How does a Court divide up assets and debts of a marriage when the parties cannot decide?

June 2nd, 2010

Some parties in a divorce focus on what they specifically want “I want the house, I don’t care about anything else” and others want to calculate to the penny how to split everything 50/50. Georgia law does not provide for community property. Instead we have ‘equitable division’ which means that each gets a fair share – usually starting for discussion at 50/50.

Exceptions are important. These are generalized examples – every situation should be reviewed with a competent attorney: Pre-marital property is not divided if it has been kept separate. Inheritances and gifts from outside the marriage are not divided unless made to both parties. But these things have to have been kept separate — once put into joint accounts or merged into marital assets they become marital property.

But does a Court divide Everything 50/50? ½ the value of the refrigerator? ½ the value of the TV? No, that would typically generate too many arguments and too much debate over value and disposition. Instead, The entire asset value of the parties (equity in home, retirement accounts, business property, stocks, cash, value of joint property, less debts jointly owed) would be totaled and this split with each party getting a certain amount of the value, to be allocated by group. Think of a pie which is cut into portions. If the Wife wanted the house (equity of $50,000) and her total share was $65000, then she would be getting the house plus $15,000 and the Husband would be getting other assets which might be all cash.

Obviously, the division is not so arbitrary – which is why most divorces end in settlements rather than trials, but the rights to asset split does not arise from who may or may not have possession of the item at a given time.

Having said that, it should be noted, that many people plan for their upcoming separations by removing valuable property. If done prior to the filing of a petition, and the entry of a Standing Order, then there may be little which can be done to accurately value the item or even locate it for identification. Jewelry and collectibles often go walking prior to a divorce being filed.

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Some aspects of Foster Parenting should be applauded

June 2nd, 2010

In Georgia, it has been my experience that very few foster parents ever sign up and take in children because they need (or want) the money. Sometimes they become foster parents because they want to adopt and believe that this is a viable route for placement of a child out of state custody. They are typically paid if not already related to the child but the money is not much. The sum provided by Georgia’s Department of Family and Children Services (DFCS) may be necessary in order to allow the family to support this additional child, but it does not make them wealthy. Example: A payment of less than $500 per month for caring for a four year old and the Agency may also be paying for day care and Medicaid, but nothing can really compensate for the other ‘benefits’ that family obtains from the child – such as:
Hugs, kisses (sometimes), bites, fights, backtalk, lies, hoarding food and resources, bedwetting, misuse of feces and other bodily products, and a myriad other behaviors which came with the child from a life of abuse or neglect.
It is important to remember that these children did not ask to be in this situation. They would generally prefer to be with their biological relatives, no matter how badly they have been treated. Some of these children have never seen a toothbrush (much less used one), and many have been inadequately potty trained so that they have no idea what to do with toilet paper. Many have been routinely exposed to language which would make a construction worker blush and have seen more sexual situations than many long married mothers would recognize.-

The child is never consulted in making the decision to place him or her with a family. The sense of aloneness and lack of control was well described in an episode of the Bones television program called “Boy in a Bush”:

Bones: Do you remember me, Sean?

Sean: Museum Lady, the one who’s so smart.

Bones: Yeah, I’m pretty smart.

JP: And very modest.

Booth: Oh believe me she is being modest.

Bones: Smart enough to know that you didn’t kill Charlie. You don’t have to say anything Sean, just listen. They give you a garbage bag to carry all of your stuff like they’re telling you everything you own is garbage and then you have to go to a new school in clothes that smell like garbage bags.

Sean: All the regular kids know you’re a foster kid. How do you know what it’s like?

Bones: They bounce you from place to place and it’s never home. Sometimes the foster parents are nice.

Sean: Like Margaret?

Bones: Yeah and sometimes they separate you from your brother. It must have been nice with Margaret…staying with David.

Sean: (crying) We got bunk beds. At night I knew David was there like he was guarding me. Margaret’s nice.

Bones: You would do most anything to stay with Margaret, right?

(Sean shakes his head yes.)

But the children are NOT asked and they are often separated merely because there is no family with space for all the siblings in a group. Some homes can take babies, some can’t take teenagers – and there never seems to be enough qualified homes. Garbage bags for suitcases, nothing of their own and what there is will often be hand down from someone else. They cry in the dark when they wake up in unfamiliar places, and occasionally they learn that negative acts are the only way for them as children to get real attention from the adults around them.

These children come to the foster care situation with problems. The problems may be misunderstood or ignored and often escalate but the children remain that – children.

My tribute is given to the foster parents who are able to enter the fray and provide hope to these little ones – especially when the children seem to be least deserving. These fostering adults deserve commendation for giving of themselves, their time and their hearts.

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Dying without planning is easier than living without planning

June 2nd, 2010

Most people assume that only rich people should have a Will,  or only people who are planning to die should have documents created in advance which help determine rights, and responsibilities –   Nothing could be further from the truth.

Examples:

A home owned by a husband,  with four children by three marriages,  dies without a Will.   Without a Will,   and assuming that the estate is basically the home only,   the widow would get one third of the value of the home and the other portion of the home would be split among the four children in equal shares.    The Widow’s child or children may want her to have their portion in order to give her more,  but typically children of prior marriages want cash out of the real estate – not to let the widow live there and tie up the property for the rest of her life without rent or payment.     So any of the ‘children’ can demand that the house be sold (partitioned) and the Widow has to either buy their shares or have her house sold out from under her.

There are minor children and life insurance is payable to the Deceased’s estate (because he didn’t plan otherwise) or made payable directly to the child.  Without planning,  this situation will require the involvement of a probate court in Georgia,  a guardianship (even for the Widow’s own child) and a surety bond.   All insurance costs money for the premiums but,  worse yet,  sometimes the widow does not have the credit or stability in order to qualify for the bond and someone else has to step in to what should be a private matter.

Or,  horrors,  there is a business of some kind and  upon the unexpected death of the owner,  no one has the authority to step in,  pay the employees,  honor the contracts,  or sell the inventory (which may be perishable or seasonal).

In cases like these it is terrible that the adult has died,  but he or she is gone and the survivors are fighting to make the money stretch,   get the legal authority to make decisions,  being forced to go to court unnecessarily,  and use the time and legal fees to resolve issues which could have been averted  by simple planning.   Death is a devastating change – failure to plan can ruin the lives of the survivors.

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Access to assets in a deteriorating relationship

June 2nd, 2010

In situations where marriages or ‘partnerships’ are breaking down, attorneys often hear ‘I can’t leave, he would get the house and I should get a part of that value.’ One of the first steps in education that “VALUE” and “POSSESSION” are two entirely different things.
Example: if there are children, the house might be given by a court to USE by the parent having custody of the child – that parent would not necessarily end up with the obligations to pay for the house, the obligation to keep the house maintained, or the right to sell the house and keep the proceeds.

If there are no children, then disposing of the house (presuming that a sale is possible) is even more likely, since a Court or third party would view the home not as a nest, but as an asset. If one of the parties wanted to have it for his or her own, then they would have the option of buying the other person’s share of the house or trading another asset for it.

Here is the next most misunderstood issue – in Georgia, once the divorce or separation action is filed there is usually a STANDING ORDER put in place. That Order is not part of the specific issues between the parties but is used by the Court in ALL domestic cases of that type in order to maintain the status quo – to prevent either party from selling off assets, concealing the assets, taking the children out of the State or United States, and so forth. Once there is a Standing Order in place, it does not matter if the house is in one person’s name or both because the Order prevents disposition or borrowing on the asset until the Court permits it.

Until there is a Standing Order, though, the title to property is a real concern. If all the assets are in one person’s name, he or she could sell, remove, hide, or otherwise tilt the balance of the relationship. This issue should be carefully considered with a competent attorney when a relationship is falling apart to be certain the access to funds and assets continues in an appropriate manner until the overall issues are resolved.

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We have MOVED our office

July 6th, 2009

Please observe that we have moved from downtown Jonesboro to a new office at the Northbridge Business Center in Stockbridge, Georgia.    We look forward to seeing you at our new location.

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