As a general rule, a divorce decree can only be set aside in Georgia within three years of the divorce decree having been entered. OCGA § 9-11-60(f) establishes the exclusive time limitation for when a judgment is attacked by a motion to set aside. Importantly, the statute provides that a judgment void for lack of subject matter or personal jurisdiction may be attacked at any time, but further states that in “all other instances,” a motion to set aside a judgment must be filed within three years of entry of the judgment.
The 2016 Georgia Supreme Court case of Myles v. Myles, 300 Ga. 261, 794 S.E.2d 56 (2016) discusses when it is appropriate to set aside a divorce judgment. The court reversed the judgment of the trial court; the trial court had granted wife’s motion to set aside the final judgment and decree of divorce due to husband’s misrepresentations about income and ownership in real property. Although the grant of the motion to set aside seemed proper on its face, the motion to set aside was filed more than three years after the final judgment and decree of divorce, well outside of the three-year statute of limitation.
The trial court incorrectly held that the statute of limitation started to run upon wife’s knowledge that husband possessed certain undisclosed assets. O.C.G.A. § 9-11-60(f) states that a motion to set aside must be brought within three years of a judgment, not within three years of a party’s knowledge of a reason to attack that judgment. A judgment may only be set aside outside of the three-year statute of limitation period when a party seeks to set aside the judgment for lack of subject matter or personal jurisdiction. Since wife did not allege that the final judgment and decree should be set aside due to the absence of subject matter or personal jurisdiction, the court ruled that her motion to set aside divorce must be dismissed despite its perceived merit.
Due to the potential time limitations and implications, it is highly recommended that you consult with a Georgia divorce attorney or law firm if this is a situation you are facing.
Our law firm’s Atlanta based attorneys are frequently asked: “Do I need a prenuptial agreement?” or “How do I know if a prenup is right for me?” The purpose of this article is to answer these questions and more if you are considering a prenuptial agreement and you live in Georgia. Chances are that if you’re getting married, the idea of getting a prenuptial agreement has crossed your mind, even if you haven’t voiced it out loud to your future spouse. While it might not seem like the most romantic topic, considering whether a prenuptial agreement is right for you is nonetheless extremely important. The reality is that prenuptial agreements are not only for the rich and famous.
Whether or not you bring up the topic of a prenuptial agreement with your fiancé of fiancée, some of the fundamental principles regarding entering a prenuptial agreement should almost certainly be followed before you get married. Specifically, as many studies of shown, it is a good idea for future spouses to have an open and honest discussion about their finances and financial picture. And of course, one of the critical components to a proper prenuptial agreement is full and complete financial disclosure.
Many people are under the misconception that discussing prenuptial agreements means that their future spouse has little faith in the marriage. That is simply not the case. A prenuptial agreement can essentially be compared to an insurance policy – you hope you never have to use it, but if you do, you are thankful that it is there to protect you. It is no secret that divorces can be quite complicated and a prenuptial agreement can help alleviate some of the stress and actually de-complicate some of the issues typically encountered during a divorce.
As you may know, a prenuptial agreement is a contract entered by a couple before their marriage and such agreements are recognized as valid in Georgia. Generally, prenuptial agreements concern and address issues typically involved in divorce, such as property division, property rights, liabilities, debts, and alimony. A well-written prenuptial agreement should address separate and joint property. Although prenuptial agreements may cover a wide range of issues, there are some matters that cannot be addressed. Generally, prenuptial agreements do not address child custody and child support because the best interest of the child is determined at the time of divorce.
How do you know if a prenuptial agreement is right for you? You should consider having a prenuptial agreement drafted if you or your future spouse answers “yes” to any of the following questions:
– Do either of you have professional licenses or degrees?
– Do either of you have significant family wealth or expected future inheritance?
– Do either of you currently earn more than $100,000.00 per year?
– Is there a disparate difference between your income / assets and those of your future spouse?
– Do either of you consider yourself high net worth individuals?
– Do either of you have specific property you want to protect?
– Does your spouse have significant debt or student loans and you do not?
– Do either of you have significant stock holdings, stock options, profit sharing, bonds, other investments, or cash?
– Do you have any children and/or grandchildren from a previous marriage?
– Do either of you own any real estate (including investment / rental property)?
– Are either of you a business owner or have a family owned business?
– Do either of you have retirement benefits?
– Do you have loved ones who need to be taken care of such as elderly parents?
– Do you want your estate (or even just part of it) to go to your children (and/or children of a former marriage) instead of your spouse?
While this list is certainly not all-inclusive, it may help you decide whether or not a prenuptial agreement is appropriate for you. If you are considering entering into a prenuptial agreement, I strongly encourage you to schedule a confidential consultation with an attorney who specializes and has experience in this area of law and with drafting and/or negotiating prenuptial agreements.
The attorneys at the Georgia law firm of Naggiar & Sarif are experienced lawyers who can help answer your questions regarding prenuptial agreements (and postnuptial agreements which are very similar to prenuptial agreements except the parties are already married).
Please feel free to contact us to schedule a confidential consultation if you are interested in learning more about prenuptial agreements or if you are considering entering into one in Georgia.
How does a person calculate gross income for child support in military child support or divorce cases?
In any standard non- military divorce case and/or child support case, the attorney drafts a child support worksheet in accordance with the Georgia child support guidelines. The statutory authority for this action is delineated in O.C.G.A. 19-6-15.
Specifically, O.C.G.A. 19-6-15(f) deals with gross income as it pertains to the parties. The gross income of the parents is the primary factor in calculating child support. While this can be complex to determine, most family law and divorce lawyers have experience working with the state approved worksheets.
Where a significant number of attorneys lack experience is the calculations involved with determining gross income for military personnel. The Georgia statute specifically addresses this issue in section (f)(1)(E) of O.C.G.A 19-6-15:
(E) Military compensation and allowances. Income for a parent who is an active duty member of the regular or reserve component of the United States armed forces, the United States Coast Guard, the merchant marine of the United States, the commissioned corps of the Public Health Service or the National Oceanic and Atmospheric Administration, the National Guard, or the Air National Guard shall include:
(i) Base pay;
(ii) Drill pay;
(iii) Basic allowance for subsistence, whether paid directly to the parent or received in-kind; and
(iv) Basic allowance for housing, whether paid directly to the parent or received in-kind, determined at the parent’s pay grade at the without dependent rate, but shall include only so much of the allowance that is not attributable to area variable housing costs.
Except as determined by the court or jury, special pay or incentive pay, allowances for clothing or family separation, and reimbursed expenses related to the parent’s assignment to a high cost of living location shall not be considered income for the purpose of determining gross income.
Pay specific attention to (E)(iv) which discusses the basic allowance for housing (BAH) provided to service members. BAH is a monthly allowance given to service members to assist with off base housing costs. The amount paid by the government to the service member is determined in two ways. Rank of the service member and location of service members duty station.
Here is the rub: since service members rotate duty stations (some much more frequently than others) how is an attorney supposed to use this allowance to calculate child support if the amount theoretically can change a day after the judge signs the order?
I have to say that I love how the drafters of this statute addressed this issue. Paragraph (E)(iv) expressly addresses this concern: “Basic allowance for housing…shall include only so much of the allowance that is not attributable to area variable housing costs”
No interpretation needed here. The statute guides the attorney to use only the portion of the housing allowance not attributable to variable hosing costs. For example, a soldier holding the rank of captain may draw $1,533.00 a month if assigned to the city of Atlanta. If he chooses to live in buckhead or midtown or a suburb is irrelevant. If he is assigned to Atlanta he will receive the rate for Atlanta. Logic would dictate that the Atlanta attorney representing the soldier would draft a worksheet that includes the $1,533.00 as income. Now imagine, what would happen if that soldier gets transferred to Fort Polk, Louisiana 90 days after the order is signed and his allowance is cut to $1413.00?
The statute accounts for this and allows the attorney to use a non-locality (BAH) rate which is sometimes referred to as (BAH-II). The BAH-II chart which can be found here: http://www.defensetravel.dod.mil/Docs/perdiem/browse/Allowances/Non-Locality_BAH/2014-Non-Locality-BAH-Rates.pdf . This chart provides the housing rate according to rank with no attribution to locality. The uniformity of this chart simplifies the calculation and helps the parties reach a fair result without requiring the parties to return to court to modify child support every time a service member moves.
So in our example above, the correct BAH amount would be $1020.60 (non locality rate according to BAH –II chart) for a service member with the rank of Captain. Another important point is to use the calculation without dependents. Unless the service member represented has primary custody of the children, the government will only pay the without dependent rate.
I cannot count the amount of times I have corrected inaccurate worksheets based on this issue. Luckily, the statute is clear and the concept makes rational sense so most (most, not all) opposing counsel will not argue this point once they read the statute and reviews the (BAH-II) chart.
Calculating gross income for military service members in child support cases
The cost of a divorce can vary greatly. To illustrate the point, I often ask my clients, “How much did your wedding cost?” After all, some weddings are done at the courthouse at low cost, while others are multi-million dollar extravaganzas. The same applies to divorces. People can have simple uncontested divorces that can be finalized quickly and without much fanfare. Or they can have complicated highly litigated matters which can become expensive very quickly.
And then of course, some cases end up in front of jury. That’s right, in Georgia, unlike almost every other state, 12 strangers can be empanelled to resolve a divorce case. All it takes is for one party to request a jury, and such cases are generally the most expensive types of cases.
Highly litigated cases often involve extensive discovery and depositions, which can add additional costs to a case. Of course, in addition to the cost of attorneys, cases may also involve experts such as Guardian ad Litems, financial experts, forensic accountants, custody evaluators, co-parenting specialists, psychological evaluators, real estate appraisers, and therapists.
The reality is that the more the parties can agree upon, the less they will spend in a divorce. It really is as simple as that.
If they cannot work out the matters between themselves, then they absolutely should attend mediation with their respective attorneys to try resolve the issues in their case. Court and a trial should, quite frankly, be a last resort. In mediation, the parties have the opportunity to confidentially try and resolve the issues between themselves. With the help of a neutral third party, the parties and their attorneys can come up with flexible and creative ideas to resolve their matter on either a temporary or final basis.
More about mediation, including best practices, will be covered in a subsequent blog entry.
Many people begin their search for a divorce attorney by simply searching online with key phrases like “Who is the best divorce lawyer in Atlanta?” or “Who is the top lawyer in Georgia?” and similar searches.
While the internet can point you in the right direction and help you research, the truth is that the prudent person should only choose a lawyer that they feel completely comfortable with and who also has a track record of experience and success in the area that you need help with. It is perfectly fine to interview more than one attorney, but I would encourage someone who is going through a divorce, child custody case, or family law matter to give primary consideration to attorneys who focus on these types of cases. There are many intricacies and details in divorce, child custody, and family law cases that an attorney who doesn’t mainly (or solely) practice in these areas of law might miss or be unaware of. Think about it? If you needed a heart transplant would you ask a general surgeon to perform it? Probably not.
Of course, while there are many top attorneys focusing on divorce, custody, and family law, you understandably might not know where to really begin online. Super Lawyers, Avvo, and lawyers.com are excellent places to start to research potential attorneys. Even Yelp is starting to gain traction as a review site for attorneys, so it’s worth taking a look there too.
After making your short list of potential attorneys, definitely keep in mind that the “best” attorney is not only an experienced lawyer that you feel comfortable with, but also keeps you apprised of the current status of your case and the next steps involved. Also, it is important that the attorney you choose is someone you feel responds to your questions and concerns in a timely manner while also providing insightful and strategic guidance and/ or advice.
The excellent questions “How do I interview a divorce lawyer?” and “What to cover in the initial consultation” will be covered in subsequent blogs.
The family law attorneys at Naggiar & Sarif are skilled and experienced leaders in divorce and family law who will help you navigate what is likely a very difficult time in your life. Our attorneys have received many recognitions and awards over the years, but the acclaim and appreciation of our clients is what drives us. The achievement of our client's goals are our paramount concern.
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