Family Law

Question 1

Equitable Division

Answer 1

Georgia is an equitable division state for marital property, meaning property is divided fairly, but not necessarily equally, upon divorce.

Question 2

Grounds for Divorce

Answer 2

Georgia recognizes fault-based grounds for divorce (e.g., adultery, cruelty, desertion) and no-fault divorce based on irretrievable breakdown of the marriage.

Question 3

Child Custody

Answer 3

Custody is determined based on the best interests of the child, considering factors such as the child’s needs, parental ability, and stability.

Georgia courts consider a child’s preference in custody decisions if the child is 14 or older.

Question 4

Alimony

Answer 4

Georgia allows rehabilitative alimony to support a spouse until they can become self-supporting and permanent alimony in limited circumstances.

Question 6

Gifts in Consideration of Marriage

Answer 6

When a gift is subject to the condition subsequent of a later marriage (aka, if the gift would not have been made otherwise without contemplation of marriage), the donor can compel the return of the gift if the marriage does not occur.

Usually an engagement ring.

Any other inter vivos gift without the condition of marriage is irrevocable after acceptance and delivery.

Question 7

Enforceability of Premarital Agreements

Answer 7

A premarital agreement must meet all contractual requirements and be procedurally and substantively fair.

Contractual requirements = a signed writing with two parties who are of sound mind/capacity and attestation by two witnesses.

Procedural fairness (FART) = full and fair disclosure of all income and assets; availability of independent counsel; relative bargaining power of the parties; timing of presentation of the agreement in relation to the ceremony.

Substantive fairness = full disclosure of all material facts and not unconscionable.

A prenuptial agreement may include anything not illegal or immoral, and cannot limit the rights of third parties or future child support or custody. Waiver of alimony is closely scrutinized.

Question 8

Requirements of a Ceremonial Marriage

Answer 8

License from the county in which the marriage ceremony is taking place if neither party is a resident of GA; if either party a resident, can be from any county in GA.

Ceremony.

Return of the license to the probate court judge and recordation within 30 days of the ceremony.

If not returned and recorded in time, parties must bring affidavits from two witnesses to reissue and rerecord the license.

Question 9

Annulment

Answer 9

Declares a void or voidable marriage invalid, returns parties to their original status before the marriage.

Can’t get an annulment if you have children (can’t bastardize your children).

Alimony not available, but the court could grant equitable distribution of property.

Question 10

Void vs. Voidable Marriages

Answer 10

Void = Never had any legal effect and cannot be ratified. Bigamy, incest, or mental incapacity.

Voidable = Valid until the aggrieved party obtains an annulment or can be ratified by the aggrieved party. 17 or under without parental consent , duress, intoxication, or induced by fraud or misrepresentation.

Question 11

Doctrine of Necessaries

Answer 11

The obligation to support your spouse can be enforceable by creditors in certain circumstances. A spouse can be liable for debts/obligations of the other spouse if —
- Debtor spouse has authority to pledge the other’s credit for household needs.
- Non-needy spouse neglected to provide necessaries that are then supplied by a 3rd party with expectation of payment.
- When a spouse incurs medical expenses beyond their ability to pay.

Question 12

Common Law Marriage

Answer 12

Not valid in GA after 1/1/97.

Common law marriages before 1997 may be recognized if the parties (1) intended to be married, (2) cohabitated, (3) held themselves out to the world as husband and wife, (4) had legal capacity to enter into a marriage, (5) as proven by clear and convincing evidence.

Question 13

Domestic Violence

Answer 13

Protective orders are available against a threat or recurrence of family violence. “Family violence” exists if the ∆ is in the household, family, or in a relationship with their victim.

Question 14

Paternity

Answer 14

Father can voluntarily establish paternity by —
- Marrying the mother after the child is born and recognizing the child as their own;
- Legally adopting the child; or
- Acknowledging paternity within the first year after birth with a written statement signed by both parties.

Rebuttable presumption of paternity where the father was married to the mother at the time of child’s birth, or if a DNA test is at least 97% probability of paternity.

Question 15

Parental Rights

Answer 15

Parents have a constitutional and fundamental right to custody of their children + child rearing decisions, including education and medical care.

Rights may be lost upon consent, abandonment, neglect, or abuse/”cruel treatment”.

Question 16

Termination of Parental Rights

Answer 16

Due process requires notice of the opportunity to be heard prior to the deprivation of parental rights.

In GA, there must be clear and convincing evidence of parental misconduct or inability to parent in order to involuntarily terminate parental rights.

If clear and convincing evidence of parental misconduct or inability to parent exists, the court must then determine if termination is in the child’s best interest.

Question 17

Adoption

Answer 17

Any child under 18 may be adopted if they have no living parents or their parents’ rights have been voluntarily or involuntarily terminated.

If a child is 14 or older, their written consent is required.

If a child is suitable for adoption and the petitioner is capable of assuming responsibility, the adoption will be granted if it is in the child’s best interests.

Question 18

Divorce Jurisdiction

Answer 18

In GA, the superior court has exclusive jurisdiction over divorce actions.

A GA court will have subject matter jurisdiction over a divorce if at least one party has been domiciled in GA for at least 6 months. (“Domicile” = resides with the intent to remain indefinitely)

Parties may get divorced with just SMJ, but personal jurisdiction over both parties is required for the court to order spousal or child support.

A GA court has PJ over a non-GA resident if there are sufficient minimum contacts — if they are served in GA, consent to PJ, lived there with the child, conceived the child there, had a matrimonial home there, etc.

Enforcement of spousal or child support is governed by UIFSA+FFCCSOA.

Question 19

Divorce Venue

Answer 19

If the ∆ resides in GA — the county where the ∆ lives.

If the ∆ is a non-resident — the county where the π lives.

If ∆ moved from the GA matrimonial residence within 6 mo. — the county where the π resides or ∆ lived.

Question 20

No-Fault Divorce

Answer 20

If the marriage is irretrievably broken, the parties no longer cohabitate, or there is no prospect of reconciliation, the court may grant a no-fault divorce only after 30 days from service of the respondent.

Question 21

Defenses to At-Fault Divorce

Answer 21

Consent,
Collusion,
Recrimination (both parties guilty), or
Condonation and cohabitation (forgiveness).

Question 22

At-Fault Divorce

Answer 22

Adultery,
Desertion,
Conviction of a crime involving moral turpitude and a sentence of at least 2 years in prison,
Cruelty,
Habitual intoxication/drug addiction.

Question 23

Equitable Distribution

Answer 23

The allocation of marital assets among the parties based on their respective equitable interests. Not equal — equitable.

Court will first classify the property as marital or separate (separate property is not divisible), perform a valuation of all marital property, and then divide the property based on numerous factors, including:

• Marital fault;
• Parties’ contributions and maintenance of the property;
• Parties’ intentions for the property;
• Needs of the minor child;
• Duration and contribution to the marriage (homemaking).

Question 24

Marital vs. Separate Property

Answer 24

Any marital property is divisible upon divorce — both parties retain their separate property.

Marital property is anything obtained by either party during the life of the marriage.

Separate property is anything obtained prior to the marriage or by gift or inheritance.

Question 25

Commingled Property

Answer 25

If the value of separate property is increased due to marital funds or significant spousal labor, it may turn into divisible marital property.

However, if the separate property increases in value due solely to passive market factors, it will remain separate property.

Question 26

Alimony/Spousal Support

Answer 26

The allowance by one party for the support of another; can be either temporary or permanent. May be awarded to either spouse, taking into account the following considerations —

• Accustomed standard of living.
• Duration of the marriage.
• Misconduct by either party.
• Financial resources of either party.
• Earning capacity.
• Contributions to the marriage, including homemaking.

Question 27

Modifying Alimony

Answer 27

The modification of alimony or child support is governed by the Uniform Interstate Family Support Act (UIFSA).

If a Georgia court grants a valid alimony support order, that court has exclusive, continuing jurisdiction until the end of time, even if all parties leave the state or consent to another forum.

Lump sum alimony awards, like property settlements, are not modifiable.

Question 28

Termination of Alimony

Answer 28

Terminates upon the death of either party or remarriage of the party receiving alimony.

Question 29

Third-Party Child Custody

Answer 29

A parent’s fundamental rights create a rebuttable presumption that custody with the parent is in the child’s best interests.

To rebut that presumption, the third party must establish that the parent is first unfit, and that it would not be in the child’s best interests to stay with them.

Then, the third party must establish that custody awarded to them WOULD be in the child’s best interests.

Question 30

Best Interests Standard

Answer 30

To determine what is in a child’s best interests, the court must consider the child’s physical, mental, emotional, and moral condition and needs. This includes, but is not limited to:

• Their bond/emotional ties with either parent, + siblings/other family members.
• The wishes of the child (14+ gets to choose, 11-14 gets input).
• The child’s attachment to their school/home/community.
• The mental and physical condition of all parties.
• Any evidence of neglect, abuse, or other domestic violence in the home.
• A parent’s willingness to cooperate with the other parent.
• Who the primary caretaker is!
• Parental involvement in extracurriculars.
• Educational or special needs.
• The recommendation by a GAL, if applicable.

Question 31

Determining Child Custody

Answer 31

If between two fit parents, custody is determined on a sex-neutral basis, upon consideration of the best interests of the child.

Question 32

Visitation

Answer 32

Noncustodial parents shall be granted reasonable visitation rights unless it would be detrimental to the best interests of the child, or in other words, would “seriously danger the physical, mental, moral, or emotional health” of the child.

Question 33

Third Party Visitation

Answer 33

Grandparent and other third-party visitation rights are governed by Troxel v. Granville.

A FIT parent’s objection to a third party’s visitation will always prevail.

In Georgia, a third party may be granted visitation upon a showing that the parent is unfit or the child’s health or welfare would be harmed in the absence of visitation, if the visitation is in the child’s best interests.

Question 34

Child Custody/Modification Jurisdiction

Answer 34

The proper jurisdiction for child custody determinations and modifications of child custody are set forth by the Uniform Child Custody Jurisdiction and Enforcement Act. (UCCJEA).

A court has original jurisdiction to adjudicate custody where —
1. The child’s “home state” is; aka, the state where the child has resided continuously for at least 6 months prior to commencement of the custody proceedings.

2. If there is no “home state”, or the home state denies jurisdiction based on forum non conveniens, original jurisdiction is proper in any state which has “significant connections” to the child, and “substantial evidence” re: the child’s welfare.
3. If neither of the above, the state that would normally have jurisdiction over the parties, or the “default jurisdiction”, will apply.

*The court will initial original jurisdiction will have exclusive and continuing jurisdiction until both parents move out of the state, or if only one parent moves, when no significant connections to the child remain. In either case, any court which would qualify for initial jurisdiction can modify.

If jurisdiction is proper under the UCCJEA, it is likely proper under the Parental Kidnapping Prevention Act—the UCCJEA’s nearly identical federal counterpart.

Question 35

Grounds for Modification of Custody

Answer 35

The party seeking modification has the burden of establishing a maternal + substantial (+ usually unforeseen) change in circumstances such that a modification would be in the child’s best interests.

Stability for the child is a heavily weighted factor.

Jurisdiction over a modification is subject to the UCCJEA/PKPA.

The negative impact that a modification/move would have on the noncustodial parent’s visitation will be balances against any benefit to the children and the custodial parent for the move.

Question 36

Child Support Jurisdiction

Answer 36

Jurisdiction to award or modify child support is governed by the Uniform Interstate Family Support Act (UIFSA) and the Full Faith and Credit for Child Support Orders Act (FFCCOA).

Under UIFSA, personal jurisdiction is required over both parties to issue a support order. The state with personal jurisdiction (minimum contacts) over both parties will have original jurisdiction to issue a child support order.

Once a child support order is issued and registered under UIFSA, it is entitled to the full faith and credit of all 50 states under the FFCCSOA, which is UIFSA’s virtually identical federal counterpart.

Issuing state has exclusive and continuing jurisdiction until all parties leave the state or consent to another forum.

If the parties moved to different states, the state seeking modification must have minimum contacts + the petitioner must be the non-resident (consents to the forum).

Question 37

Calculation of Child Support

Answer 37

Based on the state child support guidelines calculated in accordance with gross income and statutorily prescribed percentage based on the number of children supporting.