Unexpected Visits from the Grim Reaper: Make Sure Affairs Are in Order When Divorcing

By Jon Hedgepeth, Hedgepeth, Heredia & Rieder

Death and divorce have an interesting relationship in Georgia. It’s important to know their dynamics ... or your family or beneficiaries might pay an unexpected price!

grim reaper


A typical Domestic Relations Standing Order, an order filed with a divorce automatically or in most cases, provides that neither party to a divorce may sell, encumber, trade, contract to sell or otherwise dispose of or remove marital property from the jurisdiction of the court unless it is in the ‘ordinary course of business.’

But what if a spouse who is a party to a divorce decides to change his or her beneficiary designation on a life insurance policy or a retirement account, or even change his or her will? Georgia is called an ‘equitable division’ state with respect to divorce, meaning that marital property is divided fairly, and not necessarily evenly.


The twist is that, in Georgia, probate law doesn’t follow the principle of equitable division. The Official Code of Georgia, section 53-4-1 provides that a Testator may make any disposition of property that is not inconsistent with the laws or contrary to public policy and may give all the property to strangers to the exclusion of the testator’s spouse or descendants.

Most courts have concluded that changing beneficiaries to a life insurance policy is not ‘property’ and is merely an expectation of property contingent upon the death of the policy holder. Therefore, it is not a transfer or conveyance of property since it has no real value until the insured is dead.

The same argument can be had with a Last Will and Testament.
• The changing of a person’s Will does not transfer or have any other legal effect on the Testator’s assets since it does not transfer or dispose of a person’s assets.

• Further, unless there is a Consent Order to the contrary, parties to a divorce routinely revise their Wills to prevent the other spouse from receiving assets that the Testator does not want to convey in the event of premature death.

I have been involved in at least three cases where the opposing side has died prior to the granting of a Final Judgment and Decree of Divorce, and in neither case had the decedent changed his or her Will, so the surviving party ended up receiving the entire marital estate. This would not have happened had decedent survived the divorce and subsequently revised their Will and beneficiary designations.

Further, in the event a Will is not changed, divorce will not automatically revoke beneficiary designations or Will provisions in Georgia. That means it’s important that, absent an Order to the contrary, one’s Will and beneficiary designations should be changed immediately after a Divorce Decree is issued.


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May is Foster Care Month: Fostering and Adoption Both Great Ways to Care for Children in Georgia

By J. Ashley Sawyer, Hedgepeth, Heredia & RiederAshley Sawyer hhr

May is National Foster Care month, and an annual reminder that there is more than one way to build a family. I’ve always admired my grandmother for her commitment to foster care, as she took in children who needed a loving home. Some of those children would eventually be reunited with their own families, while others would go on to be adopted by a new "forever" family.

President Reagan established May as National Foster Care Month in 1988. More than 400,000 children and youth in the U.S. are involved with foster care. Resource families include foster parents, foster-to-adopt families and relative/kinship caregivers.

The general goal of foster care is to provide a safe place for children to live until the family can be reunited in safe circumstances. The state acts as temporary guardian for the child while the parents make necessary life changes. 

  • While more than 75% of children in foster care will eventually be reunited with their families, in some cases this is impossible.
  • Sometimes the state terminates the birth parents’ rights to protect the children, and sometimes the parents have passed away.
  • In either case, the state then searches for a new, permanent family for the child.
  • Many foster children are eventually adopted by their foster parents.


In my own work I find great satisfaction in working in the complex but rewarding field of adoption.

There are six types of adoption recognized in Georgia:

  • Agency Adoptions (private adoption agency or state agency, DFCS)  
  • Independent Adoptions for Non-Relatives
  • Stepparent/Spousal Adoptions
  • Relative Adoptions
  • Adoptions based on a Foreign Decree
  • Adult Adoptions


Who May Adopt?
Any adult over the age of 25, who is a bona fide resident of the state for six months preceding the filing of the petition, and who is “financially, physically and mentally able to have permanent custody of the child” may petition the Superior Court to adopt a child.

Agency Adoption
In an agency adoption, the child is in the custody of the agency prior to being adopted. In a private agency adoption, there is either a voluntary surrender of rights by the parents or a surrender by one parent and termination of the second parent’s rights.

In a state agency adoption, the process by which a child in foster care is adopted, the parents have typically had their rights to the child terminated by court order, and the child has been placed in care of the state for the purposes of adoption. 

Step-Parent Adoption
Step-parent adoption can occur in three scenarios: 

  • A biological parent has passed away
  • A biological parent has consented to surrender his or her parental rights
  • The biological parent’s parental rights have been terminated by Court Order


In each of the three scenarios, the adopting spouse must have his or her spouse’s consent to the adoption.

When a step-parent wants to adopt a child and there are no obstacles, a step-parent adoption is a straightforward way to strengthen family bonds. Sometimes a biological parent willingly surrenders parental rights because they believe it is in the best interest of the child to do so.

Many parents, however, will fight hard to keep their parental rights intact regardless of their real relationship with the child, which can make it a very challenging process. Understandably, courts are reluctant to sever parental rights without very good reason.

Third Party / Independent Adoption
A person filing an independent adoption is generally a non-relative or at least not a close-order relative. These type of adoptions are generally the most scrutinized by the Court due to the fact that an agency is not involved and that there may be no familial relationship between the adoptive parent and child.

The requirements of an independent adoption blended with certain requirements of a step parent adoption (which practitioners often term “a second parent adoption”) has been frequently utilized by unmarried same-sex couples to adopt a child. After the 2015 Supreme Court Obergefell v. Hodges decision granting same-sex couples the right to marry in any state, it is unclear whether courts will continue to grant adoptions to unmarried same sex couples in this manner.

Additionally, because the legality of second parent adoptions has been scrutinized by courts in neighboring states, judges are recommending that any same-sex couple who while unmarried completed a second parent adoption, but has now married his or her partner, complete a step-parent adoption to provide additional security to legal effect of the adoption.

Relative Adoption
The adoptive parent must be the child’s grandparent, great-grandparent, aunt, uncle, great aunt, great uncle or sibling. The relationship that determines qualification for an adoption under this code section is between the adopting parent and the child, not the adoptive parent and the child’s biological parent.

Domestication of Foreign Adoptions
This process is utilized when a child’s adoption was finalized in the child’s birth country and acts to domesticate the adoption so that the family can obtain a certificate of foreign birth from Georgia Vital Records, similar to a Georgia birth certificate.

Adult Adoptions
Adult persons may be adopted upon giving written consent to the adoption and so long as the court is “satisfied there is no reason why the adoption should not be granted.”

Both fostering and adoption are so important in securing a legal status for a family, and in making children feel safe and loved. Either option can truly change their lives for the better.


Same-Sex Marriage Changes Make for Happy Adoptive Parents

Ashley Sawyer hhrBy J. Ashley Sawyer, Hedgepeth, Heredia & Rieder

I recently helped my client Jessica, who is part of a same-sex couple, adopt her partner’s two biological children. With the couple’s permission, I am sharing their story as an example of how Georgia’s adoption process can work to unify same-sex families.


At the time Jessica came to me about the adoption process, she was in a long-term relationship with her partner, Jina. Jina is the biological mother of two children. Jessica had helped Jina raised her two girls and both children called Jina and Jessica “mom.” After many years together, the couple decided they wanted to make legally official their already strong family bond.


Jina jessica court adoption photoAt the time we filed the adoption, Jina and Jessica were unmarried and the Supreme Court had not yet ruled on the legality of same-sex marriage. As a result, the only avenue available for Jessica's adoption is what family law practitioners call a "second parent adoption." That is essentially a blend of an independent adoption and a step-parent adoption.


Now that same-sex marriage is legal, same-sex couples can file step parent adoptions, which require less paperwork and can take a shorter period of time to complete than second parent adoptions. 


I often hear Superior Court Judges say that adoptions are the happiest thing they do while on the bench. Adoptions are truly one of my favorite parts of my practice and it was a privilege to assist Jessica through this process.   

Jina jessica court adoption photo2The Judge for Jessica's case was the Honorable Robert E. Flournoy III of Cobb County Superior Court. Like most judges, he allowed for pictures and made it a fun event for the family.

He even invited the girls to come up to the bench to sit in his chair and bang the gavel, which was a highlight of the day. It was a memorable experience for all.


Divorce Filings and the "January Effect" - HHR's Jon Hedgepeth on the biz1190's Dana Barrett Show, Fox5 and WDUN Radio

HHR's Jon Hedgepeth talked about the January Divorce Effect with several media outlets this month, including The Dana Barrett Show on biz1190 radio, Good Day Atlanta on Fox5 and WDUN Radio with Russell Brown. He talked about why divorce filings spike this month, factors that drive it, and things couples can do to make the process smoother.

Dana Barrett Showhttp://danabarrett.com/start-2017-with-change-divorce-anyone-or-how-bout-a-new-style/

Fox5 Good Day Atlanta: https://youtu.be/Je9wSxOc9EI

WDUN Radiohttps://youtu.be/1Pvw67EztF8


Kurt Cobain’s Guitar and Grandma’s Wedding Ring: Defining Marital and Separate Property

by Jon Rotenberg of Hedgepeth, Heredia & Rieder

kurt cobain mtv unplugged 650A guitar that once belonged to Nirvana frontman Kurt Cobain recently was center stage as an interesting point of marital property law. Cobain’s daughter, Frances Bean Cobain, is ending her marriage to musician Isaiah Silva. Silva claims she gave him as a wedding gift one of her father’s most iconic guitars – the Martin D-18E he used on MTV’s Unplugged in one of his last performances.

Of course, Cobain maintains she never meant to gift the guitar to her husband.

One of the biggest challenges in any divorce is division of property. When two people marry, their personal property will be commingled to a large degree. A good pre-nup can make sure that any especially valuable or meaningful property that a party brings into the marriage is protected in case of divorce, but there are a few scenarios that are not so clear-cut.

We don’t know all the details of Silva’s claim, but the burden will be on him to prove that Frances Bean Cobain gave him the guitar as a gift. He has little hope of quantifying it as property acquired during the marriage. To prove it was a premarital asset, all Cobain has to do is show the judge the 1994 album cover on which it appears, “MTV Unplugged in New York.” She married Silva in 2014 and is Kurt Cobain’s only child, so the guitar is easily identified as separate property she brought to the marriage.

Jon Rotenberg HHR 2015 smallReports don’t indicate who currently has the guitar, but it doesn’t really matter. Possession may be nine-tenths of the law, but we are examining that last tenth- ownership. Portable possessions within a marriage can be removed easily by either party, regardless of ownership. Here, the question is not who currently has the property in his or her possession, but who legally owns it.

The Unique Niche of Marital Gifts

This story captures the difficulties that can arise over what constitutes separate and marital property. Gifts given between spouses and received by spouses from third parties occupy a unique niche. When a third party gives a gift to one of a couple, it becomes that person’s separate property, but when one spouse gives a gift to another, in the absence of evidence to the contrary, it becomes marital property and thus subject to division in a divorce.

The dividing lines between marital and separate property can be blurry at the best of times, and vary from marriage to marriage. A solid pre-nuptial agreement can save both parties much grief during a divorce by clarifying who gets what from the outset.