Do I need a divorce attorney?

by Jon Mills Posted: Monday, 3/25/2013

divorvce-dollarFor many people, the thought of spending their hard-earned money on an attorney for their divorce case is something they would prefer to avoid. Instead, they rely on the standard forms found online and try their luck with the “quick and simple” divorce. Many times, this results in a Mother agreeing to a 50/50 custody split desperately sought by the Father as a method of avoiding a child support obligation.

In a previous action I handled, the Mother and Father agreed to a 50/50 custody split at the time of divorce and neither party had an attorney. At the hearing, the judge told them he would likely be seeing them within twelve months to consider a modification action. The judge was correct, we had to file a modification action for a variety of reasons within the first year because the 50/50 custody split was not working for the child’s best interest. It perhaps helped the Mother receive a quick and simple divorce, but she paid for it in the subsequent months when the custody papers were ineffective. The story is similar for many other litigants who try to represent themselves in a divorce action.

As an attorney who is experienced in domestic relations law, I highly recommend that you never represent yourself in a divorce action. While finances are often times very tight during a separation, money spent on an attorney oftentimes is one of your best investments in a lifetime. If you have minor children or have been married for many years, your divorce will likely be a life-changing event with repercussions to last for many, many years. Abraham Lincoln once said, “he who represents himself has a fool for an attorney.” I think that old adage still holds true today despite the vast array of information available online.

Throughout your divorce, your family law attorney will provide you with guidance, advice, and advocacy to make sure your rights and your assets are protected. In addition to helping you navigate the court system and paperwork, an experienced attorney will work with you to craft an effective strategy —and advise you on managing your interactions with your soon to be ex-spouse.

If you are contemplating representing yourself in a Georgia divorce, I suggest you at least meet with a qualified family law attorney to discuss the issues in your case.  Many times the issues that become the most problematic down the road are the ones that a do-it-yourselfer did not even know existed. At Durden & Mills, PC, we have handled hundreds and hundreds of divorce and custody cases in the past. As your attorney, we can leverage our past experiences to help you obtain the most favorable results in your divorce matter for the immediate and long term future.

If you or a loved one are facing a divorce or in need of assistance in a child support or child custody decision, you need the help of an experienced Georgia family law attorney to guide you through the process.  The experienced family law attorneys at Durden & Mills, PC can assist you. Call us at (706) 543-4708.

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Is it ok to monitor your spouse’s e-mail during a divorce?

by Jon Mills Posted: Monday, 3/18/2013

intercept_e-mailTypically, the answer is NO! While emails, texts, and Facebook posts are being gathered for evidence in an increasing number of contested divorce and custody proceedings, litigants should be cautious. When it comes to collecting this kind of “electronic evidence”, it is not always easy to determine what is fair game and what crosses the line.  Some spouses who are attempting to build a case for divorce may unknowingly expose themselves to criminal and civil liability in pursuit of the proverbial “smoking gun”.

When it’s a matter of a stranger spying on you, the rules for what constitutes an invasion of privacy are pretty clear, but in cases of “inter-spousal” spying there can be significant gray areas. One of the pivotal issues is whether or not your soon-to-be ex-spouse gave you consent to access the electronic device or on-line account. If you never had permission to access their e-mail account and you just happened to “guess” the right password, you are almost certainly not permitted to gain access to the account. On the other hand, if your spouse receives or sends email from the home computer, knowing that you have the ability to read those e-mails at any time, it is unlikely that they have a reasonable expectation of privacy in those e-mails and it seems that you may be entitled to use those e-mails at trial.

Knowing the rules about accessing your spouse’s e-mail and other electronic accounts is important due to the potential for criminal and civil liability. Federal wiretapping laws, the Georgia Computer Systems Protection Act, and the Georgia Electronic Invasion of Privacy Statute regulate the privacy of electronic communications, including the interception of internet and phone communications. These laws are often used to help define the legal limit of high-tech spying and what is permitted versus what is prohibited.  Although not drafted with divorce cases in mind, these laws are absolutely applicable to anyone who engages in conduct that accesses such information without his or her spouse’s knowledge.

The potential criminal liability applies in a variety of circumstances. Under O.C.G.A. § 16-9-93(b), someone who uses a computer to delete or remove, even temporarily, data from a computer without authorization is guilty of the crime of computer trespass. You can be found guilty of the crime of computer invasion of privacy if you use a computer or computer network with the intention of examining any employment, medical, salary, credit or any other financial or personal data relating to any other person with knowledge that such examination is without authority as set forth in O.C.G.A. § 16-9-93(c). Similarly, O.C.G.A. § 16-11-62(4) makes it illegal for anyone to intentionally and secretly intercept by the use of any device, instrument, or apparatus the content of a message sent by telephone, telegraph, letter, or by any other means of private communication.

In addition to possible criminal sanctions, it is also important to know that evidence obtained in violation of these statutes is not admissible in court as provided by O.C.G.A. § 16-11-67. Therefore, not only do you face the possibility of arrest, but you forfeit the benefit of using the damaging evidence in court. Therefore you should consult with a Georgia attorney before taking any such action.

To protect from snooping during a divorce, you should immediately change all of your electronic passwords for e-mail, social media, and financial accounts. It may also be a good idea to have your computer, laptop, or smart phone checked for possible spyware for other suspicious software that could be capturing information for your soon-to-be ex-spouse.

If you are contemplating doing some research about your soon-to-be ex-spouse’s online activity, I suggest you discuss your plan with an experienced Georgia family law attorney.  At Durden & Mills, PC, we have a variety of situations in the past that included the use of private detectives and harvesting of electronic evidence for use in a divorce or custody matter. Please contact us to schedule your free consultation at (706) 543-4708.

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Child Support Calculation in Georgia

by Jon Mills Posted: Wednesday, 12/12/2012

The amount of child support ordered by a Georgia judge may seem arbitrary, but in fact, the state of Georgia imposes the use of an official “Child Support Calculator” to determine what amount of child support is appropriate in each case based on a specific formula, not merely the whim of a judge.  This calculation is designed to help make the entire child support process more fair and less complicated for all parties, but it still can be confusing for anyone not familiar with it. support

Documents

When a judge determines what amount of child support is appropriate for your case, he or she will take a number of documents into account.  The main document is called the Child Support Worksheet and it can be found on the internet through the Georgia Child Support Commission Website.  This document is created by the State and will actually calculate the amount of child support you owe based on the income and expense documentation you input.  Having all of your own financial documents showing your income, assets, health insurance costs for the children, work-related childcare costs, and other expenses will be very important in correctly filling out this document, so make sure you keep good records!

Income 

The child support calculation takes into account what each parent makes individually then uses the total amount of available income to determine what each child of the relationship deserves.  Any income, whether earned or unearned. and even from forms of self-employment  is necessary for this calculation.  Additionally, even if one parent is disabled or otherwise unable to work, that alone will not excuse that parent from making contributions towards the children’s welfare.

The Non-Custodial Parent

After the amount of income from both parents is determined, the worksheet will automatically determine what percentage or share of the total amount the Non-Custodial Parents will owe as child support.  Even if the child or children split their time between both parents, for the purposes of this worksheet, the Non-Custodial Parent is the parent who the children spend less the 50% of their time with.  The court will take into account the amount of time the parent does have custody in determining the child support amount.

Considerations for the Court

Although the Child Support Worksheet makes the calculations automatically, the judge will still have some discretion as to the final amount, however, it is important to note that judges are not required to make deviations from the child support worksheet calculation.  If the judge does decide a deviation away from the presumptive amount is necessary, some things they might take into account would be:

  • Extraordinary health care expenses
  • Extraordinary education expenses
  • Having a very low income
  • Any extraordinary expenses the non-custodial parent is going to have to undertake in order to visit the children
  • Extraordinary child care expenses
  • The best interests of the child

Obviously there are a number of factors, documents, and steps that must be taken in order to ensure the child support amount awarded to your children is the correct amount for your specific situation.  Although the official calculations have helped to streamline the process, having an experienced attorney on your side, whether you’re the custodial or non-custodial parent, is crucial to protect your and your children’s interest.

If you or a loved one are facing a divorce or in need of assistance in a child support or child custody decision, you need the help of an experienced Georgia family law attorney to guide you through the process.  The experienced family law attorneys at Durden & Mills, PC can assist you. Call us at (706) 543-4708.

 

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Fault and No-Fault Divorce in Georgia

by Jon Mills Posted: Monday, 11/5/2012

Fault divorces are relatively rare in Georgia, in part because filing under fault grounds can significantly extend the divorce process – costing you time and money.  However, there are certain instances when filing for divorce under fault grounds can potentially put you in a better financial position once your divorce is complete.

So what is fault divorce?   Prior to the 1970′s, if someone wanted out of a marriage, they had to prove the other spouse at fault for causing the marriage to fail. Thus, the concept of fault implied a moral responsibility for failure. Marital unhappiness, no matter how great, simply did not count. However, starting in California during the 1970′s, states began allowing no-fault divorce where basically all the parties had to say was that there were “irreconcilable differences” and “no hope of reconciliation”.  The social stigma associated  with divorce quickly declined and today, most couples choose to file under no-fault grounds simply because it’s easier, quicker, and often cheaper.

How to Prove Fault Divorce.  In order to prove fault , the filing party has the burden to prove their claim that the other party’s actions were responsible for the failure of the marriage.  This burden may be difficult, but if the filing spouse is able to carry that burden, then there may be some benefits in the distribution of assets.

Georgia is an equitable division of property state and thus presumes a 50/50 split of assets upon divorce, but gives a judge discretion to vary from that presumption in the interests of equity and justice.  One party being “responsible” or “at fault” for the divorce would likely be a factor a judge would consider when dividing the property and the “innocent” spouse may get a larger percentage of the assets because of it.  Additionally, in a case of adultery or desertion, the court can decline to give alimony or spousal support to an adulterous spouse, regardless of their financial situation.

 

If you find yourself facing a difficult divorce, separation, or have questions about divorces in Georgia, you need the help of an experienced Georgia family law attorney to guide you through the process. The experienced family law attorneys at Durden & Mills, PC can assist you. Call us at (706) 543-4708.

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Tips to Avoid Common Divorce Mistakes

by Jon Mills Posted: Monday, 7/23/2012

Navigating the tricky waters of taxes, finances, emotions, and the like during your divorce can be overwhelming.  Besides the obvious sadness that can accompany a divorce, there are many pitfalls, mistakes, and problems that can arise in the technical procedures of divorce – below are a few tips to help you adjust to a better post-divorce future.

TAXES

Taxes can be a tricky issue in a divorce matter. If you are the custodial parent, do not quickly give up the right to claim the dependent tax exemptions for the children unless appropriate financial consideration is provided. Also, if your soon to be ex has self-employment or business income, consider requiring them to be responsible for any back taxes on non-reported income during the marriage.

CLEAN FINANCIAL BREAK

Failing to get a clean financial break from your former spouse can be a nightmare. Clean separation of assets and debts is another difficult task, but one that is absolutely necessary, or the consequences can be devastating. Having an ex-spouse drive up your debt when you are no longer married anymore can seriously affect one’s credit score.

EMOTIONAL ATTACHMENT

The marital residence, the pension your spouse earned, a painting purchased during your marriage – these assets bring an emotionally charged debate to divorce negotiations. The fact is many times parties do not make wise financial decisions due to emotional attachment. Step back and truly consider what certain property is worth in terms of dollars and not just principle.

DO NOT BE A PUNISHER

Do not use your divorce to punish your soon to be former spouse. Not only will this cost you a lot of money, but it will also hurt you and your children a lot.

DO NOT BE TOO GENEROUS

If your marriage is over, no amount of generosity will win your spouse back.

KEEP A JOURNAL

Failing to keep a journal. In a highly contested case, the details of what has happened can be particularly important. A journal that contains all the daily events surrounding the divorce will be invaluable when you need to remember a specific event or want to tell your lawyer what has occurred.

BEING TOO DEPENDENT ON EX

Depending on your former spouse to comply with financial arrangements without some sort of backup plan can have devastating results. Although both parties in a divorce are beholden to a court ordered divorce agreement, creditors do not fall under that arrangement. If your ex spouse is supposed to pay the mortgage, but does not, the lender can still seek foreclosure.  You also need to have a plan in case your ex stops paying the child support for a brief period due to a loss of employment or otherwise.

GOOD ADVICE

Getting divorce advice from family and friends is cheap, but it can be misleading. With a variety of factual circumstances, different courts, and varied judges, the advice of friends and family is not always applicable to your case. Taking action without obtaining quality legal advice can be very risky.  Instead, look to a skilled family lawyer to help you make the correct decisions to protect you and your children’s future.

 

If you find yourself facing a difficult divorce, separation, or have questions about divorces in Georgia, you need the help of an experienced Georgia family law attorney to guide you through the process. The experienced family law attorneys at Durden & Mills, PC can assist you. Call us at (706) 543-4708.

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How does divorce work in Georgia?

by Jon Mills Posted: Thursday, 7/12/2012

Figuring out how divorce works in Georgia can be tricky.  From financial support, child custody, pro se representation, or fault – determining how all these terms fit together for a divorce in Georgia can be maddening.  For those of you who have basic questions about the process to get a divorce in Georgia, we have provided a quick summary of the divorce process. Obviously, not all cases follow the exact same course, so please call an experienced family law attorney at Durden & Mills, PC to discuss your specific situation.

GETTING STARTED

To seek a divorce, you can either hire an attorney to initiate the legal proceeding or you can file “pro se” and do it yourself. Typically, the process begins when the Complaint for Divorce is filed with the Clerk of the Court. Then, the other spouse is served with a copy of the Complaint and Summons. Generally, the court will hold a temporary hearing within the 60 days to address temporary custody (if there are children) and the issues of spousal support. Thereafter, the parties with exchange financial and other information through what is called discovery. Then, the parties might be obligated to attend mediation where the parties try to settle the case out of court. If the parties can not settle the case, then a final trial will be scheduled either in front of a judge or a judge and jury.

DOES IT MATTER ABOUT FAULT?

In Georgia, it is possible to seek a no-fault divorce if your marriage is irretrievably broken with no hope of reconciliation. However, sometimes fault does have an impact on child custody, alimony, and property issues.

FINANCIAL SUPPORT

In Georgia, child support is now determined after considering the income of both the non-custodial and custodial parent under an income-sharing model. Basically, there is a spreadsheet provided by the state that calculates the child support figures based on each parent’s respective income and expenses of the children. In some divorces, the court may also order that one spouse pay financial support to the other for a period of time as alimony.

CUSTODY / VISITATION

In any divorce which involves custody disputes, the court will put the best interests of the children first and it is important for the parents to do the same. Neither the mother nor father have any inherent right to custody, so it will be dependent upon the facts and circumstances of the specific situation as to who will receive permanent physical custody of the children.  It is also important to tailor a visitation schedule that works for the parents and the children.

HOW LONG WILL IT TAKE?

The length of time from start to finish of a divorce action depends upon how quickly you (or your lawyer) finish the paperwork, how easy it is to locate and serve the documents on your spouse, and how many complications there are in the case. An uncontested divorce will generally take between 2-5 months. A contested divorce typically takes between 6-12 months, but can take as long as a few years.

DO YOU NEED A LAWYER?

Divorce is a complex process that affects just about every aspect of your life, from financial to emotional, physical to legal. Unless you’ve been married for only a short time and have no property, assets, or children, you’ll probably need a professional to help get you on track to a healthy, happy post-divorce future. However, our justice system does allow individuals to file pro se and represent themselves. If your spouse has a lawyer, it is usually advisable for you to have one as well. The outcome of your divorce proceedings will change the course of your life forever, so invest the time and money to find the lawyer who will do the best job for you.

If you find yourself facing a divorce, separation, or have questions about divorces in Georgia, you need the help of an experienced Georgia family law attorney to guide you through the process. The experienced family law attorneys at Durden & Mills, PC can assist you. Call us at (706) 543-4708.

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What rights do you have as a father?

by Jon Mills Posted: Friday, 6/29/2012

In Georgia, there is a significant difference between being the biological father and being the legal father of a child. You do not necessarily obtain any rights simply by fathering a child.  Instead, the primary inquiry is whether or not the mother and father are married at the time of birth or if they subsequently marry after the child is born.

Paternity: Who Is The Legal Father?

If a child is born to a married woman, Georgia law presumes that it is the husband’s child. However, if, in fact, the mother’s husband is not the father of the child, things can get complicated. Therefore, it is very important that a woman who is married when she has a child whose father is not her husband immediately begin a legitimation action. Otherwise, the husband will be presumed to be the child’s father. In the past, there have been cases where a mother waits several years before disclosing the “big secret” and by that point the courts do not allow the child’s actual father to become involved in the child’s life because the mother waited too long.

If you are the father of a child born to woman who is married to another man, you MUST promptly pursue your rights or else you could be precluded from doing so in the future. While there is no set rule for how many months or years you have before it becomes too late, it is always best to initiate legal action within the first several months of the child’s life in order to protect your legal rights. In these types of situations, the unwed father possesses an opportunity interest to develop a relationship with the children which can be formally recognized through the legitimation process.  Although this opportunity interest is protected by due process of law and lasts from conception until the child reaches the age of majority, it may be lost if not diligently and vigorously pursued.

If you are the husband and you think your wife has had a child that is not yours, it may be prudent for you to obtain paternity test. While it may be even more appropriate for you to discuss the issue with your wife, the child’s mother is actually not needed to perform the DNA test since only a sample of DNA like that from a toothbrush or hair is needed to complete the test.  In the event you find out the child is not yours, then you should promptly consult with an experienced family law attorney so that you can take appropriate legal action.  Time is of the essence since courts have been reluctant to “de-legitimate” a father who had doubts as to the paternity for several years and only requests a DNA test at the time of divorce to avoid a child support obligation.

Custody and Visitation

Like presumed paternity, the issue of custody and visitation also depends on the mother’s marital status. When a married mother and father have a child, they share all the rights and responsibilities of the child. Georgia law does not provide either parent with more or less rights to a child and therefore either parent has the right to do as they choose with the child, obviously subject to later court intervention.

However, custody and visitation for a child born to an unmarried mother is handled very differently. In that case, the child is considered illegitimate and the child’s father must initiate a court proceeding to legitimate the child before he is eligible to seek custody or visitation rights. Until that time, the mother has all the rights to the child. Therefore, the mother can do whatever she wants with the child and it does not matter what the illegitimate father thinks about it.  O.C.G.A. § 19-7-25 clearly provides that only the mother of a child born out-of-wedlock is entitled to custody of the child, unless the father legitimates the child and until then the mother may exercise all parental power over the child.  One important caveat is in the case of inappropriate behavior by the mother of an illegitimate child.  In that case, the inappropriate behavior  may be grounds for subsequent court intervention, so obviously it is always advisable that a mother act “reasonably” after the birth of an illegitimate child because she may have to explain her behavior to a judge in the future.

Child Support

Many illegitimate fathers mistakenly believe that since they do not have any rights to a child born out-of-wedlock, they are not obligated support the child financially.  However, unless it is decided otherwise by a court, both mothers and fathers have a joint and several duty to provide for the maintenance, protection, and education of their children pursuant to O.C.G.A. § 19-7-2.  Because of this, many illegitimate fathers are still ordered to pay child support even without as designation as the child’s legitimate father or even having the privilege of visitation rights. Therefore, it is often times best for the father to simply acknowledge the child as his own and initiate appropriate legal proceedings so that he can become the legitimate father and have a meaningful relationship with the child instead of simply having a child support obligation.

Inheritance

If the father of the child is not married to the mother, then that child is not entitled to inherit from the father without an appropriate will being executed.  However, after an appropriate court grants the father’s legitimation request, the newly legitimated child may then inherit from the father upon his death.

If you or a loved one has an issue related to a child born out-of-wedlock, the experienced family law attorneys at Durden & Mills, PC can assist you. Call us at (706) 543-4708 for a free consultation.

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How Often Can a Parent Seek a Child Support Modification?

by Jon Mills Posted: Wednesday, 6/6/2012

Generally speaking, a parent can seek a modification of child support any time after the entry of the original child support order IF there has been a substantial change in the financial circumstances (income) of either parent or the financial needs of the child. However, the rules are more complicated after the first modification action.

In Georgia, O.C.G.A. § 19-6-15(k)(2) provides that a parent can not file a petition to modify a child support obligation for two years after a modification petition has been filed by that same parent, subject to a few exceptions. Those exceptions include: (1) the non-custodial parent failing to exercise court-ordered visitation; (2) a non-custodial parent exercising more than the court-ordered visitation; and (3) an involuntary loss of income.

Recently, the Supreme Court of Georgia re-emphasized the harshness of the two year rule when filing a subsequent modification action in Bagwell v. Bagwell, 290 Ga. 378 (2012). In Bagwell, the Father filed his first modification action against the Mother due to a substantial decrease in his income. However, his first petition was dismissed by the trial court after the father failed to comply with standard trial discovery procedures and full disclosure his financial information. Two weeks later, the father filed another petition to decrease his child support obligation. His second petition was denied by the Georgia Supreme Court who reiterated the importance of the two year rule to protect parties from excessive litigation over the same issues. While this decision in particular may sound unfair, it highlights the importance of having competent trial counsel who can help ensure compliance with all court procedures.

Recently, the attorneys at Durden & Mills, PC obtained a similar dismissal as a discovery sanction against a father who was seeking to decrease his child support obligation due to a decrease in his income.  Because the father repeatedly failed to comply with discovery procedures, we were able to have his petition dismissed and now the court is just considering our counterclaim for past due child support as well. Based on the decision in Bagwell, our client should not only receive back child support, but should also not have to worry about another attempt by the father to decrease his child support obligation for two years.

If you are a parent subject to a child support obligation or the recipient of child support for a minor child, you may be entitled to obtain a modification. Since child support modifications are dependent upon the specific financial circumstances of your situation, it is usually best to discuss your facts with an experienced family law attorney. After a brief consultation, we can help you come up with a general idea of what type of child support obligation would be appropriate for your situation pursuant to Georgia law.

If you or a loved one has a pending child support proceeding, the experienced family law attorneys at Durden & Mills, PC can assist you. Call us at (706) 543-4708 for a free consultation.

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Virtual visitation allows out-of-town parents to stay in touch

by Jon Mills Posted: Friday, 5/18/2012

With the current economy and necessity for many parents to relocate to secure employment, the “standard visitation plan” is sometimes not an option. Statistics show that there is a huge number of children who live away from one of their parents. Nearly 9 million children have a parent that lives in a different city, 75 percent of single mothers will move within four years of a divorce or separation, and still another half of those women will move a second time. When circumstances require relocation, an adjustment to visitation is often necessary.  Luckily, with all of the new communications tools at our fingertips, long distance parenting is a lot easier than it used to be. Options to remain connected with your child include Skype or other type of face-to-face video chat program, e-mail, instant messaging, and social media.

Modern technology means keeping in touch through “virtual visitation” provisions are often included in custody orders. While Georgia does not have a specific law concerning virtual visitation, more than twenty-five other states either have current virtual visitation laws or there is pending legislation regarding it. Additionally, given today’s mobile reality, it is only a matter of time before Georgia courts are required to consider virtual visitation as a more standard and necessary visitation option.

While telephone visitation has long been a highly utilized and easy form of visitation for the non-custodial parent, virtual visitation may become much more onerous for the custodial parent since both parties typically must be at their computer at the same time. In some cases, this can be very difficult if the parents reside in different time zones.  However, virtual visitation can also provide that extra visitation opportunity when the option for midweek visitation is not available.

Virtual visitation can be a useful tool for families experiencing divorce, but it is also subject to many rules which protect both children and the parents.  As with face-to-face visitation, protections exist for cases of physical or emotional abuse and a judge may prohibit the virtual visitation if it is shown to be potentially harmful to a child.  Protections are also sometimes necessary to prevent an ex-spouse from using the “virtual visitation” via a program like Skype to have the child give them a tour of the house so the ex-spouse can spy on the other parent or use it for other inappropriate purposes. Obviously, the purpose of the virtual visitation is to allow the non-custodial parent to have additional contact opportunities with the child to develop their relationship and stay up-to-day with each others lives, not to harass or manipulate either the children or ex-spouse.  Judges will take all of these concerns into account and specify the frequency and duration of the virtual visitations typically in the order.

When considering virtual visitation as a part of your custody order it is important to carefully consider the details in how the virtual visitation provision will be implemented and enforced. A few considerations include:

  1. Which forms of “virtual visitation” are being ordered (video conferencing, email, video mail, instant messaging, etc.).
  2. Equipment required (hardware, software and internet connection)
  3. Installation and training services.
  4. Which parent is required to pay for necessary equipment and services.
  5. Schedule, e.g., days of the week, number of times per week, and times of day for virtual visitation to occur.
  6. Which parent is responsible to initiate the virtual visitation session.
  7. Deadline for custodial parent to have equipment ready and video conferencing in full operation.
  8. If equipment malfunctions or breaks, what time period is allowed for computer repair before court sanctions are triggered.
  9. What remedies and sanctions are applicable for noncompliance, including contempt and attorneys fees.

If you are a parent going through a divorce or child custody proceedings, virtual visitation may be an option you want to consider. It is likely best that you discuss these options with an experienced family law attorney who can help you come up with a creative custody/visitation plan that is in the best interests of your children and which will satisfy the Court’s requirements.

If you or a loved one has a pending divorce or child custody proceeding, the experienced family law attorneys at Durden & Mills, PC can assist you. Call us at (706) 543-4708 for a free consultation.

Source: The Washington Times, “Virtual visitation: a sensible child custody option,” Myra Fleischer, April 15, 2012

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Tax Pitfalls to Avoid when Getting Divorced in Georgia

by Jon Mills Posted: Tuesday, 5/8/2012

If you recently have or are in the process of getting a divorce, it is important to consider the implications of many decisions you might have to make regarding income tax liability. While many of the mistakes people make when filing their tax returns during the divorce process can be fixed with some cooperation by both parties, it is still important to be mindful of the decisions you make to avoid increased tax liability, an IRS audit, tax penalties, or other serious consequences.

Filing Jointly. While married, most spouses file “Married, filing jointly” on their tax returns. This is typically a good option if you are fully aware of your spouse’s financial circumstances and you have no concerns about undisclosed income, excessive deductions, or potential claims against your tax refund. However, once you are separated and getting a divorced, it often does not make good financial sense to continuing filing jointly. If you have been separated for more than six months, then one parent may have the option of filing in a sense jointly – as Head of Household.  Head of Household status is available to the parent that has a minor child residing with them, however the process can be complicated, so when it doubt, it is generally best to  file separately. You can change your filing status to joint after the fact should circumstances change, but a joint return can never be amended once it’s filed, so it is better to err on the side of caution.

Child Tax Deductions. When children are involved, deciding who is able to claim children for tax purposes is often times a matter of dispute. However, Federal law is absolutely clear that the “custodial parent” is the parent entitled to the tax deduction for the children.  Further, judges in the State of Georgia are NOT permitted to award a tax deduction to the non-custodial parent, however, sometimes judges forget this law and do it anyway. If that happens, you should consult experienced legal counsel. The attorneys at Durden & Mills, PC have been able to get Georgia judges to revise the final orders to remove the tax dependency provisions on several occasions after the tax deduction was improperly awarded to the non-custodial parent. In some cases it may make sense for a custodial parent to “give up” a tax deduction and allow the other parent to claim a particular child. However, extreme caution should be used because this type of provision is often times non-modifiable and may cost the custodial parent several thousand dollars per year in lost tax benefits.

Spousal Support/Alimony: Spousal support is most often tax deductible for the ex-spouse paying and counts as added income for the ex-spouse receiving the spousal support.  Usually the tax implications of spousal support are considered when the monthly amounts of support are discussed, but sometimes divorcing spouses are unaware of the tax consequences of their spousal support payments and never contemplate this important consideration.  In contrast to spousal support, child support is never considered taxable income and does not count as a deduction for the parent paying child support.

Tax Implications for the Year of Divorce: Even if your divorce was finalized between Jan. 1 and April 18 this year, you are still officially married to your ex when it comes to filing your taxes for last year. However, if your Final Judgment and Decree was signed before January 1, you cannot file as married even if you were for most of the previous year and it would save you money. However, the option of filing as a head of household could save you money. The status was originally meant for single people, but some people in the middle of a divorce might qualify as well. To qualify you must have lived apart from your spouse for the last six months of the tax year; paid over half the cost of keeping up your main residence; and be able to claim, under the rules for children of divorced or separated parents, your children as your dependents.

If you find yourself facing a difficult divorce, separation, child custody issues, or have questions about the tax implications you are facing, you need the help of an experienced Georgia family law attorney to guide you through the messy process. The experienced family law attorneys at Durden & Mills, PC can assist you. Call us at (706) 543-4708.

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