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Dealing With Adultery

Under Georgia law, a person commits adultery when he or she has sexual intercourse with a person other than his or her spouse (both extramarital heterosexual and homosexual relationships constitute adultery). See, Owens. v. Owens, 247 Ga. 139 (1981). It is an absolute bar to any alimony claim if it is the cause of the separation and has prevented reconciliation. O.C.G.A. 19-6-1(b). Anderson v. Anderson, 273 GA. 886, 230 S.E.2nd 272 (1976). See also, Vereen v. Vereen, 284 Ga. 755, 756, 670 S.E.2d 402, 404 (2008) (to show lack of entitlement to alimony, spouse must establish by a preponderance of the evidence that the separation between the parties was caused by the other party’s adultery or desertion).

How Will It Impact My Divorce?Adultery is most significant when a cheating spouse is seeking to obtain alimony or attorney’s fees. For example, if a stay at home wife, or a wife who has comparatively less income than her husband, has cheated, then she may be barred from receiving alimony or attorney’s fees in the divorce. In the classic situation where the husband has cheated, this will be a “conduct” factor in the division of property and an evidentiary issue in the award of alimony.

If you have cheated, your spouse can argue the affair justifies a denial of alimony and an award of more than 50% of the marital estate in his or her favor. However, the cheating spouse is still entitled to argue for “equitable division”. Unlike in the context of alimony, adultery is not a bar to property division. In the context of awarding permanent alimony, O.C.G.A. section 19-6-5(a)(8) authorizes the consideration of “other relevant factors”, but marital misconduct may not be used to set the amount of periodic alimony.

Will It Come Up in Discovery?Yes. If either party is seeking to bar the other from alimony, or if your divorce involves the division of marital assets or debts, then adultery is certainly relevant to the case. Under Georgia law, either party may seek to discover any evidence that is relevant or that is reasonably calculated to lead to the discovery of admissible evidence. See, O.C.G.A. section 9-11-26(b).

As noted, conduct is relevant in considering the division of assets. However, it is not relevant in determining the amount of alimony. This should be based strictly on the relative financial condition of the parties. See, Anderson v. Anderson, 237 Ga. 886 (1976) (misconduct of the parties is relevant only to whether adultery is a bar to alimony, not to the amount of alimony to be awarded); McCurry v. McCurry, 223 Ga. 334, 155 S.E.2nd 387 (1967) (conduct is not relevant in determining the amount of alimony – alimony should never be awarded to punish for misconduct).

Can I “Date” After Separation or After My Divorce is Filed?“Dating” before your divorce is final is not advisable. Intercourse is still technically adultery up until the divorce is final. Although there is authority for the argument that evidence of post-separation dating is irrelevant – see, McEachern v. McEachern, 260 Ga. 320, 394 S.E.2nd 92 (1990) – this evidence is still relevant if it can be shown that the affair caused the separation or prevented reconciliation. See, Hand v. Hand, 244 Ga. 41, 257 S.E.2nd 507 (1979) (evidence of conduct after separation may be relevant to show the conduct prevented reconciliation).

As noted, questions concerning “dating” or affairs, both pre and post-separation, are usually fair game in discovery subject to the witnesses’ right to assert privilege. However, as a practical matter, most judges and jurors will not care too much about post-separation dating if there is no evidence the affair was going on prior to separation.

Can I Refuse to Answer Questions About an Affair?Yes. If you have committed adultery before separation, and are confronted with discovery questions, then you will need to evaluate whether you wish to assert privilege under O.C.G.A. section 24-5-505(a). Per this code section, “No party or witness shall be required to testify as to any matter which may criminate or tend to criminate himself or which shall tend to bring infamy, disgrace, or public contempt upon himself or any member of his family.”

Preparing the Child Support Worksheet

As noted, this worksheet is complex and is constantly being updated. An experienced domestic attorney is needed to prepare it correctly. SMD Network Attorneys will make sure only the most recent version is being used. It is also just a guideline for the court to use and award support based on the best interest of the child or children. Arguments regarding its application may have to be made at either a temporary or a final hearing.

If you want to yourself learn more about this worksheet, you can visit the Georgia Child Support Commission website. You can even download it yourself if you are so inclined.

Your attorney will plug in the proper monthly income numbers for each party. This may be bi-monthly salary, but if a spouse is self-employed, it may be K-1 income off a tax return. It may be adjusted gross. Each situation will vary.

As one specific example, a paternity action against an NFL football player in DeKalb County. The athlete argued his signing bonus shouldn’t be counted in monthly income as it was received at one time at the beginning of the year. The case went to trial and the judge, after listening to the attorney’s argument, agreed that the bonus should be averaged over the year, as was all of the athlete’s income, and divided on a monthly basis. (NFL players are paid only during the season.)

The divorce and child support attorney has to use his/her experience in making sure that not only that the right income numbers are being used but also that all deviations are property shown. These deviations include credit for health insurance paid, credits for childcare that is paid so a parent can work, credit for summer activities so the parent can work, any child support paid on another case, travel expenses associated with visitation, any special education expenses, any high (above 30k gross income per month) or low income deviations, and so on.

Citation of Relevant Authority

Calculation of Gross Income for Self Employed Individuals – Court may use average K-1 income, averaged in this case over a 3 year period, and corp. paid fringe benefits in calculation of child support obligation – see Simmons v. Simmons, 288 Ga. 670, 706 S.E.2nd 456 (2011).

Summary

Husband owned 23 percent of the stock of a subchapter S waterproofing company. (A subchapter S designation means pass through liability, the shareholders, instead of the corporation itself, are required to report their proportionate share of taxable business income and pay the proper federal income taxes thereon). The trial court found that, for the purposes of calculation of gross income under O.C.G.A. section 19-6-15, husband’s gross monthly income was $10,000 appx., made up of $5800 in wages, $2300 in K-1 income, and $2300 in K-1 income, and $2800 in fringe benefits. The fringe benefits included a $1200 truck payment and coverage of vehicle expenses, including gas, tags, ins. and repairs, payments of cell phone bills and use of company credit card for meals and social activities.

Husband argued on appeal that his K-1 income should not be considered as it is merely a bookkeeping entry and not actual income. Supreme Court shot this argument down, citing Appling v. Tatum, 295 Ga. App. 78, 670 S.E.2nd 795 (2008). Husband also argued fringe benefits were improperly considered. He lost this argument as well.

Practice Tip: when preparing a financial affidavit for a self-employed client, you should address all prospective sources of income, including averaged K-1 income, whether “phantom” or not, and prepare in advance to make arguments regarding, include any corp. fringe benefits that reduce ordinary living expenses (car payments, food, gas, cell phone), and back out employer-paid standard benefits such as health ins. premiums and contributions to retirement plans.

Child Support Awards

Child Support

In 2007, Georgia adopted the income shares approach to calculating child support that involves a consideration of both parents’ income. (The old model only considered the non-custodial parent’s income). This is codified in O.C.G.A. section 19-6-15. Basically, each party plugs in their income in the worksheet. If both parties are W-2 employees, this is fairly simple. If either party is self employed, it become complex. There are standard deductions and deviations, discussed below. A good divorce attorney should be consulted to make sure all the proper variable have been entered. An experienced Atlanta Child Support attorney is need to prepare this document. It is complex.

Per O.C.G.A. section 19-6-15(c)(1) , the child support guidelines are “a minimum basis for determining the amount of support” and shall apply as a rebuttable presumption in all legal proceedings involving child support (the initial divorce and any modification). The rebuttable amount of support may be increased according to the best interests of the child for whom support is considered, the circumstance of the parties, any grounds for deviation, and “to achieve the state policy of affording to children of unmarried parents, to the extent possible, the same economic standard of living enjoyed by children living in intact families consisting of parents with similar financial means.” To calculate child support under O.C.G.A. 19-6-15, the parties enter their respective monthly gross incomes (income may be imputed as well), deductions are applied for health insurance premium costs for the children only – based on who is paying the premium (usually around $125-150 per child), any child support obligations actually paid per any prior order for support of other children (alimony is a deviation, not a deduction), and work-related child care costs (necessary for the parent’s employment, education, or vocational training) to calculate a “presumptive amount of child support”.

Next, deviations are added to or subtracted, if applicable, and if supported by the required findings of fact and the application of the best interest of the child standard. In considering any deviation, primary consideration is to be given to the best interest of the child for whom the support is awarded. See, Hamlin v. Ramey, 661 S.E.2nd 593 (2008).

Concerning document drafting for settlement agreements or orders, O.C.G.A. section 19-6-15(c)(2) requires that a child support order contain several specific findings including the parents’ gross income as determined by the court or the jury (as of the date of the order), the amount of the noncustodial parent’s parenting time, findings regarding who is to pay for health insurance, the apportionment of the uncovered medical expenses, the sum certain amount one parent will pay to the other, and the manner, frequency and the duration of payment. This minimum information must be in every settlement agreement or final support order.

Examples of deviations under O.C.G.A. section 19-6-15(i) include the following:

1. Parenting Time:

“The court may order or the jury may find by special interrogatory a deviation from the presumptive amount of child support when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time or when the child resides with both parents equally.” O.C.G.A. section 19-6-15(i)(2)(K)(i).

In practice, unless there is equal parenting time, this deviation is generally limited. In Hamil, supra, the non-custodial father, who had parenting time of appx. 36 percent, alleged the trial court erred in failing to apply a parenting time deviation. The Court of Appeal disagreed upholding the trial court’s decision not to apply the deviation citing the right of the trial court to consider the best interests of the child in its discretion.

2. High or Low Income: Per O.C.G.A. section 9-15-14(i)(2)(a), parents are considered high-income if their combined adjusted income exceeds $30,000.00 per month. “For high-income parents, the court shall set the basic child support obligation at the highest amount allowed by the child support obligation table, but the court or the jury may consider upward deviation to attain an appropriate award of child support for high-income parents which is consistent with the best interests of the child.”

3. Extra health insurance coverage: If the court or the jury finds that either parent has vision or dental insurance available at a reasonable cost for the child, the court may deviate from the presumptive amount of child support for the cost of such insurance.

4. Travel Expenses: If the parents live far apart, the court may order the allocation of special travel costs (flights for example) or the jury may by a finding in its special interrogatories allocate such costs by deviation. The court or jury may take into consideration the financial circumstances of each parent as well as which parent moved and the reason therefore.

5. Payments of Alimony: Actual payments of alimony shall not be considered as a deduction from gross income but may be considered as a deviation from the presumptive amount of child support.

6. Payments of Mortgage and Household Bills: If the noncustodial parent is providing shelter expenses, for example paying the mortgage and utilities on the marital home, the court or the jury may allocate such costs or an amount equivalent by deviation, taking into consideration the financial circumstances of each parent and the best interest of the child.

7. Extraordinary Expenses: Extraordinary expenses are in excess of average amounts estimated in the child support obligation table and are highly variable among families. Extraordinary expenses shall be considered on a case-by-case basis in the calculation of support and may form the basis for deviation based on actual historic expense incurred. Extraordinary expenses shall be prorated between the parents by assigning or deducting credit for actual payments for extraordinary expenses.

8. Non-specific deviations: Deviations from the presumptive amount of child support may be appropriate for reasons in addition to those established under this code section when the court or the jury finds it is in the best interest of the child. So, either party may make an argument for a deviation based on the unique financial circumstances of the family and the needs of the children, if the deviation will serve the best interests of the child or children.

Temporary Protective Orders

If you are honestly afraid of your spouse, former spouse, or a boyfriend or girlfriend with whom you are living, and there has been an incident of “family violence”, defined below, you should file for a Temporary Protective Order or “TPO”.

O.C.G.A. section 19-13-1 defines “family violence” as “the occurrence of one or more of the following acts between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household: (1) Any felony; or (2) Commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass.”

Under O.C.G.A. section 16-5-23, a person commits the offense of simple battery when he or she either: (1) intentionally makes physical contact of an insulting or provoking nature with the person of another or (2) intentionally causes physical harm to another. Under O.C.G.A. section 16-5-20, a person commits the offense of simple assault when he or she either: (1) attempts to commit a violent injury to the person of another or (2) commits an act which places another in reasonable apprehension of immediately receiving a violent injury.

Who Can File: Do You have to be Married to File?
No. As noted, you do not have to be presently married to file for a TPO. Former spouses, co-parents, and individuals who are living together or who were formerly living together have the right to seek a TPO.

How Do I File: What is the Procedure?
To secure a protective order, you must complete and file an initial petition with the Superior Court in the county in which the Defendant resides. If the Defendant resides out of state, you can file in the county of your residence. See, O.C.G.A. section 19-13-2.

Will The Court Grant “Ex Parte” Help?
“Ex parte” means only one party is present. The party filing the initial petition must identify specific facts and specify specific instances of violence that warrant the issuance of an ex parte order. The Petitioner fills out the paperwork and then goes and presents his or her petition to the judge, which may be a Superior Court judge, or a magistrate, or other judge sitting by designation.

Under O.C.G.A. section 19-13-3(b), the Petitioner must allege “specific facts” that show “probable cause exits to establish that family violence has occurred in the past and may occur in the future.” If the Petitioner does so, the Court “may order such temporary relief ex parte as it deems necessary to protect the petitioner or a minor of the household from violence.”

What Happens if the Court Grants My Initial Ex Parte Petition?
If the Court grants the petition for ex parte relief, the Defendant will be typically be ordered to vacate the marital residence or the residence where the non-married parties cohabitate and to stay away from the petitioner and any children until further order. The Defendant will be served with this ex parte order and must be given a hearing date and opportunity to defend the allegations within thirty (30) days.

This follow-up, contested TPO hearing is critical. If the petitioner prevails at this hearing, a permanent restraining order can be granted, lasting 6 to 12 months. And this restraining order can have significant impact on a divorce case if children are involved and a divorce action is subsequently filed by either party. (The TPO action is a separate action from the divorce.) To prevail, the Petitioner has to prove by a preponderance of evidence that an act of family violence occurred. It is not a heavy burden of proof.

Should I file Now?

Should I File for my Atlanta Divorce or TPO now?
Sometimes you need to file an action immediately. This should be carefully considered but includes the following situations:

  1. Family Violence: If you are honestly afraid of your spouse, and if there has been an act of family violence (an incident involving credible verbal threats of physical abuse – the raised fist – actual shoving, slapping or hitting, trespassing, the stealing of valuable separate property, etc.), you should promptly file for a temporary restraining order. This is a separate action from a divorce. See Temporary Protective Orders.
  2. Powder Keg: Where there has not yet been an act of family violence but tensions are high, and the aggressor spouse has refused to move out of the marital residence, you should file. To get the spouse out, unless you can obtain a Temporary Protective Order, a motion for exclusive possession will have to be filed with the divorce complaint. (Until there is a court order, either from a TPO or from a temporary hearing, both spouses have equal rights to remain in the marital residence.)
  3. Contriving Spouse: Where the client is concerned the spouse is planning a divorce and is moving marital assets or is planning an unannounced move with the children out of state, the client needs the immediate protection of the Court’s standing order that prohibits such assets and/or children from being moved. There is no standing order until an action is filed.
  4. Substance Abuse: Where children are involved, and where the client is dealing with a spouse with a serious drinking or drug problem, a contested action should be considered. By initiating a filing, pressure in the form of an emergency motion for an alcohol and drug screen can be filed. In some cases, this can actually benefit the spouse suffering from an addiction.
  5. Cutting off Support: Where the earning spouse is cutting off historic financial support of a spouse who is caring for the children, a divorce or a separate maintenance petition should be filed and a motion for temporary alimony, attorney fees and child support should be expedited.
  6. Intense Custody Dispute: Where there is a hotly contested custody matter – where one spouse is seeking sole custody – the client believes the other spouse is a true danger to the children – and is certain that the parties will never agree on custody terms, a contested complaint and motion for temporary custody and support and possibly a motion to appoint a guardian ad litem should be filed.
  7. Grossly Unreasonable Spouse: Where the client is married to a grossly unreasonable spouse and, because of this, pre-filing negotiations will be pointless, the client should go ahead and file.
  8. Adultery by Spouse who May Seek Alimony: Where the client has discovered the adultery of a spouse who will likely claim alimony and is absolutely certain he or she wants to end the marriage, the client should go ahead and file. In this situation, the Roadmap steps can still be used but pre-filing negotiations should be limited. Under Georgia law, where the adultery of one spouse is the cause of the divorce and prevents reconciliation, the cheating spouse is barred from alimony. O.C.G.A. section 19-6-1; See also, Anderson v. Anderson, 273 Ga. 886, 230 S.E.2nd 272 (1976). If the non-cheating spouse waits too long, he or she can be argued to have forgiven the affair.

Georgia Divorce Law Basics

In your Atlanta divorce (or anywhere in Georgia), you will have to address four major areas of legal concern: custody, child support, property division, and alimony. There are extensive legal subsets of these main areas discussed in the links below. If you are going through or considering a divorce, you should read the below links carefully so you will be informed of the general law.

Very Generally – These Four Major Areas Are:
Custody: Custody is the legal right of a parent to spend time with the child or and/or to participate in or have final say over the major decisions affecting the child’s life. The major decision-making areas are extra-curriculars, education, health, and religion. Sometimes discipline is mentioned. Visitation is sub-part of custody. Many divorcing parents believe there is some statutory “standard” visitation, but there is not. Rather, there is a typical structure that many divorcing parents will accept in settlement or that judges will impose at a hearing or trial. However, the visitation schedule should be specific to the family, practical, and in the child’s best interest. SMD Network Attorneys have successfully litigated custody issues for both custodial and non-custodial clients.

Child Support: This is the amount of money that is paid monthly to the “custodial” parent, most commonly the spouse with the greater parenting time. The calculation of child support is based on a specific statutory guideline noted in O.C.G.A. section 19-6-15, discussed below, that requires the production of a “Child Support Worksheet” – an excel spreadsheet promulgated by the Georgia Child Support Commission. A quality domestic attorney is needed to calculate this correctly. There are both mandatory deductions and optional deviations. Ultimately, the worksheet is itself just a guideline for the court to follow.

Property Division: As a very basic explanation, “marital property” or the “marital estate” is all property – financial (all assets and liabilities) or tangible (real estate, vehicles, all personal property) – that was acquired during the marriage or that accumulated from the labor of either spouse. “Separate property” – property owned by the spouse prior to the marriage or received by gift or inheritance from third persons during the marriage – that has not been co-mingled – must be distinguished. Separate property is not subject to division. All marital property, including all marital debts, will be “equitably divided” – which means usually but not necessarily 50/50.

Alimony: The entitlement to alimony is case by case. Very broadly, it is based on the number of children, length of the marriage, respective income, respective estates, need and ability to pay. There is no statutory guideline for alimony, as there is for child support. Accordingly, the alimony claim or exposure is more difficult to estimate.

As noted, the above is just a general discussion. If you are going through a divorce, you should be informed of the law so you can help your divorce attorney identify the specific facts of your marital situation that will be relevant in settlement discussions and in preparation for any hearing or trial.