What Types of Divorce are There?
In my experience, divorce cases fall into one of three main categories, specifically contested, uncontested, and mediated.
Contested Divorces. When most folks think of divorce, they really are thinking about contested divorces. Contested divorces are frequently emotionally charged, slow and expensive. Contested divorces most often occur when (i) you disagree about the division of assets and/or debts, child custody and/or child support, (ii) you do no trust your spouse and want to verify the assets and other information held by him/her, or (iii) you or your spouse (or his/her attorney) simply will not listen to reason. (That unwillingness, in my experience, typically occurs where adultery, drug, alcohol or physical abuse or severe financial mismanagement have occurred.) In a contested divorce, you file the lawsuit and then often engage in discovery, which is the legal means by you can find out information and obtain documents from either your spouse or directly from a third party (e.g. a bank or employer.) Many courts will require that you try to mediate (discussed below) the issues in dispute before they will try your case. I have found that mediation is usually successful and your case will settle before trial, but occasionally trial will occur. I have also found that the best means to limit your damage (both financially and emotionally) is for us to come up with reasonable goals from the outset, to convey (at least until rebuffed) to the other side a fair and reasonable position and to be open to alternatives suggested by the other side.
Uncontested Divorces. From a client perspective, an uncontested divorce is the way to go. An uncontested divorce is cheap, easy and quick. I identify the issues to be addressed and give you some guidelines. You let me know how you have resolved same and I write up the paperwork accordingly. No discovery is done. Some courts will require you to appear at a short hearing before granting the divorce, but usually, that is not the case. Usually, you will be divorced within forty five (45) days of filing the paperwork. Like most other attorneys, I charge a flat fee for an uncontested divorce, which fee will vary based upon the issues which have to be addressed.
Mediated Divorces. Mediation is the process by which you and your spouse try to work through the issues you cannot seem to resolve on your own with the help of a mediator. The mediator is a neutral and does not have the power to make rulings or otherwise decide issues. The mediator is simply a neutral party seeking to help you and your spouse reach agreement. If an agreement is reached, the agreement is binding. If not, the process simply failed and is of no further value. The big benefits to a mediated divorce are that you and your spouse, not the court, make the final decisions as to how the issues are decided and the overall time and cost savings can be enormous. As noted above, many courts require you attempt mediation prior to trying a case. However, you can by agreement mediate prior to filing a lawsuit, and either way, you can mediate with our without me as your attorney. Alternatively, I can act as the mediator, but if I act as the mediator, I am not acting as an your attorney. Rather, as discussed above, I am acting simply as a neutral trying to facilitate you and your spouse coming to an agreement. If that is the case and the mediation is successful, the ultimate agreement will be binding and you and your spouse file the mediated agreement on your own. If unsuccessful, then I, as a mediator, am prohibited from representing either your or your spouse in your divorce.
How is Child Custody Determined?
How is the Initial Determination Made? A “best interests of the child” standard is applied by the courts in determining child custody. you and your spouse agree to a custody plan, the court will usually accept the arrangements. If you do not agree, many factors will be considered by the court when applying this standard, including you and your spouse’s work and travel requirements, home environments, ability provide for the child’s needs, and emotional and physical capacities. These cases can be long, tough and expensive; however, I have found that things can be somewhat streamlined by having a custody evaluator and/or a “Guardian ad Litem” (a private investigator acting on behalf of the children) appointed to generate a report on how he/she believes the best interests of the child will be served. The report findings are often, but not always, adopted by a court. Contrary to popular conception, there is no presumption that custody should be awarded to the mother.
Can Custody be Modified? Yes. Child custody can be modified, but it will only be modified upon a court first finding that a “material change in circumstance” affecting the welfare of the child has occurred and then further finding the best interests of the child will be served by a proposed modification. I always explain to my clients that “material change in circumstance” is a high standard and you cannot simply seek a change in custody anytime you don’t like what the other parent is doing in terms of parenting. It is often a bitter pill to swallow, but as I have said any number of times, the courts are already swamped with custody cases and if the standard for changing custody were any lower, the courts would be overrun. Numerous factors will be considered in determining whether a material change of circumstance has occurred; however, these factors must have arisen after the date of the initial custody award. The continuing fitness of a parent will always be considered, and improvements, not just declines, in fitness are relevant.
How Is Financial Support Determined?
How is Child Support Determined? In Georgia, child support is determined using the Georgia Child Support Worksheet. A link to the worksheet can be found on many court websites. Although you can complete the worksheet yourself, I recommend you consult with an attorney before relying upon your calculations because there are variables which you may not adequately addressed otherwise.
How is Alimony Determined? Alimony is really determined on a case by case basis in Georgia. Any numbers of factors will be considered, including the length of the marriage, the job skills, age and education of the person to receive alimony, the likelihood of that person being able to obtain employment, and the standard of living of the family prior to the divorce. If your financial situation warrants it, I often suggest a certified divorce financial planner be retained and make a proposed finding as to what is fair under the circumstances.
Can I Get Child Support and Alimony While My Divorce is Pending? Yes. Upon request, a court will hold a hearing to determine alimony, child support, and other matters (such as child custody, and use of the marital home) during the course of the case. I always ask about the need to have a hearing on these issues before filing the initial paperwork and if you say you need one, I request same in the initial documents.
Can My Spouse Be Required to Pay My Legal Fees? As a part of a divorce, a court will consider differences in income between the you and your spouse and “level the playing field” by awarding legal fees to the lower earner in certain cases. In my experience, the amount, if any, of the award will vary based upon the size of the difference in income and the judge assigned to the case. Thus, you or your spouse may get all, some percentage or none of your fees paid by the other side. Likewise, in a contempt case, if you or your spouse is found in willful contempt, you or your spouse may also get an award of attorneys fee,s but the amount will again be within the discretion of the judge. Attorneys fees can be awarded in other actions, but according to the law and in my experience, the likelihood and amount of recovery is much lower.
Enforcement – What if My Former Spouse Doesn’t Follow Court Rulings?
What do I do if my Former Spouse fails to Pay Child Support or Otherwise Fails to Meet His/Her Obligations? A contempt action is the basic remedy available if your former spouse fails to comply with the terms of a settlement agreement, parenting plan or child support order. If your former spouse is found in contempt, the court can impose a variety of sanctions, including but not limited to an income deduction order, payment of the your legal fees, license suspension and/or imprisonment.
How Much Will All This Cost?
I know the cost of representation is always a concern and must be weighed against the life changing issues to be decided. I make a point of discussing with every client various approaches to situations to determine the most cost effective strategy, and I continue those discussions throughout the life of the case. Uncontested divorces start at $750.00 plus court costs. Contested divorces, mediated divorces and other family law proceedings do not usually lend themselves to a set fee approach. Thus, I typically charge a retainer that I apply on a monthly basis against fees and costs incurred. Where a retainer is charged, you will receive monthly statements detailing the time spent, fees incurred and allocation of the retainer against same. Credit cards are accepted.