Frequently Asked Questions

What is a Settlement Agreement?

A settlement agreement is the document that the parties sign in order to resolve issues, including child support, alimony, separation of property, visitation, and custody, relating to a divorce or modification. It is important that attorneys allow the parties to take an active role in drafting the language in the settlement agreement because making sure that the parties’ intent is clear is imperative to ensuring that both parties will comply with the agreement in the future.

When drafting a settlement agreement is it important that each of the following issues are clearly and specifically addressed and/or resolved:

  • Alimony
  • Custody and visitation
  • Child Support
  • Retention or sale of the Marital Home
  • Division of personal property such as vehicles, bank accounts, and household items
  • Separation of any business
  • Separation of marital debt
  • Separation of retirement accounts
  • Payment of medical insurance for the children and the parties
  • How taxes will be filed that year and who will receive the tax credit for the parties’ children
  • How and when attorney’s fees will be paid

Am I entitled to alimony?

Whether you are entitled to alimony depends on the specific circumstances of your marriage. Alimony is based on the payor’s ability to pay and the payee’s need for alimony. Courts tend to steer away from an award of alimony that allows a party to never have to work again, except in rare circumstances. The amount of alimony that can be awarded is based on facts such as the income of both parties, the parties’ lifestyles, the length of the marriage, and the parties’ contribution to the marriage.

Can we agree that neither parent shall be required to pay child support?

Possibly. If the payor of child support’s income is equal to or similar to the payee of child support’s income and the parties share physical custody it may be possible to avoid child support. The parties will have to show that the child support calculator supports the parties’ agreement to not pay child support.

How is child support calculated?

In January 2007, the legislature changed the way child support is calculated. The legislature created a child support calculator that calculates a specific number for child support. The calculator considers both parties incomes, health insurance premiums, tuition expenses, extra-curricular expenses and other similar costs the parties spend for the benefit of the child or children. The calculator also allows the Court to reduce child support for those making less than a set monthly income, so that the party paying child support will always have a set reserve for that party’s own expenses.

Am I entitled to keep the marital house?

Whether you are entitled to keep the marital house depends on many factors. However, if you want to keep the house, you must consider whether you can afford the mortgage payment, insurance, repairs and other expenses without your spouse. You must also consider who is on both the title and mortgage and how the property and debt will be separated. The person who keeps the house will need to be only person on the title and the only person responsible for the mortgage, even if the parties agree such a transfer will not occur for a year or two after the divorce.

What do we do if the house has negative equity and cannot be sold or re-financed?

If the parties cannot sell or re-finance the property at the time of the divorce, they may be able to obtain an assumption of the existing mortgage with the bank. An assumption is where the bank transfers the title and debt solely into one person’s name immediately after a divorce.

My spouse owns a business, how do I determine his or her income?

There are numerous ways to determine a self-employed spouse’s income. It depends on many factors including the type of business, the legal form of the business, how much cash the business handles, and the amount of money used for personal expenses. Often, our attorneys work with forensic accountants to value a business and to determine income for the purposes of division of property, alimony, and child support.

How long will it take for me to obtain a final divorce?

The length of time depends on whether the two parties are able to come to an agreement regarding property division, alimony, child support, custody, and visitation. If the parties are able to proceed with one of our flat fee uncontested divorces, a divorce can be finalized within two to three months from the date the divorce action is filed with the court. On the other hand, the length of a contested divorce depends heavily on the complexity of the issues and whether the parties are able to come to an agreement before final trial.

Do I need an attorney?

In most cases, it is a good idea to obtain an attorney. If you have children, it is difficult for anyone to adequately and correctly resolve a divorce without legal assistance. If you do not have children and have few assets, you may be able to file the divorce without legal assistance.

Which parent is allowed to claim the children for a tax credit after the divorce is finalized?

The IRS allows the party who has physical custody of the child/children more than 50% of the time to take the tax credit for the children. However, the parties can agree that the non-custodial parent can take the tax deduction.

Can my ex-spouse be required to pay for my health insurance?

Generally, a party cannot provide an ex-spouse with health insurance. After the divorce is final, each party will have to obtain his or her own insurance. The parties can agree, or the court can order, that one party reimburse the other for the health insurance premiums.

My spouse had an affair. Is s/he entitled to any visitation?

Georgia law does not allow a court to prevent a party from having visitation with his or her children simply because he or she had an affair. The affair is considered an issue separate from visitation. In general, unless the cheating spouse is seeking alimony or is exposing the children to inappropriate conduct or people, affairs do not carry much weight with a court. A court is more interested in fairly dividing the property and deciding custody and child support issues.

Do I have to go to Court?

In most cases, whether contested or uncontested, you will need to go to court for at least one hearing.

What is mediation?

Mediation is a process that allows the parties to try to settle issues related to the divorce or other proceeding. The parties, their attorneys and a mediator are present during a mediation. The mediator is a neutral person who provides the parties with a neutral opinion about the case. A mediator also presents the parties with his or her opinion about what he or she expects a judge or jury would decide. By examining the parties’ case and providing creative settlement options, the mediator helps the parties to resolve the matter without further litigation in court.

Are we required to go to mediation?

Many counties require the parties attend mediation before they are allowed to have a hearing before the judge.