November 28

Alimony–the Basics in Georgia

ALIMONY—THE BASICS By Jeff Willison

The following is an overview of Alimony as it exists in the State of Georgia. The Georgia system of alimony differs from many around the country. Most people may think that alimony is forever or until the person receiving alimony has remarried. This is NOT the case in Georgia! There are several different structures for alimony in the State of Georgia.

Temporary Alimony

Under Georgia law:

“Whenever an action for divorce or for permanent alimony is pending, either party may apply at any time to the presiding judge of the court in which the same is pending, by petition, for an order granting the party temporary alimony pending the issuance of a final judgment in the case. After hearing both parties and the evidence as to all the circumstances of the parties and as to the fact of marriage, the court shall grant an order allowing such temporary alimony, including expenses of litigation, as the condition of the parties and the facts of the case may justify.” O.C.G.A. 19-6-3(a) (2010).

So what does that mean? If you’re applying for permanent alimony, there are ways to keep yourself afloat until you can become totally independent. Georgia courts recognize that some spouses are stay at home parents or completely financially dependent upon their spouse. The court may award “temporary alimony.” The goal of temporary alimony is to help transition the former spouse to the world, and rejoin the field in which he/she may have been a part of before or during the marriage, or attain a brand new skill. Temporary alimony has a specific end date. Most of the time that means when the spouse has shown an ability to function independent from support of the former spouse.
While the Court is not required to order other forms of alimony to be paid at the same amount as the temporary alimony, this is often the result, so if temporary alimony is sought, it is best to bring your best case at the time of the hearing.

Lump-Sum Alimony

This type of alimony is sometimes called, “alimony in gross.” This option gives you the best way to keep a “distance” between you and your former spouse by winding everything up at one time. The court, in its discretion, may award alimony in one lump sum instead of over a period of time. Lump sum alimony may be something to consider if no children are involved and the former spouse is capable of paying all at once. The court will order a single sum to be paid by a specific date and the matter would be closed.

Periodic Alimony

Periodic alimony functions in much the same way as lump-sum alimony, except that the Court awards the alimony in regular payments (usually monthly). The benefits to getting payments may be the regular and consistent form of income. The downside of periodic alimony is if the spouse ordered to pay the alimony fails to pay, resulting in hardship (permanent or temporary) and additional legal proceedings; in some cases, the bird in the hand may beat two in the bush.
The court awards a total amount and then distributes the money based on the former spouse’s ability to pay on a monthly basis.

Permanent Alimony

Permanent alimony is the traditional form of alimony. In Georgia, this award is rare. The court will take the length of the marriage, the individual incomes of the spouses, age of the dependent spouse, health of the dependent spouse, and many other factors into account prior to an award of permanent alimony. Permanent alimony is awarded in cases where the spouses have been married for many years and the opportunity for the dependent spouse to support themselves individually is unlikely with any other form of alimony. A court is unlikely to award such alimony unless drastic circumstances exist. The payment of permanent alimony is normally structured in an installment capacity, but the court may modify the payments or the award if the circumstances warrant such change.

Modification

What if you get an award of alimony under the original divorce settlement, may the courts ever change it? Well, the answer is yes and no. The only type of alimony that is modifiable is permanent alimony. O.C.G.A. § 19-6-19(c) provides that:

“When an action for revision of a judgment for permanent alimony under this section is pending, the court in its discretion may allow, upon motion, the temporary modification of such a judgment, pending the final trial on the petition. In considering an application for temporary modification under this subsection, the court shall consider evidence of any changed circumstances of the parties and the reasonable probability of the petitioner obtaining revision upon final trial. The order granting temporary modification shall be subject to revision by the court at any time before final trial.”

What does all that mean? Georgia courts will look at drastic change in financial circumstances of the dependent spouse or the supporting spouse and modify the original order of permanent alimony, accordingly. However, after you file a petition for modification to increase, the court may take emergency action on a temporary basis if the circumstances warrant it. Keep in mind, this standard has a very high bar and time limits apply. Under Georgia law:
“No petition may be filed by the wife under this Code section within a period of two years from the date of the filing of a previous petition by the wife under this Code section. No petition may be filed by the husband under this Code section within a period of two years from the date of the filing of a previous petition by the husband under this Code section.” O.C.G.A. §19-6-19 (2016).

What does that mean? The Georgia courts will only look at modifications once every two years so it is important to make sure that the circumstances are drastic and would merit a modification of the original order.
AS ALWAYS, SEE OUR DISCLAIMER.

March 3

How long do you have to sue to enforce a child support order in Georgia?

We often get calls seeking to collect past-due child support and alimony in Georgia. Those that call often wonder if they have waited too long to do anything about their problem. In 1997 the Georgia legislature added OCGA 9-12-60(d) removing the statute of limitations for enforcing child support arrears. If your order was issued AFTER July 1, 1997, you can stop reading now, your order is still valid.

IF your order granting a child support judgment was issued on or before July 1, 1997, however, your ability to enforce the order is determined by the “old” rules for determining Statute of Limitations and the life of a judgment (the new law is given prospective effect). In such a case originating in Georgia, Georgia law requires that the original judgment be revived by the issuance of a nulla bona every seven (7) years. Georgia allows for a dormant judgment to be renewed between three years of becoming dormant through a petition for Scire Facias. See Brown v. Brown. If neither of these steps were done in a timely basis, your ability to collect may be lost. If a portion of the child support due on the order was for monies due after July 1, 1997, that portion of the judgment may still be collectable.

To further complicate the issue, if the original judgment was issued before July 1, 1997, but in a State other than Georgia, the statute of limitations for either Georgia OR the original state would apply, whichever is longer. See Sussman v. Sussman. In the Sussman case, the court applied Massachusetts law, where the statute of limitations to enforce the judgment was 20 years, and held Sussman liable.

January 14

Make a Book or Special Place For Your Important Documents and Passwords!

A great article in today’s AJC by financial planner Wes Moss about the importance of creating a place for all of your critical documents and passwords. A will or trust is of no value if no one ever finds it after your death. Your health care wishes may be ignored if the medical provider is not furnished a copy of your advance directive. In order to use it, someone has to be able to find it. Please do your loved ones a favor and spare them the stress of having to locate your essential information.

Business clients should also pay attention, if your critical passwords cannot be located, your business may suffer mightily in the event you are medically unable to attend to matters.