News and Views from the World of Family Law

May 2009

Greetings!

Welcome to our first newsletter! Like many other aspects of our lives, family law is changing rapidly. We want to help keep you up to date on what is happening, such as new laws for non-parent caregivers. And, we can't resist giving you the scoop on what is spicy and fun. Remember, truth is stranger than fiction.

We invite your comments and suggestions.

Sincerely,
Aussenberg Waggoner LLP

Who's Your Daddy?

By Jennifer Giles

Many states, Georgia included, are operating under laws that do not reflect the trend in society of unmarried women conceiving a child through assisted reproduction using sperm donations from known sperm donors. This has led to acrimonious litigation, and will lead to more disputes regarding what role the known sperm donor will play in the child's life. Will the known sperm donor help raise the child or have no role at all in raising the child? If the known sperm donor has no intention to play a role in the child's life, is he protected from the mother seeking child support?

These are questions that some states have clarified through legislation known as a written agreement statute. A written agreement statute would require known sperm donors to enter into a written agreement with the mother in order to determine certain parental rights and obligations. If the known sperm donor wants to play a role in the child's life, in accordance with a written agreement statute, he would need to put the terms of his involvement in writing. This would clarify the intentions of the known sperm donor and the mother. For instance, the mother and sperm donor may have a verbal understanding that there will be no rights and obligations to one another in regards to the child. Without such a written agreement statute a participant may unilaterally changes his or her mind and a court may award visitation rights to the known sperm donor and may award child support to the mother because the court is then left to decide the matter with concepts which may not accurately take into account the intentions of the parties.

In Georgia there is no written agreement statute. Currently, the applicable law states that it is the "duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child..., except to the extent that the duty of one parent is otherwise or further defined by court order." O.C.G.A. § 19-7-24. Georgia law also states that a paternity action may be brought even if the mother and father of a child have entered into an agreement, unless the agreement has been approved by the court. O.C.G.A. § 19-7-43 (b). In the case of an unmarried mother and known sperm donor, Georgia law does little to protect either person from legal actions against one another. Although there are pros and cons to a written agreement statute, such a law would help clarify who will play what role, if any, in the child's life.

Procedural Changes for Non-Parent Caregivers

By Dana F. Floyd and Elyse Aussenberg

According to AARP, there are currently about 100,000 children in Georgia who are living in households headed by grandparents or another relative without a parent present. Given the difficult economic times, this number is sure to rise. Regrettably, difficult legal problems arise in these situations, such as enrolling a grandchild in school, seeking medical attention for the child, or adding a grandchild to a grandparent's health insurance plan. Fortunately, there is good news for these good samaritans. Last year, the Georgia legislature passed the "Power of Attorney for the Care of a Minor Child Act" (O.C.G.A. §19-9-120 et. seq.). The Power of Attorney for the Care of a Minor Child Act allows parents and grandparents to establish the legal authority to make decisions and provide for the minor child in situations in which a parent cannot to do so. The Act gives grandparents the legal authority to provide for minor children in their care without the expense of legal fees or court costs. Under O.C.G.A. §19-9-122, a parent may authorize any grandparent residing in Georgia care-giving authority for a minor child when hardship prevents the parent from properly caring for the child. This delegation of authority does not need the approval of the court if the parent executes a written power of attorney that conforms to the requirements of the Act. The power of attorney provided for by the Act allows a parent to authorize a grandparent to enroll the child in school and provides access to school records in order to accomplish that goal. Additionally, the grandparent is authorized to arrange and consent to any medical, dental or mental health treatment and enroll the child in any health program offered to the grandparent.

Thank you to the grandparents who are stepping up and to the Georgia legislature for providing support to families where it had previously been lacking.

Hearsay

It seems that Heather Mills is still complaining about the settlement she received in her divorce from Paul McCartney. Apparently, the £24 million (approx. $35 million) she collected in the settlement from the former Beatle was not enough to suit her. Ms. Mills is reportedly trying to prove McCartney is worth much more than the £400 million he claimed in their divorce battle. She is said to be employing a team of forensic accountants to examine her former husband's finances in hopes that this will cause their divorce judgment to be overturned.

Not everyone in Hollywood makes divorce a fight to the finish. Robin Williams and his wife obtained a Collaborative divorce (see below).

Our Collaborative Practice

Collaborative Practice is new, but it continues to gain in popularity as a model for respectfully resolving the issues that arise when couples divorce. Begun nearly 20 years ago, it has spread through the United States, Canada, Europe, and Austrailia. From Main Street to Wall Street to Hollywood, more and more couples are choosing to avail themselves of the win-win spirit that is the cornerstone of Collaborative Practice. Just ask Robin Williams.

Interrogatories with Dana Floyd

Q: I'm in the middle of a divorce and my spouse has lost his job. How will this affect my divorce case?

A: The loss of a job does not automatically stop divorce proceedings. However, a party's income is a factor in many aspects of a divorce, including child support. If the payor loses his or her monthly income, a court may average the income over previous years to presume an average monthly income. For alimony, a drastic drop in income may substantially reduce an alimony award, or preclude it altogether. Sometimes the absence of an alimony award may lead to a larger property division award. This could include a proportionately greater award of equity from the marital home or a larger percentage of retirement benefits. While an unemployed spouse presents challenges, your divorce can proceed and you can still receive child support and an equitable settlement.

The information provided in this newsletter is not legal advice and no attorney-client or confidential relationship is or should be formed from receipt and reading of this newsletter. To schedule an appointment with an attorney, contact our office at 770-641-8200.