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 four issues in a divorce case:
Custody of minor children
Spousal Support (alimony)
Division of Property and Debts, sometimes referred to as Equitable Division
Dual knowledge of complex financial and legal matters distinguishes attorney Miles W. Rich as a uniquely qualified family law attorney. With a master's degree in business administration and in-depth knowledge of accounting and finance, attorney Miles W. Rich has become well-known for his ability to efficiently identify errors made by people who have under-reported their income as part of divorce and/or child support proceedings. This ability to evaluate information and establish, confirm or correct a monetary figure can be invaluable when cases involve parties who are self-employed or seasonally employed or who have family businesses and/or professional licenses.
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.
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.
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 cases 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.
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 the 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 year 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.
In addition to a strong legal and financial background, attorney Miles W. Rich is a single parent who recognizes the sensitive issues associated with family law cases. Contact us, so we can arrange a meeting for you with our Roswell family law attorney, Miles W. Rich, at no cost. You will have an opportunity to learn about your legal rights and your options, and you will have time to ask questions. You are under no obligation to retain the services of our firm.