Archive for August, 2011

Am I Entitled To Alimony?

Saturday, 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.

Share

Tags: , ,
Posted in Divorce Information | Comments Off

Contract Law 101: Applied to Real Georgia Business World

Saturday, 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.

Share

Tags: , ,
Posted in Business Litigation | Comments Off

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

Saturday, 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.

 

Share

Tags: , ,
Posted in Business Litigation | Comments Off