At the Law Offices of Miles Rich, P.C., we consider ourselves to be true partners with our clients
and their families, looking out for their legal needs in every way. We value the trust and confidence.
Our clients, for the past thirteen years, have placed their trust in us to represent their families' best interests.
At our firm, we are committed to providing personal service to each client. When you call on us, you speak directly with your attorney, not to a paralegal or other staff member.
We can handle all of your family law needs including:
- Divorce
- Child Custody
- Child / Spousal Support
- Modifications of Custody and Support
- Contempt
- Premarital Agreements
- Wills & Trusts
With our expertise in these areas, we believe we can provide a big picture approach
to your family issues. Some people refer to family law as domestic relations law. Here the terms are used interchangeably.
Note: All counties require parents of minor children to attend a Divorcing Parents Seminar (Families in Transition) in all Divorce cases involving custody, support or visitation, and in some other cases including modifications. See Links Page for Schedules.
DIVORCE
Unfortunately, about 50% of all marriages end in divorce, and for most people, divorce may be the first time they need to hire an attorney. There are two types of divorces, contested and uncontested. Uncontested means that both parties agree on all issues. There are three issues in a divorce case:
- Custody of minor children
- Support
- Child Support
- Spousal Support
- Division of Property and Debts, sometimes referred to as Equitable Division
Custody - There are two types of custody, legal and physical
Legal Custody concerns who will make the decisions concerning the minor child or children. Most divorcing couples share legal custody (joint legal custody) where one parent is the final decision maker if the parties cannot agree.
Physical Custody concerns where the children will live most of the time. "True" joint physical custody is where the child or children spend about 50% of their time with each parent. Many parents share physical custody where one parent is the primary physical custodian, i.e., the child or children spend the majority of time with that parent.
Custody disputes are decided by a judge, not by a jury. In custody disputes, the judge may appoint a guardian ad litem, a person, often an attorney, who "represents" the interests of the minor children. The guardian investigates the case and the abilities of both parents to raise children; and then makes a custody recommendation to the judge. The judge may follow the recommendation of the guardian, or the judge may ignore it. In some cases, a custody evaluator may be appointed by the judge. The evaluator also investigates the case and the makes custody recommendations, but does not legally represent the interests of the children. In either case, the judge may appoint this person, or the attorney may request it. Obviously, a judge cannot investigate custody, visit with or telephone various friends and family members, or visit with or talk to the children. Therefore, in disputed custody cases, a guardian and/or custody evaluator is often appointed. The judge will award custody based on what the judge decides is in the best interests of the minor children.
Children, ages 14 years and older, may select which parent they choose to live with, but the judge does not have to follow the child's selection, if the judge feels the other parent having custody would be in the best interests of the child. Children 11-13 years of age may select their choice for the custodial parent, but the judge does not have to follow it.
Third parties may petition for custody; but to prevail, they must prove both parents are unfit to have custody, a very high standard.
Support
Child Support - The parent with physical custody or primary physical custody (the children live with this parent greater than 50% of the time) receives child support for the minor child or children until all the children have reached age 18 or graduated from high school, provided the child is a full time student; however child support terminates at age 20, even if the child is still a full time high school student. Georgia now uses a two income model to determine child support. The percentage of gross income model is no longer used. The gross (before tax) income of both parents is added together, some adjustments are made, and this determines the basic child support obligation. The basic child support obligation amount is then divided between the two parents by their income percentage, to determine the presumptive child support amount. This is then adjusted by the amount paid for health insurance, and day care. The parent with physical custody or primary physical custody then receives child support from the other (non custodial) parent. Gross income includes just about all income, including bonuses, commissions, interest & dividends; it does not include alimony, public assistance, or child support received. (to view click here).
Here is an example:
The Father's monthly gross income is $8,000.00 per month
The Mother's monthly gross income is $4,000.00 per month.
There are two minor children.
The Father is paying $200.00 per month for health insurance for the minor children; and the mother is spending $2,260.00 annually on after school care and summer care. (to view click here)
The basic child support obligation (from the table) is $1982.00.
If the Mother is the primary physical custodial parent, the presumptive amount she will receive from the father is $1,380.30; and if the Father is the primary physical custodial parent, the presumptive amount he will receive from the mother is $601.70. (to view click here).
There are other factors that can be used to vary these amounts such as but not limited to: child support paid for other children from a previous relationship, college expenses, and parenting time (to view click here).
Here is a link to enable you to download an Excel (TM) Spreadsheet version of the Georgia Child Support Worksheet. You will need to have a copy of Excel (TM) to use it. If you have questions, please contact our law office at milesrich@yahoo.com.
To obtain the Georgia Child Support Worksheet click here.
Spousal Support - Alimony is still available in Georgia. In order to receive alimony, the spouse seeking it must prove that they need it, and that the other spouse has the ability to pay it. Once these two thresholds are met, then other factors such as the length of the marriage, the income of both parties, and the reasons for break up of the marriage are considered. Whether to award alimony is totally within the discretion of the trier of fact, the judge, or a jury. Georgia is one of the few states where you have the right to a jury trial. There is no legal presumption that anyone is entitled to alimony, and no formula to determine how much alimony should be paid, or for how long it should be paid. Many attorneys claim that the rule of thumb is one year of alimony for every years of marriage. Miles W. Rich has never seen any empirical evidence that supports this claim. Some say that alimony is alive and well in Georgia, and in some jurisdictions, it is; however, the amount and the length of time it will be paid are up to the whims of the judge and/or jury.
Post minority child support and college expenses - In Georgia, parents can agree to be responsible to pay support beyond age 18 or graduation from high school, or pay college expenses; but a court cannot order them to do so. However, once they have agreed to pay for college or post majority support, that obligation is just as enforceable as the duty to pay child support for children under age 18.
Equitable Division - Division of Assets and Liabilities
Martial and Separate Property and Debts - In a Georgia Divorce, there are two types of property (including debts), marital debts and property, and separate property and debts. Sometimes, separate property and/or debts are sometimes referred to as pre-marital property and/or debts. All property acquired during the marriage is considered marital property, unless it is acquired by gift, or inheritance. All debts acquired during the marriage are marital debts, unless they are connected to separate property, and that case would be unusual. Georgia is an equitable division state. This means that a trier of fact, a judge or a jury, may divide up the marital property and debts anyway they see fit. They may divide it 50/50, but they do not have to, as they are required to do in a community property state. Georgia is NOT a community property state. If you have moved to Georgia from a community property state, and still have some of the same property that you did when you moved out of the community property state, then that property remains community property; and each party is entitled to a 50% share of the community property. An example would be an investment account that was not added to during the parties' term of residence in Georgia, or a beach house on South Padre Island in Texas.
Property can also be part marital and part separate; here is an example.
You own a home before you were married, and you did not transfer the deed to joint ownership with your spouse (the house stayed in your name). You purchased the home in 1998 for $150,000.00. You got married on April 3, 2000, and at that time, the house was worth $180,000.00, and the amount owed on it was $112,000.00. The separate equity was therefore, $68,000.00. In 2008, you are in the process of getting divorced; and the home is now worth $250,000.00; the amount owed on the mortgage is now down to $90,000.00; and all of the house payments made during the marriage were made with money you earned from your job. In this case, we use the source of funds rule established in Thomas v. Thomas, which attributes the increase in value based on where the funds came from (separate or marital). In this example, the mortgage was reduced by $22,000.00 during the marriage. Therefore, the increase in value is allocated as follows: Total contribution of equity is $68,000.00 + $22,000.00 = $90,000.00. The separate portion is 68/90 of the total or 75.56%. The marital portion is 22/90 or 24.44%. Therefore, the court can only award your spouse a portion of the marital equity. The total equity is $160,000.00 ($250,000.00 - $90,000.00). Of the $160,000.00, only .2444 x $160,000.00 0r $39,111.00 is marital property. The balance of the equity of $120,889.00 is your separate property. Therefore, the court can only award your spouse up to $39,111.00 from the value of the home, and most courts tend to split things "down the middle." In this case, a court is likely to award let you keep the house and order you to pay your spouse about $19,500.00 for their share (half) of the marital equity.
The same concept is applied to debts. Debts brought into the marriage are separate debts; debts incurred during the marriage are marital debts. Only marital debts can be divided. When marital debts are divided, courts often look at the individual party's ability to pay them; and therefore, they are often NOT divided equally. In cases where there are assets available to pay off the debts, a court may order the assets sold and the debts paid off first, before any assets are distributed to the parties.
The division of property and debts in a divorce can be very complicated or very simple. It all depends on how much there is to divide. One thing is certain, courts loathe getting involved in the division of household goods. Judges seldom willingly devote court time to the division of pots and pans or furniture or electronic equipment. The division of these items should be done by the parties.
UNCONTESTED AND CONTESTED
Cases are either contested or uncontested. In uncontested cases, the parties sit down and reach an agreement as to ALL issues before the case is filed. They agree on custody, visitation, the amount of child support, the amount of spousal support, who gets what, and who pay what. If all issues are not settled before the case is filed, it is CONTESTED. Contested case are litigated. They may settle quickly, settle just before trial, settle sometime in between, or not settle all and require a trial. All courts encourage the parties to settle. If you settle your case, you control your destiny. It is often said, that when a case is not settled, but tried, both parties lose. Of course, in a settlement, both parties often have to compromise; but they often get at least part of what they desire. The greatest incentive to settle is to keep your attorney's fees low. Litigation is expensive. Miles W. Rich charges $300.00 per hour for his time in cases billed by the hour. Uncontested cases can often be done for a fixed flat fee. If parties cannot settle the case themselves, or their respective attorneys cannot work things out, the case is almost always sent to mediation prior to trial.
MEDIATION
Mediation is a process where an intermediary, an independent third party, works with both sides to reach a settlement. The mediator facilitates settlement; the mediator does not decide anything. Mediators are often attorneys, and Miles W. Rich believes that the best domestic mediators are those who are attorneys and have a fairly good deal of experience in domestic relations law. In Fulton County, a limited amount of mediation is provided by the Court at no charge. In all other counties, the parties must pay for the mediation, and usually, each party pays 50% of the costs. Court appointed mediators charge around $175.00 per hour. Of course, parties are always free to agree and pick their own mediator.
Related to divorce, are several other areas of domestic relations law: Modifications, Contempt, Paternity Actions, and Family Violence Petitions.
Miles W. Rich also offers services as a mediator; however, if Mr. Rich is the mediator in the case, he cannot represent either party. Mr. Rich recently registered as a Mediator with the Georgia Office of Dispute Resolution
MODIFICATION OF CUSTODY AND SUPPORT
The division of property and debts in a divorce is a final adjudication, and are most court decisions. We don't allow parties to re-litigate issues. In criminal law, that is often referred to as double jeopardy. In civil law, we use a Latin term, res judicata.
However, family law is different. When it comes to custody and support, situations change; and therefore, we allow the awards of child support, spousal support, custody and visitation to be modified, provided there is a material change in circumstances. In other words, one can't modify child support because they think they are paying too much, or receiving too little, unless there has been some event, or series events, or change of facts that support modification.
O.C.G.A 19-6-15(k) provides that :
(1) a parent shall not have the right to petition for modification of the child support award regardless of the length of time since the establishment of the child support award unless there is a substantial change in either parents' income and financial status or the needs of the child.
(2) No Petition to modify child support may be filed by either parent within a period of two years from the date of the final order on a previous petition to modify by the same parent except where: A) A non custodial parent has failed to exercise the court ordered visitation; (B) A non custodial parent has exercised a great amount of visitation than was provided in the court order; or (C) The motion to modify is based upon an involuntary loss of income as set forth in subsection (j) of this Code section.
Substantial changes are not defined. Certainly the increase or decrease income of 3% or less is not a substantial change. But is 7% substantial? Only the court can decide that.
The standards for modifying spousal support are similar; a substantial change in income or financial status of one of the parties is necessary. Only periodic alimony can be modified; lump sum awards cannot be. Georgia also has a "live in lover" law which allows the court to modify or terminate alimony if the recipient of the alimony is found to be cohabitating in a meretricious relationship with another person. This means they must be living together, sharing household expenses, and be lovers. The lover need not be a person of the opposite sex.
Some parties, in agreements, give up the right to modify alimony, but if a case goes to trial, and a court awards periodic alimony, the award is always modifiable.
Parents may contract to waive reductions in child support, but contracts or agreements which waive increases in child support are void as being against public policy. The reason for this is that the right to receive child support technically belongs to the children, not the parents. The receiving parent is considered a conduit for the child support payments; however, in almost every case, the receiving parent can expend the child support in just about any way they see fit. But parents who spend child support on luxury items for themselves may soon find themselves in the midst of a modification case to lower the support, or even a change of custody case.
Modifications of custody and visitation can be brought by either party; however, there must be some substantial change in circumstances to do so. There are many reasons to change custody and visitation. The standard that a court must use is: What is in the best interest of the minor children!
LEGITIMATION
Georgia has a rather unique process for establishing parental rights where the parents are not married at the time the child is born, an occurrence that, unfortunately, is all too common today. In many states, the biological father signing the birth certificate establishes the legal father of the child, BUT NOT IN GEORGIA.
Here, we require to the Father to file a Petition for Legitimation, claiming he is the father and that he wants to be the legal father. The father can also ask for custody and/or visitation rights in his Petition for Legitimation, a recent development in Georgia law. (Prior to the change, a Father had to first legitimate the child, and then file a separate suit for visitation and/or custody, unless the Mother consented to both issues being joined.) Only a Father can Petition to Legitimate. Child Support can be awarded in a Legitimation action or it may not be. A Mother can file a counterclaim for child support in a legitimation action, or the Father can ask the court to set support.
PATERNITY
A paternity action is filed by the Mother against a Father to whom she is not married in order to collect child support. This can be done privately through an attorney, such as Miles W. Rich, or she can seek assistance through her county child support services office.
CONTEMPT
Petitions for Contempt or Motions for Contempt are filed when one of the parties fails and refuses to follow a Domestic Relations Court Order, or Final Decree and Judgment of Divorce. Examples are the failure to pay child support, the failure to pay alimony, the refusal to allow visitation, the failure to pay a court ordered property settlement. Contempt Actions are usually required to be tried within 60 days of filing.
SUMMARY
The above is a nuts and bolts explanation of family law. It is certainly not complete, but is designed to give you a good outline of what the issues usually are. Miles W. Rich likes to tell people that the practice of family law is not Rocket Science. It is not usually complicated, but rather is based on facts and common sense. For example, in a custody dispute in a divorce, the parent who has been the primary parent to the children during the marriage will be awarded primary physical custody of the minor children, unless something has drastically changed, such as that parent has suddenly become a crystal meth addict, or that parent has become seriously ill and is not able to care for the children.
The law firm of Miles W. Rich, P.C. is dedicated to serving its clients, and gaining for them a reasonable result in their family law case. Mr. Rich does not believe in filling his clients with unreasonable expectations. On the other hand, if the opponent is unreasonable, and refuses to settle the case on a fair and equitable basis, then Mr. Rich believes in giving his clients their day in court. When a case is tried, there are no guarantees. Some say it is difficult to find justice in a court house. However, there are two classifications of people that are always found there, WINNERS AND LOSERS. Mr. Rich's clients are usually the winners, and not the losers, because of his grasp of the facts, the process and the law.
FAMILY VIOLENCE & Stalking Protective Orders
Family violence is a problem in our society. For victims, Mr. Rich files Petitions for Protective Orders, and/or represents the victims at the 30 day hearing, after they have obtained an ex parte 30 day order on their own, usually through a court program associated with a shelter such as Family Haven. In Georgia, any adult can obtain a temporary protective order, if they have been the victim of family violence. Family violence is defined as: any felony or act of simple assault, assault, simple battery, battery, stalking, criminal damage to property, criminal trespass, or unlawful restraint, committed upon a person by a past or present spouse, persons who are parents of the same child, parents, children, step parents, step children, foster parents, foster children, or persons who lived in the same household (roommates).
If you are the victim of Family Violence, you have two different remedies. You can use one, or the other, or both. Miles W. Rich files Petitions for Relief asking for the civil remedy. You may also seek a criminal warrant through local law enforcement.
If someone is the victim of a recent act of family violence, they may file a Petition for Relief. The Petition alleges the acts of Family Violence and is then presented to the proper judge. The judge may interview the victim to gain further knowledge of the facts. The judge then decides whether to issue an ex parte order or not. Ex parte means that only the victim needs to be present, and the opposing party, the alleged perpetrator, is not present. If the judge believes an act of Family Violence has occurred, he issues a Temporary Protective Order that is good for only 30 days. The judge then schedules a hearing to occur before the 30 day expiration date. The Petition, the 30 Day Order, and notice of the hearing, are then served upon the Respondent/Defendant, the alleged perpetrator.
The Hearing is then held, where both parties present witnesses and evidence. The judge then decides if the Petitioner, the alleged victim, proved by a preponderance of the evidence, that an act of Family Violence occurred. If the Judge decides that the Petitioner proved his or her case, a 6 month or 12 month protective order is issued.
While Family Violence is a serious offense, and is very damaging to families, unfortunately, the process has been overused and abused, in order for one party to gain an advantage in family disputes, or upcoming divorces. Because the ex parte order is issued without hearing from the alleged perpetrator, a person can make up a story about being a victim of violence and get an ex parte order. Unfortunately, this happens all too often, and not only is the innocent respondent harmed, but so are all real victims of family violence.
Mr. Rich represents Respondents in Family Violence cases too, and over the last 13 years has probably represented an equal number of Respondents and Petitioners. These cases usually involve a physical altercation between spouses or former lovers, where the parties are the parents of the same children. In these cases, even if the events took place as alleged in the Petition, the parties will have to have some future interaction, possibly through intermediaries, in order for the children's relationship with one of the parties to not be seriously affected. Often, the case can be settled with the issuance of an Order that protects the Petitioner/Victim without overly punishing the Respondent/Perpetrator.
STALKING PROTECTIVE ORDERS
In some cases, someone is stalked by a person that they have no familial relationship with. If this occurs, they can obtain an ex parte stalking protective order. The process works in the same way as it does with a Family Violence ex parte order. Miles W. Rich represents both Petitioners and Respondents in Stalking Protective Order cases.
DISPUTES WITH DFACS (Department of Family and Children's Services)
Most DFACS cases involve state intervention into the family where DFACS either removes or threatens to remove the minor children from the home of their parents. Miles W. Rich represents parents in disputes with DFACS. His key motivation in these cases is to either keep the family together or restore the family after it has been separated.
