1. Have a Clear Written Fee Agreement
Most experienced and effective divorce attorneys charge by the hour and require an advance retainer (or deposit) that is paid at the beginning of the case. Fees and expenses will be charged against the retainer until it is exhausted, at which point the client will be responsible for any additional sums incurred.
Clients will sometimes seek an attorney who will represent them on a flat fee basis, thinking that this will save them money. The problem with this arrangement is that the attorney has no incentive to do anything beyond the bare minimum. The client often feels like his case is being ignored, the attorney often feels like the client is intentionally trying to take up as much of his time as possible, and they may both be right.
Whether you hire a lawyer on an hourly or flat fee basis, it is extremely important that you get a written fee agreement that makes clear the terms of the representation, including whether any retainer is refundable, how often you will receive statements, the attorney’s hourly rates, etc. You should get and keep a copy of this fee agreement.
2. Don’t Mistake Your Divorce Lawyer for Your Therapist
Divorces are extremely emotional. Because your divorce attorney is (or at least should be) firmly in your corner, talking to him can be a very reassuring experience. This person understands your side of the situation and it feels good to talk to someone who sees the righteousness of your position. Because it makes you feel better you get into the habit of calling often, almost daily.
Unless you have more money than you know what to do with you should NOT fall into this trap.
Remember that every time you call your lawyer the clock is ticking and you are getting billed by the hour. Think of it as a very expensive cab ride. As soon as you get in the cab, the meter starts running. It works the same with a lawyer, as soon as you are on the phone with him the meter is running and you are getting charged.
This does not mean you should never communicate with your lawyer. On the contrary, you should communicate with your attorney anytime you need legal advice on your case. But before you pick up the phone make a list of questions or issues you want to discuss and limit your conversation to these points without wasting time ranting about the unfairness of the situation.
3. Don’t Use Your Attorney to Negotiate a Division of Personal Items
Arguing about which party deserves the blue sofa or the bread maker is not a good use of attorney’s fees. As much as possible, you should try to resolve these issues with your spouse. Ideally, if you and your spouse have already separated, you could divide these items by agreement and exchange them before the case has been completed.
Then (when it is time to finalize the divorce) the provision in the agreement and/or Final Decree, would simply state that each party keeps all personal effects (furniture, clothing, electronics, appliances, kitchen equipment, etc.) in that party’s possession. This can save a great deal in fees by avoiding debates over property that has very little market value.
4. Don’t Throw Away Dollars Trying to Save Nickels
This is extremely important. People will often be very frugal about hiring an attorney and think they are saving a lot of money by hiring a lawyer for a small flat fee or by hiring someone who is inexperienced but will work cheaply.
This is a mistake.
Your goal should be to reach a reasonable settlement as quickly as possible. In order to reach this goal you will need an effective lawyer who sincerely shares that objective with you. That lawyer will then use his experience and skills to help you reach that objective.
But notice that I said a “reasonable” settlement, not just any settlement. If the other side cannot be convinced to settle the case on reasonable terms it is imperative that your lawyer be skillful and confident enough to effectively try your case.
Someone who is learning on the job, or is simply unprepared, can cost you a great deal of money. So don’t cheat yourself out of dollars in an attempt to save nickels.
SOURCE: HoustonDivorce.com by Scott Morgan
The New Year will bring several new laws to Georgia including more changes to the state’s rules for divorcing parents. The new law streamlines the process for determining child custody because the bill’s sponsors said our old laws often trapped kids in traumatic legal battles.
Representative Judy Manning (R) chairs the House Children and Youth Committee. She and other sponsors of the new law said they’d heard from parents of kids stuck in custody fights that never seemed to end.
So, the 2007 legislature passed some changes.
One requires each parent in a custody contest to file a parenting plan with the court. The hope is the judge could then get both parents to sit down and agree on a final plan; so mom and dad won’t fight to pile up hours with the kids, just to win custody from a judge who doesn’t know their individual lives.
“The idea that you can count the hours that you had with your child was really too tight for the parents. It got to be too personal, and too much of a squabble,” Manning said.
Other parts of the new law:
Judges can award attorney’s fees. That’s supposed to keep wealthier parents from using constant challenges as a weapon.
Parents can further streamline the process by agreeing to use binding arbitration instead of the courts.
Kids 14 and over can no longer be the sole deciders of which parent’s house they’ll call home.
“Sometimes it became part of a bidding war, where one parent would promise a car or a computer or a cell phone or whatever,” Manning said.
Two years ago, there was a huge fight over how to divvy up money between so-called first and second families. But, this law – to shorten the pain for all kids – passed both the House and Senate with just one no vote.
The new law also requires courts to keep track of how many custody fights they handle. Up to now, lawmakers and judges haven’t been able to get good statistics on how many kids are affected by custody battles.
The video of the broadcast of this report is here.
SOURCE: WXIA (11Alive.com) by Denis O’Hayer
Reposting of Links to Articles on HB 369
An Analysis of Georgia House Bill 369: Public Policy Statement
An Analysis of Georgia House Bill 369: Appeals
An Analysis of Georgia House Bill 369: Parenting Plans
An Analysis of Georgia House Bill 369: Arbitration in Custody Cases
An Analysis of Georgia House Bill 369: No Presumptions in Favor of Either Parent or Form of Custody
An Analysis of Georgia House Bill 369: Best Interest Standard
An Analysis of Georgia House Bill 369: Additional Custody Factors for Family Violence Cases
An Analysis of Georgia House Bill 369: Fourteen Year Old Election
An Analysis of Georgia House Bill 369: Custodial Preferences of 11 to 14 Year Old Children
An Analysis of Georgia House Bill 369: Custody Evaluators and Guardians ad Litem
An Analysis of Georgia House Bill 369: Findings of Fact and Conclusions of Law
An Analysis of Georgia House Bill 369: Requirements for Relocation and Chages of Addresses of Parents and Children
An Analysis of Georgia House Bill 369: Attorney’s Fees
An Analysis of Georgia House Bill 369: Home Studies by DFCS
An Analysis of Georgia House Bill 369: Custody Agreements
An Analysis of Georgia House Bill 369: Extracurricular Activities Included in Joint Legal Custody Decisions
An Analysis of Georgia House Bill 369: Permissible Parenting Time Provisions in Family Violence Cases
An Analysis of Georgia House Bill 369: Effective Date
You might think that a lawyer would be opposed to telling you how to spend less money on his fees, but not so. Most of the suggestions made below, by another lawyer no less, are things with which I whole-heartedly agree. A lot of the time a lawyer spends on the stuff he’s telling you to do yourself or avoid all together are the kind of work a sophisticated lawyer would rather not do anyways.
The truth of the matter is that our firm is comprised of specialists. While we can do the routine work, a better use of our skills is on those complex matters. For the rates you are paying for our services, you should expect that we’re going to work the really difficult stuff. The other stuff is just a matter of your pain threshold for the monthly bill. I suggest that you manage your legal budget for divorce accordingly.
Here is the entire article by John Harding [who is also the editor of the California Divorce Blog]:
Divorce is wrought with cost. The emotional cost of a failed relationship. The cost to children living in a two home family. The cost of maintaining two households. Then, of course, there is the cost of a lawyer. At hundreds of dollars per hour, legal fees in a divorce can easily be in the tens of thousands of dollars. The fact of the matter is that competent legal representation is expensive. That does not mean that you can’t help yourself to save money on attorney’s fees and costs associated with divorce. Here are ten tips that can help.
1. Always remember that time is money.
First you must understand how lawyers bill. Most of us are comfortable with the idea of a fixed fee. We see an item on the menu, with a price right next to it. Fixed, and straight forward. Legal billing is different. As Abraham Lincoln explained it, “a lawyer’s time and advice are his stock in trade.” In other words, lawyers bill for their time. The more time the lawyer invests in your case, the higher the legal fees will be. With this basic understanding you will be better able to comprehend and manage legal fees.
2. Understand when your lawyer is on the clock.
Time is the commodity. If you are unclear, don’t be afraid to ask your lawyer what he does charge for, and what he does not charge for. People don’t always know that time on the telephone can be charged. Sometimes lawyers charge for any time spent dealing with the case — including you taking your lawyer out to lunch. Get clarification so that you don’t unknowingly request services that you will be billed for. Also be prudent in your purchase of legal services. The more of your lawyer’s time that you use, the more you are going to pay. Appreciate that your lawyer needs to be kept apprised of significant events in your life. However, you do not have to swamp him with minutiae. Making sure your lawyer has knowledge of every hour in your days is not necessary.
3. Use your time with your lawyer wisely.
Most lawyers bill in incremental time. The concept is not unique. Most service professionals (doctors, dentists, accountants) base their efforts, and prices, on measured units of time. In the case of lawyers those units are typically blocks of minutes. For instance, many lawyers will be in six minute increments. As soon as the work starts, you are charged every six minutes. As an example, at $200 per hour, one six minute increment has a value/cost to you of $20. If you have a two minute conversation with your lawyer, that is one six minute increment, or $20 in fees. If you have a seven minute conversation, that is two six minute increments, or $40 in fees. To realize maximum efficiency under this system plan ahead before meeting with or talking to your lawyer. Save your questions for one conversation, rather than calling up your lawyer every time you have something on your mind. Four two minute conversations equals $80 in legal fees. One eight minute conversation equals $40 in legal fees.
The increase in divorce has its effect, directly or indirectly, on virtually every family in the country. The following information is designed to summarize briefly Georgia’s divorce laws.
Marriage is a civil contract which the state has an interest in preserving. Accordingly, the marriage relationship can be dissolved only as provided by law, by either a divorce or an annulment. It also may be altered by a decree of separation granted by our courts. In any case, there must be a proceeding in the Superior Court of the county in which the person seeking the divorce, separation decree or annulment must prove "grounds" (valid reasons prescribed by law).
What are the grounds for divorce in Georgia?
In Georgia there are 13 grounds for divorce. One ground is "irretrievably broken" (sometimes referred to as the "no-fault" ground). The other 12 grounds for divorce in Georgia are "fault" grounds.
What is a "no-fault" divorce?
To obtain a divorce on this basis (irretrievably broken), one party must establish that he or she refuses to live with the other spouse and that there is no hope of reconciliation. It is not necessary to show that there was any fault or wrongdoing by either party.
What are the "fault" grounds?
To obtain a divorce on one of the 12 "fault" grounds, one must prove that there was some wrongdoing by one of the parties to the marriage.
As an example, one fault ground is adultery. Adultery in Georgia includes heterosexual and homosexual relations between one spouse and another individual.
Another "fault" ground for divorce in Georgia is desertion. A divorce may be granted on the grounds that a person has deserted his or her spouse willfully for at least a year. Other "fault" grounds include mental or physical cruel treatment, marriage between persons who are too closely related, mental incapacity at the time of marriage, impotency at the time of marriage, force or fraud in obtaining the marriage, pregnancy of the wife unknown to the husband at the time of the marriage, conviction and imprisonment for certain crimes, habitual intoxication or drug addiction, and mental illness.
Is there a residence requirement for getting a divorce in Georgia?
Yes, one spouse must have lived in the state of Georgia for six months or Georgia must have been the last domicile of the marriage.
Must the husband and wife live apart when a divorce complaint is filed?
No, but the spouses must be considered separated in a legal sense before one can file for a divorce. Spouses may be considered separated even if they are living in the same house, if they are not sharing the same room and/or not having a sexual relationship.
How does one file for a divorce?
The person seeking the divorce (the plaintiff) will file a document called a "complaint" with the appropriate Superior Court. This complaint includes information on the marriage including present living arrangements, children of the marriage, assets, debts, and the specific reason claimed for seeking a divorce. A copy of the complaint will be served on the other spouse (the defendant) by the sheriff.
Where does one file for a divorce?
A complaint for divorce should be filed in the Superior Court of the defendant’s county of residence or, if the defendant has recently moved from the state of Georgia, in the county of the plaintiff’s residence. This would be considered the domicile of the marriage. Upon the defendant’s consent, the complaint may be filed in the plaintiff’s county of residence regardless of whether the defendant has moved from the state of Georgia or not.
What should I do if I receive a complaint for divorce that my spouse has filed?
The spouse who receives the complaint should promptly consult a lawyer. The spouse may contest the reason claimed for the divorce or contest the claims for child custody, child support, alimony or property division by filing an answer with the court. If an answer is not filed within 30 days, the right to contest the complaint may be lost.
Is there a way to live apart without getting a divorce?
A party who wishes to live apart permanently, but who does not want to get a divorce, may file a "separate maintenance" action. The spouses will remain legally married although living apart. The court may order that alimony be paid by one spouse to the other and the court may divide property between the parties.
What is an annulment?
Unlike a divorce, which dissolves a valid marriage, an annulment is a legal decree that the marriage is now void and was invalid from its inception. If there are children born of the marriage, an annulment may not be granted and the marriage may only be dissolved by divorce.
Must I go to court to get a divorce?
Not necessarily. Spouses may be able to reach an agreement resolving all issues arising from the marriage, including finances, division of property and custody and visitation of children. The agreement is presented to the court as a settlement agreement and, upon approval, made an order of the court. The court’s order, called a final judgment and decree, concludes the lawsuit. If the parties cannot reach an agreement, a judge or jury will resolve the issues. However, a judge always decides matters of child custody and visitation.
How long does it take to get a divorce?
If there is agreement between the parties, the divorce is considered uncontested. An uncontested divorce may be granted 31 days after the defendant has been served with the complaint for divorce. If there is disagreement as to any matter, the divorce will be obtained when the case reaches the court, which can take many months.
What happens while I wait to go to court?
Either of the spouses may request a temporary hearing. This hearing is not a final trial. A temporary hearing resolves the issues of child custody, visitation, child support, alimony, debts and possession of property on a temporary basis until the final trial. The judge will issue a temporary order that applies only until the time of the final trial. The temporary order may also prohibit one party from interfering with the other party or the children and prevent the transfer and selling of assets.
What is decided at final trial?
Questions of child custody and visitation are decided by the judge. The judge alone or a 12-person jury (if one of the parties has requested) will resolve all of the financial issues of the marriage, such as division of property, division of debts, alimony and certain findings concerning child support (gross income of both parties and whether any deviations from teh presumptive amount of child support are in the best interests of the child, and if so, what those deviations should be). At the final trial, both spouses present evidence by their own testimony and may call other witnesses. The decision rendered by a judge or jury is written into a court order that is binding upon both parties. The wife’s maiden or former name can be re-established if she so desires.
What about the children?
The welfare of children is of major concern to the court. Neither parent is automatically entitled to custody. The judge looks at the best interests of the child when determining custody. The judge considers many factors when deciding custody, including the age and sex of the child, compatibility with each parent and the ability of each parent to care for and nurture the child. A child more than 14 years of age can choose which parent will have custody upon the consent of the court. The court considers it important for a child to maintain relationships with both parents; therefore, visitation rights are awarded to the parent who is not given legal custody of the child.
May the parents share custody?
The court, in its discretion, can award joint custody instead of sole custody. There are two types of joint custody. Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the child; joint physical custody means that physical custody is shared by the parents in such a way to assure the child substantially equal time and contact with both parents. In awarding joint custody, the court may order joint legal custody, joint physical custody or both.
What are child support obligations?
The child support law in Georgia changed effective Jan. 1, 2007. The new law is based on an "income shares" model that requires consideration of both parties’ gross income. "Gross income" has a very broad definition and encompasses salary, commissions, income from self-employment, bonuses, overtime payments, severance pay, recurring income from pensions, interest and divident income, trust income, capital gains, gifts, prizes, lottery winnings and income from any other source. Once the monthly gross income of each party is determined, the two incomes are added together to get the combined ajusted income amount. A Child Support Obligation Table is then used to get the Basic Child Support Obligation. To use the table, locate the line corresponding with the combined adjusted income amount and then apply the amount in the column that corresponds with the number of children for whom support is being determined. That Basic Child Support Obligation is then applied to each parent’s proportionate share of the combined adjusted incom
(For example, if the father’s monthly gross income is $3,000 and the mother’s montly gross income is $2,000, their combined adjusted income is $5,000, of which the mother’s income represents 40 percent and the father’s income represents 60 percent. The child support obligation for a family with combined adjusted income of $5,000 per month for two children is $1,297. Thus, if the father is the noncustodial parent, he will pay 60 percent of the child support obligation, $778.20, or if the mother is the noncustodial parent, she will pay $518.80, which is 40 percent of the child support obligation.)
The cost of medical insurance on the child and the cost of work-related childcare will result in the amount of the child support payment being modified with credit being given to the parent who is actually paying these expenses. In addition, the amount of child support may be modified by certain deviations provided it is in the best interest of the child to deviate from the presumptive amount of child support. Examples of deviations may be extraordinary education expenses like private school tuition or tutoring; extraordinary medical expenses; or special expenses which must exceed 7 percent of the basic child support obligation, such as extracurricular expenses, sumer camps, dental insurance, parenting time adjustment or any other appropriate deviation. You can access the guided electronic worksheet used in calculating child support at www.georgiacourts.org/csc. You may also download an Excel version of the worksheet through this same website.
In addition to the child support payment, the court (or parties by agreement) will also designate what percentage each parent will pay of the child’s uncovered medical and dental expenses.
In Georgia, both parents have a duty to financially support the child until that child turns 18, marries, dies or becomes emancipated, whichever occurs first. However, if the child has not graduated from high school prior to reaching age 18, then the obligation to support that child continues until the child graduates from high school provided the child remains a full-time student, but not beyond the age of 20.
May I receive money for the children’s college?
The court cannot order parents to pay for college. However, parents may agree to pay child support beyond the age of 18 or to pay for college expenses.
What is alimony?
Alimony is payment by one spouse to the other for support and maintenance. The court may grant alimony to either the husband or the wife. Alimony may be for a limited period or until the spouse receiving alimony dies or remarries. It may be paid in one payment of money or property, or it may be paid over a period of time.
What happens to "our" possessions in a divorce?
One of the most difficult and complex areas of divorce is the division of marital property. Marital property is all property acquired during the marriage, except for property received by gift from a third party or by inheritance. Each spouse is entitled to an equitable share of all marital property acquired during the marriage. The judge or jury will decide on the division of marital property. Marital property will be divided equitably (not necessarily equally) between the parties regardless of how the title to the property is held. There is no set formula or percentage amount used to divide marital property.
How will the court order be enforced?
The court order can be enforced by garnishment or a contempt action. A contempt action is filed in the same court that issued the divorce. In addition, support orders can be enforced through the district attorney’s office if the non-paying spouse resides out of town.
If my spouse and I agree on all matters pertaining to getting a divorce, do we still need a lawyer?
A lawyer will ensure that all matters that should be resolved in a divorce are resolved. Acting without a lawyer could end up being a costly mistake both to the parties and to their children.
What do I do if I am the victim of family violence?
Georgia has a law protecting victims of family violence. The parties do not have to be married in order for a victim to ask the court for relief. However, the parties have to reside in the same household. A victim of family violence can file a petition with the Superior Court that family violence has occurred in the past and may occur in the future. The court can issue a temporary order granting a variety of remedies, including eviction of the offending party from the residence or providing suitable alternate housing for the victim and children, as well as financial relief.
The victim does not need a lawyer to file a Family Violence Petition. The clerk of the Superior Court in the victim’s residing county may provide forms for the Petition or be able to direct a victim to a family violence shelter or social service agency for direction.
SOURCE: State Bar of Georgia
The Supreme Court has affirmed the denial of the husband’s motion to set aside the parties’ settlement agreement in their divorce case after the trial court reviewed the agreement, found it to be within the bounds of the law and incorporated it into the final judgment. The Court held that the trial court did not abuse its discretion, since the husband voluntarily signed the agreement, no evidence showed misrepresentation or fraud and the wife’s non-compliance with a provision requiring her to pay a debt did not constitute repudiation of the agreement or otherwise divest the trial court’s discretion.
In Haley v. Haley, the Georgia Supreme Court has affirmed a Dougherty County trial court’s award of attorney fees in a child support modification case. Chief Justice Sears wrote for the majority. The Court held that Ms. Haley’s claim for attorney fees rested not on OCGA § 19-6-19 (d), as Mr. Haley asserted, but on the parties’ settlement agreement in which Mr. Haley agreed to increase child support payments and the parties agreed to ubmit the issue of Ms. Haley’s claim for expenses and attorney fees to the trial judge. The Court found that by agreeing to submit the attorney fees issue to the trial court for resolution, the parties authorized the trial court to exercise its discretion to consider whatever factors it found to be relevant to determine if Ms. Haley was entitled to attorney fees, including whether she was a prevailing party in the litigation, and to award the amount of fees the court found to be appropriate and reasonable under the circumstances.
Presiding Justice Hunstein wrote a concurring opinion to rebut the dissent’s position that an award of attorney fees to Ms. Haley was not proper under OCGA § 19-6-19 (d), observing that nothing in the statute precluded an award of attorney fees to a party who prevails in the settlement of a modification of alimony proceeding. She also stated that the dissent’s position, instead of promoting the settlement of disputes over alimony, would exacerbate the bitter battles that too often follow divorce by adding attorney fees and other litigation expenses to the list of contested items that parties would have to address before an agreement outside of the courtroom could be reached. Justice Carley concurred in the judgment only.
In a dissenting opinion, Justice Melton asserted that there was no statutory or contractual basis for the award of attorney fees in this case. He found that because each party in this case compromised something in order to bring about an end to the dispute, the trial court was not authorized to find that Ms. Haley was a prevailing party on the underlying child support modification claim under OCGA § 19-6-19 (d) unless the parties otherwise agreed. Contrary to the majority’s findings, Justice Melton concluded that the language of the settlement agreement did not authorize the attorney fees award, noting that the parties did not agree about whether Ms. Haley was legally or factually entitled to any fees and that Mr. Haley expressly refused to waive any defenses to Ms. Haley’s attorney fees claim and challenged whether Ms. Haley was the “prevailing party” pursuant to the statute.
SOURCE: Supreme Court of Georgia and Fulton County Daily Report