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God, School, Health and Extracurriculars: The Top 4 Post-Divorce Parenting Issues!

by Jon Rotenberg, Of Counsel, Hedgepeth, Heredia & Rieder

Jon Rotenberg HHR 2015 smallAs parents raise their children, they confer on a huge range of decisions related to their kids’ lives. How do we handle homework? Do they get to watch TV on a school night? How do we make them eat their vegetables?

But there are four issues that top the list, and that we group as God, School, Health and Extracurriculars.

These four topics encompass key issues. Where will they go to school? Will they be raised in a religiously observant way? What activities will they take part in? How should we handle their medical care?

Managing all of these decisions is (hopefully) fairly amicable and straightforward when a couple is married. But when the marriage ends, the parenting continues. As part of a custody arrangement, the court will consider how the children’s time is divided. It will also make sure the children’s interests are taken care of on a number of fronts and these four areas will be at the top of the list.

The Judgement of Solomon - 2017 Version!

Among the ancient tales of Solomon, the wise king must solve a dispute between two women who both claim to be the mother of a baby. His solution is simple and classic: Cut the baby in two and each woman gets half. Of course, the true mother would rather give the baby to the other than do that!

Fortunately, Georgia’s statutes on custody are slightly more reasonable. They mandate that in almost all cases parents are obligated to confer on important decisions. Recognizing that giving both parents equal weight would result in frequent deadlocks, one parent is designated as the tiebreaker for specific decisions.

It is common for one parent to have final decision-making power as to all major decisions, but that is not always the case. For example, if one parent has the majority of time with the children and will remain in the school district where the children have always attended school, that parent will likely have educational authority. But the other parent may be a physician, and thus could be the best choice for making medical decisions. The needs of the child in each area vary, and influence who is put in charge of those decisions.

Managing that quartet of God, school, health and extracurricular activities might seem daunting, but understanding the options and planning can make the process smoother for your family.

As always, consult your family law attorney to help you through the process!

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Who’s Got the Thanksgiving Turkey ... and Who’s Got the Kids?

by Jon Hedgepeth; Hedgepeth, Heredia & Rieder

turkey

Summer just officially ended this week. We’re not even to Halloween, but the reality is, if you’re a divorced couple with kids, you’d better be thinking now about Thanksgiving and those December holidays!

The unfortunate reality of divorce is that the kids can’t be in two places at once for the holidays. As part of a custody agreement, parents have to figure out who is getting the kids over Thanksgiving and Winter Break ... and for how long.

JonHedgepethHHR

For custody-sharing parents, those long breaks in November and December can be fraught with tension. Thanksgiving sometimes seems to sneak up on you as school is still in session and the weather is still so warm that we’re not really thinking “end of year” yet. Many school districts are off the entire week surrounding Turkey Day, and some just Thursday and Friday. But your boss might not be so generous, especially if your job is in retail.

The days leading up to Christmas are fun and exciting, while the days after are considerably less so. Figuring out what’s “fair,” especially when there is only one Christmas Day during the break, has caused many couples to revisit their custody agreement.

When coming up with custody guidelines, there will always be a need to accommodate the vagaries of life. What worked last year may not work this year for a variety of reasons. In the event a matter does not settle, a judge may have to make a ruling, typically using a standard parenting time schedule form that alternates holidays each year. But that may not work from a practical standpoint. Partners need to work together to come up a plan that is best for them and their kids.

The most acrimonious divorces end up with people actually counting the custody days and taking a scorched earth approach to shared custody, but you don’t want to appear to be an evil elf. There are practical ways to look at splitting up the holiday to be more equitable (ways that’ll put you on Santa’s “good” list.) A good parenting plan is one you never really look at, because you understand you need to work together and succeed.

The first and best time to address custody is at the time of divorce. Your parenting plan should have all holidays addressed. Look at what the reality of your life is going to be versus what attorneys consider a “standard plan” and spell out any modifications clearly. People can interpret custody plans liberally and creatively, so you need to tighten them down very specifically.

With that said, there are a few starting points to work from when devising your holiday custody plan. Here are some options to consider.

Option 1: All or Nothing
Some families trade the whole holiday break off every year, so one parent has the kids for the entirety of the break. For many parents, this allows the opportunities for extended trips or family visits. The downside is that on off years, you will miss seeing your kids at all over the holidays. An option is for one parent gets the kids at Thanksgiving and one during Winter Break, alternating each year.

Option 2: Half and Half
Another option is breaking the holiday in half, with one parent getting custody for the first half and the other parent the second. For Thanksgiving week, if all the families live nearby, one parent might do Thanksgiving on Thursday and the other on Friday since the kids are off school anyway.

In December, one parent might get the kids through Christmas Day and the other through New Year’s Day. This isn’t always popular, since it means one parent gets the kids for Christmas, traditionally a fun holiday to spend with kids, and the other parent has the kids for New Year’s Eve, traditionally a fun holiday to spend with adults. One solution is to carve out a block from Christmas Day to New Year’s Day, so the same parent gets both the high and the low.

Option 3: The Usual Routine
Some families just maintain their regular custody routine through the break, preferring to maintain a successful schedule instead of disrupting it. This can work well, although it can also lead to one parent having custody on the actual holiday for several years in a row.

Option 4: Creative Solutions
Finding a creative solution means finding a solution that works for you and your family. One parent could do Thanksgiving lunch and the other dinner. Or, one parent could stake a claim on Christmas Eve and the other on Christmas Day, and they build their holiday custody agreement around maintaining this new holiday tradition.

One final note: There are more complaints about visitation before big holidays like Thanksgiving and Christmas, because people may have made informal agreements in the past and then reneged on them. People expect reciprocity when they give a little extra time, but that’s hard to enforce. Judges aren’t going to move any faster just because you want to spend Thanksgiving with your kids.

There’s no one “right” approach to handling holiday custody, but it really helps if the parents can agree on a united front. Trying one approach and finding it doesn’t work isn’t a failure. It’s just a sign to keep trying other options. Eventually, working together, you will find an approach that works for your situation.

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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.

JonHedgepethHHR

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.

 

Contact Jon Hedgepeth at

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For Divorced Couples, Paying for College May Not Be an Academic Issue

By Jon Rotenberg, Hedgepeth, Heredia & Rieder

Figuring out college finances can be thorny under the best of circumstances. The costs are cJon Rotenberg HHR 2015 smallomplex and vary from college to college and student to student. For divorced couples, there are added layers of complication: Who pays, and how much?

Click here to listen to Jon's Interview on WDUN Radio

Parents who divorce when the kids are closer to college age may already have a plan that both are happy with. For parents who divorce when children are younger, college is so far away that they may not have even started planning. These parents, who have gotten used to navigating day-to-day life by the terms of their divorce decree and custody agreement, may suddenly find themselves dropped into a complex financial situation with no guidance.

One thing that makes including college finances in a divorce particularly problematic is that children are usually legal adults by the time college starts. A court cannot order a parent to pay for college, or order them to fund an account to pay for anything post-majority. Essentially, all that is required for college to be excluded from a divorce decree is for one of the parties to simply say, “No.”

Nevertheless, many clients seek a legal solution to the college problem. Unless there is money from a family trust or other guaranteed source, it can be daunting for clients to include college financing in a divorce settlement. There are simply too many variables to guarantee the money will be available at the time without causing undue financial strain. That said, there are several legal paths to collaboration available.

Writing College Funding into the Divorce Decree

If both parties agree to it as part of a divorce settlement, a college financing plan becomes an enforceable agreement. If one party agrees to pay for college and allows it to be put into the divorce decree, then the other party can take them to court. This tactic turns what many consider to be a parent’s moral obligation to a child into a legal obligation to an ex-spouse.

college

If the children are older teens, and both parties can realistically project their finances for the next four or five years, that might work out fine. But for parents of very young children, they are gambling on the unknown. College costs might increase more than expected, the child might turn out to be a terrible student, or the parent might have an unforeseen financial setback. Once that agreement is signed, the parent is liable for those costs regardless of changes in their financial circumstances.

If the couple decides to include paying for college in their divorce decree, make sure some common-sense limitations are included. In particular, be specific about:

  • Costs: Do some research and project the cost of one year at an in-state university: food, lodging, tuition and associated fees. Cap your annual contribution at this amount. This doesn’t mean you can’t pay more for a private school if you choose, but it does mean you are not obligated to your former spouse to do so. Spell it out clearly.
  • Schools/Degrees: Specify what types of school you are willing to pay for, and exclude any you are not. For example, you might be willing to underwrite a degree from an accredited university or a trade school, but not a stint at Clown College.
  • Time: An undergraduate degree is usually four or five years. Not capping your contribution at the end of a reasonable length of time might leave you funding ten years or more of a protracted degree at an expensive private school.
  • Performance: Include some reasonable expectations for academic expectations for the funding to continue. Paying for a failing student to move from school to school is in no one’s best interests.
  • Other Monies: Sometimes money comes from outside sources: scholarships, grants and gifts. Spell out in the agreement which party will benefit in equal amount regardless of the source. For instance, a $10,000 scholarship reduces each parent’s obligation by $5,000, while a gift from a member of one parent’s family could go toward that parent’s obligation

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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.