Common Divorce Mistakes… and How To Avoid Them (Part II)

There are a few common mistakes people tend to make when heading into a divorce.  If you can keep your head clear enough to follow these rules, you’ll be much better off in the long run. 

Don't take legal advice from your friends: Your friends are important, but don't rely on them for legal advice. Every state has a unique set of divorce laws, and a family law attorney can tell you what's in your best interest. Your friends might want to give you legal advice out of love or because they think you need help, but every divorce is different, and your divorce attorney understands the law.

Don't run to court: Make an informed decision with a family law attorney about whether or not you even want to go to trial. If you and your ex are still on speaking terms, or if you have children, you may want to consider collaborative divorce. It can be less expensive than traditional divorce, and both parties still have the benefit of legal council. Read more about collaborative divorce here.

Let your kids be kids: Don't make your children the go-between for you and your ex, and don't unload on them about the other parent. If you need to talk to someone, talk to a therapist or counselor. As a parent, it's your responsibility to protect your children's feelings. Don't make your kids suffer through your problems. 

Be financially prepared: Do your research, find out what your assets are, where your debt is, and gather documents early in the divorce process. Your divorce attorney will have a much easier time if they understand your financial situation up front. 

Stay in control of your grief: You may need to grieve, but try not to let your grief control you. Try to keep divorce in perspective-- the legal aspects should be treated like business decisions. The difficult emotional aspects need to be addressed, but while you're trying to sort out financials. 

Remember that this won't last forever: Divorce can seem never ending, exhausting, stressful, and consuming. The process won't last forever, and your stress levels won't last forever either. Take it one day at a time, be kind to yourself, and try to stay positive and focused.

read more at www.stearns-law.com

Common Divorce Mistakes… and How to Avoid Them (Part I)

Divorce is, by nature, complicated. You’ve spent years building your marriage and entangling your life with the person you’re sitting across the table from. Untangling your assets (and your emotions) takes time too. A family law attorney spends years studying the intricacies of divorce, which explains why divorce is overwhelming to most people.

There are a few common mistakes people tend to make when heading into a divorce.  If you can keep your head clear enough to follow these rules, you’ll be much better off in the long run.

Don’t be afraid of your ex: If your ex has known you since you were a teenager, he or she may be able to still make you feel like one at times. An intimate emotional relationship provides a lot of ammunition for person who wants to manipulate another party.  Now is not the time to rely on an ex for advice, or to let him or her intimidate you. Just because you’re used to asking your ex for answers, doesn’t mean it is (or ever was) a good idea.  If your ex starts making announcements about alimony, your kids, or what you’ll end up with, ignore the conversation.  It’s not up to your ex to decide-- it’s up to the court.

Don’t ignore your taxes: This one can be tricky if you’ve relied on your ex to be the family accountant for years.  Speak to a professional about what you’ll pay taxes on if you split your finances. Dealing with the expense of a tax professional now could save you loads of money in the long term. At the very least, educate yourself.

Stop confusing emotions and business: Keep your head on emotionally when you’re thinking about assets. Don’t be financially impulsive with your ex in an attempt to win him or her back. Signing over your car title to your ex in a moment of desperation may seem generous at the time, but it's foolish. Don't give gifts, make promises, or put yourself at a financial disadvantage in any way to endear yourself to your ex. Be self-protective, even when your instincts tell you not to be.

Don't make verbal agreements: As they say, "verbal agreements are not worth the paper they're written on." If your ex promises you something, get it in writing. Don't rely on oral agreements to hold up in court.

Don't brag: Be discrete about any new relationships or purchases until your divorce is over. Don't brag to friends, your ex, your ex's lawyer, or online. A new relationship can potentially make you seem like you were not committed to your family. Extravagant purchases can influence the court's financial decisions.

Don't be hostile in court: Keep in mind that the judge is evaluating you at all times in the court room, and it's important that the judge respect you. Don't make rude faces at your ex, don't roll your eyes, don't act like an insolent teenager, and don't yell. Stay composed, and be as courteous as you would be in an office environment. Have your cathartic moments later.

Put revenge out of your mind: Dwelling on revenge, anger, and petty arguments are only going to distract you during this difficult process. Stay focused on getting through your divorce, taking care of yourself, and moving on. An angry person is not a happy person.

Check back in with us soon for Part II of Common Divorce Mistakes... and How to Avoid Them.

Read more on www.stearns-law.com

How to Survive the Holidays During A Divorce

The holidays are a wonderful time of the year, but if you’ve recently divorced, the season may seem a bit bleak and overwhelming. Here are a few tips to survive the holidays after a divorce.

1)   Don’t Spend the Holidays Alone —

If you’re not used to being single, you may not be used to reaching out to friends and extended family during the holidays.  Don’t punish yourself by retreating from your support network. You deserve to have a fun and happy season, so make an effort to spend time with people you care about, even if it feels awkward at first.

2)   Celebrate Your Own Way —

If you’ve always wanted an enormous tree but your ex thought they were tacky, buy an enormous tree.  If you’d rather spend a week at a beach resort with some friends instead of crammed around grandma’s table, go buy a plane ticket.  Treat yourself to your own celebration.

3)   Don’t Take Things Too Personally —

Since you’re focused on family dynamics, you may forget to keep friends and family member's comments in perspective. Try not to take insensitive comments too personally. See things for what they are, and move on.

4)   Focus on Others —

Whether it’s collecting cans for the food bank, hosting a benefit, or just reaching out to the new neighbors, focusing on others will help you not to dwell on your own problems. Get involved in your community. You’ll probably meet some amazing people while you’re at it. 

5)   Stay Healthy —

It’s easy to feel preoccupied, forgetful or to blow small bumps in the road out of proportion. Build “healthy” activities into your schedule to keep your stress levels down.  Eat breakfast every morning, get a massage, or go on an evening walk with a friend.

6)   Be Your Own Best Friend —

If your child or best friend were going through a similarly stressful season, what advice would you give them? Think of the advice you’d give to someone you love, and take it. Don’t let yourself dwell, don’t stay in bed all day, and don’t drink to excess. Be proactive in finding fun actives to take your mind off divorce.

7)   Put Your Divorce On Hold —

Unless you have to be in court over the holidays, give yourself a mental vacation from your divorce.  Try to put off important decisions until the New Year if it’s within reason to do so.

Keep in mind that you have the rest of your life to deal with the emotions that come with divorce. Give yourself a break over the holidays, and look at the New Year as a fresh start. Happy holidays, from stearns-Law.com! 

Love Is A Battlefield? Try Collaborative Divorce…

Divorce is usually the culmination of years of tension, resentment, failed second-chances, disappointment, heart-break, distrust and anger. These emotions are draining, and a damaged marriage can result in years of constant stress.

Often, a person experiences a lifetime of anxiety and grief before they even decide to go through with a divorce… and then litigation beings.

Collaborative divorce is a process that allows families to stay out of court and settle their disputes privately and respectfully.  Unlike mediation, the collaborative divorce process allows clients access to their attorneys during the process, so that everyone in the room has as fair access to professional council and legal information. In a collaborative divorce, all parties agree to stay balanced, positive, and productive.

Staying out of court also keeps children shielded from the divorce process.  In a collaborative divorce, it isn’t necessary for children to testify against their parents. The collaborative divorce process is often much more peaceful than a traditional divorce. 

For some, beginning the collaborative divorce process comes as a relief, and marks the end of a difficult marriage. Contact our family law attorneys to find out how collaborative divorce can benefit you and your family. 

Holiday Tips for Divorced Parents

For most families, the holidays can be a stressful time. Between coordinating hectic schedules, traveling, and making plans, parents rarely have time to relax. If you share custody of your children with an ex, juggling the holiday schedules can be even more exhausting. Here are a few tips to help keep holidays exciting and fun.

1) Make a Schedule and Stick to it — This might be the easiest way to keep complications from arising. Make a schedule for the holidays, and coordinate with your ex. Make sure your ex understands your plans, and make sure you understand his or hers. Be clear and dependable.

2) Be a good communicator — Don’t play head games or make your ex guess what your plans are. Remember that the person you’ve divorced is still the father or mother of your children, and hopefully he or she is just as concerned about their well being as you are.

3) Be respectful of your ex — If your ex-husband or wife celebrates the holidays differently than you do, be respectful. Don’t damage the other parent’s reputation or attack their beliefs and traditions. Your children deserve to admire both of their parents.

4) Be open about gift giving — Talk to your ex about what to give your children so you don’t buy the same thing. This conversation might even give you some helpful insight when you’re deciding what to buy.

5) Let your kids call — Since you’re not all together, encourage your kids to reach out and call the other parent. It can be hard on a child to miss a parent on the holidays. Encourage communication; this shows your kids that you’re committed to their happiness.

6) Don’t sabotage a celebration — Don’t show up at a party your ex has planned for your child. Allow them to celebrate happily without divorce tension. For kids, having a birthday with dad and another with mom can be twice as much fun.

7) It’s Not A Contest— If your ex makes more (or less) money than you do, remember that gifts and holiday trips aren’t a contest. When your kids are adults, they’re not going to remember the gaming system you bought them: they’re going to remember how much time you spent with them.

8) Remind yourself to be loving — Even though you’re divorced, show your children that their family experiences can still be wonderful. Be loving, and allow your children to love and enjoy time with both of their parents.

Key Questions to Ask Your Divorce Lawyer

Finding the right family law attorney to guide you through a divorce is essential.  A good divorce lawyer will strategize on your behalf while walking you through the stressful and legally complex divorce process.  As family law attorneys, our job is to be protective of our clients. A divorce lawyer should be assertive, knowledgeable, and determined to help clients find creative solutions to multifaceted problems.

There are a few questions you should ask when choosing a divorce lawyer:

1)   “What type of law do you specialize in?”

An effective divorce lawyer will have expert knowledge of child support, custody, alimony, and spousal support. He or she will also understand the intense dynamics involved in a divorce case, and can help walk clients through the procedures.

2)   “How long have you practiced family law? Do you have any certifications or specialties?” 

It’s important to understand your divorce lawyer’s background so that you’re able to find a qualified and experienced representative.

3)   “Do you recommend collaborative divorce?” 

Collaborative divorce can be a wonderful alternative to traditional divorce when handled correctly. Unlike mediation, clients can have their divorce lawyers present for advice during the collaborative process. The process remains positive, respectful, and interest-based while still allowing clients their legal assets. 

4)   “Who will be working on my case?” 

Many practices will allow family law attorneys to support each other on certain cases, but a good family law attorney will understand that divorce is personal, and accessibility is important.

5)   “What are your hourly fees?” 

While this question may seem awkward, it’s easier to ask up front than to be surprised by a bill.  If you’re on a budget, have an open dialogue before the process begins.

6)   “Are you familiar with this jurisdiction?”  

In family law cases, the courts have quite a bit of legal power to decide what is best for the family.  You will want someone who is either familiar, or has a lot of access to those who may be familiar, with how the court will handle your type of case.

Mary is an Atlanta Family Law attorney who blogs regularly at Stearns-Law.com

Divorce and Facebook: Protecting Yourself Online

Social media allows us to comment quickly and casually about our lives, but during a divorce, the consequences of sharing sensitive information may affect the outcome of a divorce settlement. In Georgia, divorce lawyers and family law attorneys can use blogs, Facebook, LinkeIn, Myspace and Twitter posts as evidence in court, so it’s important for people in the midst of divorce to be careful about over-sharing.

In the midst of a painful divorce, it can be tempting to make negative comments about an ex. While there’s no legal recourse for posting a negative opinion about your spouse, it’s important to understand the repercussions. If there are children involved and the court deems your dialogue traumatic or damaging, contact with your children may be restricted. A child’s well-being is incredibly important in the eyes of the law.

If you’ve been celebrating your new single status by attending more parties or bars than usual, you may want to remove sensitive photographs from the web, especially if you have children. You could be seen as an irresponsible parent, and you could lose custody.

Social media users also need to avoid the impulse to show off new purchases. Avoid posting pictures of the Harley your spouse wouldn’t let you buy, a new vacation home in Puerto Rico, or of the flying lessons you’re taking. Evidence of major purchases or extravagant spending could impact your divorce settlement or give the other party cause to investigate your earnings statements.

If you have a new girlfriend or boyfriend in the picture, be sure to keep it private. A skilled divorce attorney may try to position you as someone who wasn’t committed to the marriage.

For someone going through a divorce, protecting your image is important. If you feel like you can’t control yourself online, it might be best to refrain from using your accounts until the divorce is over.

Limited Representation: Limiting Your Legal Fees in a Divorce Proceeding

For many Georgia residents, the cost of divorce can be overwhelming. A reputable family law attorney should ultimately save money during the course of divorce proceedings, but many often sacrifice quality legal representation and blindly represent themselves in court when legal costs seem high upfront.

This year, the Cobb County judiciary took steps to encourage parties to seek some amount of legal help before their court dates. The Cobb County Courts have had a problem with litigants entering the court with no legal knowledge, which causes delays and slows down proceedings. In an effort to keep the judiciary efficient, the Supreme Court of Georgia has attempted to clarify what Georgia attorneys can offer people in these situations.

Limited scope representation is a way for attorneys to offer their services on a less-broad basis. Instead of charging a retainer and taking on a case from start to finish, attorneys are now able to advise clients on how to proceed on a case-by-case basis. If a case is straight forward, an attorney may be able to guide a client through the paperwork and legal jargon without needing to represent the person for the entire duration of a case. Limited scope representation can help empower litigants in their cases by putting them in touch with someone knowledgeable, and because the attorney is offering a limited service, the associated fees will be lower.

Find out more in the AJC article here, or call and talk to one of our Atlanta or Marietta divorce attorneys at (678)905-8492.

Six Steps to Take When You Feel Divorce is Imminent

There’s no question about it — divorce is one of the most difficult and painful decisions someone may have to make. We often listen to clients equate the pain caused by a divorce with that of the death of a close friend or relative. It can be incredibly difficult to make completely objective, emotion-free decisions when going through the process of divorce. However, it’s important to stay in control of your emotions and consider what you may give up when you rely on impulse in times of panic. If you’re in a marriage where divorce is on the horizon, there are a few steps you can take to give yourself an edge.


1. Obtain legal advice before taking major action — Unless you’re in a violent or unsafe environment, talk with a trusted legal advisor before making any important decisions. A lawyer can help you decide how to navigate through the difficult issues, like when to leave the household, whether or not to discuss infidelity, and how to best care for your children.

2. Talk to a therapist or counselor — While marriage counseling can be helpful in resolving difficult issues, once a divorce is imminent, having your own therapist can help you keep your stress in perspective. People often give up if counseling doesn’t work to save their marriage, and they see their own happiness as a lost cause. Taking care of your own happiness is important for you and your family, and it will help you to stay strong during difficult times. Furthermore, confiding in friends could backfire or be used as evidence.

3. Consider a collaborative divorce — Collaborative divorce is a process that allows for both parties to say balanced, positive, and productive. You can read more about it here.

4. Protect your children — If you can stay relaxed during these emotional proceedings, your children will have a much easier time. Try not to bad-mouth your spouse or unload on your children. From a legal standpoint a court will attempt to limit any act that might “alienate the child’s affection for the other party,” and a court may side with the less volatile parent. On top of the legal damages, open hostility towards a spouse promotes anger, resentment, and self-blame in children.

5. Protect your credit rating — Close any joint accounts, or block your spouses’ access. Try to spend your spouses’ income first, marital income second, and your own income last. Establish your own bank account and set up a nest egg.

6. Inventory — Make an inventory of your family possessions, spending, and budget. Copy any documents that may serve as proof during a trial. Tax returns, all banking materials, mortgage documents, monthly bills, and pay stubs will give you an advantage when negotiating your financial future.

The most important thing is finding a lawyer who will take care of you and your assets during these hectic and difficult times. Listen to his or her advice, and try your best to keep calm.

*To speak with a caring attorney about your case please contact our Family Law Firm today. 770-426-1148

What is “Family Violence” and what can you do about it?

In 1981, the Georgia legislature enacted the Family Violence Act (FVA) in an attempt to bring an end to acts of family violence, or at the least, to provide courts with the authority to order temporary relief as it deems necessary to protect a potential victim from family violence. Davis-Redding v. Redding, 246 Ga. App. 792 (2000).


While victims subjected to acts of family violence are often reluctant to seek help, it is important for the public to know that there are remedies readily available under the FVA. Further, according to research compiled by the Cobb County Justice Foundation, children who see their mothers abused in the home are six (6) times more likely to commit suicide and twenty-four (24) times more likely to assault someone sexually than children in non-violent homes. Statistics like these illustrate that it is necessary for victims of abuse to use the Courts to fight back against family violence not only to protect themselves, but their children, from future abuse.

The Georgia FVA may be utilized for the protection of the following people:

1) Past or present spouses;

2) Persons who are parents of the same child;

3) Parents and children;

4) Step-parents and step-children;

5) Foster parents and foster children;

6) Any other persons living or formerly living in the same household (including boyfriends/girlfriends).*

* The FVA does not apply to romantic relationships that do not result in a child where the parties have never lived together *

As defined by Georgia law, “family violence” means the occurrence of the occurrence of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass. Essentially, any incident of physical violence (including damage of property) between any of the applicable individuals referenced above will subject the aggressor to penalties under the Georgia FVA. However, actual physical abuse is not necessary and a victim can seek protection under the Georgia FVA if the aggressor “attempts to commit violent injury” to the victim or “commits an act which places the victim in reasonable apprehension of immediately receiving a violence injury.”

Once a person is subjected to family violence, he or she may file a petition setting forth the facts in the Superior Court of the county of the residence of the aggressor if the aggressor is a Georgia resident. If the aggressor is not a Georgia resident, the petition should be filed in the county where the victim resides or in the county where the alleged act of family violence occurred.

Generally, once a verified petition is filed a Superior Court Judge, if he finds probable cause to belief that family violence has occurred and may occur in the future (not a high standard), will issue an ex-parte restraining order or Temporary Protective Order (TPO), and will schedule a hearing, which is usually to be held within about ten (10) days. The TPO generally restrains all contact between the parties until a full hearing can be held. The Judge has broad discretion and has the ability to order the Respondent out of the home or alternatively, orders that the Respondent can stay in the home but must provide suitable housing for the Petitioner. The TPO will be served on the Respondent by the sheriff who will assist the parties carry out the terms of the order (assist the Respondent gather his personal belongings, etc.).

At the TPO hearing, both parties have the opportunity to present their evidence to the Judge. If the Judge finds that an act of family violence has occurred, the Judge has broad authority to enter a 12 (twelve) month protective order which may order the following:

1) Restrain the Respondent to restrain from further acts of violence;

2) Grant Petitioner the exclusive use of the home, and exclude the Respondent, or require the Respondent to provide housing for the Petitioner for 12 months.

3) Award temporary custody of children and establish temporary child support and visitation;

4) Award property (use of vehicles, etc.) and support (temporary spousal support)

5) Require the Respondent receives counseling, anger management, or other appropriate psychiatric treatment; and/or

6) Award costs and attorney’s fees to the prevailing party

Often times, acts of family violence occur (or become more volatile) either right before or right after a spouse files for divorce. In these instances, filing a Petition for Temporary Protective Order can result in quicker, more effective, and more efficient relief than waiting for a ruling from a judge in divorce court. Further, a TPO issued against the other party could have a beneficial impact on the outcome of divorce proceedings. The facts of each case vary and it may be necessary to meet with an attorney to discuss the options that could be right for you or your case.

The attorneys at Stearns-Montgomery & Proctor are well-versed in the Georgia FVA and are experienced in prosecuting and defending TPOs in the Superior Courts of Cobb, Fulton, Cherokee, and other metro Atlanta counties. If you or anyone you know has been a victim of family violence, please contact us so we can discuss how you can seek relief under the Georgia FVA.

*Special thanks to Attorney Jordan Hendrick for his contribution to this article!

Changes to your Rights to Enforce a Custody Order

You have a custody order. Your ex moves to another state. Your ex continuously violates the order. You are told by your attorney you will have to sue in the other state. What go to Alaska to hire an attorney? The marriage was here in Georgia, the children were born here in Georgia, you have a Georgia divorce decree. He is the one that moved that far away - not you. A loop hole in the law for sure. Well that hole has now been officially closed. With the passing of the Senate Bill 491, effective immediately, a client is entitled to sue for contempt here in Georgia. Whew!!


Previously you would have been informed by your attorney that you would have to go to another state to enforce your custody rights and have the other party held in contempt. The case determining this legislative loop hole is from the Court of Appeals, Daniels v. Barnes, 289 Ga.App 897, 658 S.E.2d 472 (2008). In that case the paternal grandparents filed a petition to modify custody, as well as seeking an order to hold the mother of the child in contempt of court. The mother of the children, was personally served with the summons and petition in her home state of Rhode Island where she and her present husband lived with the children. The trial court judge agreed with the paternal grandparents and held the mother in contempt fining her $5,000 and imprisoning her for 200 days. She disputed that the trial court judge had the authority to hold her in contempt of court and appealed. The Court of Appeals agreed with the mother that the law did not allow a Georgia court to hold her in contempt (although the trial court did have the authority to modify the custody order). Your case doesn’t have to be grandparents. You simply must have a custody order.

If you have any questions regarding your child custody order, please contact our office to speak with a caring child custody atttorney. We have office located off the Marietta Square, and one in Atlanta, off the Glenridge Connector. 770-426-1148

My Ex Isn't Following Our Court Order, Now What?

You and your ex-spouse had a “dream” divorce. There was no yelling, no name calling, no arguments regarding the kids, parenting plan or child support. Heck, your Ex didn’t even have an issue refinancing the house and getting you off the mortgage and the deed. Neither of you wanted alimony, but you sure did appreciate him/her offering to pay off that $10,000.00 credit card bill in your name that you both ran up during the marriage. Things went so smoothly, you never even thought about getting an attorney. You and your Ex went to the court’s website, printed and filled out the paperwork and filed it. A couple of months later, your divorce was finalized, and the Judge signed an order incorporating your “filled in” Settlement Agreement, including the paragraph about the credit card bill. Ah, SWEET FREEDOM!


It’s been a year (or two) and you’re finally ready to get that new house, car or furniture you’ve been waiting for. The finance guy comes back into the office… “Mr./Mrs. Smith, I’m sorry but we can’t approve your mortgage (car loan, credit card application). You’ve got a rather substantial delinquency on your credit report.” Your eyes get big as you scan over the credit report the finance department just pulled on you. You lose your breath and shout, “That’s impossible! The only credit card I ever had…” Your voice fades out when you realize that your oh so helpful ex-spouse hasn’t paid the credit card bill for several months. You knew he/she had some recent financial issues, but since they hadn’t brought it up, you assumed the credit card bill was still being timely paid. You call your Ex and question them about the credit card payments. “Sorry, I have other more important bills to pay right now,” they say. They go on to add, “I gave the credit card company your information so you can deal with them directly.” You hang up the phone in shock and ask yourself, “Now what am I going to do?!”

The family law attorneys at Stearns-Montgomery & Proctor deal with these types of situations on a regular basis. Your remedy for relief would be a Motion for Contempt against your Ex, usually filed in the county where the actual divorce took place. Contempt is defined by Georgia Divorce, Alimony and Child Custody as “a ‘willful’ refusal to comply with a judgment or order of the court. In other words, once the Judge in your case signed the Order, both you and your ex-spouse became legally obligated to comply with the terms set out in the Settlement Agreement you signed. A contempt action can apply to an action (or inaction) of your Ex, including, but certainly not limited to visitation or parenting issues, or to monetary issues like the non-payment of alimony, child support, and yes, even that pesky credit card bill.

O.C.G.A. §19-6-28(a) states that the Court has “the power to punish the respondent who violates any order of the court…” Once one of our caring family law attorneys has tried to settle the matter with your Ex outside of court, if the matter remains unresolved, the more aggressive action of filing a Motion for Contempt can be pursued. Millner v. Millner, 260 Ga. 495 (1990), Killingsworth v. Killingsworth, 286 Ga. 234 (2009), Paisley v. Huddlestun, 244 Ga. 418 (1979), and Beach v. Beach, 224 Ga. 701 (1968) all deal with various types of contempt actions. Some examples of contempt from these cases are: non-payment of bills or marital debt, failure to pay gift tax liability, failure to pay equity due to the other party from the marital home, and failure to pay attorney fees.

Additionally, there may be other questions regarding the credit card you need addressed. For example, “Will the credit card company honor our divorce decree?”, “What do I do if the credit card company sues me when my Ex is responsible for paying the bill?”, or “I went ahead and paid off the credit card myself, does that mean my Ex is off the hook?” Stearns-Montgomery & Proctor has attorneys in our offices that can help you answer all of these questions, give you legal advice on how to deal with a credit card company or a 3rd party collection agency, and any other issues which may arise if your Ex isn’t holding up their end of the divorce decree.



Special thanks to Atlanta Family Law Attorney Janné Y. McKamey for her contributions to this article. If you have questions about what to do when your ex-spouse doesn’t pay those marital debts as ordered to by the court, contact Ms. McKamey today about your case. 770-426-1148

Mother Jailed For Alienating Daughters From Dad

In a highly unusual move, a judge ordered a mother jailed for interfering with ex-husband's visitation with his children. In Lauren R. v Ted R. Justice Robert Ross ordered to the mother to report to jail for repeatedly violating the...

 View the full post by clicking this link:

  http://divorce.clementlaw.com/2010/06/articles/child-custody/mother-jailed-for-alienating-daughters-from-dad/

  I think courts should take this step prior to the relationship being irreversibly damaged, as is seemingly the case in this instance.  I would imagine that once parental rights have been interfered with more than 3 or 4 times, courts should look seriously at jail time for this type of flagrant contempt, perhaps starting with one night per instance of interference. Please share your comments.

 *Special Thanks to Family Law Attorney Janne McKamey for her contribution to this article.

Call today to speak with one of our Atlanta Child Custody attorneys about your case! 

Part 2 Are Prenuptial Agreements enforceable in Georgia?

As usual, the best way to illustrate the current state of the law is to give an example by way of recent precedent.  One particularly illustrative case is Mallen v. Mallen, a case decided by the Georgia Supreme Court in 2005.  In Mallen, the Supreme Court upheld a prenuptial agreement after an in-depth examination of the facts on the record, which were fairly sympathetic and arguably in favor for the wife to set the agreement aside. 

 In Mallen, the Husband filed for divorce after eighteen (18) years of marriage and four children and requested the trial court to enforce the prenuptial agreement between the parties.  The facts showed that the Husband, who was a wealthy and educated businessman, and the Wife, who was a hostess at a restaurant and had a high school education, had lived together for about four years (unmarried) when the Wife got pregnant with their first child.   While the Wife was at a clinic to terminate the pregnancy, the Husband called her and asked her not to go through with it and to marry him instead.  The Wife agreed and left the clinic.

 A few days later, and ten (10) days before the planned wedding, the Husband asked the Wife to sign a prenuptial agreement prepared by his attorney telling her the agreement was “just a formality” and that he “would always take care of her.”  The Wife took the agreement to an attorney whom the Husband had allegedly paid to review the agreement but the attorney did not have time to give it his full attention before the wedding. 

 As a result, the Wife then met with the Husband and his attorney on her own (e.g., without legal representation) about the agreement on more than one occasion.  The Wife ultimately signed the agreement after a life insurance benefit was increased and alimony provisions were modified slightly.  At the time of the agreement, it was undisputed that the Wife had a net worth of approximately $10,000.00 and the Husband had a net worth of approximately $8,500,000.00.  In 2002, when the Husband filed for divorce, the Husband’s net worth had increased to $22,700,000.00.  Nevertheless, the agreement only provided alimony in the amount of $2,900.00 a month for four (4) years.  Further, the agreement provided that the Husband was entitled to all the assets with which he entered the marriage and all assets accumulated during the marriage.  Significantly, the agreement also contained a financial statement that set out the Husband’s assets and liabilities (but not his income). 

 The trial court upheld the agreement and the Supreme Court affirmed.  The Supreme Court found

 (1)        That there was no fraud (the Wife should not have relied on the Husband’s statements but on the plain meaning of the agreement she signed);

(2)        That there was no duress (the “threat” of not going through with the wedding was not enough);

(3)        That there was a sufficient disclosure of assets even though the Husband did not disclose his income because it was evident from the four years of living together and the Husband’s assets on his financial disclosure that he was a wealthy man of means;

 (4)        The agreement was not unconscionable just because of the great disparities in the financial status and business experience of the parties (or because the Wife did not have an attorney); and

 (5)        That the fact that the Husband’s net worth increased by 14 million dollars during the marriage was not a change of circumstances as to render the enforcement of the agreement unfair or unreasonable because the Wife could have easily anticipated that the Husband’s wealth would grow over the ensuing years (the continued disparity of their respective financial conditions was foreseeable). 

 In light of this case, it is apparent that yes, a Georgia court will indeed uphold a properly drafted prenuptial agreement, even one presented at the 11^th hour that allows for a party with significant assets to maintain essentially all of his/her wealth while providing a minimal amount of support for the other party.   

*Special thanks for Atlanta Family Law Attorney Jordan Hendrick for his contribution to this article.

Are Prenuptial Agreements enforceable in Georgia? (Part I of a II Part Series)

It seems that whenever a client calls to inquire about a prenuptial agreement (also known as an antenuptial agreement), that their initial concern is whether such an agreement will hold up under judicial scrutiny.  Recent case law answers this question with a resounding “yes”….as long as the agreement is drafted prudently by a knowledgeable attorney. 

 Until 1982, prenuptial agreements were rejected by Georgia courts as a matter of law because they were deemed to be contrary to public policy.  This changed with the landmark Georgia Supreme Court decision of Scherer v. Scherer, in which the Court held that due to certain undeniable changes in societal norms (i.e., the advent of “no fault divorce” and the increased percentage of marriages ending in divorce), the Court could no longer justify this strict rule invalidating all prenuptial agreements.  Instead, the Court determined that persons may establish their rights by contract prior to marriage as long as certain prerequisites are met. These prerequisites are referred to as the “Scherer factors” or the “Scherer test.” 

 The Scherer factors are:

 (1)        Was the prenuptial agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts?

 (2)        Is the agreement unconscionable?

 (3)        Have the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair and unreasonable (and were any changes in circumstances foreseeable)? 

 While these factors may seem daunting upon initial review, case law has appeared to prove over time that courts will review the factors with an eye towards enforcing the agreement as long as a “full and fair” disclosure of the parties’ financial condition (including income) is made prior to execution of the agreement.  The Georgia Supreme Court has even suggested that a “fairly simple and effective method of proving disclosure is to attach a net worth schedule of assets, liabilities, and income to the agreement itself.” 

 In other words, it appears that the most important step in making sure the prenuptial agreement will be enforceable down the road is to make sure that before signing the agreement, you can prove that both parties had a “general idea of the character and extent of the financial assets and income of the other.”  If this is done properly, then it would be rather difficult for a party to later make a persuasive argument for fraud, duress, mistake, nondisclosure, misrepresentation, unconscionability, or unreasonableness. 

 In particular, it is worth pointing out here that the burden to show duress or unconscionability is especially high in our state.  For duress, the law is well-settled that the mere fact that one party insists on a prenuptial agreement as a condition of marriage does not constitute duress that would void an agreement.  Contrarily, to succeed on a claim of duress, a party would have to show threats of bodily or other harm, or other forms of coercion that would actually overcome the mind and will of the other person and induce him or her to sign the agreement contrary to his or her own free will. 

Further, in order to show that a contract is unconscionable, a party would have to show that the prenuptial agreement between the parties is one that “no sane person not acting under a delusion would make and that no honest person would take advantage of.”  In this regard, it has been specifically held that a prenuptial agreement will not be rendered unconscionable just because it perpetuates an already existing disparity in the financial condition of the parties prior to marriage.  

Your ex-spouse may still be a beneficiary of your estate. Have you changed all of your beneficiary designations

Your ex-spouse may still be a beneficiary of your estate. Have you changed all of your beneficiary designations? – Whether it is for your retirement benefits or your life insurance, if you don’t remember to change your beneficiary forms when you get divorced your spouse will remain the beneficiary.


It goes without saying that it is important for your divorce lawyer to carefully craft a settlement agreement to submit to the court in your divorce case so that the agreement accurately reflects the intentions of you and your spouse. However, when it comes to your life insurance policies and employee benefits such as retirement plans, stock plans, and life insurance proceeds, while your lawyer may be able to include certain protective language in your agreement, it is up to you to ensure that your benefits are distributed properly. You can do this by contacting your benefit provider and filling out the requisite forms to change your designated beneficiary so that your ex-spouse is no longer listed as the person to receive the benefits in the event of your death. While the divorce is pending you are typically prohibited from doing this.

I have seen several cases where a party to a divorce passes away after the divorce without having remembered to change their designated benefit beneficiary forms. Unfortunately, due to a complicated set of Federal laws known as ERISA, in all likelihood the benefit company is going to distribute the deceased spouse’s benefit proceeds to the ex-spouse REGARDLESS OF WHAT THE DIVORCE SETTLEMENT AGREEMENT SAYS. Under Federal law, the benefit company is essentially only required to pay out any accrued benefits to whoever is named on the company’s forms, even if that person may have waived his or her right to the benefits in a divorce proceeding. After the benefits are distributed, the estate of the deceased spouse then has to sue the ex-spouse to claim the benefit proceeds under the divorce agreement.

If the attorney carefully worded the divorce agreement then Georgia law is clear that the ex-spouse must give the money back to the estate. However, because of the ERISA loophole there is the potential the ex-spouse will have the opportunity to spend all the money before the estate takes legal action, if the deceased spouse never got around to changing his or her beneficiary forms. Further, if the divorce agreement was not drafted properly – that is the agreement did not include an “explicit waiver of [a] party’s interest” – then there is always the chance the courts will rule in favor of the ex-spouse.

This entire headache can be avoided if you remember to change your beneficiary forms so that your benefit company knows exactly who you want your benefits paid to in the event of your death. As previously mentioned, this is one aspect of the divorce process that your attorney cannot handle for you. If you do not know who to put as your beneficiary, contact a trust and estate planning attorney who can advise you or some alternate options.

Getting released from liability for the mortgage

Thirty years is the initial term of most mortgages, so in a divorce situation it is generally of utmost importance for both parties to reach an agreement that specifically establishes a workable method to dispose of the marital mortgage. The idea is to not only to legally separate yourself from your spouse, but also from all marital debt so that you can start your new life without worrying about previous obligations.


Unfortunately, getting released from liability for the mortgage is a problem, especially in today’s market. And when a divorce is added to the equation, it becomes even more complicated because (1) the courts become involved and must approve the basic terms for any future sale or refinance of the marital home; and (2) bankruptcy laws surrounding divorce obligations have gotten stricter over the past few years.

Unless the parties agree to sell the marital residence together at the time of the divorce or separation, one party or the other will be awarded possession and legal title to the house subject to the mortgage in both parties’ names. The party no longer having possession or title to the marital residence is still liable for the mortgage until the mortgage is paid off by virtue of a refinancing or sale. That means both parties’ credit will continue to reflect this debt and be affected by the possibility of late payments even though only one party will have the right to reside in the house. For this reason, it is important for both parties in a divorce to carefully consider their options as to potentially satisfying the marital mortgage by agreement before jumping straight into court.

Typically it is not unreasonable for both parties to agree that the person with possession of the marital residence “shall refinance the mortgage on the marital residence releasing the other party from liability”. However, simply including a provision to refinance the marital residence is not enough. Here’s why:

The Courts are limited in their power to enforce such a provision. The remedy for the trial court is simply. Either:

1. A hefty fine each day until the mortgage is refinanced. (I have seen as much as $1500 per day suggested by the Court)

2. Incarceration in the local jail until the refinancing is completed.

Neither party wants either of these results. Be sure your attorney drafts a settlement agreement to provide for the possibility that the mortgage may not be refinanced. Detail will be critical at this point. The detail should cover the following:

1.Exclusive ownership. Transferring the asset back to the other party so that they can participate in the sale or rental of the property, if that becomes necessary. This means allowing occupancy or possession to both parties.

2.Costs of Sale or Rental. Costs to cover maintaining the house while it is in limbo and the expenses associated with a sale will help move the process quickly past the obstacles anyone faces when selling a home. Such detail would possibly include:
a. List the house for sale with a real estate broker selected;

b. A method for calculating the price;

c. Cooperation during a sale including to pursue the sale in a good faith and expeditious manner;

d. Acceptable terms of sale. For instance, a cash offer of 95% of the list price must be accepted.

* Special thanks to Atlanta Family Law Attorney Jordan Hendrick for his contribution on this article.

Relocation Options for the Future

You've probably thought about this a few times recently, but it used to be so much easier to find and keep a job! You would get hired by a terrific company, work hard and advance in the organization as you proved your worth. You could establish roots in the company, as well as in the community. That has all changed, and I'm now receiving many more questions about the importance of factoring the possibility of a future relocation into the divorce settlement agreement.

Economic experts have stated that as the US pulls out of this recession, there will be a need for only 90% of the previous workforce. This makes it more likely that you may need to relocate at some point to either keep or find a job. It is now much more important to contemplate the possibility of relocation during a divorce proceeding that includes child custody and visitation decisions.

If you are currently working on your settlement agreement, take the extra time (and money) to also include specifics of a long distance visitation schedule, along with a future relocation provision. As an example, visitation should be modified so that an out-of-state relocation does not put you (or your ex) in contempt. Or if child support is an issue, think about splitting travel expenses 50/50.

There are some enforcement challenges to consider, but here are five good reasons to include relocation and long distance visitation language in your agreement:

1.When you move, you will be able to do so without the threat of contempt charges.

2.In the event you need to move, your ex will have a tough time trying to contest that he/she isn't sure anymore.

3.You may be getting along just fine today, but what about if one of you gets remarried? If the language is already in place, then you won't have to worry about a 3rd party's influence.

4.Your ex may not contest the custody, but may later decide to contest visitation. If you're contemplating relocation, you may be caught in limbo until your agreement is renegotiated.

5.It may avoid the necessity of having to hire an attorney when you do move away. If you just agree to agree on future details, you may get stuck having to hire attorneys again. So include the details!

Now here's the bad news. Even if your ex signs an agreement that allows for future relocation, it may still be contested just like any other aspect of your settlement agreement. However, the Court will look at what you have already agreed to and take that into account. Plus, you can proceed without having to worry about a contempt charge.

http://www.stearns-law.com/ for more information or contact us at 770-426-1148 to speak with a caring Family Law Attorney in Atlanta, Georgia.

Rules of Un-Engagement

If you have watched any television over the holiday season, you have undoubtedly been subjected to the seemingly never-ending barrage of jewelry commercials portraying husbands and boyfriends surprising their wives and girlfriends with fine rings, bracelets, necklaces, etc. Of course, the jewelry companies are hoping to convince their male audience that the answer to happily ever after lies in their ability to give their significant other a perfect (and hopefully expensive) piece of jewelry. What the jewelry companies don't worry about is this¦who gets to keep the jewelry if things do not work out as expected? In 2009, I was involved in several cases where I had to answer that question.


The three most common scenarios that could lead to a dispute over who gets to keep expensive jewelry that was given as a gift during the course of a marital or premarital relationship are as follows:

(1) A man gives a woman an engagement ring which she accepts but the marriage is called off before the wedding;

(2) One spouse receives jewelry from the other spouse or the other spouse's family as part of the wedding ceremony but the marriage ends in divorce; or

(3) One spouse receives jewelry from the other spouse as a Birthday or Christmas present but the marriage ends in divorce.

Normally, a gift given to one spouse by the other becomes the receiving spouse's separate property, meaning it is not subject to reconveyance or equitable division in the event of a future divorce. Thus, in scenarios (2) and (3) above, the jewelry would generally remain in the hands of the spouse that received it as a gift. The caveat is that under Georgia law, the person claiming the gift has the burden to prove that the donor intended the jewelry as an unconditional gift, that the gift was accepted, and that the gift was actually delivered or received. Any factual dispute as to whether there was or was not a gift under the law must be decided by a judge or jury.

However, engagement rings are different because the law assumes that an engagement ring is only given in contemplation of marriage and is therefore subject to the implied condition that it is to be returned if the engagement is broken. It should be noted though, if the woman attempts to give the ring back to the man and he refuses, the law will view this refusal as the man's intent to allow the woman to keep the ring unconditionally. Therefore, if the man later changes his mind and asks for the ring back he will have no recourse. This point was interestingly made by Justice Musmanno of the Supreme Court of Pennsylvania in a 1957 case:

A gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea. If, after receiving the provisional gift, the donee refuses to leave the harbor, - if the anchor of contractual performance sticks in the sands of irresolution and procrastination the gift must be restored to the donor. A fortiori would this be true when the donee not only refused to sail with the donor, but, on the contrary, walks up the gangplank of another ship arm in arm with the donor's rival.

So it appears that in normal circumstances, a disappointed fiance is entitled to recoup his jewelry expenses while a disappointed husband is not.


http://www.stearns-law.com/ for more information or contact us at 770-426-1148 to speak with a caring Family Law Attorney in Atlanta, Georgia.

Child Custody Basics

In an initial custody dispute between the parents over the custody of a minor child, the sole question to be determined is what is in the best interests of the child. This question can only be answered by a judge, as Georgia law prohibits juries from determining custody matters. Essentially, there are no boundaries as to what a judge may look at in determining a child’s best interests, as the law provides that the judge may consider “any relevant factor.”

Unfortunately, each judge may have a different opinion as to what he or she finds relevant in any given case so it can be difficult to always accurately foresee how different factual scenarios will play out. However, some generally important factors referenced by statute are as follows:

(1) The love, affection, bonding, and emotional ties existing between each parent and the child and between the child and any siblings or stepsiblings;

(2) The capacity and disposition of each parent to give the child love, affection, guidance and education; and to provide the child with food, clothing, medical care, along with other daily needs and necessities;

(3) The home environment of each parent;

(4) The importance of continuity in the child’s life and the desirability of maintaining the continuity and stability;

(5) The mental and physical health of each parent;

(6) Each parent’s involvement in the child’s educational, social, and extracurricular activities;

(7) Each parent’s employment schedule and flexibility to care for the child;

(8) Each parent’s past performance and relative abilities for future performance of parenting responsibilities; and

(9) Any evidence of family violence, substance abuse, or sexual, mental or physical abuse or criminal history of either parent.

The judge has a wide range of discretion on how he or she wishes to weigh the combination of factors to determine what is in the best interests of the child, and the judge’s decision will rarely be overturned on appeal.

Once an award of custody has been made between the parents, it becomes a binding order of the court and cannot be modified unless there is a subsequent material change in the conditions and circumstances substantially affecting the interest and welfare of the child (such as relocation of the custodial parent). If a judge finds that there has been a material change in circumstances, the judge must again apply the best interests of the child test to decide which parent shall be awarded custody.

As every custody case is unique, it is impossible to predict how a judge might rule. The best you can do is to gather as much information as possible before trial in order to present a convincing argument that you are better suited than your opposing party to nurture and provide for the best interests of the child.


*Special Thanks to Family Law Attorney Jordan Hendrick for his contribution.

http://www.stearns-law.com/ for more information or contact us at 770-426-1148 to speak with a caring Family Law Attorney in Atlanta, Georgia.