How is debt divided during a divorce in Georgia?

The way debt is handled during divorce typically depends on when it was obtained, along with each spouse’s financial standing and role in accruing the debt.

Debt is a burden that the majority of Americans struggle with today. National Public Radio recently reported that 80 percent of people in the U.S. carry some form of debt. Unfortunately, this means that many people getting divorced in Georgia will need to deal with the division of debt during their settlements. It is essential that these spouses understand how financial liabilities are treated and distributed during divorces in Georgia.

Which debt is considered marital?

The way that debt is handled during divorce depends largely on whether it is marital or separate debt. As materials from the State Bar of Georgia explain, most assets and debts obtained while two people are married qualify as marital property. Property acquired before marriage is considered separate property. During divorce, marital property and debts are subject to equitable distribution between spouses, while separate property and debts remain with the original owner.

Typically, debt incurred during marriage is considered marital regardless of whether one or both spouses accrued it. For example, if both spouses are co-signers on a credit card and one spouse accumulated debt on the card, both spouses will likely be considered liable. However, judges may not always divide credit card debt during divorce. If one spouse independently accrued debt and the debt is only in that spouse’s name, it might not be subject to distribution at the time of divorce.

How are marital liabilities distributed?

In Georgia, family law judges don’t follow set guidelines when dividing debt during divorce. Instead, they evaluate various factors to determine what kind of division would be equitable. These factors include:

  • The way that each spouse contributed to the accumulation of the debt.
  • Each spouse’s income, assets and overall ability to repay the debt.
  • Each person’s existing obligations or liabilities.

Under these guidelines, predicting how debt will be divided can be challenging. Sometimes, a judge may allocate more debt to the spouse who was responsible for accruing the debt. In other divorces, the spouse with greater financial means may be ordered to repay more of the marital debt. In the case of secured debts, such as auto loans or mortgages, a judge may assign responsibility to the spouse who keeps the property in question.

What else should spouses know?

A family law judge can assign certain debts exclusively to each spouse or require both spouses to make payments toward each marital debt. In either case, spouses should understand that a divorce decree doesn’t mitigate a person’s legal liability to his or her creditors. According to The Huffington Post, if a person’s name appears on a loan agreement that the ex-spouse is responsible for repaying, the person may still be held liable if the ex-spouse defaults.

To reduce the risk of this outcome, spouses should consider working with an attorney during the property division process. An attorney can help a spouse explore options for repaying debt before divorce or ensuring protection against unwanted financial complications after divorce.

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Measure twice, Cut Once!

Georgia Contracts serve you best if they are drafted properly and negotiated as needed.  We know the importance of making sure that your business contracts and agreements are negotiated and drafted correctly to ensure that your interests and rights are protected. We take a strategic approach when it comes to business contracts and agreements. We want to make sure that your present and long-term objectives are taken into consideration, even as we protect you from unnecessary lawsuits.

Here is a list of some of the many contracts and agreements that we draft, review, and enforce for our business clients:

  • Business contracts
  • Entertainment agreements
  • Sports and Arts Agreements
  • Commercial leasing agreements
  • Service contracts
  • Equipment leases
  • Sales and marketing agreements
  • Agency agreements
  • Acquisition agreements
  • Employment contracts
  • Confidentiality agreements
  • Covenants not to compete
  • Independent contractor agreements
  • Prenuptial and postnuptial agreements
  • Real estate contracts
  • Sale and lease contracts
  • Sureties and surety bonds

In business, disputes are inevitable. This is why we take such detailed care when it comes to the development and implementation of our clients’ business agreements and contracts. We want to protect you and your business from unnecessary liability. In the event that litigation is unavoidable, our business litigation team will provide you with aggressive representation.

We are also well-versed and experienced with the issues that arise in contract law and contract litigation, including matters involving the Uniform Commercial Code (UCC).

We have the legal skills, resources, and knowledge to represent you in a number of contract law and contract litigation issues:

  • Offer and acceptance
  • Consideration
  • Counteroffer
  • Acceptance and delivery; rejection
  • Good faith
  • Detrimental reliance
  • Statute of frauds
  • Force majeur
  • Assignment
  • Partial or substantial performance
  • Fraud and misrepresentation
  • Mitigation of damages
  • Specific performance and estoppel
  • Calculation of damages

Because we want to make sure that we offer you every legal tool at our disposal, The Libby Law Firm offers a variety of business law and business litigation solutions for all of our business clients, and we will customize our different services to fit your specific legal needs.

The Libby Law Firm is proud to represent clients from the cities of Marietta, Brookhaven, Decatur, Roswell, Peachtree Hills, Lawrenceville, Sandy Springs, and Buckhead, as well as from other cities in the Atlanta Metro area in Clayton County, Fulton County, Gwinnett County, Cobb County, and Dekalb County.

 

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Breach of Contract

A breach of contract is a failure, without legal excuse, to perform a promise. While this seems simple enough, the vast majority of business litigation stems from breach of contract. It seems that some companies simply don’t care to honor their contractual obligations and the only way for you to get relief is to sue them to enforce the contract and recover your damages.

In Georgia, the non-breaching party in a breach of contract case is entitled to recover “all damages that arise naturally and normally from the breach of contract.” Stated another way, the non-breaching party is entitled to recover all the damages that the parties to the contract envisioned would accrue if the contract was breached. In addition, the non-breaching party is entitled to recover all reasonable expenses incurred in complying with the contract and costs. In addition, the non-breaching party may recover attorneys’ fees and expenses of litigation if it can be proven that the contract was entered into in bad faith, was procured by fraud, or that the defendant (the breaching party) has been stubbornly litigious. Many times, this is referred to as a “so sue me attitude.” In essence, the breaching party is stating by its conduct, “I breached the contract with you but I am not going to pay you your damages. If you want to recover the damages I caused you by breaching our contract, sue me!” This is the exact type of situation in which Georgia law allows one to recover attorneys’ fees and expenses of litigation.

Many times, the measure of damages for breach of contract will be the value of the goods or materials furnished. However, in addition to monetary damages, a party injured by a breach of contract may elect to ask the Court to rescind (e.g., set aside) the contract. This most often occurs in situations in which the damaged party has been injured by a breach of contract and fraud. In this situation, the injured party seeks to have the contract rescinded so that it is not limited by restrictive clauses in the contract that may work to the injured party’s detriment. Once the contract is rescinded, the injured party can seek all damages allowed under the law, including actual damages, attorneys’ fees and expenses of litigation and and punitive damages, to the extent allowed by law. In addition, damages may be awarded along with rescission, if that will put the parties in the position in which they were in prior to the breach.

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Could I Lose the House I Had Before We Married?!

For example, if a wife brought $20,000 worth of separate assets into the marriage and during the course of the marriage she added those funds to the couple’s joint bank account or used those assets to support an investment held jointly by the couple, that separate property is now commingled. Once separate property has been commingled with marital property, it is not likely that a judge will distinguish this property from the other marital property upon divorce. However, in certain situations, there may be a way for one spouse to claim commingled as separate funds upon divorce.

The main way one spouse may claim commingled funds as separate upon divorce is a process called “tracing.” This process involves following or tracking the separate funds by referring to detailed records like deposit and withdrawal slips, bank statements, and other account information, to show how much of the money is truly marital and how much money is actually separate property. This process is highly complex and most likely will require the assistance of an accountant or other financial expert to trace the funds and testify at trial if necessary.

Because Georgia is an equitable division state, when one spouse’s separate property is mixed with the property or the other spouse or the couple’s marital property, that separate property becomes relatively indistinguishable. Even if tracing is conducted, there is no guarantee that a court will ultimately make an award that reflects the tracing analysis or award the spouse who commingled his or her separate property the full value if the separate property. In order to ensure that your separate property indeed remains separate in the event of divorce, the best practice would be to maintain a separate account for any separate funds or keep any separate real or personal property titled exclusively in your name. Additionally, consider speaking with your future spouse about entering into a premarital agreement. Or, if you are already married, consider entering into a post-nuptial agreement.

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How can Separate Property become Marital?

Georgia law regarding separate property is extremely complex and somewhat unsettled.  Just proving that an asset was the separate property of one party does not necessarily preclude it from later becoming marital property.  Under certain circumstances, a property that once was separate in nature can become marital by the actions of the parties.  For example, merely adding the other spouses name to a deed may cause a piece of real estate to lose its status as separate property and make it marital.  Similarly, comingling separate property and marital property may have a similar effect.

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Ownership of Engagement Ring Upon Divorce or Broken Engagement

Engagement and marriage are very joyous times, and although no one ever anticipates the premature end of their marriage or engagement, the reality is that not all marriages or engagements continue happily ever after. One common question that individuals have regarding family law is what happens to the engagement rings if the marriage or the engagement does go awry. Who gets to keep the ring: the man who likely purchased it, or the woman who it was given to? Many courts throughout the nation have considered this very question, and those courts have reached varying decisions. Despite the differences, one major theme is present, engagement rings are gifts. The only real question is whether the gift will be viewed as a completed gift or as a conditional gift by the court.

Completed Gifts

Courts generally treat the engagement ring as a gift, from the donor (the person who gave the ring) to the donee (the person who received it). In order for a gift to be deemed a legally complete gift, three elements must be present: 1) the donor must intend to give the ring as a gift, 2) the donor must deliver the ring to the donee, and 3) the done must accept the ring. If the person to whom the ring was given can show all three elements, a court will consider the ring to be a gift to him or her.

Conditional Gifts

But the majority of courts also consider such a gift to be a conditional one. That means that, until some future event occurs, the gift is not final. If that event does not occur, the donor has the right to get the gift back.

Women who want to keep their engagement rings often argue that the condition needed to make the engagement ring a completed gift is simply the acceptance of the proposal of marriage, not the completion of the marriage ceremony. That way, if the engagement is broken, the ring remains her property.

But this argument often is not successful. The majority of courts find that the gift of an engagement ring contains an implied condition of marriage. Acceptance of the proposal is not the underlying “deal,” the marriage is. Absent some other understanding or circumstance, for example, if the ring was given as a memento of a shared memory or experience or if the ring was given to celebrate a holiday or special occasion, most courts look at engagement rings as conditional gifts given in contemplation of marriage. However, as mentioned earlier, some states have come down on the opposite side of this fence, rejecting the conditional gift theory and declaring that an engagement ring is an unconditional, completed gift and that’s that. Thus, it is important to seek the advice of a knowledgeable family law attorney in your state to determine what rights you have regarding an engagement ring, regardless of whether you are the donor or the donee.

After the Marriage

After the marriage has occurred, the question of who gets to keep the ring becomes much simpler. Upon marriage, the ring is considered the property of the recipient. Even if the ring could have been viewed by a court as conditional initially, the condition of marriage is now met. In most states, rings are also considered the separate property of the recipient, not marital property, because the gift was made prior to marriage. Only via an agreement, like a premarital or settlement agreement, may a donor obtain possession of the ring upon divorce.

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Divorce and Child Custody — Timing is Essential

If you have a divorce, custody case, modification, contempt or any other kind of family law case, you should be aware of the importance of time.  The time it takes your lawyer to file for you; the time you have to wait for a hearing and the time it takes to move your case along to a final resolution.

Why worry about time when you have so many other issues of concern?  Because time is money.  Every day your case is pending increases the likelihood you will be billed more in attorney’s fees.  So the longer your case lasts, the more you pay in attorney’s fees.  The faster your case is wrapped up, the less you pay in fees.  It’s real simple.

And don’t discount the peace of mind that comes with finishing up a case sooner rather than later.  Not only will you save money by moving your case along faster but you may save your sanity as well.  And that’s priceless.  

If you have a case that isn’t moving, stay on top of your lawyer.  Ask questions.  Demand answers.  And insist that the case progress to a final conclusion.

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What Adoption Regulations Exist in Georgia?

Only licensed child placing agencies within the state of Georgia may adopt or arrange for a child to be adopted. It is against the law for any person or organization to offer anything of value to the birth parents in exchange for placement of their child. §19-8-24(a)

Relinquishment: Consent may be executed any time after the birth of the child. Birth parents have 10 days from the signing of consent to withdraw their surrender of parental rights. §19-8-5 , 19-8-9(b)

Birth parent expenses: Hopeful adoptive parents may reimburse the birth mother for medical expenses directly related to the birth of the child.§19-8-24(a)(2)

Post-adoption contact agreements: Contact agreements are not legally enforceable in Georgia.

Birth father rights: Unmarried fathers wishing to receive notice of adoption proceedings can file a paternity acknowledgement form with the Department of Public Health.

Finalization: The average time between termination of parental rights and adoption finalization was 13 months.

To discuss the specifics of your case, call us at 678.324-8511 or e-mail at info@lawrencelegal.law today to learn more.

Is Adoption Assistance Available in Georgia?

Many of the children waiting to be adopted in Georgia have special needs. Federal (Title IV-E) and state (non-IV-E) programs exist to help adoptive parents meet their child’s needs. In Georgia, monthly payments range from $440-480, depending upon your child’s age. Please visit NACAC.org for more information on adoption subsidies within Georgia.

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Can I Adopt in Georgia?

Applicants can be single, married, or divorced. If single, a person needs to be at least 25 years old and 10 years older than the child they wish to adopt. If married, both adults only need to be 10 years older than the child they wish to adopt. You must be a Georgia resident for at least 6 months before applying to adopt a child. Prospective parents need to pass a home safety check, criminal background check, medical examination, and provide a list of professional references. Applicants must complete a 23 hour service orientation. This is part of the home study process. Foster parents are required to have a GA license.

For questions regarding the particulars of expanding your family through adoption in Georgia, please call 678-324-8511 or email info@lawrencelegal.law.

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Legitimation and Paternity

Rights and responsibilities

Men, if you help to conceive a child, help raise them as your own, and the mother of the child were not married when the child was born, then you are a dad in every sense of the word…but one. Unfortunately, in Georgia, you are not the father in a legal sense.

This means two things:

  • You will have no legal right to the child
  • You will have no legal responsibility to the child

If you want to claim the child as your own, then you can do so through Legitimation. Legitimation is an action that grants you the right to:

  • Have custody
  • Have visitation
  • Inherit from the child
  • Have the child inherit from you

And the responsibility to:

  • Pay child support

How do you get a legitimation?

If you want to establish your legal relationship with your child, you will need to file a Legitimation action with the courts. Just having your name on the birth certificate will not be enough. To get visitation rights the father would have to file a Petition for Custody and/or Visitation and the mother would have to file a Petition for Child Support.

A determination of paternity is not a two-way street

When a mother seeks Child Support, the court will use DNA testing to identify the father. Then the court will determine the father’s responsibility for paying child support but not his rights to visitation and custody. To establish those, you will have to file a counterclaim to her petition asking for the court to determine your legal rights.

Whether you are a father establishing his legal rights or a mother establishing the father’s legal responsibilities, it is important that you speak with a lawyer to find out how to protect your child and avoid waiving your rights. To discuss the specifics of your case, call us at 678.324-8511 or e-mail at info@lawrencelegal.law today to learn more.

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