GA Family Law

Question 1

Right to Marry

Answer 1

Fundamental right protected by due process and equal protection.

Question 2

Gift in Contemplation of Marriage

Answer 2

Given under circumstances that indicate the gift is subject to a condition subsequent, i.e. that the donor and donee will later marry. If marriage doesn’t take place, the donor will generally be able to compel the return of the gift.

Question 3

Gift

Answer 3

1. Donor intends unconditional gift to donee
2. Donee accepts the gift AND
3. Property is delivered to the donee

Question 4

Premarital Contracts

Answer 4

Agreements made by the parties prior to marriage and divides property upon divorce. GA courts don’t apply a rule of per se invalidity to premarital agreements.

Question 5

Legal Impediments to Marriage

Answer 5

1. sound of mind
2. consent and voluntariness
3. ability to consummate marriage

Question 6

Common Law Marriage

Answer 6

No common law marriage since 1997.

Question 7

Annulment

Answer 7

Marriage are void if the parties weren’t able to contract, unwilling to contract, fraudulently induced to contract. But a subsequent consent and ratification of the marriage, freely and voluntarily made, accompanied by cohabitation as a married couple make the marriage valid. In GA, no alimony or property division available, but court may under equitable principles order conveyance of property or restitution.

Question 8

Adoption

Answer 8

Can adopt in GA if:

1. older than 25 or married and living with spouse
2. is at least 10 years older than the child
3. has been a bona fined resident of the state for at least 6 months immediately proceeding filing
4. is financially, physically, and mentally able to have permanent custody of the child

Question 9

Adoption of Children with Living Parents/Guardians

Answer 9

The rights of the natural parents are terminated prior to adoption. May be adopted if parent

1. voluntarily and in writing surrendered all rights to the child to GA Dep. of Human Services or to a child placing agency and the department or agency thereafter consents to the adoption OR
2. has all rights to the child terminated by order of a court of competent jurisdiction

Question 10

Termination of Parental Rights

Answer 10

1. child has been abandoned by parent
2. parent cannot be found after diligent search
3. parent is insane or otherwise incapacitated from surrendering such rights
4. parent failed to exercise proper parental care or control due to misconduct or inability and the court decides it is in the best interests of the child to place child for adoption.

Question 11

Jurisdiction

Answer 11

in personam jurisdiction is required for entry of orders imposing support obligations or the institution of contempt proceedings to enforce such orders

Question 12

Jurisdiction in Divorce

Answer 12

Must be tried in the county where the D resides if resident of GA.

If not a resident, venue is proper in the county where the P resides.

May be tried in county where marital home was if D has moved from that county within 6 months from the date of the filing of the divorce.

Question 13

Procedure

Answer 13

Each party can petition the judge for temporary alimony while awaiting judgment on permanent alimony case.

Pending a final judgment, the judge can grant alimony for the support of the children. The judge can also hear and determine who will be entitled to the care and custody of the children.

Question 14

Defenses

Answer 14

No divorce will be granted in GA if:

1. the adultery, desertion, cruel treatment, or intoxication complained of was occasioned by the collusion of the parties
2. the party complaining of adultery, desertion, cruel treatment, or intoxication consent
3. both parties are guilty of like conduct (recrimination) OR
4. there has been voluntary condonation and cohabitation subsequent to the acts complained of

Question 15

Separate Property

Answer 15

Property that is

1. acquired by gift, legacy, descent
2. acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage (except for the increase in value during the marriage)
3. excluded by valid agreement OR
4. obtained by judgment award to a spouse from the other spouse

Question 16

Valuation

Answer 16

The time for valuation is the date of the trial or hearing

Question 17

Commingled Property

Answer 17

Becomes marital or non-marital property depending on what it was commingled with. But if commingled into newly acquired property it will be marital property.

Question 18

Marital Residence

Answer 18

If a spouse purchases the marital home with separate funds and puts title in both spouses’ names, a gift to the other spouse of half ownership is presumed.

Question 19

Employee Retirement Accounts

Answer 19

Marital property to be equitably divided to the extent accumulated during marriage. The benefit unvested if some contingency must first occur before a definite right to them attaches.

Question 20

Stock

Answer 20

If separate property before the marriage and increases in value during the marriage due to stock splits or market force, the increase will be separate property. If the value of stock is manage by one or both spouses during the marriage due to their efforts, then that increase is marital property.

Question 21

Lottery Winnings

Answer 21

May be marital or non-marital property depending on when it was won and whether marital assets were used to purchase the tickets. If won during marriage, then it’s marital property.

Question 22

Future Interest in Property

Answer 22

May be subject to equitable distribution

Question 23

Expected Inheritance

Answer 23

Not subject to distribution

Question 24

Marital Fault

Answer 24

May be considered in the equitable division of property. But adultery will not bar a property award to the adulterous spouse, it may be a factor in the analysis.

Question 25

Alimony

Answer 25

An allowance out of one party’s estate, made for the support of the other party when living separately. It can be temporary or permanent.

Question 26

Determining Alimony

Answer 26

1. standard of living during the marriage
2. duration of the marriage
3. age and physical and emotional condition of both parties
4. financial resources of each party
5. the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment
6. contribution of each to the marriage, including services rendered in homemaking, child care, education, and career building of other party
7. condition of the parties, including separate estate, earning capacity, and fixed liabilities of the parties AND
8. other relevant factors

Question 27

Period Alimony

Answer 27

Require a certain amount of money to be paid at set intervals, either temporarily or permanently

Question 28

Permanent Alimony

Answer 28

Can be granted in divorce, voluntary separation, or where one spouse is abandoned against his will or driven off by other spouse. Will continue until grounds for termination, i.e. recipient dies, remarries, or the court modifies order.

Question 29

Rehabilitative Alimony

Answer 29

Awarded to a spouse for a limited period of time for the purpose of support until the recipient spouse is able to become self supporting by entering the workforce

Question 30

Lump-Sum Alimony

Answer 30

A fixed amount. This is a final order that may not be modified even if the lump sum is paid in installments.

Question 31

Best Interest of the Child

Answer 31

The duty of the judge is to determine what is the best interest of the child. There is a presumption that it is in the best interests of the child to be in the custody of one of the parents. In GA, there is no presumption in favor of any particular form of custody, legal or physical.

Question 32

Types of Child Custody

Answer 32

Never a final order, can always be reconsidered

1. joint
2. sole
3. joint legal
4. joint physical

Question 33

Split Parenting

Answer 33

One child stays with one parent and the other child stays with the other parent.

Question 34

Visitation Rights

Answer 34

Granted to noncustodial parent. Will be granted unless it is found detrimental to the best interests of the child. Visitation rights by grandparents or other 3rd parties are limited.

Question 35

Modification of Child Custody

Answer 35

GA’s view is that a material change in circumstances is required to modify the custody provisions of the order but not visitation provisions.

Question 36

Child Support

Answer 36

Either parent may be required to pay periodic sums for the support of his minor children. Generally ordered against the noncustodial parent, although contribution by the custodial parent is part of the calculation. Calculated after considering the child support guidelines imposed by the state.

Question 37

Calculation of Child Support

Answer 37

multiply the obligor’s gross income per pay period by a statutory percentage based on the number of children