Marietta Divorce Lawyer | Grounds for Divorce in Georgia and Cobb County

What are the grounds for divorce in Georgia?

Divorce affects, directly or indirectly, virtually every family in the country. This video is designed to briefly summarize Georgia’s divorce laws as to the grounds or reasons a Georgia divorce court must hear to dissolve a marriage.

Marriage is a civil contract that the state has an interest in preserving. Accordingly, the marriage relationship may be dissolved only as provided by law through (1) a divorce or (2) an annulment; or altered by (3) a decree of separate maintenance granted by our courts. In any case, there must be a proceeding in the superior court of the county in which the defendant resides (or the county where the parties resided during the marriage if the defendant left the county within six months before filing) and the person seeking the divorce must prove grounds for divorce (valid reasons prescribed by law).

What are the grounds for divorce in Georgia?
In Georgia there are 13 grounds for divorce. One ground is that the marriage 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 for both parties to agree the marriage is irretrievably broken. Also, 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 one year. Other fault grounds include mental or physical abuse, 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.

SOURCE: State Bar of Georgia

Atlanta Attorney Says Prepare Now For Year-End Changes to Estate Tax Laws

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The expiration of key laws in Congress may expose more local individuals to estate or “Death Taxes” after their passing.  Atlanta attorney, Steve Worrall explains these anticipated changes, as well as steps Georgia residents can take now to take now to ensure more money goes to their family—and not Uncle Sam—after death.
 

ATLANTA, GEORGIA (08/08/2012)- You’ve worked hard to save money, accumulate assets and leave your loved ones an inheritance after your passing. 

But according to Steve Worrall, an estate planning attorney in Atlanta, the expiration of key tax laws in Congress may now put more local families at risk of owing more than half of their inheritance in “death taxes” after the first of the year. 

Worrall explains how preparing now for the much-anticipated expiration of the Bush-Era tax cuts (which were extended temporarily under the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act  in 2010)  is critical for high-net worth individuals, but also for middle-class families, too.  Here’s why: 

  • If Congress does nothing and the legislation expires, the estate tax will revert from a $5 million exemption to $1 million on December 31st.  That means if your estate is worth over $1 million at your passing, your family may be on the hook for significant taxes up to 55%.
  • For many people, when you add up the value of your home, life insurance policies, investments and assets, $1 million is usually closer than you think.
  • The payment is due in cash just 9 months after you die (or the 2nd spouse dies if you are married), often forcing loved ones to sell assets quickly at depressed market or “fire sale” prices to satisfy the bill. 
  • There’s a very real chance that up to half of the inheritance you worked so hard to leave your family will go to Uncle Sam. 

The good news, Worrall says, is the estate or “death tax” is entirely voluntary and there are steps you can take right now to minimize your exposure.

He explains that one such strategy is to utilize the lifetime gift tax exemption, which also set to expire at the end of the year.  This law allows you to remove up to $5.12 million (or $10.2 million for married couples) out of your “taxable estate” by gifting it now to future generations. On December 31st at midnight, the exemption amount significantly drops to $1 million.

In other words, for the rest of this year, Worrall says that parents can pass along valuable assets to their heirs up $5.12 million (i.e. a house, stock portfolio, part of the family business), without paying a single dime to Uncle Sam.

Worrall further notes tools such as living trusts can also be used to minimize your exposure to burdensome taxes after your passing. Your estate planning attorney will advise you on the best strategies to implement based on your wishes and financial needs.

Why Does This Matter Now?

Because proper estate tax planning requires getting appraisals, amending titles and creating airtight documents, Worrall warns that planning must be started now to ensure everything is finalized before the end of the year. He says estate planning firms across the country are already busy handling year-end estate tax planning, and encourages individuals affected by these changes not to wait until the last minute to get professional help.

For more information on upcoming changes to the estate tax laws or on Atlanta estate planning attorney, Steve Worrall, please visit GeorgiaFamilyLaw.com or call 770.425.6060. 

 

What Your Georgia Last Will and Testament Really Does

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You finally got around to making a will, so now you can rest easy.

You went online, found the forms, filled them out and you’re done.  If anything happens to you, your loved ones are taken care of. 

One less thing to worry about, right?

As an Atlanta and Marietta, GA wills and estate planning lawyer, I hate to cause you more sleepless nights, but just having a will is not the “be all and end all” of planning your estate.

Let’s clear up a few misconceptions about what your will actually does and doesn’t do:

This is What A Sound Georgia Will Actually Does

Your will distributes property that you own at the time of your death.  You can divide up your property any way you choose as long as your state doesn’t prevent you from disinheriting a spouse or children.  If you intend to do either of those things, you need to talk to a lawyer and make sure it’s even legal.  If you have property that would legally pass outside your estate (things like joint property, life insurance, or retirement plans), you will does not provide for how those assets are distributed unless you’ve made them payable to your estate.  Additional estate planning documents are required in order to do that.

Needless to say, there are various types of wills and they can be incredibly simple or terribly complex.  A very simple will is called exactly that – a simple will.  A will that establishes trusts is usually called a testamentary trust will.  If your will leaves assets to a trust created during your lifetime, it is called a pour-over will.  If you have either a testamentary trust will or a pour-over will, it should provide for property management and protection from creditors for your heirs and minimize their tax obligations on whatever property they inherit. 

Aside from creating trusts and distributing property, you can also designate a guardian for your minor children. If your will is properly written and you’ve set up the right kind of trust and chosen the right trustee to handle your minor child’s estate, the need for court supervision will be limited or even eliminated.  The same could hold true if you name an executor.  Check with an attorney to ensure that you’re taking full advantage of the laws in your state and that these designations are made in accordance with those laws.

What Your Georgia Will Does Not Do

If you have any nonprobate property, such as real estate that would pass to a surviving owner, or an IRA or insurance policy payable to a named beneficiary, your will does not determine how those assets are passed on.  These types of assets are governed by contract law.  Just because you list them in your will does not ensure that they will be handled as you’ve requested.  Always make sure that your beneficiary designations are up to date and in line with your intentions. 

Other types of nonprobate property you will want to account for are any jointly owned property, trusts, annuities, and retirement benefits and life insurance, to name a few. 

Makes filling out a form online and thinking you can sleep better at night a little less appealing, doesn’t it?  A simple piece of paper will not necessarily ensure that everyone gets what you want them to have and that Uncle Sam doesn’t take more of what you’ve worked for than your loved ones receive.

If you would like an expert opinion on exactly how effective your current will is, or advice on actually drafting a will, call us to schedule your Peace of Mind Planning Session today.  We can help ensure you take the right steps to take care of your loved ones if something happens to you. 

Also, as part of our estate planning process, we will interview you about your specific wishes and what you want your family to know.  We provide you with a copy of the interview so you can pass on the information you want your family to remember.  We understand that it’s not just about the paper you leave behind, but the voice you leave behind.  Our Family Wealth Planning Session is normally $750, but this month I’ve made space for the next two people who mention this article to have a complete planning session with me at no charge.  Call today and mention this article. 

Georgia Prenuptial Agreement FAQ

What is a prenuptial agreement?
A prenuptial agreement is a contract entered into by two people who are to be married. The purpose of a Prenuptial Agreement is to set forth certain rights for each party in the event of a divorce. Sometimes provisions for property distribution upon death are included, but such provisions are better placed in a Last Will and Testament.

Why do people get prenuptial agreements?
The most common reason for a Prenuptial Agreement is to protect property that one or both parties owned before the marriage from becoming divided upon divorce.

What is an "antenuptial agreement" or a "premarital agreement"?
These are all synonyms for a Prenuptial Agreement. They all refer to the same concept, the same type of document.

Can I sign a prenuptial or post-nuptial agreement after I get married?
Yes. It would be called a "Post-Nuptial Agreement" and Georgia law does currently recognize such documents.

Does everyone getting married need a Prenuptial Agreement?
Prenuptial agreements are not for everyone. Prenuptial Agreements are generally utilized by parties who have considerable assets prior to the marriage and want to keep those assets separate or those who have been through a divorce and want to minimize the cost and time if they unfortunately go through another divorce. Without a prenuptial agreement, it is possible in certain circumstances for separate or premarital property to lose its separate quality and it can then become marital property or can be used to pay alimony.

Can a Prenuptial Agreement cover alimony?
Sometimes, Prenuptial Agreements are used to limit, establish or eliminate alimony in the event of a divorce.

Can a Prenuptial Agreement affect child custody or child support?
Generally speaking, Prenuptial Agreements do not deal with child custody or child support. Judges make the final decision on custody, and parties cannot pre-determine child support because the law regards child support as being a right for a child, and parties cannot override that right. Custody also must be determined AT THE TIME OF THE DISPUTE since no one can predict all the circumstances which will exist at the time of a custody dispute.

I already have a house and property and I want to protect it. Will a Prenuptial Agreement help?
Yes. If you own property before the marriage and you want to protect that property in the event of divorce, a well drafted and enforceable Prenuptial Agreement can make it easier for you to keep that property in the event of a divorce.

Do I need my own lawyer if my fiancé’s attorney prepared a Prenuptial Agreement?
Yes. It is important to have your own counsel explain fully the proposed Agreement and the potential pitfalls that could affect you in the event of a divorce. Your attorney can suggest changes to the proposed Agreement that can dramatically affect to your benefit what happens in the event of a divorce.

Does my fiancé need their own lawyer if my attorney prepares a Prenuptial Agreement?
Yes. Not only does it make it more fair (each side has independent advice), it also makes it more enforceable since neither can later argue that they did not understand what they were signing.

Even if my spouse and I have a Prenuptial Agreement, can we change the terms later?
Yes. You can "re-up the Prenup" by having your attorney prepare an addendum to the original Agreement. After that has been properly signed and witnessed, it becomes a part of the original Agreement and will reflect the new terms you have changed.

What if my spouse and I decide, after years of marriage, that we no longer want to have the Prenuptial Agreement in effect?
Most well-written Prenuptial Agreements will contain a provision that dictates exactly how to cancel the Prenuptial Agreement so that it is no longer in effect. Further, your attorney can build in Asunset@ provisions to the original Prenuptial Agreement that provide for its automatic cancellation after an agreed-upon amount of years.

Will a Prenuptial Agreement determine how my spouse’s property is distributed after his/her death?
Not unless you insist on such a provision. It is strongly recommended that you each have a Last Will and Testament to cover what happens to property upon the death of a spouse. Generally, a good Prenuptial Agreement will contain language that says that either of you are free to give or will away any property you want to the other party.

Are Prenuptial Agreements expensive?
As is in most cases, the cost is based on how long it takes your attorney to prepare the Agreement. Prenuptial Agreements take a lot of time to prepare since they are an attempt to resolve disputes which have not yet occurred and which are based upon factors which do not yet exist (changes in income, assets, the birth of children, etc.) In some limited cases, Prenuptial Agreements can be prepared on a flat fee basis. See your attorney for more complete fee and cost information.

SOURCE: DivorceNet

SOURCE FOR POST: Georgia Family Law Blog

Divorce Manual: ESTATE PLANNING CONSIDERATIONS

A. At the beginning of the case

You may have an estate plan or will that gives your entire estate and life insurance to your spouse if you die. This plan does not necessarily change because someone files for divorce. Talk to your lawyer about what changes, if any, you need to make and are able to make in your estate plan while the divorce is pending.

Not only should you review your will, you should review the beneficiary designations for your life insurance and retirement plans, including IRAs, and discuss with your lawyer what changes, if any, to make. If you are holding property with your spouse in a form that would give it all to your spouse on your death, you may want to change the form of title.

There may be restraining orders that temporarily limit your right to change title to property or beneficiaries of insurance and death benefits.

B. After the divorce

In some states a divorce will automatically change your estate plan. In other states it won’t. So when the case is over, update your estate plan to be consistent with the judgment and with what you want to happen to your estate.

SOURCE: American Academy of Matrimonial Attorneys, Divorce Manual; A Client Handbook