"Divorce" Doesn't Have To Be a Dirty Word
By Amy K. Waggoner
 How often do lawyers get to look in the mirror at the conclusion of a divorce case and say, "I have helped the SmithJonesBrown family through the roughest period they will probably ever experience. I feel confident that the kids' interests are being addressed, and the financial arrangements of both parties are more than adequate considering their limited financial resources"? This is NOT a fairy tale. This is Collaborative Practice (CP). While not appropriate for all couples seeking to divorce, it is a respectful, non-adversarial way to resolve the issues that arise when a family unit changes due to divorce.
CP is a team effort that begins with two adults whose goal is to focus on the needs of their children and avoid burning bridges at all costs. A Collaborative Practice team includes a child specialist and other mental health professionals, who work directly with both parents to create a Parenting Plan that addresses the needs of the children, based not on "standard" practice, but on what is best for the particular family. The team also includes a neutral financial expert, who gathers all of the relevant financial information and helps brainstorm as many options as necessary to address the needs of all family members. Finally, the team includes attorneys who have received formal training in Collaborative Practice.
Rather than depositions and discovery, hearings and trials, parties meet with attorneys and the other team members to determine the outcome of their divorce -- and the course of their lives and their children's future. Once the couple has settled all of the family's issues, their final agreement is reduced to writing, signed by the parties, filed with the court, and enforceable by the court, just as with any other divorce.
Of course, CP is not right for every situation. But with the help of CP lawyers, mental health professionals, and neutral financial specialists, more and more families are benefiting from the efforts of a team working together for the wellbeing of every family member. And there is more good news. CP is making the transition to the civil arena. Look for CP in probate, construction, and medical error cases, and in any case in which the parties value respectful, non-adversarial resolution of their differences. |
Not So Fast, Ex-Spouse
By Brett Schroyer
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) was signed into law on April 20, 2005. Presumed beneficiaries of the BAPCPA were the divorced ex-spouse and/or children of the debtor spouse, who would now enjoy priority creditor status for payment of existing domestic support orders and the ability to proceed in state court against the debtor spouse without the necessity of lifting the automatic stay of collection efforts enjoyed by all bankruptcy debtors. Also under BAPCPA, creditor ex-spouses or children were to enjoy greater protection from the debtor-spouse who sought to discharge financial obligations contained in a domestic support order that were not traditionally "support," such as property settlements or awards.
Has this new law indeed made a difference to those it intended to help? The 11th Circuit Court of Appeals addressed the priority issue by 2006, holding that an attorney filing the bankruptcy petition for the debtor spouse will receive his/her fees before the creditor ex-spouse or children receive their payments. However, we still have no Georgia appellate case holding that a spouse may proceed with a state court contempt or modification action without first obtaining an order lifting the automatic stay.
Prior to BAPCPA, domestic support orders were given a seventh place priority under 11 U.S.C. 507(a)(7) and attorney's fees were first under 11 U.S.C. 507(a)(1). After BAPCPA, domestic support orders now enjoy first priority and attorney's fees were placed further down the list; 11 U.S.C. 507(1) and 11 U.S.C. 507(a)(2) respectively. Nevertheless, in re: Sanders, 341 BR 47 Bankr. N.D. Ala. 2006), the court held that in Chapter 13 cases, BAPCPA has left intact the principle that a debtor's attorney's fees are administrative expenses that must be paid either before or contemporaneously with other creditors, including domestic support creditors, of a higher priority.
With regard to proceeding against the debtor spouse in state court, despite the clear language of BAPCPA and the time-honored policy of the U.S. Supreme Court that domestic relations matters should be left to the states, Georgia Superior Court judges still are reluctant to let creditor ex-spouses and/or children proceed with their contempt or modification actions without an order from the bankruptcy court the stay. A Georgia appellate court decision is still needed to give power to the intent of Congress and the perception that BAPCPA would champion the needs of creditor ex-spouses and children. |
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Hearsay
It is NEVER a good idea to impregnate your girlfriend before you are divorced, even if you are Mel Gibson.
Producer Brian Grazer thinks he got a primo deal. After 11 years of marriage and the birth of two sons, he and his wife Gigi Levangie, have divorced. Word has it that Gigi originally wanted $1,000,000 a month in child support, but is receiving $40,000 each month instead. Add a lump sum of $4.75 million, plus around $9 million to buy a house of her own. Some could call that a fresh start! Oh, and Brian is on the hook for something in the neighborhood of $500,000 for Gigi's lawyers. | |
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Notice of Entry of Appearance
Aussenberg Waggoner LLP welcomes Andrea Dyer Hastings as of counsel to the firm. Andee earned her J.D. from the University of Georgia in 1997 and practices in the areas of family and collaborative law. "Helping clients and their families through difficult emotional and financial situations" is what she enjoys most about being a lawyer. | |
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Interrogatories with Jen Giles
Q. My ex-spouse has custody of our children. Now he is planning to move to another state. What can I do?
A. The granting of primary physical custody in a divorce decree can be modified at a later time if there has been a change in condition since the Final Decree was entered. A move out of state by the custodial parent can be considered a change of circumstances. Under Georgia law, the custodial parent does not have an automatic right to retain custody. The non-custodial parent can file a petition asking the court to modify the prior custody award based on the relocation and must prove to the court that a modification of custody is in the best interests of the children. Courts decide these cases on a case by case basis by considering such factors as a child's relationship with the non-custodial parent, the child's connection to school and friends, the child's age, the reason for relocating, the home environment of each parent, the employment schedule and flexibility of each parent, and the involvement of each parent in parenting the children. Depending on the facts and circumstances of a particular case, custody may be modified. If custody is not modified then the non-custodial parent can ask the court to modify parenting time so that the non-custodial parent can have more parenting time during holidays and school breaks.
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