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The January Effect: Start of New Year is the Busy Time for Divorce Filings

 

By Jon Hedgepeth, Hedgepeth, Heredia & Rieder

JonHedgepethHHR

 

Most of us start off the New Year with resolutions to make a change for the better -- lose weight, exercise more, spend more time (or less) with family and friends. As a family law attorney, I know that for some people, their firmest New Year’s resolution is to seek a divorce as soon as the New Year begins. 

Family law attorneys know to expect an uptick in divorce cases as soon as they return to work after the December holiday break. What’s driving this post-holiday divorce rush? There are a few different motives, none as “Grinchy” as you might think.

 

Jon Hedgepeth on 11Alive: http://www.11alive.com/story/life/2016/01/20/divorce-filings-spike-january/78996606/

 January Effect smaller“Pencil me in for that divorce the first Tuesday in January”

 

Parents who are considering divorce in the summer or fall may put it off as kids adjust to a new school year. A few months later they’re anticipating the holiday season and decide to give the kids one last Christmastime as an intact family. By January, with the holidays over and children firmly established in the school routine again, parents may feel things have stabilized enough that the kids will be better able to handle the disruption of a divorce.

 

This thoughtful approach can be a positive sign: timing your divorce with the happiness of the kids in mind is a good start to what can be a contentious process.

 

One more excellent reason couples might wait a little longer is that in order to file jointly for taxes, they must be married on Dec. 31. Waiting until the beginning of the new year to file makes untangling commingled finances a little bit easier, and makes January an even more attractive target.

 

“I can’t take one more year of matching Christmas sweaters with you” 

 

Waiting for a convenient slot on the calendar is not the only driver of post-holiday divorce. For a happy family, the chance to spend so much time together is a gift on its own. For the unhappy couple, all that forced imitation of happiness may be the last straw. People in an unhappy marriage who manage to interact with each other as little as possible most of the year often find themselves in close quarters for extended periods during the holidays … when escaping to work isn’t an option.

 

There are other stressors, including having overexcited kids around all day, having arguments over where to spend the holidays, and more arguments over holiday spending.

 

For those couples, the long-pending decision to divorce can crystallize suddenly. The abrupt decision made during a seemingly endless holiday results in a phone call to a lawyer as soon as possible -- when everyone has returned to a normal schedule after the holidays.

 

In both cases, the desire to put off bad news until after the holidays plays into the timing. The combination of a new school year, the quick approach of the holidays, and the advantage of prolonging the marriage through December encourages some families to postpone seeking divorce until the New Year, while the enforced togetherness of the holidays encourages others to seek divorce as soon as possible.

 

Together, they make January a perfect storm for uncoupling.

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'Twas the Night Before Christmas ... So Who's Got the Kids?

By Jon W. Hedgepeth; Hedgepeth, Heredia & Rieder

JonHedgepethHHRCustody at Christmastime is an issue as old as the holiday itself.

An unfortunate reality of divorce is that not everyone can have the kids for the holidays. As part of any custody agreement, parents need to establish who is to get the kids, and for how long.

For custody-sharing parents, the December break can be fraught with tension. The days leading up to Christmas are fun and exciting, while the following days are considerably less so. Figuring out what’s “fair,” especially when there is only one actual Christmas Day during the Christmas break, has caused countless couples to revisit their original custody agreement.

When coming up with custody and parenting time 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. Parents need to work together to decide upon a plan that is best for them and happiest for their kids.

sadsantaPractical or Scorched Earth?

The most acrimonious divorces often end up with parents actually counting the custody days and taking a scorched earth approach to shared custody. There are practical ways to look at splitting up the long holiday period in a manner that is not only more equitable but more in keeping with the spirit of the season. A good parenting plan is one you never really have to revisit because you’ve understood that for it to succeed you must work together.

The best time (and first time) to address custody is at the time of divorce. Your parenting plan should have all holiday issues addressed. People can interpret custody plans liberally, so you need to tighten them down very specifically.

Your Holiday Custody Options

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

Option 1: All or Nothing

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Some families trade off the whole holiday break every year, so one parent has the kids for the entirety of the break. For many parents, this allows 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.

 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, or with one parent getting 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, while 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 simply maintain their regular custody routine through the break, preferring to keep 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. Maybe one parent stakes 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 than at any other time because people may have made informal agreements in the past and then backed out on them. When people give a little extra time to the other party they expect reciprocity, but that’s hard to enforce. Judges aren’t necessarily going to move any faster just because you want to spend this particular Thanksgiving with your kids.

There’s no single “right” approach to handling holiday custody, but it really helps if the parents can agree on a united plan of action. Trying one approach and finding it doesn’t work isn’t a failure, just a sign. Eventually, working together, you will find an approach that both works for your own special situation and also makes all of your following holidays happier.

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Nat'l Adoption Awareness Month: What to Expect When You're Adopting

By Lara Schuster, Hedgepeth, Heredia & Rieder

November is National Adoption Awareness month, the perfect time to touch on this important topic. Adoptions, which involve permanently transferring the responsibility for a child from one party to another, necessarily require thoughtful care and attention to detail.

 

Learn Morehttp://national-adoption-month.adoption.com/

 

Understanding the legal issues involved is crucial, and there are many aspects that can make a difference to how an adoption plays out. Who is adopting, who is being adopted, and who is relinquishing parental rights are all factors that can come into play.

 

Many people don’t realize that adoption is usually a two-step process.

 

  1. The first step is ending the legal relationship between the child and birth parents or other legal guardian
  2. The second step is formalizing the relationship between the child and the adoptive parents

 

Part One: Severing Parental Rights

The legal relationship between birth parents and child can be ended either voluntarily or involuntarily.

 

Involuntary: If a parent does not want to surrender parental rights or cannot be located or is unknown, an adoption petitioner generally will need to request that the court terminate parental rights. To do this, the adopting parent must provide notice to the birth parent and be prepared to present clear and convincing evidence to a court that the birth parent abandoned the child, cannot be found, is incapacitated, or has failed to exercise proper parental care or control of the child.

 

Voluntary: If a birth parent agrees to voluntarily end the legal relationship with his or her child, a surrender of parental rights, as well as a few other documents, will need to be reviewed and executed in front of a notary. Georgia law provides for a period of 10 days in which a parent can revoke a signed surrender of parental rights. Although executing a surrender opens the door to another person adopting the child, it does end a parent’s responsibility to financially support the child until there is an adoption or another court order.

 

Part Two: Formalizing the Adoption

Once birth parents' rights have been surrendered or terminated, a court considers whether to grant an adoption. Before an adoption is granted, a court must consider whether the prospective parent is financially, physically, and mentally able to have permanent custody of the child and whether the adoption is in the best interest of a child.

 

Prospective adoptive parents should expect a home study to be conducted, and there may be additional financial costs associated with this portion of the process.  This home study often includes an independent, court-approved investigator meeting the adoptive parents with the child, reviewing:

 

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    • The health of the parents and child

    • Conducting a background check

    • Ensuring that the adoptive parents will provide a safe and secure home environment.

 

If the child being adopted is 14 or older, the child’s consent is usually required.

 

Other Factors

 In Georgia, adoptions are divided into categories based on the relationship between the adopting parent(s) and the person being adopted. Factors that can affect adoption include:

  • Whether the person is a step-parent, other relative, or unrelated
  • If the child is being adopted through an adoption agency or the division of family and children’s services
  • If the original adoption took place in a foreign country
  • If the person being adopted is an adult

 

Because of the intricacies and differences in every family situation and because of the significant rights and relationships at stake, birth parents and adoptive parents should consult counsel to best understand their circumstances.

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Myths of Family Law

By Hannibal Heredia, Hedgepeth, Heredia & Rieder

Everyone thinks they know how family law works, but what we see in our pop culture is often at odds with what happens in the real world. Learning about the differences can be an eye-opening -- and sometimes expensive and emotionally painful -- experience. Let’s take a look at some common situations and the “myths” vs. the “realities.”

 

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Hollywood Says I Get Half

 MYTH: “I get half of everything in a divorce, no matter what. I’ve seen it in so many movies!”

 REALITY: Apologies to Tinseltown, but it is not that straightforward. First a judge has to determine if assets are separate property (owned by just one spouse as defined under Georgia law) or marital property (jointly owned as that is defined under Georgia law). Then a determination has to be made by the judge (or jury) about what constitutes “equitable distribution” in this particular case - what is fair.

It’s Mine If My Name is on the Title, Right?

 MYTH: “If my name is the only one on the title, then I retain sole ownership.”

 REALITY: Not necessarily. Property that was originally separate property may become marital property if certain actions are taken over the course of the marriage as provided under Georgia law. Having a spouse’s name added to a deed on what was separate property has a great potential to make that property marital property.

What About the Stuff I Had Before I Got Married?

 MYTH: “If I brought it to the marriage, I can take it away when the marriage ends.”

 REALITY: Again, not necessarily. A house both spouses lived in may be considered marital property if certain actions are taken during marriage, even if only one spouse is on the deed. Setting aside assets as separate property in a prenup can provide protection.  

Prenups Don’t Really Help

 MYTH: “Prenups can easily be overridden by a judge during a divorce.”

 REALITY: Celebrities may challenge their prenups, but that doesn’t mean they will win. A prenup is a legally binding contract and like all contracts has the strength of law behind it. Courts routinely enforce prenuptial agreements, so they can be a valuable tool in preserving your assets. On the other hand, be careful not to sign a prenup giving away rights you would have had otherwise in a divorce.

My Spouse Makes More Than Me, So I Will Get Alimony

 MYTH: “The spouse who makes less, or a non-working spouse, is automatically entitled to alimony from the breadwinner spouse.”

 REALITY:  This is another of those areas where the judge has discretion and will look at factors including: Do both partners work? How long have they been married? What is the standard of living the support-seeking spouse had during the marriage? Does one or both spouses have additional financial resources?

 All these factors and more will go into determining how much alimony, if any, will be paid, and for how long. In general, however, alimony can be less generous, and often doesn’t last as long, as it did for earlier generations.

Does Adultery Matter?

 MYTH: “Adultery isn’t an issue in modern divorce cases.”

 REALITY: In fact, adultery is one of the most common grounds for divorce in Georgia and can still have an impact on certain issues in a divorce. Adultery that is the cause of the dissolution of marriage may bar the “cheating” spouse from receiving alimony. Also, a spouse who allowed their paramour to spend time around the children may find this has a negative effect on their custody arrangements.

Baby Mamas and Baby Daddies

 MYTH: “Both parents of a child share rights and responsibilities for a child whether they are married or not.”

 REALITY: In Georgia, the mother is considered to have sole custody and all legal rights until the biological father legitimates the child. If the father neglects to do this and falls out with the mother, he can find himself cut off from his child until he initiates a legal action to set out his rights. Even after initiation of the suit, Georgia law will allow the court to consider whether it is the best interests that the child be legitimated.

Do Adoptions Have to be Expensive?

 MYTH: “Adoptions are always ruinously expensive, costing tens of thousands of dollars.”

 REALITY: Adoption certainly can be expensive, with costs ranging to $30,000 or more depending on the agency used. In-family adoption, special needs/foster care adoptions and charitable adoption agencies can all lead to a much more affordable adoption.

My Retirement Account Can’t Be Divided, Can It?

 MYTH: “If you try to split an retirement account, you’ll end up paying big penalties.”

 REALITY:  Most retirements accounts and some pensions are divisible in a divorce. Some accounts, such as an IRA, can simply be transferred to another IRA without the need of an additional court order.  Other accounts, such as 401(k), need an an additional court order to be prepared so that the account can be divided. Once the spouse receives his or her share from the other’s spouse retirement account, the receiving spouse may have to pay taxes and penalties if he or she withdraws funds from the account after the division.  Many pensions,such as those related to a governmental entity, cannot be divided by the court.   

The Takeaway

 Go into any legal proceeding with an open mind. Know what outcome you want but be willing to listen to your attorney about how likely that outcome really is. If your lawyer says that your expectations are not realistic, it may be time to revise them. Remember your attorney wants the best-case scenario for your case, because then you both end up with the best result possible.

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Lamar Odom and the Risk of a Non-Finalized Divorce

Jessica Fagan HHRBy Jessica Reece Fagan, Hedgepeth, Heredia & Rieder

Divorce is an overwhelming process, emotionally and financially. And the last thing many people want to think about during the process is another emotional topic: catastrophic injury and death. But as the ongoing tragedy of Khloe Kardashian and Lamar Odom highlights, it is a topic that should be addressed.

 

While most are familiar with the context of a will, a document to dispose of one’s assets upon death, not everyone is aware of the use of a durable power of attorney and an advance directive for health care. 

  • A durable power of attorney allows you to appoint an agent to handle your property in the event of your incapacity. 
  • An advance directive for health care allows you to appoint an agent to make health care decisions for you if you are unable to make them yourself and allows you to indicate your end of life treatment preferences when you are unable to make such decisions for yourself.  This document has replaced the old health care power of attorney and living wills over the last several years.  

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Georgia has a statutory form for advance directives for health care. The person designated as the health care agent will make health care decisions, and/or direct the withholding or withdrawal of life-sustaining procedures and/or the provision of nourishment or hydration.

When there is no advance directive for health care in place, however, the right to make medical decisions falls to family members, generally in the following order: spouse, adult children, parent, siblings, and then other family members.

 

As highlighted by the Khloe Kardashian and Lamar Odom situation, when a divorce is not finalized, or when an advance directive for health care has not been updated, that person will still have the legal right to make medical decisions.

 

It is unclear as an outsider, of course, whether Ms. Kardashian is making decisions because the divorce is not final and she is still legally his wife, or if it is pursuant to a power of attorney or an advance directive for health care. What is clear from news reports is that Ms. Kardashian – his soon-to-be ex-spouse – is the only individual in the world who legally had the power to make decisions for Mr. Odom while he was unconscious and while he remains in critical care.

 

In Ms. Kardashian and Mr. Odom’s case, this may not be a terrible situation—at least in front of the camera she seems to truly care for him and reports indicate he is recovering. But for other divorcing couples, the concept of an estranged, soon-to-be ex making decisions around whether to keep one on life support over the rest of his family’s wishes is downright terrifying.

  • In addition to the right to make medical decisions, a spouse in a non-finalized divorce may also find themselves entitled to certain monetary benefits.
  • If a soon-to-be-ex spouse has not updated his or her will or beneficiary provisions (regarding life insurance, retirement accounts, etc.) and then dies unexpectedly, such assets could go to the ex-spouse and leave an estate in costly probate litigation sorting out the donative intent under the terms of a will and a divorce settlement agreement. Accordingly, if a person is contemplating divorce, it is critical to get these issues addressed.

 

“We advise our clients to review their estate planning documents whenever they are anticipating a life-changing event such as a marriage, divorce, or new child,” says Brent Howard, an attorney with Bryan Cave in Atlanta whose practice includes estate planning. “Such events typically change the client’s desired estate plan and the appointment of people they trust to handle either their estate plan in the event of death or their finances and medical decisions in the event of an incapacitation.” 

 

Timing is important, however. Once a divorce is filed, most counties in Georgia have an automatic domestic relations standing order that prevents either party from changing the financial status quo, which often is interpreted as changing the beneficiary designations on legal documents.

 

Generally speaking, it is permissible to update a will, power of attorney and/or an advance directive for health care during a divorce.

  • But even if the will is updated to exclude a soon-to-be-ex spouse, a surviving spouse may still have some rights to the estate under law, should the other spouse die while a divorce action is pending but has not been finalized. 
  • Georgia does not require a married individual to leave anything to his or her spouse, but a surviving spouse can petition the court for an award of year’s support.  (Year’s support is a creditor claim against the deceased spouse’s estate equal to support for the spouse for a year.)

 

“If a married individual is considering a divorce or separation, the individual should update his or her estate plan to prevent the estranged spouse from having legal authority over his or her finances and health care decisions prior to the final order dissolving the marriage,” advises Howard.  “Even though the new plan can also disinherit the spouse in the event of death prior to the final order of dissolution, it is still subject to any spousal share required by state laws.”

 

In sum, life can change in an instant. If you are considering divorce, it is strongly recommended that you meet with your attorney prior to filing to not only discuss the reality of a divorce action, but to discuss the terms of your estate planning documents, as well. A person is well-advised to ensure that their intention and desires remain intact regardless of their mental capacity.

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