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Moving Apart Happens in Divorce, But It Doesn’t Have to Split Your Family

By Hannibal Heredia, Hedgepeth, Heredia & Rieder

In a divorce, families go from living in one home to two. But what happens when one partner decides to move a significant distance?

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  • We’re not talking moving a few blocks, but moving out of the city where the entire family has been living, or out of state entirely.
  • One partner might move before the divorce, possibly thinking the move would be temporary, or that the other partner and kids would join them later. But it often doesn't work out that way, and the former partners end up living in different cities with a divorce underway.

Parental relocation is an issue that is growing as our society becomes ever more mobile. Here are three key things to think about for couples in this kind of “moving” situation:

1. Best Interests of the Children. You must ask: Is this move in the best interests of the child, or just the parent? The judge, as in any modification case, will look at factors such as who was the primary parent; what schedule was being followed by the parties; how active was the parent with less parenting time; what activities were the child(ren) involved in; and what age is the child. 

However, there is no formula for determining what constitutes the best interests of the child. Each judge makes the decision on a case-by-case basis. For example, a parent who accepts a job in another town paying the same wage and lives in a house the same size as the one left behind may not present a compelling argument for moving.

But adding increased access to grandparents or other family, or attending a school recognized for excellence makes it more compelling. In the end relocation decisions tend to be case by case.

2. Job Changes. Accepting a job (or marriage proposal) out of town does not automatically mean that the judge will alter the custody agreement. Before accepting, talk to your former spouse about making adjustments to the custody agreement. Ideally, if you can get buy-in from your parenting partner, then you can present the request for changes in the custody agreement together.

moving vanIf your former spouse is not on board with the move, it may take longer to get changes made. If you’ve already made the move before requesting the custody change, you may find yourself with considerably reduced access to your children.

3. Where You Are Moving Matters. If you are relocating to a different neighborhood in the same town or a nearby town, the judge is more likely to allow it, because the disruption is minimal.

Remember, however, that moving even as little 45 minutes away can mean an hour and half of travel time for the visiting parent, and can make getting a child to school on time an unmanageable challenge. The judge may decide to give weekday custody to the parent who stays in the school district, and restrict the relocating parent to custody on weekends and holidays.

Moving across the country - or to another country - ups the ante considerably. Daily visitation becomes impossible. The challenges of coparenting are magnified by distance. Most crucially, it will require significant travel by the child, which can be very expensive. The farther away a parent wants to move, the more significantly the custody agreement will have to be reworked. It becomes unlikely the parent who’s moving will get everything they’re asking for in the arrangement.

If you choose to move, for whatever reason, the judge may decide to place all travel expenses for the child solely with you. Considering that most children under 14 cannot fly alone, two plane tickets may have to be purchased for every visit.

4. Question Your Own Motives. It is common for parents to want a fresh start, but unless that fresh start comes with some tangible benefits for the child, the judge may be unlikely to grant it. Getting far away from your former spouse isn't good enough.

 It’s worth mentioning that even when a parent moves away, advances in technology have made keeping in touch easier than ever before. FaceTime, Skype, and social media allow even the most faraway parents to stay in daily contact with their kids.

Of course, physical custody of the kids is what we’re focusing on here. Divorce by its nature will always involve spouses moving in some fashion. They key is to follow these guidelines so the best interests of the children are well-considered.

Always consult your family law attorney to help you through these legal processes. You can reach Hannibal Heredia at  or (404) 846-7025.

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! You can reach Jon Rotenberg at  or (404) 846-7025.

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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.

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

by Jon Hedgepeth; Hedgepeth, Heredia & Rieder

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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.

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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!

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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.

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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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