Factors to Consider in Your Case
Things to Think About if You Are Filing for Divorce in Georgia
Whether you are attempting to arrive at a mutually acceptable settlement agreement or preparing for a trial, the following general areas have been listed for your review and consideration. Not all of these areas will necessarily pertain to any one case; furthermore, there may be particular issues, which require the special attention of the parties. The following is intended merely as a guide to be utilized; it is not exhaustive. Do not feel bound by its limitations. In addressing these various issues, the parties should always give thought to the realities of the situation and most importantly, to the best interests of any minor children involved.
- Custody: There are two types of custody: physical and legal. Physical custody refers to the parent who has actual and physical possession of, or control over, the children. Legal custody is the power given to a parent (or both parents) to make decisions concerning the minor children’s education health, religious upbringing, and extra-curricular activities. These two types of custody are further classified as sole (one parent) or joint (both parents). The determination of which parent should have custody is based upon a number of factors, including but not limited to, the following:
- the love, affection, bonding, and emotional ties existing between each parent and the child;
- the love, affection, bonding, and emotional ties existing between the child and his/her siblings, half-siblings, and step-siblings;
- each parent’s knowledge and familiarity of the child and the child’s needs;
- the home environment of each parent;
- the stability of the family unit of each of the parents;
- the mental and physical health of each parent;
- each parent’s employment schedule and related flexibility of schedules;
- each parent’s past performance and relative abilities for future performance or parenting responsibilities; and
- the willingness and ability of each of the parents to facilitate and encourage and close and continuing parent-child relationship between the child and the other parent.
Each custodial arrangement is unique and deserving of your special attention. Under Georgia law, a child who attains the age of 14 years has the right to elect with which parent he/she desires to live; this right of election is generally absolute unless the judge finds that it is not in the child’s best interest to have custody placed with the selected parent. In addition, in cases where a child has reached the age of 11 years but not 14 years, a judge will consider the desires of the child in determining which parent should have custody but such desires are not binding on the judge. Please remember that children should never be “used” by either party as pawns to gain some imagined or real advantage or concession from the other party.
- Visitation: The non-custodial parent is entitled to reasonable visitation with the minor children, unless there is some manifest reason for seeking restricted or supervised visitation. Georgia law requires that a parenting plan be filed in every case involving minor children; such a plan would include fixed visitation periods and holidays. Visitation with the non-custodial parent should always be encouraged by the custodial parent.
- Alimony: This is becoming a less dominant aspect of divorce proceedings as more and more women have entered the workplace and have become more self-sufficient. However, this is not to imply that an award of alimony would not be appropriate under the special facts and circumstances of your particular case. Thought should carefully be given to actual need, as well as the length of time payments might be required.
- Tax Consequences: It is imperative that both parties understand how the divorce and ensuing support payments, if any, may affect his/her tax liability. Support payments that qualify as alimony may be deductible (for federal income tax purposes) by the spouse making payment and taxable as income to the spouse receiving the payments. Child support payments do not qualify as a deduction for the obligated spouse. In addition, there may be tax ramifications with dispositions of certain assets. You will want to discuss any final agreement with your CPA to fully understand the economic impact of any financial undertaking.
- Child Support: Effective January 1, 2007, a new model of child support guidelines was enacted; this model considers both parents’ incomes in determining a “presumptive” amount of child support to be pro-rated between the parents for the benefit of the minor child(ren). The child support guidelines also apportion, between the parents, certain expenses such as health insurance, non-covered medical expenses and work-related child care costs. In addition, deviations from the presumptive amount of child support may be included, based upon the unique facts in each case. Some specific types of deviations from the presumptive child support award which the court may consider in adjusting child support are as follows, to wit:
- High income: Parents are considered to earn high income, if their combined gross income exceeds $30,000 per month;
- Low income: A parent is considered to earn a low income if he/she earns at, or less than, $1,850 per month;
- Other health-related insurance: This would include vision or dental insurance being provided by one of the parents;
- Life insurance: If one or both of the parents have life insurance for the benefit of the child(ren), then this cost can be considered;
- Child and dependent care tax credit: If one parent is entitled to such a tax credit, then this tax savings can be considered or pro-rated between the parties;
- Travel expenses: If there is a substantial cost involved in exercising visitation, then actual expenses incurred by the noncustodial parent may be considered;
- Alimony: Actual payments of alimony are not deducted from gross income but may be considered as a deviation from the presumptive child support award;
- Mortgage: If the noncustodial parent is paying for a house/apartment for the custodial parent and child(ren), then this cost may be considered as a deviation from the presumptive child support award;
- Extraordinary expenses: Such expenses are in excess of the average amounts estimated in the Child Support Obligation Table and are highly variable among families, but would include educational expenses, medical expenses, summer camps, and other activities intended to enhance the athletic, social or cultural development of the child(ren); and
- Parenting time: The presumptive child support award is based on expenditures for children in an intact household but this award can be modified due to extended parenting time or when the child(ren) live with both parents equally. These deviations are not required to be applied in each case, but can be considered by the parties or the court in arriving at a child support figure. Additionally, the guidelines include a “non-specific deviation;” this provision permits a deviation from the presumptive award of child support for reasons not previously listed but which are in the best interests of the minor child(ren). Furthermore, it is important to remember that a court can order payment of child support only until the child attains 18 years of age, marries, dies or becomes self-supporting, whichever event shall first occur; however, the Court can order that child support payments continue until the child has graduated from high school, but in no event beyond the age of 20 years. Furthermore, the parent making child support payments may voluntarily obligate himself/herself to a longer period of support by agreement (e.g., until the children of the parties complete their college education).
- Post-High School Education: In the State of Georgia, a parent cannot be required to pay for the college expenses of the minor child. There must be a specific provision in a settlement agreement for one or both parents to be held responsible for any or all of college costs. Very often, one or both parents will not want to obligate himself/herself such a future expense without some sort of guideline or restriction as to the ultimate cost. A compromise may be that his/her obligation would be limited to the cost then being charged for an “in-state” student at one of the state universities or colleges, to be further reduced by any scholarship or grant that may be available to the child. In addition, one or both parents’ obligation might be further limited to a specified limited time or so long as the children maintain a certain minimum grade point level.
- Medical Costs: Usually, at least one of the parties will have some type of health and/or dental insurance coverage for the minor children. This will need to be maintained for the benefit of the parties’ children. However, some provision should be made for payment of those health-related expenses not covered by insurance (e.g., yearly deductible, normal percentage not covered until certain threshold is reached, any required co-payment, specific treatment not covered by your insurance, etc.). Psychological expenses, as opposed to psychiatric expenses, should be specifically detailed since these are not typically considered to be “medical” expenses. Furthermore, please note that following a divorce, the non-insured ex-spouse is no longer considered a dependent, although coverage through COBRA will most likely be available. This coverage is of paramount importance if a “pre-existing” condition exists. However, this type of insurance coverage is generally more expensive than normal health insurance coverage and only available for a limited period of time.
- Life Insurance: If a spouse obligated to pay support has a life insurance policy, it may be proper to require that such policy be maintained and used to guarantee the support obligations for the benefit of the ex-spouse and/or minor children.
- Real Property: This may be the single largest asset of the marriage (or the single largest liability). Obviously, only one party can continue to reside in the marital home after the divorce. Due and careful consideration should be given to the needs of the minor children, as well as to which party will most likely be able to maintain the household. Parties also need to consider the ability of either party to refinance any mortgages on the property, in order to relieve the other party of such an obligation; most mortgage companies and/or financial institutions will not remove a party’s name from a mortgage simply because the parties are now divorced. In many instances, it will be a financial necessity that the house be sold and the net profits divided or used to pay off marital debts. In any case, it is wise to decide these details and have them explicitly stated in the agreement.
- Personal Property: Generally speaking, the parties themselves are in the best position to know who needs what items of personal property. The State of Georgia recognizes the concept of “equitable division” of property. Please remember that personal property also includes intangible property (e.g., stocks, bonds, IRAs, 401(k)s, pension plans, etc.). A division of retirement accounts may require the preparation of a Qualified Domestic Relations Order (“QDRO”); such a division will not incur taxes or penalties. If the parties cannot reach an agreement, the court will divide the property for them. it should be noted that the court has no power or authority to award the following categories of property as part of an equitable division of property: (a) property that the spouse owned prior to the marriage, (b) property that was received by way of inheritance, and (c) property that was received by way of a gift to that spouse from a third party.
- Attorney’s Fees: The issue of attorney’s fees in a “contested” divorce action is within the discretion of the court, unless the parties reach their own agreement. Where the parties reach a settlement, the responsibility for payment should be determined and included in the agreement.
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