5. Divorce Decree Flashcards
What is the effect of a divorce decree?
A divorce decree permanently ends the marriage and determines property division, alimony, child support, and custody rights.
What is Equitable Division?
Georgia’s ‘equitable division’ principle divides marital property based on both monetary and non-monetary contributions, aiming for fairness under the circumstances.
Does Equitable Division require that the spouses’ shares upon divorce be equal in amount?
No, equitable division aims for overall fairness in asset distribution, not necessarily equal shares.
What is the first step in the Equitable division analysis?
Identify all property owned by either or both spouses and classify each asset as separate or marital.
What is marital property in Georgia?
Marital property is all property acquired by either spouse, individually or jointly, during the marriage, except separate property.
Can marital assets continue to accrue until the date of the final decree ending the marriage?
Yes, marital assets may continue to accrue until the date of the final decree ending the marriage.
What is Separate Property in Georgia?
Separate property includes gifts, legacies, property acquired before marriage, property excluded by agreement, and property awarded by judgment.
Do courts treat the separate property of one spouse as subject to equitable division?
No, separate property is not subject to equitable division.
What is the second step in the equitable division analysis?
Valuation of property. Property value must be established through evidence or agreed upon by the parties with court approval, determined as of the trial or hearing date.
Apportionment
Does a separate asset that appreciates in value during the marriage in itself transform that asset into marital property?
No, appreciation in value does not transform a separate asset into marital property.
Apportionment
What happens if the value of a separate asset is increased through marital funds or significant spouse labor?
It may be apportioned into separate and marital components.
Apportionment;
What is the source-of-funds rule?
Allows a spouse to retain an interest in nonmarital property proportionate to their contribution.
What happens when property types are commingled?
Contributed property assumes the marital or nonmarital status of the receiving estate.
However, if marital and nonmarital properties are mixed into newly acquired property, it is deemed marital property.
What is the first step in determining the marital residence’s status?
Look to see how the house is titled. If a residence is titled as a jointly held property, then it will be considered marital property.
Pensions and Retirement Accounts;
Both vested and unvested employee retirement accounts are marital property to be equitably divided to the extent accumulated during marriage.
Stock and Stock Options
If a stock that was separate property appreciate due to market forces or stock splits during the marriage, it remains _________
separate property
Stock and Stock Options;
If the stock’s value increases due to the efforts of either spouse, the increase is considered_________
martial property
Are professional degrees and licenses subject to equitable distribution?
No, they are not subject to equitable distribution.
Is a professional practice and goodwill subject to disposition as a marital asset?
Yes, they are subject to disposition as a marital asset.
How do Georgia courts divide personal injury damages?
They divide into marital and separate property components based on compensation type.
The damages are the separate property of the injured spouse to the extent that they represent compensation for pain and suffering of the individual spouse.
To the extent that the amount represents compensation for medical expenses or lost wages during the marriage, it is a marital asset.
Any amount included for loss of consortium is the separate property of the spouse who suffered the loss of consortium.
How are lottery winnings classified in Georgia during a marriage?
Generally considered marital property.
Expectancies;
Although a future interest in property may be treated as a current property interest subject to equitable distribution, an expected inheritance from a parent (where the parent is still alive at the time of the divorce) is
NOT subject to distribution.
What is alimony?
Alimony is an allowance out of one party’s estate made for the support of the other party when living separately.
What are the four types of alimony?
- Temporary alimony
- Rehabilitative alimony
- Permanent alimony
What is temporary alimony?
Alimony awarded during the pendency of the proceedings.
What is rehabilitative alimony?
Temporarily supports a spouse until they can become self-sufficient.
What is permanent alimony?
continues indefinitely and is rarely awarded
What factors are considered in awarding alimony?
- Marriage’s standard of living
- Duration
- Both parties’ age and health
- Financial resources
- Time needed for employment training
- Earning capacity
- Liabilities
- Other relevant equitable factors
A party is not entitled to alimony if:
if the separation was caused by that party’s adultery or desertion.
However, condoned adultery doesn’t eliminate the possibility of alimony, but it can be considered by the court.
What happens to alimony obligations upon remarriage of the recipient?
All obligations for alimony terminate.
What is the standard for modification of custody orders?
A significant change in circumstances that would benefit the child’s best interests.
What is the presumption of custody of minor children involving a parent and a non-parent?
There is a presumption that it is in the best interests of the child to be in the custody of one of the parents.
What is the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)?
To discourage jurisdictional competition among state courts by deferring to the continuing jurisdiction of another state court.
When can a third person such as a grandparent or stepparent be able to obtain custody against the parents?
They must show that the parents are not fit for custody or it is not in the best interest of the child to remain with the parent.
How is custody awarded between parents?
Custody is awarded impartially, favoring the primary caretaker before separation.
What is a custodial parent?
The parent with whom the child resides more than 50% of the time.
What factors does the judge consider in custody cases?
Factors include emotional bonds, ability to provide care, involvement in education, home environment, and any history of abuse.
Best Interest of the Child;
In all custody cases, the judge’s primary duty is to determine what best serves the child’s welfare and happiness.
Factors considered may include, but are not limited to:
- the emotional bonds between the child and each parent or siblings;
- each parent’s ability to provide love, guidance, and basic care like food, clothing, and medical needs;
- involvement in the child’s education and activities;
- each parent’s home environment, stability, health, and support systems; and
- any history of abuse or substance use.
What are the visitation rights of the non-custodial parent?
Generally granted reasonable visitation rights unless detrimental to the child’s best interests.
what are the visitation rights of grandparents?
In Georgia today, the court may grant a grandparent reasonable visitation rights upon a finding that:
1.the health or welfare of the child would be harmed unless such visitation is granted; and
2.if the best interests of the child would be served by such visitation.
Consultation with and Preferences of the Child;
Age 14 and up;
What is the right of a 14 year old and older child in selecting the parent to live with?
A child aged 14 or older can choose which parent to live with, and their choice is typically honored unless it’s not in their best interests.
Ages 11 through 13;
What is the right of child between 11 and 14 years old in selecting the parent to live with?
If the child is between 11 and 14 years old, their desires and educational needs must be considered in custody decisions, but the judge has discretion, and the child’s wishes are not decisive.
What must occur for a child support award to be modified?
A substantial change in either parent’s income and financial status or the needs of the child
This ensures that support remains relevant to the current circumstances of both parents and the child.
What are the operative provisions dictated by the decree in a divorce?
- Grounds and order for divorce
- Distribution of marital property
- Spousal awards
- Custodial arrangements
- Support obligations for the child
These provisions outline the legal responsibilities and arrangements following a divorce.
Can agreements related to marital property and spousal awards be modified after a divorce decree?
Generally, such agreements cannot be modified except for provisions fixing child support and custody
Child support and custody can be modified due to changed circumstances.
How are appeals from judgments or orders in divorce cases handled?
They follow the rights of appeal laid out by the appellate court in other civil contexts
This means the process is consistent with how other civil cases are appealed.
Are child-custody orders appealable?
Yes, child-custody orders are directly appealable as of right
This provides an avenue for immediate legal recourse regarding custody issues.
Can a spouse appeal provisions of the decree that were part of a separation agreement?
No, a spouse cannot appeal provisions that were contained in a separation agreement incorporated into the decree by consent
This emphasizes the finality of consented agreements within the decree.
