragments of the fetus’ DNA.  The company is offering the test on a limited basis and charges between $950 and $1650. 

The test has not been certified by the AABB which under Georgia law is required for use in child custody and paternity cases.  O.C.G.A Section 19-7-45.   If the Ravgen test and others like it are accepted by the AABB, it might provide finality earlier in certain instances of domestic litigation.  For example, if a couple divorce while the Wife is pregnant, the Husband is presumed to be the father of the child. A divorcing Husband could use the test results to establish that he is not the parent without having to wait for the child's birth.  It would also allow mothers to seek child support or recovery for actual pre-natal expenses from the child's father prior to the child's birth.

 

Posted
AuthorAdriana Torriente
Posted
AuthorAdriana Torriente
  • Divorce is difficult even when you are SuperGirl.  (New York Times)
  • Heidi filed for divorce against Seal on Friday.    (People Magazine)
  • Marc Antony files for divorce against J-Lo on Monday.  Rough week for Hollywood.(Fox News)
  • Some pre-marriage advice but most of this advice is relevant if you are going through a divorce.  Can’t agree with this statement enough: Regardless of how simple your divorce may be or how comfortable you feel with your spouse's lawyer, you always need to have your own lawyer look at the documents from your vantage point.  (Huffington Post)

 

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AuthorAdriana Torriente

A weekly roundup of silly, interesting or shocking things from around the web related to families and family law.

 

  • I really mean it when I tell my clients they cannot get a do over on a signed settlement agreement.  And this guy wanted a doozie of a do-over.  Can't say I blame him.   (Wall Street Journal)
  • Do you wait to send a friend or family member a wedding gift until the month before their first anniversary because you don’t believe the marriage will last that long?  Now a website allows you to get a refund on your gift if that marriage doesn’t last.   Pay  8% of the cost of the gift (must be under $500) to  WeddingGiftRefund.com along with a receipt within a week of the wedding and if the not-so-happy couple divorces in three  years, you’ll get a refund.   (New York Times)
  • Going through a divorce is tough.  Sometimes you need a little help afterwards.  (Business Week)
  • Friendships matter even more after divorce.  How do you make them flourish?  (Huffington Post)
  • If you own your own business, think about becoming Batman. Er…uh…What?  Oh, you should get a pre-nup.  (Reuters via FindLaw)

 

Posted
AuthorAdriana Torriente

Over the weekend the New York Times Magazine featured an article on the declining age of puberty, more specifically breast budding, in girls.  Doctors believe there are some factors that play into whether a girl will reach puberty sooner.   These factors are: being overweight, environmental chemicals, and family stress.  The latter is why this article piqued our interest since we regularly deal with families in chronic stress.

The article notes, “Girls who from an early age grow up in homes without their biological fathers are twice as likely to go into puberty younger as girls who grow up with both parents.” There is also a pattern of early puberty when parents divorce between a daughter’s third and eighth birthday and whose father’s exhibit deviant behaviors such as alcohol abuse or violence.  Girls who reach puberty earlier than their peers are at higher risk for social problems later in life.  They suffer from lower self-esteem, depression and eating disorders. They may begin drinking alcohol at an earlier age and are more likely to lose their virginity at an age when they are unable to grasp the long term consequences.

If you are concerned that your child might be reaching puberty earlier than expected, talk with their pediatrician.   Talk with your daughter about her changing body and focus on her emotional health.  

 If you are in the midst of a high conflict divorce or custody case, we always advise our clients not to drag the children into the litigation. What does that mean?

  • Don’t speak ill of the other parent.  Remember what your mother said,”if you can’t say anything nice then don’t say anything at all.” Remind your children that they are loved by both parents.
  • Don’t ask the children where they want to live. Unless your children are over the age of fourteen, they don’t get much of a say in custody.  Most children are terribly anxious when they feel they are going to disappoint a parent.
  • Don't use the children as a messenger.
  • Don’t promise the children anything you can’t deliver.

 Take an active role in reducing their stress. You can do this by:

  • Enroll your kids in a divorce support groups at their school.
  • If your child is prone to anxiety, look into private counseling.
  • Maintain their regular routine by keeping them in the same school and in their extra-curricular activities.
  • Engage in fun, inexpensive activities like going to the park or going for a bicycle ride. 
Posted
AuthorAdriana Torriente

 

One of the most emailed articles on the New York Times website yesterday morning was an opinion written by Susan Jacoby.  The title of the opinion was “Taking Responsibility for Death”. In the article, Ms. Jacoby tells us about her mother’s last few months and how she had drawn up Advanced Health Care Directives years before she became ill.  She didn’t want her children to make the decision so she made it for them.

Ms. Jacoby also cites several facts from a 2006 Pew Research Study:

  • Only 70% of married people have discussed end of life treatment.
  • 40% of older adults  have told their children their wishes for end of life treatment

 

Have you had end of life discussions with your spouse?  If you are single or widowed, have you discussed the decisions with your children or other close family members?   Do you have an Advanced Health Care Directive?  If your answer to any of those is no, we hope that you will contact us at Torriente Marum, LLC.  Let us help you address these issues in your Advanced Health Care Directive.

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AuthorAdriana Torriente

Planning for your future without your spouse’s income can be a daunting task.  At Torriente Marum, we encourage our clients to think through different “what-if” scenarios prior to mediations and settlement conferences.    Social Security payments on a former spouse’s account should be considered when thinking through your finances. Our clients often have questions like the ones posed here in this Question and Answer session from Fox Business with Dorothy Clark, a forty year veteran of the Social Security Administration.     

You can also find more information regarding Social Security payments regarding former spouses at the Social Security website

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AuthorAdriana Torriente

By now, most of you have heard about the 7-year-old boy in Michigan who hopped into his mother’s red Pontiac Sunbird to drive himself to see his dad and was more than 20 miles down the road before he was stopped by police.  Poor thing was speeding down the road at about 50 miles per hour just trying to get to his dad’s house.   This kind of story makes me wonder “what made a 7 year old try to drive himself to see his dad?”  Was dad not exercising his parenting time?  Was mom withholding the child from dad?  Does the little boy not like the stepdad and, with mom at work, desperate to go to dad? Or did he just miss dad and really needed to see him  as soon as possible?  (if you haven’t seen the story, read it here.)

We don’t yet know the underlying facts that caused the little boy to think it was necessary to drive himself, and quickly, to his dad’s house.  Mom was at work and will likely have something to say about this incident later (dad and the Court might have something to say about this, too).  Since family law is my daily world, my thoughts immediately highlighted on what the newscaster did not or could not announce:  parents are no longer together, there must be a custody arrangement, and is someone withholding/not exercising visitation?

For some of you reading this, withholding or not exercising visitation with your child or children might seem a foreign concept, but it does happen.  So, while we wait for the back story of the 7-year-old driver, I’d like to make a few comments about withholding visitation.  

Georgia Courts emphasize the best interests of the child when presented with custody and visitation disputes (including contempt for withholding visitation) and will look at the circumstances to decide what is best for the mental, emotional, physical and mental well-being of a child. Generally, that means both parents having a healthy and active role in their children’s lives even when the relationship ends.    That includes fostering a loving relationship between the child and the other parent.  Judges do not like it when one parent interferes with or withholds the other parent’s rights to a child.   

If you have concerns about the welfare of your child while with the other parent, call your attorney.   Your attorney should be able to help you determine the best steps to take.  Keep in mind that if you decide to withhold visitation and end up before the Court, you could be held in Contempt unless you have a good reason and good evidence that your child's welfare was in question.

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AuthorAdriana Torriente

Most divorces in Georgia end in settlement.  Sometimes it happens in negotiations between parties or their attorneys, oftentimes it happens in mediation, and sometimes it even happens in the middle of a final trial.  Regardless of how or when the settlement of your divorce occurs, once a signed Settlement Agreement is in place it is very difficult to undo.

Even though you may be very happy with how things settled, or just happy that the battle is over, sometimes buyer’s remorse sets in a few days, or weeks, later.   Divorce Settlements are looked at as a negotiated contract that you have entered into freely.  Once signed and filed with the Court, the are incorporated into the Final Judgment and Decree of Divorce granted by a judge.  So when you come back after all the i’s are dotted and t’s are crossed and file a Motion to Set Aside, a judge is not likely to be happy with you unless you can show cause why it should not be upheld.  The situations that can convince a judge to set aside an agreement or order: fraud, misrepresentation or non-disclosure of material facts (there’s a secret account somewhere), or incapacity to enter into agreements (you were drunk, drugged, or mentally incompetent).

You’ll have to provide evidence to back up your Motion to Set Aside, so unless you can clearly show one of those factors existed and but for the fraud, misrepresentation or incapacity you would not have signed the agreement, a judge is highly unlikely to set aside a final judgment incorporating an agreement.  Even in situations where you can show that not all financial assets were disclosed, if you were aware that full discovery was not completed and you “had a feeling” that the other party was not disclosing all assets but you signed it anyway, it is unlikely the agreement will be set aside. 

So, unless you are 100 percent sure that you know you and your spouse’s full finances it is always a good idea to complete discovery and have financial affidavits filed with the Court, even in uncontested divorces. That way, if your ex-husband cashes in a previously undisclosed, year-old winning lotto ticket just two days after your divorce is finalized, you can take him back to court to set aside the Final Judgment and Decree based on his misrepresentation.

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AuthorAdriana Torriente

As summer is quickly approaching and schedules relax (somewhat), the time is ripe for parental acrimony and mischief.  If you are divorced or divorcing parents this summer, make sure to avoid at least ONE bad parenting behavior:  DO NOT withhold court-ordered visitation rights.

Just this Monday, the Georgia Supreme Court released a decision that shows the perfect application of O.C.G.A § 19-9-24.  Basically, 19-9-24 lists prohibited activity of physical and legal custodians that will bar that party’s ability to file any kind of petition to modify custody, visitation, alimony, contempt or even file for divorce.  That prohibited activity: withholding court-ordered visitation. 

The Supreme Court found that Cobb County’s Judge Staley ruled correctly when she dismissed a mother’s Petition to Modify Custody and Visitation in April 2010 based upon the father’s showing that more than 100 days of visitation had not taken place between March 21 and November 20, 2009. The Court found that because the filing party was the custodial parent and that the custodial parent was withholding visitation, three of her four counts were dismissible, including her Motion for Contempt.*

Another fact of interest in this case:  the child was 11 years old and said he didn’t want to visit with dad. Mom didn't overrrule his reluctance to visit with dad so visitation didn't happen.  Well, guess what folks, until that child is 14, he doesn’t really get a say. In its opinion, the Supreme Court cited a 1984 decision that established that the wishes of a child younger than 14 does not trump a parent's rights to visitation. Now, after a child is 14, a Judge is more likely to listen.

Unfortunately, it is not uncommon to see one parent withhold visitation from the other parent. Regardless of whether the withholding is caused by a parent's inability to relinquish control, valid concerns, completely irrational fears, or hatred of the other parent, alienating a child from one parent is rarely in the best interests of that child.  And Judges are not impressed by that kind of behavior.  If you have concerns about your child visiting with their other parent, consult your attorney to determine if your concerns warrant a modification and before you start interfering with the non-custodial parent's visitation rights or you could inhibit your right to petition the Court for a modification

Read Avren V. Garten.

* The Court specifically mentioned that withholding visitation does not prohibit a withholding party from bringing a Motion for Modification of Child Support since child support is seen as a right of the child, not the custodian.

Posted
AuthorAdriana Torriente

Two weeks ago we explored a few tips for helping divorced parents co-parent more effectively with the other parent. Today we’ll continue our series on tips for divorcing parents.

As we discussed in Part 1, it is important to keep the other parent in the loop regarding the children’s activities.    When the kids are of school age, this can be accomplished by keeping them updated on the children’s academic and school activities.  If the child is very young, they many not yet be in school or doing other activities but they will still be meeting milestones such as taking their first steps. 

In the case described above, parents can take photos with their smartphones or cameras and either email to the other parent or upload to a photo site such as flickr or smugmug.  This way both parents get to be involved in seeing their child grow and progress.

As we approach Mother’s Day and Father’s Day, parents often help their child select a gift for the other parent.   Today’s digital photo frames have Wi-Fi capability that will automatically connect to flickr, smugmug, or other digital photo accounts.   Your former spouse can enjoy the photos you’ve taken on their digital frame without having to upload the photos themselves. 

 We encourage you to be careful as to what photos you upload to a shared photo site.

  • Maintain the account as private rather than public including only the child’s other parent and family.
  • Keep the children as the focus of the photos.  This is especially true if your relationship with your former spouse was either physically or mentally abusive. In that case you should not post any photos of yourself with the child.
  • If you are in a new relationship, ensure that your boyfriend or girlfriend does not appear in the photos unless your former spouse is ok with the new relationship. 
  • If you are undergoing a modification of child support, you may want to be careful about what appears in the background of your photos.  If you are crying poverty and there is a new big screen TV in the background or the photos are taken at a beach in the Caribbean, you can be certain they will appear during your modification trial. 
  • Great locations for photos:

o   A park or any place outside in your city. Parks are free and rarely do they connote any change in financial circumstances.

o   School or Daycare.

o   Sports activities.

o   Close ups where the background cannot be discerned.

 

We hope that these tips help you to foster your child’s relationship with the child’s other parent.  Regardless of you and your former spouses’ history, your children need both parents.

The following products and websites are not endorsed by Torriente Marum, LLC but are provided here as a list for the benefit of our clients and blog readers:

 

  • Photo Sharing Websites

o   Smugmug

o   Flickr

o   Picassa

  • Digital Frames

o   Digital Frames Buying Guide from Amazon

o   Pandigital Photo Frame from Wal-Mart

o   Kodak Pulse Digital frame from Amazon. Connects to Facebook and Kodak Pulse. 



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AuthorAdriana Torriente

In a series of posts beginning today, we explore tips that newly divorced parents should consider employing in communicating about their children with their former spouse.  These tips also apply to individuals who have custodial and visitation rights to children through legitimation or paternity actions. Therefore, our use of former spouse can be used interchangeably with former girlfriend or boyfriend.

Georgia uses the best interest of a child approach in making custody determinations.  O.C.G.A §19-9-3 (a)(3) enumerates dozens of factors that assist a court in determining  the best interests of a child .  One of these factors is: The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.   This week we will explore some ideas on fostering a close relationship between your former spouse and your children.

If you are the parent who has the children during the school week, you undoubtedly get the daily dumps from the child’s book bag replete with report cards, progress reports, and extracurricular activity schedules.   You are also the parent most likely to schedule regular checkups with the doctor, the dentist, or the orthodontist.  Do you communicate those events and appointments to your child’s other parent? Do they know about the upcoming soccer tournament or the piano recital?  Do they know when report cards are available? Or whether there is a field trip next month?  When the other parent is informed they are able to make it to important events in the child’s life.  They’ll see them make their first goal or watch them get their first blue ribbon in a science fair.  When both parents come to these events, children know they are loved and that their parents take a special interest in all they do. 

There is no excuse for not taking advantage of today’s technology and employing an online calendar to ensure that the other party remains informed of your children’s activities.  Google has a free online calendar that allows you to share information with other users but allows you to manage those privacy settings. For example, your former spouse can view activities but cannot modify or delete them.    Most websites which offer free email such as Yahoo! also provide free online calendars.  Most school systems publish online calendars for their school system and some make them exportable into a calendar format.  Should you choose to set up an online calendar here are some things to consider:

 Who should be able to view your child’s calendar?

  • Other parent;
  • If the other parent has remarried, perhaps the child’s step-parent;
  • Grandparents and other family members especially if they operate as additional caretakers; and
  • Nannies and other babysitters.

 

What type of events should be added to your child’s online calendar?

  • Academic Events

o   Report Cards Available

o   Parent Teacher Conference

o   School breaks

o   Testing

o   Field trips

  • Sports activities

o   Practices

o   Games

o   Tournaments

  • Extracurricular activities

o   Meetings

o   Fundraisers

o   Recitals

  • Doctor and Dentist appointments
  • Other Children’s Birthday Parties (This is a common complaint among custodial parents. They feel that they have to buy all the presents for the children’s parties because the other parent does not keep up with the children’s social activities)

If you are too busy to maintain an online calendar for your children’s activities, then at the very least invest in a scanner to scan the children’s extracurricular and sports schedules to share with the other parent by email.  Many teams provide the practice and game schedules online so sending your former spouse a link to the site is also a great option.

We’ll be back later this week to discuss more tips and ideas. 



Posted
AuthorAdriana Torriente

We take a break this week from the story of Kate & Nate to discuss an interesting 2005 case that came to the forefront of our attention courtesy of a friend.

For any Glee lovers out there, here is a real life example of how Finn could have been Quinn’s baby daddy.  Although there was no hot tub involved in this intercourse-free pregnancy, the case revolved around a man who suddenly found himself a dad after only having engaged in oral sex. 

Back in January 1999, an Illinois physician meets a purportedly recently divorced doctor, they fall in love, get engaged and plan a life together.  However, he is adamant that they do not find themselves parents outside of wedlock and insists that, if intercourse does occur, they must always use condoms.  For some undisclosed reason, the parties do not ever actually have intercourse during their relationship, but do become sexually involved.  It does not appear that he insists in condom use if intercourse does not occur.

Finding herself in possession of his semen, his lovely fiancée secretly inseminates herself alone in the bathroom.  Not long after her self-insemination, she guiltily admits she is not yet actually divorced and he ends the relationship.  Suddenly, in November 2000, he is served with a Petition to Establish Paternity and Child Support for a child he did not expect or know to exist. 

Long story short, he fought the Petition but was ultimately found to be the biological father and was ordered to pay child support.  He sued her under what our torts professor called the “always pled, but never won” Intentional Infliction of Emotional Distress claim as well as some other torts.

Looking at this from the perspective of a family law attorney, the take-away of this case is this: parenthood is parenthood regardless of method.

Ultimately, the Court will always make a ruling that is based on the best interests of the child.  Judges want two parents responsible for the support and maintenance of children.  Even if the Illinois doctor never wants to meet the child, the Court will absolutely make sure that the child is financially supported.  Which means child support must come from someone.

The only exceptions we can think of where a biological dad will not be found obligated to pay child support are anonymous sperm donor contributions or when a parent’s rights have been terminated.

 



Posted
AuthorAdriana Torriente

If you are divorcing, modifying, legitimating or otherwise find yourself before a judge on family law matters in Georgia, you will most likely be ordered to mediate your case prior to being allowed a final hearing.  In recent years, there has been a consistent trend toward encouraging parties to resolve their family issues outside the courtroom.

This is not a bad thing.

Mediation gives the parties the reins and allows them to decide how the assets will be split, who the kids will live with during the week, or where the kids will be exchanged.  It is not uncommon to hear Judges enthusiastically encourage parties to settle their differences and control their own destinies.  Judges are more than happy to decide who gets the china and who gets the towels, but they can’t guarantee that either party will be at all satisfied with the results.  In fact, both sides are far more likely to be furious with a judge’s ruling than if they negotiated a deal on their own.

Generally, mediation begins with all parties in the same room. If each party is represented, there are five individuals involved during mediation: 1) the mediator, 2) the Plaintiff, 3) Plaintiff’s Attorney, 4) the Defendant, and 5) Defendant’s Attorney.  The mediation opens with each party presenting  their positions on each issue to the mediator.

While it is possible for all parties to remain in the same room throughout mediation, more often than not, the mediator suggest that the parties caucus.  To caucus means that each side is allowed the opportunity to speak with the mediator in a closed meeting without the opposing party present.   This gives each side the freedom to reveal material they feel is pertinent to their case while protecting that party from compromising their legal strategy should the mediation not be successful.

The mediator typically will travel back and forth between rooms presenting offers and counteroffers of settlement in an effort to help the parties move closer together.  If space is limited, one party may be asked to leave the room while the other caucuses with the mediator and vice versa.  If you ever need to speak with your attorney alone, you will be given the opportunity to do so.

The mediator’s role is to remain neutral, to facilitate communication between the parties, and help the parties reach a settlement.  The mediator will not decide how the issues should be resolved, but he or she may offer an evaluation of the merits of certain claims or defenses.  The mediator will also discuss how realistic your position is and how a judge is likely to view your side of the case.

If you do not reach a settlement at mediation, negotiations do not have to cease.   Your attorney may continue to negotiate until the day of a final hearing. 



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AuthorAdriana Torriente

This the second installment in our Nate, Kate and Tate story.  When we last left our star-crossed teenagers, neither parent had pushed the issue of a paternity test because, at nine months,  it appeared that baby Tate looked just like Nate.  

Tate is now 2 years old and he is a happy baby.  He is progressing normally and, aside from allergies, he is healthy.   Tate is covered by the state healthcare for children and the medication he needs costs Kate about $50 each month. 

Kate remains living at home with her parents and is pursuing a Bachelor’s degree in nursing.  She commutes one hour each way to the university three days per week.  Until now, she’s been able to manage childcare by placing Tate in a Mother’s Morning Out at her local church.  When she leaves for school, her mom takes Tate to the church at 9 a.m.  Kate’s class lets out at noon, so she rushes home to pick up Tate at 1 p.m.  The church offers this program only two days per week.  On the other day she has class, Kate’s grandmother watches Tate, but her Grandmother is moving to a retirement community in Florida at the end of this semester.  To make matters worse, her class schedule next semester is three full days per week.  The least expensive day care in her town is $700 per month, a steep jump from the $150 per month she was spending in the mother’s morning out program. 

Nate is still living in the next town working for $15 per hour as a mechanic.   Nate consistently visits every other week.  He picks up Tate, takes him to McDonald’s and then to the park.  Tate loves to see his Dad and is sad when he has to go home.  Kate has encouraged Nate to take Tate for overnight weekend visits, but Nate says his bachelor pad is no place for a little boy.  When Nate comes to visit, he always has a $50 or $100 to give Kate.  He never asks for a receipt and Kate never thinks to give him one. 

As you can tell, Nate and Kate are no longer dating and they see each other only when Nate comes to see Tate, but they have remained amicable.  They are both seeing other people, but not seriously.

When Nate arrives one Saturday afternoon, he is driving a brand new 2012 Lava Red Mustang.   When Kate recovers from the shock, she flies off the handle yelling “how much did you pay for that?”  Without waiting for a response, she continues:  “ You waltz up here every other week and hand me a $50 bill to pay for Tate’s expenses.  Do you have any idea how much it costs to raise our son? Do you have any idea that your sad $100 each month does not even cover his day care when I am at school?  Did you know that his medication alone costs $50 each month?   You don’t even take him overnight so that you would have to feed him three square meals on the weekend.  When you pick him up, I have a diaper bag packed for you. You don’t even pay for the diapers!!!”   Kate storms back into the house.  Tate hops into the backseat of the Mustang, eager to spend the day with Dad.  

A few days later, Nate receives this email from Kate:

Nate, I am sorry that I lost it on Saturday. I should have never acted like that in front of Tate. But I am so frustrated by your lack of financial support. And you don’t want to take your son for the entire weekend!!!  Do you know how many dads would like to have more time with their kids???

One of my friends has a daughter Tate’s age and her daughter’s father gives her about $500 per month in child support, he makes a lot less than you and he’s drives a beat up old Buick, not a brand new mustang!!!!   Not only that, but he picks up his daughter on Saturday morning and returns her late Sunday afternoon.  My friend has the weekend to study and work at her part time job. I would love to have two days off every other week so that I can get to my studies!! 

Tate is going to have to be in a regular day care starting next semester.   I have looked around and the best price is $700 per month at Choo-Choo Train Academy.    Starting next month, I need you to start giving me $500 per month.  If you don’t, I am going to have to call child support enforcement or, whatever it’s called, and have them make you pay it.  Ball is in your court!!!

-Kate

Nate feels terrible. He had no idea.  Two weeks later, when Nate comes to pick up Tate, he brings Kate $250 in cash.  Kate thanks him and hands him an invoice from “Little Bachs”.  “What is this?” Nate asks. Kate explains that she has enrolled Tate in a music class.   The cost is $100 per month and she expects him to pay half.  Nate tells her he doesn’t have the money today but that he will bring it next time he visits.  She thanks him again and tells him Tate is really enjoying the class. 

Later that night, Nate starts to think:  is it reasonable for a 2 year old to have music lessons?  Can he even understand the music at that age?  He decides he is not going to pay Kate the extra.  If she wants to enroll him, that’s fine but he is not paying for it.   He starts to think that he is going to be nickeled and dimed for every activity and would rather hand over money once per month to Kate and be done with it.  

Today, we want to talk about a few things we saw “wrong” with Nate and Kate’s choices  to date.

First, the payments Nate has been making have all been in cash.  We always ask clients make support payments by personal check or money order. If you must pay cash, then always ask for a receipt. We are even seeing clients who use PayPal to make their payments.  Things will get sticky for Nate in the coming posts because he has made cash payments and has no record of what he has paid Kate.  

The second issue is the child support amount.   Child support is set by the income of both parents.  Income includes rental income or income that you are receiving from a trust as well as income that you earn as part of your job.  Income is a bit more difficult to calculate when one parent is self-employed, but Georgia law provides guidance on those calculations.  Many people believe that the court is going to take into account your car payment or your mortgage payment.  Expenses are not considered in calculating child support—just income. 

Other considerations in calculating child support include expenses for the child such as day care expenses and health insurance costs.   Courts also have the discretion to allow other child-rearing expenses into the calculation, like extracurricular activities.  A court has the discretion to grant the paying parent a deviation for that additional expense.    In Tate’s case, he is involved in an extra-curricular activity: music class.  Normally, parents equally split the costs of uncovered medical expenses.

So what’s the glaring error with Kate’s demand for $500 support?  It is not based on income.  It is based purely on a number that her friend’s child’s father is paying.  It does not take into account either parent’s income or Tate’s particular needs and with the addition of “Little Bachs,” Nate has no idea what he’ll be paying each month since additional activities could arise at any time. 

When attorneys calculate child support, we use a worksheet which allows us to include the cost of extra-curricular activities, private school tuition, and many other expenses in the child support amount.  This makes it easier for the non-custodial parent to provide one check each month enabling them to contribute to all the child’s expenses.  It reduces confusion and room for conflict while making sure the children can be adequately cared for.

Lastly, this agreement between Kate and Nate is not in an order.   If Nate stops paying, she can’t take him to child support enforcement to garnish his wages.  If Kate decides she wants more money, she can hold Nate “hostage” by threatening to take him to court. 

 Stop by next week for more of the continuing Saga of Nate, Kate and Tate.

 

 

Posted
AuthorAdriana Torriente

Divorces in Georgia can take as little as 31 days or can drag on for years, but until that Final Judgment and Decree is signed there are serious questions that need answering. 

Who stays in the house?  Who do the children live with during the week? What kind of visitation does the non-custodial parent get?  Who pays the bills?  I don’t work, how will I survive?

This is when a Temporary Hearing comes into play.

A Temporary Hearing is when the parties to a divorce go before the judge to resolve immediate and pressing issues such as child support, custody, visitation, temporary alimony or temporary attorney’s fees.  Even if divorcing parties think that they are amicable enough to just agree to child support and visitation while the details of the property settlement are nailed out, the Court likes to have an order of support and visitation on the books, just in case things get ugly.  What about the 60-year-old unemployed woman who stayed at home for 35 years taking care of the kids who only has access to a  checking account into which her husband puts only enough money into to cover household expenses?  Well, the Temporary Hearing makes sure that those who need support get support, sooner rather than later. 

Basically, a Temporary Hearing allows the Court to grant a Temporary Order directing the parties how to behave until the divorce is final.  Again, please keep in mind that we are only licensed to practice in the State of Georgia and that these procedures are state specific.  Further, if you live in Fulton County, it is a different procedure altogether which we will be elaborating on at a different time.

What to Expect and How to Prepare

While it is in everyone’s best interests to have a Temporary Hearing as soon as possible, sometimes that is just not possible with the Court’s schedule.  In ideal circumstances, we’ll be able to get you to a Temporary Hearing within the first 60 days after the filing of the Complaint for Divorce.   Other times, it maybe 3 to 4 months before you see the inside of the courtroom.

The Temporary Hearing is limited to only issues that need immediate resolution.  So don’t expect to bring up who gets the china, the towels or how to split the 401k.   You cannot bring a slew of witnesses that will sing your praises as a parent.  Judges want to keep the Temporary Hearing short and to the point, so don’t expect your case to be in front of the judge for a day or days-long trial. 

Your attorney should meet with you about two weeks prior to your scheduled Temporary Hearing.  This gives us time to prepare your case, subpoena the right witness, and gather Affidavits on your behalf.  Be prepared to review and revise your Domestic Relations Financial Affidavit, provide updated income information and your most recent paycheck stubs.  We will also discuss how to appropriately testify in court.

 Tips for the Temporary Hearing:  

  • Wear appropriate clothing.  For men, slacks and a button-down shirt are preferred.  For women, skirts, dresses or pants are appropriate but remember to keep skirts just above the knee or longer and don’t wear anything too low cut, skin tight or showing your bra strap.
  • Remove unusual and visual piercings (eyebrow, tongue, nose, multiple earlobe piercings)
  • Cover tattoos, if possible
  • Do not wear flip flops or open-backed shoes
  • Do not wear shirts with inappropriate material or logos on display.
  • Do not wear excessive make up and keep make-up tones neutral
  • Shave or trim facial hair
  • Hire a babysitter.  DO NOT bring your child(ren) to Court.



Posted
AuthorAdriana Torriente

Yesterday, we began our saga of our fictional new parents Kate and Nate.   But last week, the Georgia Court of Appeals issued a decision on a real life Kate and Nate.  We don’t normally post on Fridays, but we thought the new appellate opinion paralleled some of the concerns expressed by Nate in yesterday’s post. 

In yesterday’s blog entry, Nate felt uncomfortable signing an Acknowledgement of Paternity because his friends indicated to him that Kate may  not have been completely faithful during the relationship and in particular during the time of Tate’s conception.   In last weeks’ opinion in Venable v. Parker, the Father had signed the Paternity Acknowledgement (PA), had entered into a settlement agreement establishing paternity and child support, and had consented to an income deduction order to have the child support deducted from his wages. The trial court entered a final order incorporating the parties’ settlement agreement.    After all that, the Father asked the court to set aside the Final Order establishing Paternity because of fraud and misrepresentation.  He testified that he had filed his motion to set aside the order because he had found out that the Mother had various sexual partners during the time she conceived.  He also provided contradictory testimony that he knew she had other sexual partners and was doubtful when he signed the Paternity Acknowledgement. 

The trial court denied his motion to set aside stating that he had not met his burden in disestablishing paternity but ordered the father and the child to submit to a DNA test. We’ll discuss the disestablishment of paternity in a later blog post.   In their opinion, the appellate court said that the trial court could not require genetic testing when it denied the Father’s motion to set aside. 

So what can we learn from our real life Nate?  In our fictional saga, Nate had doubts and he acted on those doubts.  It was probably uncomfortable for him to voice his wishes to Kate.  He probably felt like a real jerk.  Kate surely thinks he is a jerk. When he decided not to sign, he probably wondered about whether he was going to leave a small baby in a dependent state and fatherless.  Maybe his parents or Kate’s parents were disappointed with his decision.  But we think that Nate made the right decision.  The cost of a DNA test is inconsequential compared to having to appeal a case such as Venable.   Not to mention, the peace of mind that comes from a DNA test-- no lingering questions such as “does he look like me?”

The real life Nate, the Father in Venable, had doubts and failed to act on those doubts.  He went with the flow and then later it appears that he regrets those choices.  He may have thought he was doing the honorable thing by ensuring that the child had a father.  Maybe he thought he could easily get out of the choices he made.    But the law tells us “public policy is not advanced by the disestablishment of legitimacy and paternity.” See In the Interest of T. W., 288 Ga. App. 386, 389.   Interestingly, he also testified that the Mother had threatened to tell his wife about the affair and the child if he did not sign the PA.   It seems that our real life Nate would have been in less legal turmoil had he followed one simple rule: keep it zipped.

If you would like to read the opinion in Venable v. Parker, you can find it on Lexis’ free service here.  The Lexis citation is 2011 Ga. App. LEXIS 98. 



Posted
AuthorAdriana Torriente

Meet Kate and Nate.  They are graduating from high school in May and they’ve been dating since sophomore year when they were in the same biology class.   They both plan to attend a local community college next year and live with their parents until they can save enough money to transfer to Georgia State.   Kate took a pregnancy test last week and she found out she’s pregnant.  Both Kate and Nate are excited, but worried about the future.  

Over the next nine months, their relationship stays relatively strong considering the pressures of having a child.  They make a decision not to marry because they do not believe they are ready for that commitment.    Nate goes to all the pre-natal appointments with Kate and, when the big day arrives, he is at the hospital for Tate’s birth.

As an attorney, one of the things we are trained to do is think through all the possible scenarios, both good and bad, that can flow from any act.  So in today’s post, we begin our saga involving Kate and Nate.    Kate and Nate are fictional characters based loosely on our previous experiences in legitimation and paternity cases and from articles in the media.   Nothing in this post should be construed as legal advice and, although you may believe that your case has many of the same facts as Nate and Kate’s story, you should consult an attorney because all cases are very fact specific. 

 

At the Hospital 

While at the hospital, the staff brings by some documents for the new parents to sign.  One document has the title of “Paternity Acknowledgement” and at the bottom there is a section called “Acknowledgment of Legitimation”.    Should Kate and Nate sign this document?

Let’s take this document one section at a time. The Paternity section establishes that Nate is the biological father.  Because Kate and Nate were not married when they conceived the child nor were they married when Tate was born, Nate is only the biological father and not the legal father.  If Nate thinks that Kate may have been untrue, he should not sign. Or if Kate knows that she had relations with another man during the time she conceived Tate, she should be truthful with Nate and consider having both Nate and Tate take a DNA test to establish paternity.  

The Legitimation section creates a legal bond between the father and the child.  They can inherit from one another, Tate can receive Social Security benefits from Nate’s account should Nate pass away, and they are entitled to other legal rights.  Women who are currently in an abusive relationship with the father of the child should seriously consider not signing this document until they have consulted with an attorney.  A child can be legitimated with this same form within one year of the child’s birth or by court order at a later time.  The days after birth are very emotional and some people may not be suited to making life long decisions at this time.   Legitimation does not grant the father any type of custodial rights or visitation with the child, but it is the first step in establishing those rights. 

Nate and Kate decide not to sign the Paternity Section or the Legitimation Section.  Nate’s friends have told him that they think that Kate was unfaithful.   Although he doesn’t believe she was unfaithful, he tells Kate what his friends think.  Kate is very hurt and knows that she will feel better once the paternity test is complete.

Kate returns home with Tate to live with her parents.  Nate visits almost every day during the first few weeks.  After a month, he starts a new job in the neighboring town and cannot come see Tate every day.  But he is faithfully coming by every Saturday to spend a few hours with his son.  Kate teaches Nate how to feed Tate and how to change his diaper and after a few months, Nate takes Tate every other weekend overnight.  Nate does not make a lot of money and he is helping out his parents with their expenses.  He gives Kate fifty bucks cash every week for diapers and other baby needs.  Nine months go by and it is pretty clear that Tate looks like Nate, so everyone forgets about the paternity test. 

Visit us next week as we explore the misadventures of these new parents.

Note: Torriente Marum, LLC is a Georgia corporporation and the attorneys in this office are only licensed to practice law in Georgia.



Posted
AuthorAdriana Torriente

Merriam-Webster cites that the origin of the word “divorce”  is linked back to 14th  century middle English word “divorse” meaning  “to leave one’s husband”.   If it were as simple as leaving your spouse these days, there would be no divorce attorneys.  Whether you think it fortunate or not, the legal process of divorce is a complicated and time consuming process which varies state-to-state and even sometimes county-by-county. 

I often meet with people planning or just thinking about getting divorced who want to know more about the process.  Consider this post as a brief and oversimplified tutorial on the process of divorce in Georgia.

Step 1. The Complaint:  Someone files a Complaint for Divorce letting the Court and their spouse know that a dissolution of the marriage is desired.

Step 2. The Answer: the party who did not file the divorce (Defendant) gets an opportunity to respond or not.

Step 3. The Temporary Hearing:  If there are contested issues that need to be resolved immediately, the Court hears from both parties and enters a Temporary Order.  Due to current budgetary constraints, sometimes “immediately” is three to four months after the divorce is filed.  If you do not have minor children or issues of spousal support that need to be address quickly, a temporary hearing may not be necessary. 

Step 4. Discovery:  The parties exchange all the information they have on everything relating to the marriage so they can each confirm exactly what it is in the marital estate.

Step 5. Negotiations & Mediation:  This is the part where the parties have a chance to choose their “divorce destiny”.   Negotiations can occur at any phase before or after the complaint is filed and is encouraged by the Court.

Step 6. Settlement:  If the parties can agree on everything, a Settlement Agreement outlining the terms of the Divorce is drafted and signed.

Step 7. Final Trial:  If the parties cannot agree on how to resolve all or any of the issues of divorce, each party goes before the Court and the Court decides it for them.

Step 8. Final Judgment and Decree:  The request for Divorce is granted and the parties are officially no longer husband and wife.  If the Judge accepts the Settlement Agreement it is incorporated into the Final Order and Decree.    If there is no Settlement Agreement, the decision of the Court is made a Final Order.

Step 9. The Post- Divorce Clean Up:  If ownership of assets and liabilities didn’t change hands prior to this, it changes hands now.  For instance, retirement accounts can be split only after the Final Order of the Court and with the filing of the proper orders to plan administrators.

A divorce in Georgia can be completed in as little as 31 days or take years to resolve.   It all depends on how easily the parties can resolve their differences.  While Torriente Marum will zealously advocate your position in cases where judicial intervention is necessary, we believe that it is in the best interest of  most clients to have their cases settled amicably outside of court. 

 

Posted
AuthorAdriana Torriente