Am I Entitled To Alimony?

August 20th, 2011

Although some states use the word “maintenance” rather than alimony or spousal support, it’s basically all the same thing. There is a wide array of issues and facts which will be taken into consideration when the courts are determining your right to support payments from your ex. Each state will have different and specific rules regarding your ultimate entitlement to spousal support, so it’s extremely important that you have a knowledgeable divorce attorney who can protect your rights and look out for your best interests. No matter the duration of your marriage, you are not automatically entitled to alimony, and will receive it only if the judge decides you need it and your spouse is able to pay it. Even if you are awarded spousal support it is likely it won’t last forever, but will have a set amount of time to continue.

How is Alimony Determined?

The length of your marriage is a factor in whether or not you will receive spousal support, and the longer the marriage the better your chances of receiving maintenance payments. People who have only been married three or four years may automatically be knocked out of the running for spousal support unless there are other compelling factors involved. While some attorneys feel like the marriage must have lasted a minimum of ten years in order for a spouse to qualify for alimony, this is an arbitrary number and not a hard and fast rule.

Some states only award alimony as “rehabilitative” maintenance, meaning the money is meant to improve or restore a spouse’s ability to support themselves, and once that happens, the maintenance payments will be discontinued. If the courts award you rehabilitative maintenance then you will be required to look for work, or attend school with an eye toward a better job.

Lost Educational or Employment Opportunities

If one spouse gave up educational or employment opportunities to stay home and raise children, then this could be a factor in the award of spousal support.  By the same token if one spouse worked to put the other through medical or law school or other high-paying professions, they may be more likely to receive spousal support through the theory that they gave up opportunities of their own in order to further their spouse’s career and salary. The income, both present and future of both spouses will be considered in the determination of alimony payments, and the assets of both spouses will also be taken into consideration.

Fault or No Fault?

While some states factor in bad behavior of one spouse when coming to a decision regarding alimony, others do not. The judge will be more likely to consider bad behavior if you have filed under a fault divorce rather than a no-fault divorce. In other words, if you are getting divorced because your husband cheated on you, and this is clearly spelled out and proven in your initial divorce papers, you might stand a better chance of receiving alimony payments.

Income and Ability to Pay

Overall, alimony is generally determined by looking at the financial assets and income of both parties. If one spouse makes a very healthy salary, while the other will be out looking for a job as soon as the divorce if final, then the courts may award temporary alimony in order to help the one spouse get back on their feet financially. Even if one spouse obviously needs alimony payments, if the other does not have the financial means to pay spousal support then, as the old saying goes, “you can’t get blood out of a turnip.” Other factors involved in whether or not you will be entitled to alimony includes where the children will live and whether or not one of the spouses was responsible for wasting marital assets prior to the divorce.

If the judge decides your spouse gambled irresponsibly for months or years before your divorce, then he may award alimony payments as restitution for the assets you lost. A final factor in receiving alimony centers around the health of the spouse requesting it. If one spouse is deemed to be disabled and unable to work, while the other is financially able to pay, then the disabled spouse will likely receive alimony payments. If you have any questions regarding alimony payments, a call the McLeod Law Firm, P.C. to speak with a Gainesville GA divorce attorney about the support and divorce settlement you deserve, including spousal support.

The McLeod Law Firm, P.C. provides quality legal representation for divorce, criminal law, business litigation and civil litigation across North Georgia including Hall County: Clermont, Flowery Branch, Gainesville, Lula, Murrayville, and Oakwood; Banks County: Gillsville, Homer, Maysville, and Commerce; Barrow County: Winder; Dawson County: Dawsonville; Forsyth County: Cumming; Gwinnett County: Buford; White County: Cleveland and Helen; Lumpkin County: Dahlonega; Habersham County: Baldwin, Clarkesville, Cornelia and Demorest; Jackson County: Jefferson, Braselton, Hoschton, Pendergrass and Talmo, GA.

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Contract Law 101: Applied to Real Georgia Business World

August 13th, 2011

While any Georgia business owner knows the fundamental role that contracts play in the success of their enterprise, many business contract disputes in Georgia begin because of conflicting views of whether an agreement has been reached and when a binding contract has been created.  Our Georgia business law attorneys recognize that business clients with a fundamental understanding of when a contract is formed combined with solid business law advice are in the best position to avoid potentially costly and disruptive contract disputes.  We have provided a primer for understanding when a contract is legally formed in the context of real world contract disputes.

Georgia Contract Formation: Offer, Acceptance & Consideration

Offer

The first phase in the development of a valid contract is the offer stage.  An offer is a written or spoken declaration to be bound to specific terms upon acceptance by the other party to the proposed agreement.  While this is a very basic and fundamental concept, this is the origin of many Georgia business disputes.  Our Georgia contract attorneys review countless transactions where the contract dispute begins with a disagreement between the parties regarding whether or not a communication was actually intended as an offer.  The company that made the alleged offer will contend they were just engaged in a discussion of options with no intention to commit to any specific terms.  Essentially, the dispute involves whether there was a genuine offer or simply initial discussions.

It is important that any Georgia business owner carefully analyze his or her intentions when communicating with the other party during the early stages of a business negotiation.  If there is no intention that the communication, which may include suggested terms like price, quantity, means of delivery and other material terms, be taken as an offer than it must be communicated in a way that makes it clear that these are merely preliminary discussions with no intention by the party to be bound to the terms as provided.  There are some factors a court may consider in evaluating whether a communication with material terms like these was intended as an offer including:

  • Definiteness of the terms: If the material terms of the contract are clearly delineated in the communication including price, quantity, parties to the agreement, subject matter of the transaction and dates for performance, the court may interpret the communication as an offer.  The point is that if the court has all of the information necessary to determine damages for a breach of contact, there is a higher probability the communication will be considered an offer.
  • Intention to be bound: When a court is analyzing whether a communication constitutes an offer, the court will carefully scrutinize the communication to determine whether it contains an indication that the person who transmitted the communication was prepared to be bound to the terms if accepted by the recipient.  If you are merely requesting a price estimate or initiating negotiations, it is important to make it clear that you are not yet prepared to move forward even if the recipient agrees to all of the terms in the communication.  Material that is in the nature of advertising is usually not regarded as an offer.
  • Seriousness of the Communication: The court will pay attention to the context of the communication to determine whether an offer was intended.  Something as informal as terms scribbled on a napkin during a business lunch may be considered an offer.  However, a statement made in jest that you would trade your successful Georgia business to anyone who could provide a decent martini will not be considered a real offer.  The point is that the court may look past the actual words in the communication to the surrounding circumstances and terms to determine if an offer was intended.

Acceptance

If a company receives an offer, the recipient can bind the other party to the business contract by accepting the offer while it is open.  Many offers come with time limits or are revoked prior to acceptance, which constitutes the basis of many Georgia business contract disputes.  There may be little dispute that an offer was made and that acceptance of the offer was communicated to the party who made the offer.  However, a contract dispute may develop over whether the offer was still open for acceptance.

A common situation that can arise in a Georgia contract dispute involves a company mailing an acceptance to terms of an offer.  Georgia law applies the “mailbox rule”, which makes acceptance of an offer effective upon depositing the acceptance in the mail.  Sometimes a company may receive an offer and communicate “concerns” via telephone about the terms but ultimately accept the offer.  If the acceptance is by mail in such as situation, the Georgia company that made the offer might assume that the offer is going to be rejected and seek a contract with a replacement company.

This can result in entering into a contractual agreement with a new party and subsequently receiving the acceptance by mail from the initial party to whom an offer was extended.  In such a situation, the business that extended the offer now may be in a position that it needs to breach the contract to one of the parties it made an offer.  It is a good practice to indicate in an offer that it is not effective until the acceptance is received back or to confirm acceptance prior to entering into a contract with a replacement company.

If a Georgia company receives an offer and responds by requesting other terms it may be considered a rejection of the original offer and extension of a counter-offer.  When responding to an offer, it is important to make clear that general inquiries about the terms or alternative terms are not intended to communicate a rejection of the offer.  If this distinction is not made the offer will be considered rejected and the alternative terms treated as a counter-offer.  Acceptance of the contract may be communicated either by making a promise to perform or simply undertaking the requested task.

Consideration

The final element in Georgia contract formation is the giving of consideration by all parties to the transaction.  Consideration simply means providing something of value in exchange for a performance or a promise of performance. The presence of consideration distinguishes contracts from gifts. Consideration can be money, goods, a promise to do something there is no legal obligation to do, or a promise to not do something there is a legal right to do.  Promises to exchange money, goods, or services are forms of consideration.

While this provides a basic primer on Georgia contract formation issues, this is by necessity a very simplified discussion.  As any Georgia business owner knows, Georgia business transactions are rarely this clean and simple.  Negotiations and discussions often drag on for months and even years with numerous communications back and forth.  A negotiations may involve dozens of offers and counter-offers.  The point that a contract was formed will often be a controlling factor that drives Georgia contract litigation.  It is common that there is substantial disagreement about the exact point an agreement was reached amid an avalanche of communications back and forth.

Our experienced Georgia business litigation attorneys have handled hundreds of Georgia contract disputes involving very complex transactions following long periods of negotiation.  The Georgia business litigation attorneys at our firm can untangle even the most complex business contract dispute so that we can effectively represent your business and financial interests.

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Liquidated Damages as a Solution to the Issue of Proving Lost Profits from Breach of Contract

August 6th, 2011

It is not uncommon for a supplier to be involved in a breach of contract dispute with a company that breaches its contract with the supplier.  Under Georgia contract law, the supplier is entitled to breach of contract damages that naturally and normally arise from the breach of contract.  Recoverable damages also include losses within the contemplation of the parties that were a probable result of such a breach of contract. O.C.G.A. § 13-6-2.  The damages that may be recovered may include lost profits but only if they can be proven with relative certainty.  Any damages, including future profits that are too remote or speculative are not recoverable.  See O.C.G.A. § 13-6-8.

Unfortunately, lost future profits are often difficult to recover in Georgia breach of contract litigation because vague or speculative damages are not recoverable, and lost future profits often do not lend themselves easily to exact computation.  In some situations, a Georgia business may have a long track record of established profits so that it is possible to provide a fair calculation of lost future profits, which were clearly within the anticipation of the parties at the time the contract was formed.  Sometimes damages may be recovered at least over some short duration of time even when precise calculation is not possible.

Many times Georgia suppliers use contract provisions that provide for liquidated damages in the event of a breach of contract.  A properly drafted liquidated damages provision in a Georgia contract may be enforceable and provide a way to protect recovery of lost future profits in the event of a breach of contract.  It is important to keep in mind that Georgia courts do not favor liquidated damage provisions so it must be artfully drafted and meet certain requirements to be enforceable under Georgia contract law.

A liquidated damages provision is basically an agreement by the parties to predetermine damages prior to a breach and include this calculation in the agreement.  If the liquidated damages provision does not meet certain criteria, a Georgia court may find that it is an impermissible “penalty” and rule that it is unenforceable in Georgia breach of contract litigation.  A Georgia court may find that a contractual provision that stipulates a specific sum shall be paid by one party to the other upon cancellation or termination of a contract may be an enforceable liquidated damages provision when three conditions are satisfied:

  • The damages caused by a breath are difficult to accurately estimate;
  • The parties must intend to provide for damages rather than a penalty; and
  • The amount of the damages is a reasonable estimate of the probably loss from the breach of contract.

[Southeastern Land Fund, Inc. v. Real Estate World, Inc., 237 Ga. 227 (1976)]

If the amount of actual damages cannot be reasonably calculated, then the sum in the contractual provision may be considered a liquidated damages provision as opposed to an impermissible penalty.  Determining the amount of liquidated damage calculation must be done carefully.  If the amount does not bear some reasonable relationship to an actual calculation of damages because it is clearly excessive, the court will typically not enforce the liquidated damage clause because it is an impermissible penalty.  For example, an appellate court did not uphold a liquidated damages provision that provided for 40 percent of the weekly service amount for the balance of the term of the contract where the only damages that could be proven amounted to $76,500, but the liquidated damage amount would have been over $480,000.  National Service Industries v. Here to Service Restaurants, 304 Ga. App. 98 (2010).

While a liquidated damages clause can avoid costly litigation designed to quantify future lost profits or avoid loss of those sums entirely, the provision must be artfully constructed to avoid a court deeming the provision to be an unenforceable penalty assessed against the party in breach of contract.  The provision should also be tailored to the specific transaction in most cases as opposed to a general formula that may not have any relationship to an actual approximation of damages in a specific Georgia breach of contract lawsuit.

Our experienced Georgia breach of contract litigation attorneys routinely handle litigation involving lost future profits with and without liquidated damages provisions.  If you are involved in a breach of contract dispute, our business litigation team can analyze the documents involved in your dispute and provide an overview of your options.

 

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Rise in Immigration Compliance Audits May Lead to Costly Penalties and Litigation

July 29th, 2011

The employment of unauthorized workers has been illegal since 1986.   Generally, it is unlawful for a Georgia business to hire, recruit, or refer for a fee an employee who is known to be unauthorized for employment.  Government enforcement of immigration laws has shifted in recent years to focus on auditing and fining businesses.  The U.S. Immigration and Customs Enforcement (ICE) agencies recently unveiled a new enforcement program that targets over 1000 employers throughout the U.S.  ICE officials have indicated they will seek enforcement including onsite document inspections of businesses of all sizes in all industries.  The broad scope of the current enforcement efforts means that any Georgia business is potentially subject to an ICE audit.

The recent announcement is a continuation of immigration enforcement patterns that focus on sanctioning employers, including Georgia employers, rather than undocumented workers.  ICE targeted over 2,300 businesses with investigations between July 2009 and September 2010.  Federal law mandates that employers examine sufficient documentation to establish a potential new employee’s employment eligibility. The tool to examine documents and employment authorization is the I-9 form.  The U.S. government released these statistics on I-9 audits for the current 2011 fiscal year in mid June:

  • Ice has launched  2,338 employer I-9 audits as opposed to 2,196 audits for the entire 2010 fiscal year
  • The initiation of 157 criminal arrests of businesses allegedly hiring undocumented workers
  • The government as assessed over $7.1 million in fines

Any Georgia business that hires an employee must be sure to have properly completed I-9 forms on file in the event that they are subject to an ICE audit under this stepped up enforcement policy.  Each new employee must execute an I-9 within three days of his or her date of hire.  While our Georgia business attorneys are prepared to zealously litigate on behalf of our clients, we strive to provide sound advice on compliance and contract issues to avoid costly litigation where possible.

According to ICE assistant Secretary John Morton, “ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces…. We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.”

While the I-9 form seems like a fairly straightforward and innocuous form, there are a number of errors that may inadvertently expose a company to penalties:

  • Providing an erroneous issuing authority
  • Accepting expired documents
  • Relying on photocopies or fax copies rather than originals
  • Not providing the I-9 documentation in the appropriate column
  • Listing too much documentation
  • Using red ink
  • Application of white out to correct an error
  • Any extraneous marks anywhere on the form

While some of these rules seem hyper-technical, a Georgia business that fails to comply may be exposed to penalties.  Georgia businesses must be meticulous about documenting the legal status of new hiring and maintaining the records in the event of an ICE audit.  A Georgia business owner must make I-9 documentation available for inspection by officers of the Department of Homeland Security (DHS) and the Department of Labor (DOL) in the event of an audit.

Our Georgia business lawyers are well versed in all compliance issues including business immigration compliance.  A growing number of Georgia businesses face potential litigation for allegedly failing to comply with immigration compliance laws.  Our experienced Georgia business litigation attorneys are prepared to protect our business clients against such allegations through sound legal planning and aggressive advocacy.

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New SEC Rules Necessitate Review of Compliance Procedures for Georgia Businesses

July 27th, 2011

The implications for Georgia businesses of the Security and Exchange Commissions (SEC) final rules concerning implementation of the Dodd-Frank Wall Street Reform and Consumer Protect Act that becomes effective August 12, 2011 are significant.  While other similar laws exist to encourage whistleblowers to disclose securities violations by their employer, these other laws including Sarbanes-Oxley Act and Securities Exchange Act generally only apply anti-retaliation protections to public companies while Dodd-Frank extends also to private companies.  Georgia businesses need to be aware of the impact of this whistleblower statute and structure internal compliance and reporting procedures to reduce liability.

The statute permits financial compensation to be provided to whistleblowers that disclose information regarding SEC violations that result in a penalty of at least a million dollars.  The employee who discloses information regarding a company’s SEC violations is eligible for a 10-30 percent reward for the information they provide.  The requirements for a whistleblower claim under the statute include: (1) voluntarily providing; (2) original information; (3) resulting in a successful enforcement action; (4) with sanctions of at least a million dollars.

The new whistleblower law does not require that an employee report SEC violations internally before disclosing tips regarding a Georgia business’s SEC violations.  While the law does not require that employees utilize internal reporting and compliance systems before going to the SEC, the law encourages employees to utilize internal compliance procedures.  The rules provide that use of internal compliance procedures may be a factor in increasing the amount of any financial recovery whereas lack of use of internal compliance procedures may be a factor in reducing the whistleblower’s recovery.  Any information discovered by the company’s internal investigation that is disclosed to the SEC will be credited to the employee whistleblower.

The rules also encourage use of internal compliance procedures for SEC violations in Georgia businesses by providing a period of time for employees to report information internally.  The rules permit a 6-month look back window during which an employee can utilize internal channels before making a claim to the SEC.  An internal report does not preclude disclosing the information to the SEC and obtaining compensation as long as the information in the internal investigation is later disclosed to the SEC.  The rules also provide anti-retaliation protection to employee whistleblowers.

It is important that Georgia business owners understand the importance of implementing effective SEC compliance procedures and protections for employees who report violations under the new SEC whistleblower law.  The law permits a private action and will likely lead to an increase in whistleblower actions because of the substantial financial incentives.  Because the program encourages employees to utilize a Georgia company’s internal reporting procedures, it is also likely to lead to a substantial increase in internal company reporting of SEC violations so companies need to have a compliance system in place to handle the increase in potential reports.

Georgia companies should also develop a corporate culture that promotes compliance with securities laws.  It is important that a Georgia business conducts a review and updates its SEC compliance procedures so that they are able to process a possible increase in the number of potential disclosures.  Because of the broad applicability of the Dodd-Frank anti-retaliation protections that extend even to private companies, Georgia businesses should implement procedures to safeguard the identity of whistleblowers from supervisors.  This will help alleviate the threat of retaliation claims arising from subsequent adverse employment actions.

Our Georgia business litigation law firm understands the importance of minimizing the impact of litigation in terms of cost and time for our Georgia business clients.  We will explore all options to resolve your business litigation dispute in the most economical way while carefully protecting your company’s best interest.  We invite you to contact our Georgia business litigation law firm so that we can evaluate your business litigation dispute and explore potential litigation strategies.

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How Divorce Affects the Over-50 Group in Georgia Divorce Cases

June 29th, 2011

While divorce is always difficult, no matter the circumstances, finding yourself in the middle of a divorce when you are in your fifties or sixties comes with its own set of issues. In fact, many couples who have contemplated divorce during their middle ages actually end up staying together due largely to financial considerations. While this age group rarely stays together because of the children—the children are mostly out of the home by now—they have likely been together long enough that their finances and assets are completely entangled, and divorce means one or both of them may end up struggling to get by. This being said, divorce rates are actually climbing among seniors, and although the various studies differ to some extent some believe that the divorce rates among seniors has nearly doubled in the past two decades.

The “Non-Employable” Spouse?

Many times one spouse, most often the wife, is put in the position of being virtually non-employable due to the fact that she has spent the past thirty years raising children, and taking care of the home and her husband. This puts her in the difficult position of having accrued no Social Security benefits on her own as well as no employment history to aid her in finding a means of support. A spouse who is 62 or older, however, and not remarried is entitled to receive Social Security benefits on the account of the ex-spouse as long as the marriage lasted at least ten years, and at least two years have elapsed since the divorce. Some states will award permanent maintenance to the non-employable spouse, recognizing they gave up their working years in order to support their spouse’s career.

Dividing the Pension Plan

Those in this age bracket have likely accrued a certain level of pension benefits, and so long as one spouse has been awarded a portion of these benefits, then the other can reduce their own retirement benefits so that upon his or her death the ex-spouse will receive benefits from the pension plan for the remainder of their life. Since women typically live around seven years longer than men, this can be an important financial consideration during a divorce. In most states ex-spouses are entitled to a portion of the other’s pension which was earned during the marriage.

Other Financial Considerations

Because those in this age group have generally been married for a considerable length of time, and have acquired a sizeable amount of assets, there is naturally more at stake in a divorce. Seniors generally have a long work history, own some real estate, have had life insurance for a considerable amount of time and have retirement accounts. It can be much more difficult to recover if financial mistakes are made during the divorce—there is simply less time to make a comeback from a poor money decision.

Many divorcing couples of this age don’t think about factoring in the tax impact on their retirement account, and often forget to consider Social Security as well. It’s crucial that you hire a competent divorce attorney who is well-versed in your particular state laws to ensure you don’t lose assets you can never recover. Health insurance may be a huge factor in your divorce as well, especially if you were the spouse who worked at home, and had coverage under your husband’s policy. See if you can work continued health coverage into your divorce settlement as it is truly a monumental factor.

Fear of Being Alone

At this age, many seniors put off or even change their minds about divorce simply from the fear of being alone. They recognize that they are no longer considered to be in the “prime” of their lives and that can be a rude wake-up call. They think about the possibility of becoming ill and having no one to look after them, or worry about being lonely or unable to provide financially for themselves. Going it alone can certainly be daunting, whether you were the spouse who wanted the divorce or not. Even if you are unhappy in your marriage there is a certain security in having been with one person for thirty, forty, or even fifty years. Many people may have actually even forgotten the person the once were because they have been a “couple” for so long.

If you are over fifty and going through a divorce, don’t do it alone. Seek out others who are in the same position as you, and look into divorce counseling. Although you may not feel comfortable discussing your personal issues, divorce counseling can offer some real benefits, not the least of which is to help you express your feelings and boost your self –esteem.  Most of all, stay busy and keep your mind occupied—it’s always better to strive for strength and resourcefulness as opposed to moping around miserably for the next few years.

The McLeod Law Firm, P.C. provides quality legal representation for its clients across North Georgia including Hall County, Dawson County, Forsyth County and Gwinnett County.  Call today for answers to your important divorce law questions.

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Preparing For Divorce in Georgia: Where Do I Start?

June 16th, 2011

If you’ve made the difficult decision to divorce, a number of decisions will eventually have to be made. Your attorney will help guide you through the process, but some of the steps will be up to you. Broken down and take one at a time, the steps will be more manageable and less overwhelming.

One of the first things you should do is to begin gathering information on your assets and debts. This will include marital debts and property as well as those that are solely yours or your spouses.

Assets include more than just your home and bank accounts. Your attorney may advise you on what items to include in your asset inventory. Basically, anything of value should be included, such as:

• Cash, checking and savings accounts

• Stocks, bonds, CDs and mutual funds

• Retirement accounts and pension plans

• Money owed to you or your spouse

• Real estate

• Vehicles, including cars, motorcycles, boats and motor homes

• Household furniture

• Life insurance policies

• Personal property including jewelry, art and collections

• Businesses owned individually or jointly by you or your spouse

Other assets are often overlooked. Depending on your state of residence, some items beyond the obvious might be considered marital property and thus be subject to division, including frequent flyer miles, valuable season tickets for cultural or sports events, stock options, bonuses and accumulated vacation and sick pay, and intellectual property, copyrights and patents.

Your attorney will need documentation of all assets, including deeds to your home and other property, tax returns, wills and trusts, insurance policies, mortgage statements, retirement account statements, and documents related to any business in which you or your spouse have an interest.

Similarly, record all debts for which you and your spouse are responsible. One goal of negotiating a settlement includes assigning debt. Your final settlement agreement will spell out which partner is responsible for which debts. Although creditors can still hold you responsible for any debts your spouse defaults on, having the liability included in the agreement gives you the right to seek restitution from your spouse.

Division of assets, especially when business interests, stock options and retirement plans are involved, can be extremely complicated, and the laws governing property distribution vary from state to state. Trust the guidance of your attorney the financial consultants that may be part of your team to recommend an equitable course of action.

Georgia divorce attorney David McLeod is available to answer your divorce law questions.  The McLeod Law Firm, P.C. provides quality legal representation for its clients across North Georgia including Hall County: Clermont, Flowery Branch, Gainesville, Lula, Murrayville, and Oakwood; Banks County: Gillsville, Homer, Maysville, and Commerce; Barrow County: Winder; Dawson County: Dawsonville; Forsyth County: Cumming; Gwinnett County:Buford; White County: Cleveland and Helen; Lumpkin County: Dahlonega; Habersham County: Baldwin, Clarkesville, Cornelia and Demorest; Jackson County: Jefferson, Braselton, Hoschton, Pendergrass and Talmo, GA.

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Factors Used in Awarding Child Custody in Many Georgia Child Custody Cases

June 6th, 2011

If the parties to a divorce cannot agree on custody arrangements for the child, the trial court will make a custody award. In making a custody determination, the judge will review all pleadings and other documents that are in the court file, any testimony offered at trial or hearings, and any other evidence (pictures, recordings, documents, etc.) presented to the court. When reviewing all of the evidence, the court must consider any relevant factors including, but not limited to the following:

  • Each parent’s respective ability and willingness to co-parent, cooperate with the other parent, and encourage a healthy relationship between the child and the other parent
  • Each parent’s ability to inspire, encourage, and otherwise motivate the child and promote psychological well-being
  • The current relationship between the child and each parent, including its strength, nature, and stability
  • The ability of each parent to provide for the child’s physical needs,  including food, clothing, medical care, and education, and the likelihood of each to do so
  • The emotional bonds, affection, love, and other psychological ties between the child and each parent
  • The role of each parent in the daily routine and needs of the child and the degree to which each has acted as the primary caregiver
  • The child’s physical and mental development level and emotional needs, including any special physical, educational, or medical needs
  • Each parent’s physical fitness, emotional well-being, and moral character
  • The child’s need for continuity and stability in all areas of life
  • Any evidence (not mere allegations) of one parent committing abuse against the child or the other parent
  • The preferences of the child, if the child is over the age of 12
  • Refusal of either parent to attend court-ordered parent education classes
  • Any other factors that  the court feels are relevant

The trial judge is free to consider any combination of the above factors and to give some factors more weight than others. Any court order awarding custody of a child must give specific reasons for that award, along with the facts presented in support of those reasons. The overarching standard that must be satisfied in all custody awards is what serves “the best interests of the child.”

The McLeod Law Firm, P.C. provides quality legal representation for divorce, criminal law, business litigation and civil litigation across North Georgia including Hall County: Clermont, Flowery Branch, Gainesville, Lula, Murrayville, and Oakwood; Banks County: Gillsville, Homer, Maysville, and Commerce; Barrow County: Winder; Dawson County: Dawsonville; Forsyth County: Cumming; Gwinnett County: Buford; White County: Cleveland and Helen; Lumpkin County: Dahlonega; Habersham County: Baldwin, Clarkesville, Cornelia and Demorest; Jackson County: Jefferson, Braselton, Hoschton, Pendergrass and Talmo, GA.

 

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How to Choose a Divorce Attorney in Georgia

June 1st, 2011

Divorce is one of the most stressful events you can experience. Qualified legal counsel can provide a modicum of peace of mind by ensuring that your interests are being protected. Here are some tips to help you find the right divorce attorney for your particular needs.

Evaluate the attorney’s personality. The attorney you choose to handle your divorce will eventually know as much about you as some of your closest friends. Consider whether the person is someone you think you can trust and will be comfortable talking to. Although legal proceedings can sometimes seem intimidating, you should not feel intimidated by your attorney. At the same time, you want a lawyer whose strength and integrity is apparent and will be used to your advantage during negotiations and, if necessary, in court.

Evaluate the attorney’s experience. Every divorce is different, and attorneys sometimes specialize in specific aspects of divorce. Where one may be a good choice if you own numerous assets with your spouse, another may be a better where child custody issues are concerned. Ask about the attorney’s experience with cases similar to yours.

Do not focus too much on costs. Ask up front about the fees you can expect to be charged. Some attorneys will bill their own time at one rate, and time spent by a junior associate at a lower rate. Others may offer set fees for handling specific tasks, called ala carte services. For example, if you and your spouse are in agreement about division of property, you probably wouldn’t need a litigator, but you might want an attorney to review the agreement and prepare the initial paperwork. Know in advance what charges you can expect, and be sure you will be able to meet the costs or make payment arrangements before you enter an agreement.

The McLeod Law Firm, P.C. provides quality legal representation for contested and uncontested divorce cases across North Georgia including Hall County: Clermont, Flowery Branch, Gainesville, Lula, Murrayville, and Oakwood; Banks County: Gillsville, Homer, Maysville, and Commerce; Barrow County: Winder; Dawson County: Dawsonville; Forsyth County: Cumming; Gwinnett County: Buford; White County: Cleveland and Helen; Lumpkin County: Dahlonega; Habersham County: Baldwin, Clarkesville, Cornelia and Demorest; Jackson County: Jefferson, Braselton, Hoschton, Pendergrass and Talmo, GA.

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Collaborative Divorce in Georgia Divorce Cases

May 28th, 2011

A recent development in divorce negotiation is collaboration. When both parties agree to the divorce and are committed to an amicable process but haven’t reached agreement on major issues, collaborate divorce may be a good option.

In collaborative law, all parties work together to find fair and reasonable solutions to complicated issues. You, your spouse and your respective attorneys meet to negotiate division of assets, assignment of debts, child custody, and spousal and child support. The goal is to meet the needs of both parties in a fair and peaceful manner, without resorting to the grueling and expensive process of a trial.

Attorneys who practice collaborative law have been trained to do so and remain committed to reaching a mutually agreeable resolution. The cost savings compared to the expense of a divorce trial can be tremendous. However, be aware that if negotiations break down and an agreement is not reached, both attorneys will have to withdraw from the case. Both you and your spouse will have to retain different legal counsel to represent you in court.

Collaborative divorce is an excellent option for couples when:

• Both you and your spouse want the divorce.

• You both communicate well and are on good terms with each other.

• You both want an agreement that is fair to both parties and to your children.

Collaborative divorce is similar to mediation in its goals, but differs in its methods. When couples mediate, an objective third party works with both spouses to facilitate communication between them. The mediator is neutral; his or her role is not to promote an agenda or support the interests of either party, but strictly to help both parties find a compromise. Conversely, you and your spouse will each have the counsel and support of an attorney during collaborative divorce meetings. While the goal is still to reach mutually agreeable compromises, your lawyer’s role is to advise you of your rights and protect your interests.

The benefits of collaborative divorce go beyond cost savings. The process is cooperative rather than contentious in nature, so it preserves the integrity and mutual respect of both spouses. In addition to having the security of knowing your needs will be met, the process lays the foundation for a positive relationship in the future, which is especially helpful for divorcing partners who will be raising children together after the final decree is issued.

The McLeod Law Firm, P.C. provides quality legal representation for collaborative divorce cases throughout North Georgia including Hall County: Clermont, Flowery Branch, Gainesville, Lula, Murrayville, and Oakwood; Banks County: Gillsville, Homer, Maysville, and Commerce; Barrow County: Winder; Dawson County: Dawsonville; Forsyth County: Cumming; Gwinnett County: Buford; White County: Cleveland and Helen; Lumpkin County: Dahlonega; Habersham County: Baldwin, Clarkesville, Cornelia and Demorest; Jackson County: Jefferson, Braselton, Hoschton, Pendergrass and Talmo, GA.

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