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Georgia Child Support Calculator

Written by Joseph E. Cordell on .

How is Georgia Child Support Calculated?

Until Jan. 1, 2007, Georgia calculated child support based solely on the income of the non-custodial parent. Support was set within a percentage range depending on the number of children subject to the order.

For example, if a non-custodial parent were ordered to pay child support for one child, the support would range between 17% and 23% of the non-custodial parent’s income. As a matter of practice, judges typically awarded 20% of the non-custodial parent’s gross income for support.

Georgia child support law changed on Jan. 1, 2007, and many factors, other than the gross income of the non-custodial parent, became relevant. Georgia moved to what is known as the “Income Shares Model” for calculation of child support. The child support is calculated by using a worksheet created by the Georgia legislative branch.

The current guidelines require that the total gross income of both parties be considered. In determining the total gross income, the courts must consider income from all sources before any tax deductions.

This includes, but is not limited to, income from employers (salary), bonuses, commissions, income from self-employment, income from rental properties, severance income, income from annuities, capital gains income, unemployment, and social security income.

When the total income for both parents is input on the Georgia child support calculation worksheet and the number of children for whom support is being calculated is entered, a presumptive child support amount appears. This presumptive amount is the total amount (as determined by the Georgia legislatures) that it should cost each month for the care and maintenance of the minor child(ren).

Based on the incomes of the parties and their individual percentage of the total parental income, the obligations of each parent are calculated. For example, if the total gross income for both parents is $10,000 per month, the presumptive support amount is $1,259 per month for one child.  If the mother is the non-custodial parent and her income is $6,000 per month, and the father is the custodial parent and his income is $4,000 per month, then the mother is obligated to pay 60% of the $1,259 per month to the father.

Additional Georgia Child Support Calculation Factors

The calculation, however, may not necessarily end there. There are a number of other factors that may be present in the Georgia child support calculation worksheet. Usually, a very large factor is the amount one parent will pay for the childcare of the minor child(ren).

Previously, the custodial parent was subject to payment of 100% of all childcare costs. Under the current Georgia child support guidelines, the childcare expenses are divided based on the pro rata share of the income as described above. Therefore, if the father in the scenario above pays $200 per month for daycare, the mother’s child support obligation increases by 60% of the $200.

Other factors that may be included are the payment of medical, dental, and vision insurance premiums, costs for extraordinary medical expenses, and extraordinary educational expenses. Depending on the monthly amount paid for extracurricular activities, that may also be a factor in the calculation of the support.

Deviations from Georgia Child Support Guidelines

The new Georgia child support guidelines also allow for deviations of the support, some specified and others unspecified, that might be awarded or agreed upon by the parties. One of the most common deviations is a parenting time deviation.

This type of deviation occurs when the support-paying parent has parenting time in an amount significantly above the normal 20.8% with standard visitation. For example, if the parties share custody equally, then the paying parent would likely be entitled to a parenting time deviation such that (s)he is keeping a portion of the presumptive amount in order to support and sustain the child while (s)he is in that parent’s custody.

At the end of the day, the court will typically not enter any deviations to a child support worksheet unless the deviation is determined to be in the minor child(ren)’s best interests.

Georgia Child Support Enforcement

Child support enforcement in GA is operated by the Division of Child Support Services, also referred to as DCSS. This unit has the ability to collect any overdue child support through measures such as withholding child support payments from paychecks, filing liens and levies on tangible property, suspending or revoking driver’s licenses, and more. It is important to accurately calculate child support in Georgia and be aware of the payment amount decided on in the support order.

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Georgia Child Support Calculation: Is Overtime Pay Counted As Income?

Written by Joseph E. Cordell on .

In Georgia, if you receive overtime pay, even sporadically, it will be included in your income for purposes of a child support calculation.

The Georgia child support guidelines require that all income, of any kind, and from any source is included in a child support calculation. A letter from your employer (or similar evidence) stating that overtime is not guaranteed will not exclude your overtime pay from your gross income for purposes of child support.

Overtime Pay Case Law

For example, in 2009, the Georgia Supreme Court overturned a lower court’s decision that refused to include a parent’s overtime pay in the child support calculation. See Evans v. Evans, 285 Ga. 319 (Ga., 2009).

In this case, the lower court found that the non-custodial parent’s gross income was $5,000 per month, but refused to use that amount for purposes of that parent’s child support calculation because that income “includes a significant amount of overtime that is not guaranteed.” Id. at 319.

In reversing the lower court’s decision, the Georgia Supreme Court cited the relevant portion of the child support guidelines, which states that “…in determining the gross income of each parent in the process of setting the presumptive amount of child support, gross income ‘shall include all income from any source, before deductions for taxes and other deductions…whether earned or unearned, and includes, but is not limited to…overtime payments.’” Id. at 319-320, citing O.C.G.A. § 19-6-15(f)(1)(A).

This means that if a parent receives any overtime payments, no matter how small or irregular, the court is required to include such payments in that parent’s gross income when setting a child support obligation.

In the Evans case, however, the Georgia Supreme Court also noted that the child support guidelines provide the lower courts with discretion to average such overtime payments over a reasonable period of time. This discretion is intended to avoid an inequitable outcome that could otherwise result when a parent periodically receives substantial amounts of sporadic overtime pay.

As stated by the Georgia Supreme Court in Evans v. Evans, the lower “…court’s concerns regarding the uncertainty of [a parent]’s overtime payments are addressed by O.C.G.A. § 19-6-15(f)(1)(D), which provides that

[v]ariable income such as…overtime pay…shall be averaged by the court…over a reasonable period of time consistent with the circumstances of the case and added to a parent’s fixed salary or wages to determine gross income. When income is received on an irregular, nonrecurring, or one-time basis, the court….may, but is not required to, average or prorate the income over a reasonable specified period of time or require the parent to pay as a one-time support amount a percentage of his or her nonrecurring income, taking into consideration the percentage of recurring income of that parent.

The application of this portion of the Georgia Child Support Guidelines lies within the discretion of the trial court judge.

Summary

A parent that receives overtime pay in Georgia must understand that any overtime pay they receive is included in their income for purposes of a child support calculation.

However, that parent must be prepared to demonstrate to the court that their overtime pay should be averaged over an appropriate period of time, such that their income will not be appear exaggerated in light of their typical earnings.

Georgia Child Custody Questions

Written by Joseph E. Cordell on .

In the following article, a Cordell & Cordell Georgia child custody lawyer provides answers to frequently asked questions about child custody.

Who will get custody of our child? Do I need a Georgia child custody lawyer to help with my case?

In Georgia, there are two types of custody: legal custody and physical custody. In almost all cases both of the custody types are shared between the parents.

Typically, the parents are awarded joint legal custody, which means that the parents must share in decision-making regarding the children and that the parents have equal rights to the child’s medical and educational records.

Ultimately, one parent will be awarded final decision-making authority for times when the parents are unable to reach a mutual decision. Typically, final decision-making goes to the parent who has primary physical custody.

Physical custody is, in most cases, also shared. However, usually there is one parent designated as the primary physical custodian and the other parent receives secondary physical custody. The courts determine physical custody based on several factors, including, most importantly, who has been the child(ren)’s primary care giver during the course of the marriage.

If you are facing a child custody issue in Georgia, it is almost always best to ensure that you have a child custody attorney in your corner to help protect your rights. A Cordell & Cordell Georgia child custody lawyer will be well-versed in the child support laws of Atlanta, Fayetteville, Lawrenceville, Marietta and other jurisdictions throughout Georgia.

What is joint custody? What is sole custody?

Joint legal custody is the norm in the State of Georgia. This is when the parents share decision making authority regarding the minor child.

Typically, there are four areas in which the decisions are required to be made jointly: religious upbringing of the child(ren); medical care of the child(ren); extracurricular activities; and education.

Even though a joint legal custodial arrangement requires that the parents share decision-making, the courts will designate one parent to have final decision-making authority in the event that the parties cannot agree.

Final decision-making authority does not allow for a parent to make a unilateral decision. Even though one parent is designated to have final decision-making authority, that parent must still consult with the other parent before making any major decisions regarding the child(ren).

Joint physical custody is not the norm in the State of Georgia. Joint physical custody is typically an arrangement where the parents share equal or nearly equal parenting time. Judges in Georgia have a bias against equal parenting time. Joint physical is a parenting arrangement that can typically only be accomplished by agreement. Judges will assign one parent as the primary custodial and the other as secondary.

Sole custody is very unusual and it means (whether in terms of legal or physical custody) that all of the custodial rights are assigned to one parent and the other parent has no rights. Having sole custody, however, does not alleviate the other parent of their obligations, such as child support obligations.

If both parents share custody does anyone pay child support in Georgia?

In many cases when the parties are able to agree on equal parenting time, one parent will still continue to pay support. Because child support is calculated based on income, the parent with the higher income will still likely pay some support. The only time when there may be no support paid is in circumstances when the parties share equal parenting time and have nearly equal incomes.

Can a parent refuse to allow visitation if child support is not paid?

No. Child support and visitation are two separate rights/obligations that are not connected to one another.

When can my child decide which parent to live with?

At age 14, a child can select which parent to live with. However, the election is not an absolute. Even with the election, the parent who is not being selected by the child still has the right to present evidence that the child’s election is not in his/her best interest. It is very difficult to overcome a child’s election. It is only in the most extreme of circumstances that a court may not go with the child’s election.

Do grandparents have custody and visitation rights in Georgia?

In the State of Georgia, grandparents do not have any type of custodial rights. In the event that both parents either are deceased or are declared unfit, a grandparent will likely receive priority in a custody evaluation. However, absent death or a declaration of unfitness, grandparents have no rights to children.

What is a parenting plan, and do I need one?

The parenting plan is the portion of the final divorce decree that addresses all custodial issues in the divorce. The parenting plan must be complete. It should acknowledge the importance of a child having a relationship with both parents and address the legal custody of the child and a plan for the child’s physical care.

The plan should detail parenting time including normal visitation periods, as well as a holiday schedule. The plan must demonstrate how each parent will have access to records regarding school, health care, extracurricular activities and religious training, and it must also designate, who has responsibility for making major decisions about the child.

If my separation agreement includes custody/support can it be included in the Georgia divorce decree?

The term separation agreement is not commonly used in Georgia. Georgia does not recognize legal separation and therefore, you will not typically see separation agreements.

However, in circumstances where the parties decide to live separately but not divorce, a separate maintenance case may be filed. In a separate maintenance case, custody and support may be addressed.

However, if the parties decide to file for divorce, then it is likely that the court will keep the status quo, unless either party can show a change in circumstances that warrants a change or if the separate maintenance agreement does not meet Georgia’s guidelines for support.

Some people refer to the Final Settlement Agreement as a separation agreement. In the event of a divorce filing, the court can incorporate any agreement of the parties into the final decree of divorce.

Temporary orders are orders that govern the conduct of the parties during the pendency of a divorce action. Typically, the parties can expect that the judge will order one person to leave the house, while maintaining the status quo for the marital residence.

The court will likely order that all of the bills continue to be paid by the party who has been paying the bills. This is often very complicated particularly when there is one working party and one party who has been a stay at home parent. The court will likely order the one working party to leave the house, but continue to pay the bills.

The court will recognize that there must be some contribution from the stay at home party but that it may take time for that party to obtain employment.

As to custody, the norm in Georgia, is for one party to have primary custody while the other gets alternating weekends for visitation time. The reason that the courts typically go with the default of alternating weekends is because temporary orders are usually entered early in a case before the parties have time to gather a sufficiency of evidence to show why standard visitation is not in the child(ren)’s best interests.

When will child custody be decided?

Custody is typically decided twice. First, it is addressed at the temporary hearing. Temporary custody is usually very early in a case, a month or two in after the filing. Custody on a permanent basis is determined at the trial of the case, or at any point prior to the final hearing when the parties may be able to reach a final agreement.

When can I modify custody?

In order for custody to be changed, the moving party must show that the party to whom custody was originally awarded is no longer able or suited to retain custody or that the conditions and circumstances surrounding the child or the parent out of the custody have so changed that the welfare of the child would be substantially enhanced by modification of the original custody award. See Jones v. VanHorn, 283 Ga. App. 141 (2006); Elders v. Elders, 206 Ga. 297 (1950).

There are no time restrictions on when a modification of custody can be filed. The moving party must, however, be able to show that there has bee a change in circumstances that would warrant modification.

What if we cannot agree on a custody arrangement?

In the event that the parties cannot agree on a custody arrangement, then the judge will make the determination of custody. Even with a recommendation from a Guardian Ad Litem, the judge still has full discretion to make the custody determination based on all evidence presented at trial.

What is an ex parte order?

An ex parte order is an order from a judge without having given opportunity for both parties to be heard. The only time that one can expect to receive an ex parte order is in a situation where the children may be in severe danger and giving the opposing party time to respond may result in significant harm to the child.

How is custody decided?

The standard in Georgia is to determine custody based on the best interests of the minor child. Unless one parent has been a danger to the child, the beginning point is to typically establish who has been the primary care giver for the minor child. In most cases, the primary care giver will receive primary physical custody.

The primary care giver is the parent who wakes the child up for school, helps him/her get ready, provides meals, does bath time, takes the child to doctor’s appointments, is at parent teacher events, etc. In cases where these duties are equally shared, it is a little more difficult for the judge to determine. Factors that may be considered are work schedules, who has available time for the children, stability, ability to provide, and at a certain age, the child’s desires may also be considered.

How can I increase my chances at getting a larger custody agreement?

Do not move from the marital residence (or the home where the child is living) until there is an agreement. Many person decide that it is better for the child to be in an environment where the parties are separated than to live in a contentious environment with both parents.

Though this is noble in concept, if you move out before a custody order is in place, your rights to see your child are virtually at your wife’s discretion. Do not allow her to have that power over your relationship with the children.

From a really basic perspective, the way to increase your chances of having more custody time, is to be more involved with your child. Be there for extracurricular activities, participate in bedtime and bath time, take the children to school, etc. The easiest way to get extra custody time is to show the court that the needs of the child dictate your available presence.

What is visitation?

Visitation is the common term used for the non-custodial parent’s parenting time. Visitation may also be known as secondary physical custody.

Can a judge order supervised visitation or no visitation?

Yes, a judge has discretion to order supervised visitation. It is not very common, but in cases where it is shown that it is likely that one parent is a risk for harm to the minor child, a judge can order supervised visitation. This may mean supervision by a family member, a supervision agency, or law enforcement.

As to no visitation, it is highly unlikely that a judge would order no visitation unless parental rights have been terminated.

What should I know before a custody trial?

Before a trial of any type, you should know that the most important this is preparedness. In every custody battle, there is a “winner” and a “loser”. Part of being prepared is knowing what the other side is going to say to try to pin you in the “loser” category.

Be able to answer every allegation that may be made. Be able to show that you have been an active, involved parent. Be able to show any downsides that may exist for the other side. Be prepared to stand up and say to the judge, “I can and will take care of my child and custody of this child should be granted to me because that is what is in my child’s best interests.” Be able to support anything you say.

Can I collect my own evidence to use if my custody case goes to court?

Some evidence can be gathered independently by a party. However, not all documents produced by a client are admissible.

For example, original bills received by the client from a creditor may be admissible in court. However, printouts from Websites like MySpace or Facebook may not be admissible as gathered by the party. Most courts will require authentication of those types of documents and may require production directly from the Website administrator.

Photographs taken by any person other than the party will not be admissible without testimony from the person who actually took the photograph. Even a police report provided by a client is not admissible without testimony from the police officer who produced the report. It is very important for clients to gather information in the way of documents, witness lists, etc., and provide that to their attorney. The attorney will have to evaluate each document to determine if that piece of evidence is admissible in court or if an admissible version of the document should be obtained through the discovery process.

Do I need to use a Guardian ad Litem/Custody Evaluator?

Guardian ad Litems are often necessary. Because it is unlikely that the judge can or will take the time to know the intimate details of a child’s upbringing and to see who is, in fact, a better provider, it becomes necessary for a third party to do an investigation.

Guardian ad Litems spend time with the child, the parents, and third parties who are with the child and the parents and can get a much closer glimpse of the child’s best interests than an attorney would be able to present in a one-day trial. Guardians are valuable assets for any father seeking primary custody of his children.

Will my child need to appear in court?

It is very rare that a child is ever asked or expected to testify in court. In fact, in many circumstances judges will think negatively of a parent who asks a child to testify against the other parent. In the event that there is a need for a child’s voice to be heard, it is best to have a Guardian ad Litem involved who can be the voice and representative of the child.

What is the Parental Kidnapping Prevention Act?

This act applies in all interstate custody actions, even when kidnapping has not been asserted. A great deal of this particular act addresses jurisdiction issues for cases when the parents have filed custody actions in two separate states. It violates federal law for two states to concurrently assume jurisdiction over the same custody matter.

According to the act, the state that will have jurisdiction is the one that: has subject matter jurisdiction over the matter under state law and is the resident state of the child or either parent.

What if my wife tries to move the kids out state?

Once a divorce action is filed and both parties have notice of the filing under Georgia law, neither parent can remove the child from the state while the divorce is pending without consent from the other parent. Upon a determination of custody, the court cannot order the custodial parent to remain in Georgia or otherwise restrict that parent’s ability to relocate.

After custody has been determined and a divorce decree entered, a decision to move the child out of the state may warrant evaluation of the wisdom of the move from Georgia. Any time a parent decides to move away, the other parent should file a modification action. That is not to say that a move will automatically change custody, but a decision to move with the children certainly is a change of circumstances that warrants review by the court.

Can a parent change the child’s last name without the other parent’s permission?

A child’s name cannot be legally changed without the consent of both parents.

If I have custody, will I receive child support?

All primary physical custodians will receive support in some form under the divorce decree. Because Georgia sees child support as a right of the child, and not the custodial parent, the right to receive child support cannot be waived.

father holding hands with daughter outdoors with the cordell & cordell icon overlayed father holding hands with daughter outdoors with the cordell & cordell icon overlayed

Fayetteville Fathers Rights

Written by Joseph E. Cordell on .

Fighting for Fayetteville fathers rights is something the Cordell & Cordell Fayetteville divorce lawyers take very seriously. Adoption is among the many areas of dads rights our attorneys handle.

In Georgia, the adoption statute does not require anyone to give you a call or knock on your door to alert you of a pending adoption proceeding essentially ignoring fathers rights to their children if the mother decides to put the child up for adoption.

Instead, proper notice can be given by publication, such as a local newspaper, once a week for three weeks of the county where the petition has been filed and of the county of the father’s last known address.

In order to ensure dads rights are protected, you need a partner you can count on. Contact a mens divorce attorney at Cordell & Cordell to discuss fathers rights. Please call 1-866-DADS-LAW.

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Do I need to hire an Atlanta child custody lawyer?

Written by Joseph E. Cordell on .

If you ask any family law attorney whether you need a lawyer for your child custody case, the answer should be an emphatic yes. Custody cases can be the most difficult of all family law matters, and the stakes are literally as high as can be; your access and relationship with your children.

However, at Cordell & Cordell we acknowledge that the decision whether to retain an Atlanta child custody attorney is more complicated. There are several factors a person should consider when evaluating whether they need representation in their custody case.

Do my wife and I agree regarding our custody?

In some situations, parents can agree regarding custody prior to the commencement of a legal action. These are called uncontested cases; Matters where parties have reached a full agreement on their own.

Some parents decide they do not need legal representation for uncontested cases, which is of course their right. However, many of these parents have a broad agreement regarding custody but they do not understand what that entails.

Do you and your wife agree on who the primary parent will be; meaning the parent with whom your child will spend a majority of his or her time? Even with joint custody, Georgia requires that a primary parent be designated. This designation impacts several non-custody issues such as child support and how the child is claimed for income taxes.

Do you and your wife agree regarding legal custody? In Georgia, legal custody, access to child related records and decision making for a child, must be addressed separate from physical custody. It is important that an agreement regarding custody is a comprehensive agreement that includes all custody related issues appropriately drafted, signed, and filed within the court system.

Do my wife and I agree regarding a parenting time schedule?

Connected to the above item, do you and your wife agree regarding the specific schedule for the children; when they spend time with each parent? This does not just refer to the day-today schedule but also all holidays, school breaks, and summer vacation.

Do you agree who is responsible for transportation for the children? Do you agree on holiday travel, out-of-state travel, and out-of-country travel? What happens if someone is late for a custody exchange? What happens if someone wants to use a proxy for custody exchanges?

A simple agreement that parenting time will be week on/week off or every other weekend is insufficient. Unless you comprehensively address all custody related issues, I recommend you utilize the assistance of an experienced Atlanta child custody attorney.

Am I conformable familiarizing myself with the appropriate state and local rules?

Whether an agreement is reached or not, knowledge of both state law and local rules are essential. There is certainly nothing wrong with you conducting your own research and representing yourself. All Georgia statutes are available online to view at no charge.

However, the Georgia code is laborious to navigate and even when you do find law relevant to your case it is often difficult to figure out how to apply the law. There is 100+ years of previous judges’ various interpretations of law that impacts application of even the simplest statute.

You also must be familiar with all the appropriate court rules. This includes the Uniform Superior Court Rules, which is a separate list of rules and regulations in addition to statute, local court circuit rules, and rules for individual judges. While it is not impossible for a non-lawyer to familiarize himself with everything, it is an onerous undertaking and the consequences for a mistake or omission can be severe.

While in court, I have seen several people attempt to represent themselves who ended up getting their cases dismissed due to mistakes. They had to re-start the entire case, re-file all paperwork, re-pay all filing fees, and hope everything is correct the second or third time. Even factoring in the expenses of legal representation, it is more cost effective to get the case right the first time as oppose to trying repeatedly on your own.

Am I comfortable negotiating on behalf of my interests?

If your matter is contested, meaning there is no agreement regarding custody, it is your responsibility to engage in negotiations with the other side and attempt to resolve your case before going to court. While no court system will force you to accept a settlement and give up your day in court, almost every court in Georgia will require that you at least attempt to reach a negotiated resolution prior to trial.

This is a very harrowing endeavor for many people. Haggling at a car dealership is difficult enough on its own, imagine engaging in the same when your relationship with your children is on the line. Too often, parents without lawyers feel like they must settle so they accept whatever offer is presented to them.

Attorneys are aware of this and too many take advantage of non-represented parties. Other people struggle to remove the emotion from the negotiations and feelings of anger, frustration, and betrayal obstruct their ability to effectively negotiate. If you are mandated to negotiate, you need every tool available to maximize your negotiating effectiveness. Quality legal representation will bring those tools.

Can I effectively argue my contested case without an Atlanta child custody lawyer?

If your matter is contested, and you are unable to reach a negotiated agreement while the case is pending, you must argue your case at trial. While you can represent yourself at trial, this can be very difficult, and I strongly advise against it.

Not only do you need to be to be familiar with the law, local rules, court procedure, and court rules, but you also must be familiar with evidence rules. The rules governing the admissibility of evidence is one of the most complicated and nuanced areas of all law. Law students spend an entire year studying evidence and it is a major part of every bar examination.

Despite this, the judge is going to expect you to be an expert in evidence rules to the same level as an attorney. I once observed a corporate lawyer who was unfamiliar with the law relevant to his case, unfamiliar with the preferences of the judge handling the case, and he also made errors regarding important procedural matters. He lost his case and I firmly believe he would have won if he had experienced representation.

It is not fair but that is the reality you face entering court without a lawyer. Court procedure and rules are not as simple as “Law and Order” and “Judge Judy” make them out to be.

Can I afford an Atlanta child custody attorney?

This is a difficult question and one only you can answer. You know your finances better than anyone else and you know what you can and cannot afford.

At the same time, I want to reframe the question in a way that I think is more apt: Can you afford to not have a lawyer? Litigation can be costly in some cases, but the consequences of not having quality representation is even more costly.

Even in cases settled via negotiations, lack of representation can result in your case being dismissed. In contested matters, representation is even more important. Years from now, you do not want to look back at your custody fight and say you didn’t do everything you could. Reach out to Cordell & Cordell today and schedule an appointment with one of our Atlanta divorce attorneys. Find out your rights and explore the financial options available to you. Once you have done this you can make an informed decision regarding whether you need an attorney.

Atlanta Fathers Rights

Written by Joseph E. Cordell on .

About 140,000 children are adopted every year, and it’s likely you have read an article about the struggles a mother faces throughout her life because of a very personal, heart-wrenching decision to give a child up for adoption.

However, what is often omitted is how the fathers rights were ignored as those men were denied the opportunity to exercise any custody rights.

In the last few decades the antiquated belief that a father could not raise children alone has provoked almost every state, including Georgia, to provide for dads rights of minor children subject to adoption. Yet there is still not enough protection of fathers rights in Atlanta.

Although the law has come a long way from the antiquated views that afforded fathers no rights in objecting to an adoption, the rules of the game still depend largely on the willingness of the mother to disclose the father’s identity.

In fact, the only other way a putative father in Georgia, who does not know that he is a parent, can receive notice of an adoption proceeding is to sign up on the state registry.

If he does not, he will not receive notice of adoption actions, the mother will not have to obtain his consent to an adoption, the state will presume he abandoned the child, the state may terminate his parental rights, and he will be barred from declaring himself the father in a paternity action.

Get help with dads rights in Atlanta, Georgia by arranging a meeting with a Cordell and Cordell mens divorce attorney. Please call 1-866-DADS-LAW.

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Are Gifts Between Spouses Subject To Division In A Georgia Divorce?

Written by Joseph E. Cordell on .

Throughout a marriage, couples will often provide gifts to one another. Sometimes these gifts may be of substantial value, such as jewelry and electronics.

When a couple divorces, it is not uncommon for a spouse to contend that a particular item received as a gift from their spouse is his or her separate property, and should therefore not be included in the division of marital assets.

This common presumption is legally incorrect under current Georgia case law.

In Georgia, if a spouse receives a gift from a third party (someone other than their spouse), and the gift was specifically intended for that spouse (the gift cannot have been intended to the marital couple), then that property shall remain the separate property of the party that acquired it, and that property is not subject to equitable division in the divorce. McArthur v. McArthur, 256 Ga. 762 at 763 (1987), citing Bailey v. Bailey, 250 Ga. 15 (1982).

This is not always the case, however, with respect to inter-spousal gifts. In Georgia, if the property is acquired by one spouse as the result of an inter-spousal gift of marital property, the property retains its status as marital property. Avera v. Avera, 268 Ga. 4, (1997), citing McArthur v. McArthur, 256 Ga. 762, 763 (1987).

Generally, this means that if a gift was purchased with marital funds, then the particular gift remains a marital asset subject to equitable division in the divorce proceeding. If the gift is particular to one of the spouses (for example, an item of jewelry given as a birthday gift), then that spouse will likely retain that asset.

However, the value of that gift will probably be taken into consideration upon a division of the marital estate.

Georgia capital building with a golden dome stands prominently under a blue sky, framed by lush foliage in a city environment.

Georgia Resources

Written by Joseph E. Cordell on .

Read through our Georgia divorce and child custody articles to better understand the road ahead. Educating yourself about the divorce process in Georgia will improve your ability to communicate with your divorce lawyer, which will go a long way toward helping you reach your goals in Georgia Family Court.

Georgia Divorce Process

While every Georgia divorce case presents unique issues and challenges, the overall process is the same.

Filing a Complaint

The person seeking the divorce (the “plaintiff” or “petitioner”) begins the process by filing a Complaint for divorce in the appropriate Superior Court. This document contains information about the marriage and the parties, such as:

  • Current living arrangements;
  • Children of the marriage;
  • Marital assets and debts; and
  • Specific reason(s) for seeking a divorce.

In a no-fault divorce, the complaint must state that the parties are living in a bona-fide state of separation with no hope for reconciliation. Spouses who still live under the same roof during a divorce may still be considered separated as long as they are not having sexual relations.

Service of Process

The other spouse (the “defendant” or “respondent”) must receive service of the complaint by a sheriff of the appropriate county. They may also acknowledge service by signing a specific document in the presence of a notary public.

Temporary Orders

After the filing, a party may seek a temporary hearing for issues that need to be addressed immediately, such as:

  • Child support;
  • Child custody and visitation;
  • Spousal support; and
  • Payment of marital obligations like house, car, and credit card debt.

These temporary orders remain in effect until the divorce becomes final.

Gathering Evidence

Both parties in a divorce may seek evidence from the other party, such as financial records and documents showing how assets were acquired, in a process known as discovery. They may also pursue additional discovery, such as subpoenaing documents from a non-party (e.g., banks, or other financial institutions) or conducting depositions of witnesses to find out what they might say at trial.

Settlement or Trial

Courts encourage divorcing parties to make every effort to reach a settlement agreement and typically order the parties to attend mediation before having a trial. If the parties can settle every issue in the divorce, they can present their agreement to the court as a final divorce order. If not, they might need a final hearing on some or all issues.

Related Article: What to Know When Filing for Divorce

Georgia Residency Requirements

Generally, at least one spouse must be living in Georgia and have lived in Georgia for at least six months prior to filing a Complaint for Divorce. The Complaint for Divorce should be filed in the Superior Court of the defendant’s county of residence with the defendant’s consent, or if the defendant had previously lived with the plaintiff and has been gone for less than six months, the complaint may be filed in the plaintiff’s county of residence.

Grounds for Divorce in Georgia

A man and a woman sit distantly on a couch, with a happy golden retriever between them in a bright, modern living room.

In Georgia, there are 13 grounds for divorce. One ground is “irretrievably broken,” which is known as the “no-fault” ground.

The remaining 12 grounds for divorce are considered the “fault” grounds. The fault grounds are typically used when trying to allege some misconduct by the other party, including adultery. Adultery in Georgia includes sexual relations between one spouse and another individual.

Other “fault” grounds include:

  • Desertion;
  • Mental incapacity at the time of marriage;
  • Impotency at the time of marriage;
  • Force or fraud in obtaining the marriage;
  • Conviction and imprisonment for certain crimes;
  • Mentally or physically cruel treatment;
  • Habitual intoxication or drug addiction; and
  • Mental illness.

Georgia Property Division Process

A gavel on a stand in the foreground with two hands exchanging a miniature house in the background, suggesting a legal aspect of real estate transaction.

Georgia uses the “equitable distribution” model of property division. State law identifies two kinds of property in divorce cases:

  • Marital property: Most property acquired during the marriage
  • Separate property: Property acquired by one spouse before the marriage or property they acquired at any time as a gift or through inheritance

“Equitable distribution” means that courts look for a fair way to divide marital property between the parties. It does not necessarily mean an “equal” or 50/50 division. Factors that a court may consider include:

  • Each spouse’s financial condition;
  • Each spouse’s contributions to the marriage and marital property;
  • The length of the marriage;
  • Whether either spouse cares for children born into the marriage; and
  • The parties conduct during their marriage.

Georgia Child Custody Laws

In Georgia, there are two types of custody: legal and physical child custody.

  • Legal custody involves the right to make major decisions about the child’s health, education, religious upbringing, and general welfare.
  • Physical custody means where the children spend the majority of their time. The parent with whom the children spend the majority of their time is typically referred to as the primary physical custodian, with the other parent having rights to parenting time.

Unless one parent is deemed unfit, parties will generally be awarded joint legal custody of the child(ren). Courts usually designate one parent as the primary physical custodian with the right to determine where the child lives.

Related Article: Georgia Child Custody Questions

When making the ultimate determination as to both legal and physical custody at the end of the case, the judge will consider many factors, including the age and sex of the child and the ability of each parent to care for and nurture the child, ultimately using the “best interest of the child” standard.

In Georgia, a child who has reached 14 years of age may make a parental selection, stating with whom they wish to live. However, the best interest standard will still be used, and the judge will not automatically grant the wishes of a 14-year-old.

Related Article: 10 Things That Can Sabotage Your Case

Georgia Child Support

In Georgia, both parents can be required to provide assistance to their children until whichever of these events occurs first:

  • A child reaches the age of 18 years if not in high school
  • Graduates from high school if 18 years or older
  • Reaches the age of 20 years and is still in high school
  • Dies
  • Marries
  • Is emancipated
  • Joins the military

The non-custodial parent will generally be required to provide a reasonable amount of child support to the custodial parent to assist with living expenses. Child support may also include health insurance, payment of medical and dental expenses, and life insurance.

Related Article: How to Modify Child Support in Georgia

Child Support Guidelines are in effect in Georgia. The guidelines are located in the Official Code of Georgia in section 19-6-15. A calculation will need to be made to determine the appropriate amount of child support.

Related Article: Georgia Child Support Calculator

The amount can vary based on various factors, including work-related childcare costs, medical insurance premiums, education costs, significant income of either party, and the time the non-custodial parent spends with the child(ren).

 

Georgia Spousal Support

Spousal support, also known as alimony, is usually only available in Georgia divorces when one spouse has a need for financial assistance post-divorce, and the other parent has the ability to pay for usch financial assistance. Factors that a court will consider when deciding whether to award spousal support include:

  • Length of the marriage;
  • Each spouse’s age and health;
  • Each spouse’s financial situation and ability to support themselves at the living standard they enjoyed during the marriage; and
  • Non-financial contributions that either spouse made to the marriage.

A court order for spousal support can specify how long one spouse must pay support to the other. It can also state that the support obligation ends when certain events occur, such as the spouse who receives support remarries.

Related Article: Will I Have To Pay Alimony?

With so many complex issues, it is important to consult with an attorney who can help protect and advocate your rights.

Why Work With Cordell & Cordell

Cordell & Cordell has advocated for people involved in divorces and other family law disputes for over thirty years. We believe in fighting stereotypes in the judicial system and providing a level playing field for everyone.

“[My Attorney’s] ability for depositions was great. He’s really good with questions and keeping things on track and organized mentally. He’s a great attorney.” — Jonathan U.

“Communication was really, really, really, good. I appreciated how I was kept informed throughout. They were always checking in on me to see if I had any questions or needed anything. Everything was great.” — Benjamin C.

Protect Yourself and Your Family

Cordell & Cordell is a national law firm helping clients with various family law issues. This page is a resource and should not be taken as legal advice. To learn more about the services we offer, contact us at 866-323-7529 or through our online contact form.

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Georgia Child Support Laws: Retroactive Child Support Explained

Written by Joseph E. Cordell on .

Sometimes a father does not learn that he is the child’s biological father until years after the child’s birth.

Sometimes, an unwed father is actively engaged with the child from his or her birth, but perhaps does not provide regular, fixed-dollar amounts of financial support on the child’s behalf.

Sometimes, an unwed father provides substantial support to his child from the date of conception, both emotional and financial.

In any of the previous referenced scenarios, the father may ultimately be forced to respond to the mother’s decision to request a court order requiring the father to pay a fixed amount of monthly child support. Fathers in this predicament will oftentimes ask whether or not they will be required to pay “back child support” or “retroactive child support.” These child support payments are also known as “arrears”. We dive further into Georgia child support arrears laws below.

Does Georgia Have Retroactive Child Support?

Georgia does not have a law that requires a parent in these circumstances to pay retroactive child support arrears. This means that if you are ultimately required to pay Georgia child support arrears pursuant to a court order, then the court will not necessarily require you to pay to the mother the amount of monthly child support that you may have otherwise been required to pay from the date of the child’s birth to the present.

Back child support in Georgia is not necessary because the Georgia Child Support Statute only provides for prospective child support, which means child support beginning from the date that the court enters the order. There is case law in Georgia, however, that permits a custodial parent to request that the court require the non-custodial parent to pay what is referred to as “past due expenditures” incurred on the child’s behalf both during pregnancy and post-pregnancy.

However, once child support is ordered by the Georgia courts, there is no statute of limitations on the payment arrears. This means that if you are ordered to pay child support and then miss your payments, they will never expire.

Georgia Retroactive Child Support Case Law

This requirement originates from a Georgia law that states it is “the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child” until he or she reaches the age of majority, except to the extent that the duty of one parent is otherwise or further defined by court order. See O.C.G.A. § 19-7-24.

In 1990, the Georgia Supreme Court addressed the issue of whether or not a mother may request that a court order the father, after paternity is established, to reimburse her with back child support for expenses that she incurred on the child’s behalf prior to the establishment of a court order. Weaver v. Chester, 195 Ga. App. 471 (1990).

In this case, the court held that the mother is legally authorized to make such a request; however, she may only request reimbursement of those expenses to the extent and amount that she actually incurred. Id. at 473.

The fact that the mother could have incurred more expenses had the father been involved (presumably, with an income or financial means to lend financial assistance to the mother on the child’s behalf) is not a valid basis to request an amount greater than the sums actually fact incurred.

The decision in this case means that provided the mother can establish the amount she incurred for pregnancy related medical expenses, and other necessary expenses on the child’s behalf prior to the establishment of a court order, then she is authorized to request that the court order the father to pay for these expenses after paternity is established.

Some of the Georgia trial courts interpreted the Supreme Court’s decision in Weaver v. Chester to mean that a father could be 100 percent responsible for the mother’s pregnancy and birth-related medical expenses.

For example, in the case of Coxwell v. Matthews (a case decided approximately three years after Weaver v. Chester) the Georgia Supreme Court affirmed a lower court’s ruling in which it granted a mother, in a paternity action, $15,458.98 in pregnancy and birth-related medical expenses. Coxwell v. Matthews, 263 Ga. 444 (Ga., 1993).  In this case, the mother requested $15,458.98 and received an order granting her all sums requested.

In affirming the lower’s court’s decision, the Georgia Supreme Court reasoned, “that the duty to protect and maintain a child includes the duty to ensure that the child receives adequate medical care prior to and during birth.” In this case, the Georgia Supreme Court did not address the apparent unfairness in the lower court’s decision to order the father to pay for 100 percent of the mother’s pregnancy and birth-related medical expenses.

A more recent Georgia case, however, has substantially narrowed the father’s financial responsibility in these circumstances. In Smith v. Carter, a 2010 case, the Georgia Supreme Court held that under the current Child Support Guidelines, when considering a request by the mother for reimbursement of past due expenditures incurred on the child’s behalf to include pregnancy-related medical expenses and necessaries incurred in raising the child prior to the establishment of a court order, the lower courts must now take into consideration the mother’s income. Smith v. Carter, 305 Ga. App. 479 (2010).

This means that neither the mother nor the father is exclusively responsible for the child’s expenditures incurred prior to the establishment of a court order; instead, the courts are required to review reimbursable expenses incurred by the mother and allocate responsibility after taking into consideration both parent’s incomes.

Retroactive Child Support Summary

To conclude, Georgia does not provide for “retroactive child support” or “back child support.”

Rather, prior to the establishment of a Child Support Order, the father may be responsible for the mother’s pregnancy and birth-related medical expenses, and subsequent expenditures for necessaries incurred on the child’s behalf, only to the amount the mother actually incurred.

Prior to ordering the father to pay for any of these expenditures, the court is required to take into consideration to both parent’s incomes.

If you want to learn more about divorce issues in Georgia, check out our Georgia Resources Page. If you’re ready to take the next step, contact a Cordell & Cordell Georgia attorney today.

Potter Diona

Diona M. Potter

Written by Abby Johns on .

Marietta divorce attorney Diona M. Potter enjoys practicing family law because of its complete lack of monotony. Anything can happen on any given day.

“I know that, at the end of the day, what I’m doing affects my client’s life, not only in the short term but for the future,” Ms. Potter said. “I will do my best to help them craft the best possible future.”

Ms. Potter believes preparation is key when it comes to practicing family law. If anything, she over-prepares because every case is so fact-specific.

“Even in the best of circumstances, the process is difficult,” she said, “but I am here every step of the way to guide you and get you through it.”