Prenuptial Agreements

Premarital agreements, also called prenuptial agreements or “pre-nups”, are a common legal step taken before marriage. A pre-nup establishes the property and financial rights of each spouse in the event of a divorce. No one wants to be thinking about a divorce when they are planning to get married, about one half of all marriages in America end up in divorce proceedings.

It is sensible to consider a prenuptial agreement?

Pre-nups are used to protect the assets of wealthy spouses, but also can protect family businesses and serve other important functions.

Why Use a Prenuptial Agreement?

There are several reasons why a person or even a couple may want to sign a valid prenuptial agreement prior to getting married. In general, a prenuptial agreement protects assets that may otherwise be subject to marital property laws. A prenuptial agreement may be used to:

  1. Protect one party from taking on the debts of the other
  2. Protect specified assets of one party
  3. Determine the manner in which property is passed on after death
  4. Simplify property division in the event of divorce; and
  5. Clarify financial responsibilities of the parties.

The Pros and Cons of Prenuptial Agreements

Entering into a prenuptial agreement should never be taken lightly, especially since the very mention of a pre-nup suggests the possibility that the marriage may end at some point.
Discussing a prenuptial agreement also can create stress in a relationship. Therefore, deciding whether to implement certain financial conditions and designations of separate property while also planning nuptials is a personal decision.

There are some pros and cons that you need to consider first.

Pros

  1. Support your estate plan without future court involvement;
  2. Make certain financial agreements with your spouse official;
  3. Protect the family business and its assets;
  4. Fewer property conflicts during a divorce; and
  5. Avoid shared debt liability.

Cons

  1. Can create distrust and dull the relationship;
  2. Certain elements of the pre-nup may already be addressed by state law;
  3. Cannot address child support or child custody issues in a pre-nup;
  4. A judge may rule parts of the pre-nup unenforceable, depending on the relevant facts in the case; and
  5. Non-monetary matters, such as chores and tasks, cannot be addressed in a Pre-nup

What Makes a Prenuptial Agreement Invalid?

A prenuptial agreement may be considered invalid under a number of different conditions and scenarios.

  1. First, a pre-nup must be written and signed by both parties and properly executed.
  2. Next, a pre-nup that was signed under “duress” or not even read prior to signing (as part of a package of documents requesting signatures, for instance), then it may not be considered valid. Other reasons a state may not recognize a prenuptial agreement includes a lack of independent counsel (for each spouse), false information, and unconscionability.
  3. Furthermore, under O.C.G.A. § 19-3-63, Every marriage contract in writing, made in contemplation of marriage, shall be liberally construed to carry into effect the intention of the parties and no want of form or technical expression shall invalidate the same.
  4. And, finally the contract must be attested by at least two witnesses.

Divorces

Civilian Divorces

A divorce in Georgia can be simple or very complex depending on your situation. A simple divorce is non-contested, meaning that both parties agree to the terms. However, a complex divorce is contested and may even go to trial, wherein the judge will decide the terms of the final divorce decree.

To begin, you must file for divorce in the county of residence. If a non-resident wants to file for divorce against a spouse who has been a resident for six months prior, the paperwork needs to be filed in the Superior Court in the county where the spouse lives. In Georgia, the petition for divorce must state the grounds upon which the divorce is being pursued. The grounds for divorce must be lawfully appropriate in the state of Georgia which falls under two categories. In a non-contested divorce, the parties agree upon and can substantiate their reasoning, and in a contested divorce the spouse that is filing has to prove their reasoning to the court. A “No-Fault” ground basically states that the “marriage is irretrievably broken,” meaning that neither spouse is at fault. Under Georgia Law, the court cannot grant a divorce on this ground until 30 days from the date of service on the respondent.

A “Fault” ground states that the “marriage is broken” on one of twelve grounds, including:

  1. Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
  2. Mental incapacity at the time of the marriage;
  3. Impotency at the time of the marriage;
  4. Force, menace, duress, or fraud in obtaining the marriage;
  5. Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;
  6. Adultery in either of the parties after marriage;
  7. Willful and continued desertion by either of the parties for the term of one year;
  8. The conviction of either party for an offense involving moral turpitude, under which he/she is sentenced to imprisonment in a penal institution for a term of two years or longer;
  9. Habitual intoxication;
  10. Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health;
  11. Incurable mental illness; and
  12. Habitual drug addiction.

The above list can be found under (Georgia Code – Sections: 19-5-3)

The spouse filing for divorce is known as the Petitioner, and the spouse that receives the divorce papers by service is known as the Respondent. There are a number of documents that are required to be filled out and filed with the court from the beginning of the case throughout the pendency of the matter. The number of documents is based on many factors including, but not limited to, child custody/support, alimony, and personal assets.

Military Divorces

While military divorces are no more complicated than civilian divorces, there are special rules and requirements that apply to U.S. service members and their spouses when they divorce. These differences may affect matters of compliance, service of process, residency or filing requirements, and division of military pensions.

Military Divorce Laws

Military divorce is governed by both state and federal laws. For example, federal laws may affect where divorcing couples end up in court or how military pensions are divided, whereas state laws may affect how alimony and spousal support may be issued.

Active-duty service members are generally protected from divorce proceedings in most cases. Under the Service Members Civil Relief Act (SCRA), U.S. servicemen and women cannot be sued or begin divorce proceedings while on active duty or for 60 days following active duty (at the discretion of the court). This is so military service members may devote their time and energy to defending the Nation.

Jurisdiction

Before a court can grant a divorce to military members or spouses, it must have “jurisdiction” to hear the case. Jurisdiction is generally the place where the person lives. However, for military personnel, jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else.

Service of Process

Under O.C.G.A. § 19-5-2, No court shall grant a divorce to any person who has not been a bona fide resident of this state for six months before the filing of the petition for divorce, provided that any person who has been a resident of any United States army post or military reservation within this state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the United States army post or military reservation; and provided, further, that a nonresident of this state may file a petition for divorce, in the county of residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.

Military members have legal timing protection from divorce proceedings that are not established for civilians. Under the Service Members Civil Relief Act military members are protected from lawsuits including divorce proceedings so they can “devote their entire energy to the defense needs of the Nation.” A court can delay legal proceedings for the time that the service member is on active duty and for up to 60 day following active duty.

Military Pensions and Benefits

Like civilian retirement benefits, military pensions are subject to division between spouses in the event of divorce. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), state courts may treat military retirement pay as either sole or community property depending on the state. While the USFSPA does not provide a formula for dividing the amount of retired pay, the amount is generally determined and awarded under the specific state laws.

Payment of the former spouse’s share of military retirement is paid directly by the Defense Finance and Accounting Service (DFAS) to the former spouse if there was at least 10 years of marriage that overlapped with 10 years of military service (known as the ten-year rule).

Regardless of the length of marriage, however, a court may still authorize direct payment
to a military spouse who has been married for less than 10 years as an offset, except payment would come from the retiring spouse rather than from the DFAS.

In addition to pension benefits, spouses of former military personnel are also eligible for full medical, commissary and exchange privileges when:

  1. The couple was married for 20 years or more
  2. The service member has performed at least 20 years of creditable service toward retirement pay
  3. There was at least a 20 year overlap of marriage and military service

Spousal and Child Support

The military has special rules concerning spousal maintenance (alimony) and child support. These rules are designed to ensure a service member’s family support obligations beyond a divorce or separation.

A court may enforce spousal and child support obligations in a number of ways including by:

1. Court-order

2. Garnishment

3. Voluntary or Involuntary Allotment

A court may also require the providing spouse to maintain life insurance that would cover child or alimony support payments for a specific period. It is always best to consult with an attorney if you are contemplating divorce, whether it be contested, non-contested or classified under a military divorce. Let our experienced attorneys discuss your options with you to ensure the best possible outcome.

Annulments

Divorces and annulments both have the same effect, they dissolve the marriage. When people get a divorce, they are still recognized as having been married previously, but an
annulment, is as if the marriage never existed. While some people are placed in such awkward positions, that they simply want to treat the marriage as though it never existed, others may prefer an annulment for religious reasons.

Civil Annulments

Annulments are a form of relief for people who were placed in situations in which they never should have been married. Because civil annulments treat the marriage as though it never existed, a person must have a pretty good reason to obtain one. Typically, one of the following requirements must be met:

1. Fraud or misrepresentation occurs when one of the spouses has lied about something. Misrepresentation of things like the ability to produce children, not being married to anyone else, marrying just to gain citizenship, and being old enough to consent to marriage, are all grounds for an annulment based on fraud or misrepresentation.

2. If one of the spouses hid a major fact, the other may have grounds for an annulment. This could include a substance abuse problem, a felony conviction, children, impotency, or sexually transmitted diseases.

3. Usually, a misunderstanding that constitutes an annulment is based on the desire to have children. This misunderstanding must be substantial to the marriage to constitute grounds for an annulment.

4. If one of the spouses is incurably impotent, the other spouse has grounds for an annulment, as long as that spouse was not aware of the impotency prior to the marriage. Two people who are too close in familial relation to marry also have grounds for an annulment. This could include whole or half siblings, first cousins, parents, grandchildren, aunts, uncles, etc.

5. Both parties must have the mental capacity to consent and must consent voluntarily to the marriage. If a party was forced or threatened into the marriage, the marriage can be annulled. One lacks mental capacity to consent to the marriage if they were insane or intoxicated at the time of the marriage.

These things are usually discovered early on in the marriage, and so, there is typically no need to divide property or decide on issues regarding children. However, under O.C.G.A. § 19-4-1 Annulments of marriages declared void by law may be granted by the superior court, except that annulments may not be granted in instances where children are born or are to be born as a result of the marriage.

Religious Annulments

While the courts have their grounds for obtaining an annulment, the grounds for obtaining a religious annulment are different. However, both types of annulments have essentially the same effect, the marriage is treated as though it never existed.In the Catholic Church, a diocesan tribunal, not a court of law, decides whether the marriage bond was less than a covenant for life, because it was lacking in some way from the very beginning. Either or both parties may obtain an annulment if they can show adequate grounds that the marriage was majorly lacking in some way. Grounds for finding that the marriage was lacking include a lack of:

1. Openness and honesty

2. Maturity

3. Voluntarily entering the marriage

4. Appropriate motivation

5. Emotional stability

6. Capacity to establish a loving marital community

If the tribunal grants the annulment, then both parties may remarry in the Catholic Church. Many churches do require, however, that a party from an annulled marriage undergo counseling before remarrying to ensure that the same mistakes are not made again. Like in a court of law, the legitimacy of the children of an annulled marriage is not questioned.

Alimony

Alimony or spousal support is not an absolute right in Georgia but can be agreed to by both parties and/or awarded under certain circumstances. Alimony can be rehabilitative, permanent, or a lump sum. Also, it can be awarded on a temporary basis during a case. There can be tax ramifications regarding alimony, and therefore the way it is structured is of critical importance to avoid unintended consequences. The State of Georgia does not have alimony guidelines or alimony calculators. Rather there are factors that the judge or jury shall consider. According to O.C.G.A. §19-6-5, the finder of fact shall consider the following factors when determining the amount of alimony, if any, to be awarded:

(1) The couple’s standard of living established during the marriage;

(2) The length of the marriage;

(3) The age and the physical and emotional condition of both parties;

(4) The financial resources of each party;

(5) The time necessary for either party to acquire sufficient education or training
to enable him or her to find appropriate employment;

(6) The ability of the payer spouse to support the recipient and still support
himself or herself;

(7) The contribution of each party to the marriage, including services rendered in
homemaking, child care, education, and career-building of the other party; and

(8) The condition of the parties, including the separate estate, earning capacity,
and fixed liabilities of the parties.

The courts have broad discretion in determining whether to award alimony and, if so, how much and for how long. Different judges and juries in different counties may give drastically varying awards. Experienced attorneys in family law, such as our firm’s lawyers can help you determine what appropriate amount of alimony, if any, is a likely result given the particular circumstances of your case.

Property Settlements

Marital property is defined in Georgia as “that property acquired as a direct result of the labor and investment of the parties during the marriage.” Courtney v. Courtney, 256 Ga. 97 (1997). When discussing property settlements in connection with marital property in a Georgia divorce, one must first determine what property is considered marital and what property is separate.A prenuptial agreement would play a big role in this determination. If there is not a prenuptial agreement the property and assets become a question for the court, and whether a particular item is marital or non-marital is often a question for the trier of fact.

Franklin v. Franklin, 267 Ga. 82 (1996).A spouse can convert separate property to marital property by changing title from individual to joint ownership during the marriage, in which case a court would presume that the spouse intended to make a gift of the property to the marriage. Where both spouses have contributed to an asset that increases in value during the
marriage, Georgia follows the “source of funds” rule, which requires dividing the asset—or the value of the asset—in proportion to the contributions of marital and separate property.After sorting out what property is to be divided, the couple, or the court, will generally assign a monetary value to each item. Couples who need help determining values can hire professional appraisers. Spouses can divide assets by assigning certain items to each spouse, or by selling property and dividing the proceeds.If a division of the property and debts cannot be agreed upon the court will decide.The following individual facts and circumstances help in the determination of the division:
1. The length of the marriage;

2. The standard of living during the marriage;

3. The age and health of each spouse;

4. The source, type and value of the property;

5. Each spouse’s needs, considering both present and future opportunities to gain
income and assets;

6. One spouse’s contribution to the increased earning power over the other;

7. Each spouse’s service as a parent, wage earner or homemaker; and

8. The living arrangements for the couple’s children.

The court looks at each of these factors, beginning with the length of the marriage. Generally, the longer a couple was married, the closer to an equal division of the assets and debts will be ordered.

Legal Separations

Generally, a legal separation involves spouses who live apart according to the terms of a court order or a separation agreement. Legal separation provides for certain protections.
Spouses who separate “informally” are still liable for their spouse’s debts and financial obligations, even though they are no longer living together in a state of marriage.Although Georgia law does not recognize the concept of legal separation, it does not prohibit couples who are not ready to engage in the divorce process.For those who wish to separate, but do not wish to begin divorce proceedings, there are two options, Informal Separation and Separate Maintenance. Couples may wish to separate, but remain married, also known as an informal separation,to retain certain benefits from their spouse:

1. To meet the 10-year requirement for social security benefits. If a marriage has lasted 10 or more years, a divorced spouse may be entitled to social security benefits equal to the greater of:

1) those based on his or her work history, or
2)50 percent of what his or her ex-spouse is entitled to, based upon that spouse’s work record.

2. To continue receiving health insurance benefits under the other spouse’s health plan. Once a couple divorces, most employer-sponsored health plans will no longer cover the employee’s ex-spouse. Thus, couples may opt to remain separate so that a spouse with preexisting medical conditions or who is in need of medical care does not lose medical insurance coverage.

3. To take advantage of potential tax benefits from filing jointly.

4. To retain certain military benefits.

A Separate Maintenance action is similar to a divorce in that it addresses issues, such as child custody, child support, and alimony. Under Georgia Law spouses may live separately or in a bona fide state of separation while there is no action for divorce pending. To be granted a legal separation, either party on their own behalf or on behalf of the minor children in the party’s custody may establish a proceeding in court by means of a petition. Once the petition is filed, upon three days’ notice to the other party, the judge may hear the same and may grant such order as he might grant were it based on a pending petition for divorce, to be enforced in the same manner, together with any other remedy applicable in equity, such as appointing a receiver and the like. Should the petition proceed to a hearing before a jury, the jury may render a verdict which shall provide the factual basis for equitable relief as in Code Section 19-6-9. However, such proceeding shall be held in abeyance when a petition for divorce is filed bona fide by either party and the judge presiding has made his order on the motion for alimony. When so made, the order shall be a substitute for the aforesaid decree in equity as long as the petition is pending and is not finally disposed of on the merits. O.C.G.A. §19-6-10

Post Decree Modifications

After a party has a final order and needs to enforce it based upon a divorce decree or settlement, or there needs to be a change to the financial or custodial terms, and the party is unable to enforce the order can file a Contempt Motion or a Modification Action. A Contempt Motion is a request for the Court to enforce the final order and to punish the offending party. A party is in “contempt” when they refuse to honor the final order. When filing for Contempt it is a continuation of the case that a final order has been issued in. It is not a new lawsuit. Wherefore, in Georgia, the Contempt Motion must be filed in the same court where the final order was issued. Some examples include enforcing child support obligations or visitation rights. The only way to file a contempt order is to show evidence that the contempt on behalf of the other party is “willful”. A modification is a new lawsuit. The petitioner is requesting a change to the financial and/or custodial terms of the previous order.A party can file a modification for multiple reasons including:

1. Alimony;

2. Child support; and/or

3. Custody.

Although, there are certain types of property division and alimony, such as a “lump sum”, that are not subject to modification. To seek a modification of custody or child support, one must prove in court that there has been a material change in circumstances. Take note that the court has the discretion to modify visitation without a change in circumstances under O.C.G.A. § 19-9-3(b).

Child Custody/Support

Georgia’s child custody laws have its own set of regulations that judges must follow in awarding custody. Georgia, like many other states, consider the “best interest of the child(ren)” when determining custody issues. Georgia law states, “Both parents are equal when it comes to child custody arrangements.” The court may award joint legal custody or sole legal custody. In Georgia’s child custody laws, two types of custody will be awarded: legal custody or physical custody. Legal Custody is the right to make all major decisions regarding the child(ren). Joint legal custody gives both parents equal rights and responsibilities to make the major decisions concerning the child(ren), but only one parent is the final decision maker about educational, extracurricular, medical and religious decisions. Physical custody signifies to which parent the child(ren) lives with. Joint physical custody is when both parents share equal contact and time with the child(ren). The state of Georgia says that a child who is 14 years of age or older can make a custody election about which parent they prefer to live with. Although, the judge may overrule the child’s decision if he/she feels that it is not in the best interest of the child. Georgia law requires a parenting plan that must include:

1. Both parents will have access to all of the child’s records and information, including matters concerning educational, extracurricular, medical and religious decisions.

2. A close continuing child-parent relationship and stability in the child’s life is in the best interest of the child.

3. The parent with physical custody will make day-to-day decisions regarding emergency decisions when the child(ren) is residing with that parent.

4. A child’s needs change and grow as the child matures, and parents should consider this in order to minimize future modifications. Unless parents agree or a Judge Orders otherwise, a parenting plan will usually outline the following:

1. How holidays, birthdays, vacations, school breaks, and other special occasions will be spent.

2. How the parents will apportion decision making authority with regard to the child’s education, health, extracurricular activities and religious upbringing.

3. Where the child will spend each day of the year.

4. Transportation arrangements, including how and where the child will be exchanged and how transportation costs will be paid.

5. Whether supervision is needed, and if so, the particulars of the supervision.

6. What, if any, limitations exist while one parent has physical custody in terms of the other parent contacting the child(ren) and the other parent’s right to have access to information regarding the child(ren).

Child support payments are calculated based on a formula. The calculations are based on a number of factors including:

1. The gross income of both parents;

2. Self-employment taxes;

3. Any pre-existing child support orders;

4. Whether either parent is supporting another child; and

5. Health insurance premiums.

In general, child support in Georgia must be paid until the child reaches the age of 18, dies, marries, or becomes emancipated. If a child is in secondary school, child support payments may continue until the child turns 20. To determine how much child support your child(ren) may be eligible for, the Georgia Child Support Commission has provided an online child support calculator.

Paternity

Georgia law demands mandatory paternity testing through the Division of Child Support Services (DCSS) in all newly established child support cases in which paternity has not already been established. Establishment of paternity by DCSS may be processed through a local Superior Court or through an Administrative Court. Establishing paternity for a child in Georgia may be done in one of the following ways:

1. The child’s parents are legally married to each other at the time of the child’s birth;

2. Unwed parents can sign a Voluntary Paternity Acknowledgement Form at: The hospital when the child is born, or later at either The State Office of Vital Records in Atlanta or the Vital Records Office in the county where the child is born.

3. Court order (divorce decree, separation agreement, or other judicial or administrative order).

The Voluntary Paternity Acknowledgement Program was founded by Federal Law in 1988. The Federal Laws regarding this program have been updated several times since its inception to guarantee an easy process to assist unwed parents in establishing paternity and legitimating their child. Legitimation is when a father who has established paternity for his child but has not established his legal rights to the child and is unable to pursue custody and visitation. If a father has not legitimated their child, he/she may be unable to collect insurance benefits or inherit from their father’s estate. By signing the Voluntary Paternity Acknowledgement

Form, the parents are establishing the right of the child to certain benefits including:

1. Two parents who will share a legal responsibility to financially support the child.

2. Two parents whose names will appear on the child’s birth certificate.

3. Two parents with whom the child can establish a bond.

4. The ability to receive social security and other benefits from the father.

There are certain rights and responsibilities that the parents must undertake when signing the Voluntary Acknowledgement Form:

1. The father should NOT sign the form unless he is confident that he is the
biological father.

2. Signing the form is voluntary.

3. The father is accepting the responsibility to provide child support and medical insurance until the child is age 18, or beyond in some cases.

4. By signing the Form, it will be presumed by law he is the father of the child and the child’s birth certificate will be issued to reflect that fact.

5. After signing the Form, either the Father or the Mother has 60 days from the date of signature to cancel the acknowledgment or up to the date of an order establishing paternity, whichever occurs first.

6. If the Form is not cancelled within the 60 days of the signature the Form is presumed by law to be fact.

Parenting Time

The amount of child support is figured based on income only, in Georgia. Parenting time does not normally figure into the formula. Accurate parenting time numbers can directly affect your child support, whether you pay or receive. The court may deviate from its strict child support guidelines on a case-by-case basis when the non-residential parent’s visitation time exceeds what is customary. To calculate parenting time the best and most efficient way is to use software. The leading parenting time calculation software, Custody X Change, can calculate your parenting time correctly. The only way parenting time can influence the amount of child support is to show the court that your parenting time greatly exceeds what is standard. Accurate parenting time percentages are important because Georgia will only consider an adjustment to the child support formula if it exceeds what is considered a normal visitation schedule. The following is what a normal visitation schedule looks like:

1. Alternating weekends;

2. One midweek evening visit or overnight per week;

3. Dividing major holidays and alternating half each year;

4. 30 days during summer break, either consecutive or in segments;

5. Father’s Day or Mother’s Day as relevant, each year; and

6. Alternate years for each child’s birthday.

If you feel that your parenting time exceeds the above schedule, present an accurate schedule to the court for comparison. Georgia law allows for exceptions to be made in the child support amount if you can show you qualify for special consideration, so it is important to keep accurate records. The law states that the court may deviate from the standard child support guidelines when it finds extraordinary time spent with the non-custodial parent, or shared or joint custody arrangements.

Grandparents’ Rights

If you are a grandparent you may ask, “Do I have the right to seek visitation with my grandchild(ren) in Georgia?” The answer is “YES”. Georgia law gives grandparents the right to ask the court for visitation with their grandchild(ren). There are one of two ways to ask the court for visitation:

1. The grandparent(s) may file their own, original court action for visitation with
their grandchild; or There are some limitations to this rule: an original action for visitation
can only be filed once every two years, and they cannot seek visitation with a grandchild that lives with both parents (if the parents have not separated).

2. Grandparents can “join” as a party to an existing legal action including: An action for termination of either parent’s parental rights; Any action concerning the custody or visitation rights of their minor grandchild(ren), i.e. a divorce action between the child’s parents; and
An action for adoption of the child by a step-parent or blood relative. The court can award a grandparent reasonable visitation rights if it finds that the child’s welfare would be harmed if the request for visitation was denied, and visitation is in the child’s best interest.

The Court will take into account the following factors in deciding whether the child will be harmed by denying visitation:

1. Whether the grandparent provided financial support for the child’s basic needs for at least one year;

2. Whether the child lived with the grandparent for a minimum of six months;

3. Whether there was an established pattern of regular visitation or child care provided by the grandparent; and

4. Any other circumstances that indicate emotional or physical harm would be reasonably likely if visitation was denied.

However, Georgia Law gives the child’s parents or legal guardian the right to ask the court to terminate or amend a grandparent’s visitation rights. Good cause must be shown for the change, and the request can only be made once every two years. The court process is similar to the process that parents may go through in custody and visitation issues. Once the Petition is filed with the court for visitation rights, the court may appoint a “guardian ad litem” (a speaker for the child(ren)), and send the parties to mediation (a conference between the parties to come to an agreement on the issues), only if the court finds that the grandparent can afford the cost. More times than not, parties that are sent to mediation can agree on a visitation schedule. If the parties cannot agree, or if mediation was not held, the court will hold a hearing to decide the visitation issue. In Georgia, a grandparent can seek custody of their grandchild(ren), but it is very difficult to win. The court will determine custody based on the child’s best interest, and the court more often than not, presumes that parental custody is in the child’s best interest. A grandparent can refute this presumption with evidence that awarding custody to the grandparent would be in the child’s best interest.

Restraining Orders

A restraining order is your legal way of saying “Stay Away”.Restraining orders, also called protective orders are issued by the court in order to tell people what to do and what certain things not to do. A restraining order may be part of the procedure in civil cases, or if your life or health is threatened by another person, you may want to look at the option of requesting the court for a restraining order. There are four main reasons to acquire a restraining order:

1. Physical Violence: With proven violence acts or threats against you or your children (record conversations or video of such threats) a restraining order can prohibit your spouse or partner from communicating with you. If you live with an abuser, a restraining order may force him/her to move out. If you feel that you are in imminent danger you can request an emergency restraining order from an arresting officer.

2. Psychological Abuse: Threatened harm, either by someone you know or a stalker, is considered psychological abuse- especially when it interferes with your daily life or your ability to do your job. The restraining order can prevent all contact including: mail, phone, email, or even contact through other people.

3. Depletion of Assets- If you can prove that your ex is hiding money or destroying assets to prevent you from acquiring your share, the court may issue a restraining order to prevent further action.

4. Patent and Trademark Infringement- If you are a business owner or an inventor, you may obtain a restraining order during a patent and trademark infringement lawsuit. If you are a victim or a potential victim you must apply to a judge for a restraining order. Although, in a domestic violence situation, a judge may issue a temporary order immediately.

Relocation with a Child Custody Order in Georgia

Some people feel the need to relocate in the aftermath of a divorce, especially if they need family and a support system in place. Georgia law does not specifically address parental relocation other than stating that the party relocating must give the other party 30 days advance notice of the move. Furthermore, Georgia law does not have a presumption regarding distance of the move where it would automatically require either parental permission or cour approval, as is the case in some states. If one parent (the one that has physical custody of the child(ren)) desires to move out of state, and the other parent objects to the move, the objecting parent can petition the court for a modification in custody. The court assesses the situation on a case-by-case basis by determining whether the move is in the best interest of the child(ren). For the court to grant a change in custody, he/she must find that a change in circumstances exists, and this change affects the welfare of the child(ren). Some of the factors that the court considers are:

1. The relationship between the child and each parent;

2. The child’s school history and educational needs;

3. The relationship between the child and any siblings and where those siblings live;

4. Each parent’s knowledge of the child’s needs;

5. The desirability of maintaining continuity in the child’s living arrangements

6. The capacity of each parent to carry out his or her parental duties

6. The ability of each parent to provide for the child’s basic material needs;

7. The safety of the living arrangements of each parent;

8. The stability of each parent’s family unit and the presence of a community support network for the child with each parent;

9. The mental and physical health of each parent;

10. The involvement of each parent in the child’s extracurricular activities;

11. Each parent’s past performance of parenting responsibilities;

12. The willingness and ability of each parent to foster a close parent-child relationship between the child and the other parent; and

13. Any criminal history of either parent or history of domestic abuse. Of course, if the child(ren) is/are 14 years of age or older, the court takes into account where the child(ren) want to live. If a person is considering relocating, and they share custody, it is crucial to address these issues before moving forward.