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Primary Issues in Divorce

Divorce is and should be a difficult decision. But, too often this difficulty has led many divorcing spouses to try to move through the process as fast as possible without properly considering all of the issues and pitfalls that must be addressed. The process to end a marriage is much more difficult than the one that began it. If divorce is where you must go, then you must carefully consider, among other things:

Child Custody:

In most divorces, custody of the children is a contested issue. When deciding custody, the Court looks to determine what is in the "best interests of the child." There is no hard and fast definition and every marriage is unique. Courts will look at which spouse has put the children to bed every night, stayed home when they were sick, taken them to school, helped them with their homework, etc. "Stability" is very important for children, and the Court will look to provide as much as possible through the divorce and beyond. The individual condition of the parents will also be considered.

Custody is divided into two parts, legal and physical. Legal custody determines who has the right to make decisions for and regarding the children. Typically, joint legal custody will be awarded unless there is a very strong reason against it, such as domestic violence. Physical custody determines where the child resides and it can be sole, joint or primary/secondary. Sole and joint custody are rare. Primary/secondary custody is much more common and involves one parent having primary custody of the children, while the other has "visitation". A common question asked is, "What is the typical visitation schedule?" The short answer is there isn't one. Each family is different and visitation needs to accommodate the family's needs as much as possible.

Child Support:

Along with custody, child support is the most difficult issue to resolve. In Georgia, that difficulty is compounded by statutory Child Support Guidelines. Prior to the enactment of the guidelines, the parent who was responsible for support would pay a straight percentage of their income, commonly 23%. However, this is no longer true. The guidelines have become so complex, that a Child Support Worksheet, as provided by the Georgia Child Support Commission, is required to be submitted in all cases involving minor children.

Both parents' income along with child care and health insurance expenses provide a "presumptive" amount of child support. This is your starting point and unless the court finds a compelling reason to change the amount, this will be the final amount of child support. As with custody, the compelling reason not to use the presumptive amount will be what is in the "best interests of the child." A "deviation" is any amount by which the final amount differs from the "presumptive" amount. Common grounds for a deviation may be the responsible parent's ability to pay, increased parenting time, or additional educational and medical expenses.

Property Division:

When it comes to division of marital assets, Georgia is an "equitable division" State. Under this system, the first consideration is which assets are marital and which are not. An asset can be non-marital if it is either a gift, an inheritance or was acquired prior to the marriage. If an asset was acquired during the marriage and was not a gift or inherited then it will most likely be considered marital. Debts will also be marital or non-marital, though it is often only the timing of the accrual of the debt that determines its status.

Personal property is the easiest to divide and includes all the items in your home as well as cars, boats, etc. Real property is the marital home and associated land as well as any other land, improved or not, that the couple owns. Real property and credit card debt are easy to assign responsibility for, but difficult to divide. Mortgages and credit cards are governed by agreements that can't be altered by the divorce decree, and so alternate arrangements must be made with the representative banks to complete the division. Either a refinance or a loan modification may be necessary to split the asset and debt. Retirement accounts are also subject to division and depending on the type of account may also be complicated to divide.

Alimony:

Alimony is a difficult issue for the court to decide. Unlike child support, there are no real guidelines as to how much money should be awarded or how long it should last. Courts often consider factors such as spouse's earning potential, sacrifices made for the benefit of the marriage and conduct of the parties during the marriage.

A typical case in which alimony may be awarded occurs where there is a single income family, in which the other spouse has little to no work experience or education. However, a party can waive its right to alimony by committing adultery or abandonment. If alimony is awarded it can be either lump-sum or periodic. The distinction is very important and can have additional legal or tax consequences.

The issues discussed above only give a glimpse into what is involved in a divorce. The issues and guidelines for divorces are murky and difficult to navigate. Therefore, it is important that you consult with qualified legal counsel if you are considering divorce.

J. Alexis Putt is an associate in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where she practices divorce and family law.

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