Do you have questions about whether you can modify your existing divorce order or agreement? Sometimes changes ae needed to parenting plans and child support orders. A modification in Georgia refers to the legal process by which a party seeks to alter the terms of an existing court order or agreement. To help potential clint’s have posted a short eBook to my blog to answer common questions people have about modifications.   I hope this short eBook gives you an overview of the process.  Note every case is different so you always need to consult an attorney for individual advice about your case.   Modification eBook

We get asked often about Legitimations in Georgia. It can be a complicated process and father’s are often confused about their rights. See the link in this post for our Guide to Legitimations in Georgia. We hope that it answers some of your questions about the legitimation process. As always, this material is no substitute for an attorney. If you think you may need to file a legitimation consult with a lawyer.

Legitimation Guide E-book

THE TIMELINE OF A DIVORCE CASE

Below is a timeline of the typical divorce in the Lookout Mountain Judicial Circuit (Catoosa, Walker, Dade and Chattooga Counties).  However, every case is different and your case may not go along exactly with the below timeline.  Most of the below timeline would apply in any case in the State of Georgia.  However, local court rules can vary in each judicial circuit of the State.  The website for the Lookout Mountain Judicial Circuit is below where you can find more information about the Judicial Circuit.

Lookout Mountain Judicial Circuit (lmjc.net)

FILING FOR DIVORCE – Every contested Divorce starts the same way.  One party files a Complaint for Divorce and serves the other party.  A Divorce is filed with the Clerk’s office in the county where the divorce will be heard.  The filing party must pay a filing fee which at this time is about $250.  The cost to serve the other party is usually around $50 but can be more depending on the difficulty of service and if it’s necessary to use a private process server as opposed to the Sheriff’s Office.

EX PARTE ORDERS – In many cases, at the time the Divorce is filed, the filing party may also ask a Judge for an Ex Parte Order.  An Ex Parte Order is simply an Order which is granted without the other party being present.  This is often done in cases where there are minor children.  The typical Ex Parte Order will give one party custody of the minor children and possession of the marital home pending the Temporary Hearing.  When an Ex Parte order is granted, that Order will be filed along with the Complaint for Divorce and served upon the other party at the same time as the Complaint of Divorce. Ex Parte Orders are usually only in effect for a few weeks until a Temporary Hearing where both parties are present and can be heard by the court.

PERSONAL SERVICE – A Divorce like any civil case must be served upon the other party.  This is typically done by having a private process server or having the County Sheriff serve the other party with the Complaint for Divorce.  An Entry of Service showing where the other party has received the documents and signed an acknowledgment of that receipt will be filed with the Court. If an Ex Parte Order has been granted the Temporary Hearing date will be set in that Order.  If an Ex Parte Order was not done then usually the other party will have 30 days from the date of service to file an Answer with the Court.

OVERVIEW OF TEMPORARY HEARING – A Temporary Hearing is the first court date.  Any ruling by the Court or agreement between the parties reached at a Temporary Hearing will be as the name says, temporary in nature.  At a Temporary Hearing the issues that will be dealt with will usually be temporary custody of the children, a temporary visitation arrangement with children, temporary possession of the marital home or any other marital property, attorney’s fees, temporary alimony and other issues which need to be dealt with before the Final Hearing.  There are limitations placed upon Temporary Hearings such as you are only allowed a limited number of witnesses and the hearing cannot last longer than two hours without prior approval of the Judge. In each county of this Judicial Circuit there are two “Circuit Court” days in which Family Law cases are heard each month.

WHAT WILL THE FIRST COURT DATE BE LIKE AND WHERE WILL IT BE HELD? Your first court date as stated above will be a Temporary Hearing. Temporary hearings are held on what are called “Circuit Days”. The Circuit Days are held twice a month in each county of the Circuit.  For example, Circuit Days in Catoosa County are generally every other Wednesday at 9:00.  There will typically be two Judges present on each Circuit day.  Regardless of what County your case is being heard in, you will need to be at court and seated by 8:45.  On all the Circuit Days there will be many cases on the calendar, not just your case.  Most attorneys will have multiple cases on any given Circuit Day.  The Judge decides which cases are heard and in what order they are heard.  This Judicial Circuit does not currently have judicial assignments and therefore it will not be known until your court date which judge will hear your case.  Unfortunately, all cases except adoptions are open to the public.

WHAT HAPPENS AT THE TEMPORARY HEARING? – Many cases are resolved by agreement between the parties either before the Temporary Hearing or the day of the Temporary Hearing.  If an agreement can be reached between the parties then the attorneys announce that agreement in front of the Judge.  One of the attorneys will then voluntarily prepare the order and send that proposed order to the other attorney for their approval. The order will then be sent to the judge for his signature.  Unless an agreement has been reached prior to Court you will not receive a copy of the Order that day.  If your case cannot be resolved by an agreement then you will have a hearing in front of the Judge and the Judge will decide all issues.

WHAT HAPPENS IN A CONTESTED TEMPORARY HEARING? – If your case is not resolved by agreement then the Judge decides all issues. A Temporary Hearing will begin with the party who filed a Complaint for Divorce calling their first witness. The moving party will call their witnesses and the opposing party has a chance to cross-examine any witnesses.  When the moving party rests, then the other party may call their witnesses.  After the Court has heard all testimony and evidence, it will render a ruling and tell the parties what to put in a Temporary Order.  If this hearing does not go your way remember that it is just temporary and you will get a chance to argue your case again.

EVIDENCE, WITNESSES AND AFFIDAVITS AT TEMPORARY HEARINGS

A Temporary Hearing is limited to two hours unless otherwise ordered by the Judge. The parties may only call two witnesses which include themselves.  Due to the two hour time limitation and the witness limitation the parties may submit written affidavits instead of having witnesses testify in court. These affidavits must be notarized and provided to the other party at least 24 hours before the hearing.

DISCOVERY – Is a process whereby the parties in a Divorce action or any civil action can obtain information and documents from the other party.  This can take basically four forms.  First Interrogatories are questions put in written form and sent to the other party to answer.  The Request to Produce and for the Production of Documents is just what it says it is a request from one party to the other party for documents.  Of course, in the information page documents refers to much more than just paper documents. The third and less used is a Request to Admit.  Requests to Admit are basely just questions sent to the other party requesting either an admission or denial.  For example, you would send a Request to Admit that one party has committed adultery.  Fourth, the parties may depose the other parties in depositions.

Typically, in an average divorce case Discovery will begin sometime after the first hearing which is called a Temporary Hearing and before the Final Hearing in the case.  However, Discovery request can be made at the start of the case as well.

Discovery can delay a case from being finalized. However, the real purpose of Discovery is to allow the parties to get ready for trial.  Discovery allows an attorney to know the facts for trial and to prepare accordingly.  The Discovery process prevents one party from hiding information from the other party and allows the court to craft a more fair resolution to the case.

On a practical note, if you’re involved in any kind of civil case especially a divorce or family law modification action be aware of the potential of anything you put in written form may be asked for in Discovery.  For example, be prepared to hand over all your financial records such as your bank records.  Be prepared that any text message you sent or Facebook post you put up may be requested and put before the court.  So, be careful what you write.

MEDIATION – Mediation is now required in all cases unless waived by the Court.  Usually after a Temporary Hearing but before the Final Hearing the parties will enter into formal mediation.  Formal mediation is a process where the parties and their attorneys attempt to resolve the case with a neutral mediator acting as a sort of referee.  The parties are responsible for paying for mediation and the cost is usually around a $100 to $150 an hour for each party. Typically, mediations will last two to four hours.  If the parties reach an agreement that agreement will be set out in writing in a mediation agreement which is binding between the parties. The parties may of course also informally talk and resolve the case by agreement.

FINAL HEARING – If you have not been able to resolve your case by agreement you will have a Final Hearing.  This may be in front of the judge like a Temporary Hearing or in some cases you may have a jury trial on some issues.

Legal disclaimer: The information contained on this page and this entire website is for informational purposes only and are not intended as legal advice.  You should always consult an attorney before taking legal action.  Reading this website or any website is not a substitute for a trained attorney.  This website does not create an attorney-client relationship between you and Shawn Bible Law Firm.  Mr. Bible serves all Northwest Georgia, including the cities of Ringgold, Fort Oglethorpe, Dalton, Lafayette, Trenton, Summerville and Rossville, in the counties of Catoosa, Walker, Chattooga and Dade Counties. 

In Georgia if a child is born to an unmarried couple the mother has sole custody of the child and the father has only potential rights. The father must file a Petition to Legitimate to establish parental rights.   This is true even if the father is on the birth certificate and even if he pays child support.

A biological father not married to the mother must file a legitimation action pursuant to Georgia law found in O.C.G.A. 19-7-2.  So, you ask how does a father go about doing that?

The father must file a Petition to Legitimate in Superior Court in the county where the mother lives (there are some exceptions to this general rule).  In many ways the process from there is similar to a Divorce case except that the only issues are child custody, visitation and support.

After the Petition is filed and the mother served with notice a court date will be set.  At that court date if an agreement cannot be reached between the parties the judge will decide child custody, set the visitation schedule or parenting plan and set child support.

If you are the father of a child born outside of marriage you need to speak to an attorney about your legal rights.  That attorney can tell you how best to pursue legitimation and explain the rights and obligations you have pursuant to Georgia law.

A Guardian Ad Litem (GAL) can appointed by  a Superior Court judge in a Divorce or Child Custody case. Generally speaking, a GAL is a person appointed by the court to investigate the situation and make a report about what would be in the child’s best interest. The GAL represents the best interest of the child and assist the court in making a decision on child custody and visitation.

A GAL is typically appointed when there are allegations of abuse, a parent with mental health or substance abuse issues, very high conflict between the parents that cannot be resolved easily, accusations of neglect and for other reasons.

The GAL typically will conduct interviews, examine the court file and other records and sometimes participate in the hearing by testifying.  The GAL must produce a written report and be available to testify if needed.

In custody cases sometimes one of the parties will ask for a GAL to be appointed.  In other cases the judge will appoint a GAL on their own authority even if the parties do not request the appointment of a GAL.

When can you modify child support?  The law allows child support to be modified both downward and upward.  Generally speaking, there are five reasons someone can petition the court to seek an upward or downward modification in child support.  These five reasons are found in O.C.G.A. 19-6-15.

First, there has been a major change in either parents income.  Second, there’s been a substantial change in the needs of the children. Third, a parent has failed to exercise his court ordered visitation.  Fourth, the noncustodial parent has exercised substantially more visitation than was originally ordered.  Fifth, one parent has an involuntary loss of income.

However, it takes more to change child support then merely showing that one of the above five things has happened.  Even if one of these five reasons is proven it does not necessarily mean that child support  will be modified.  The parent petitioning the court to revise child support must still show that the child support modification is necessary. Also, in some circumstances a parent may not ask for modification in child support if it has been less than two years since the last child support order.

I a word of caution about child support.  Remember, that any modification of child support must be by court order.  If you are the parent obligated to pay child support never never modify what you are paying without court approval.  Doing so could land you in jail for contempt of court for not paying your court ordered child support.  Also, always make sure that you have a record of child support you are paying and never pay cash without a receipt.

If you have had a major change or income or for some other reason need to modify child support you should seek the advice of an attorney and file a modification action if needed.

Legal disclaimer: The information contained on this page and this entire website is for informational purposes only and are not intended as legal advice.  You should always consult an attorney before taking legal action.  Reading this website or any website is not a substitute for a trained attorney.  This website does not create an attorney-client relationship between you and Shawn Bible Law Firm. 

If you have a family law case such as a divorce or custody modification which court will hear the case?  In Georgia, family law cases are heard in what is called the Superior Court.  Each county has its own Superior Court and the counties are linked together in what is called Judicial Circuits.  For example, I practice mostly in NorthWest Georgia in what is called the Lookout Mountain Judicial Circuit.  The Lookout Mountain Judicial Circuit is made up of four counties Catoosa (Ringgold), Walker (Lafayette), Dade (Trenton) and Chattooga (Summerville). Each of those counties has a courthouse and its own Superior Court Clerk.  There are four Superior Court judges in the Lookout Mountain Judicial Circuit who are Judge Don Thompson, Judge Ralph Van Pelt, Judge Kristina Cook Graham and Judge Brian House.

If you file for divorce in Catoosa, Walker, Dade or Chattooga counties then you will file your divorce with the Superior Court Clerk of the County.  Your case will be heard by one of the four judges who serve the Judicial Circuit.

All cases which could be classified as family law cases are heard in the Superior Court.  These cases include Divorce, Child Custody, Legitimation, Adoption and Child Support.  There are some cases which involve families and custody of children which may be heard in other courts.  For example, Juvenile Courts hear cases that involve deprived or neglected children.  These cases usually begin as investigations made by the Department of Family and Children Services.  However, most cases which the average person would think of as family law cases will be heard in Superior Court.

Before you make an appointment to see an attorney about a divorce there are a few things you should do first.  The below list will help you organize your thoughts and make your first consultation with an attorney more productive and efficient.

• Think about what you want to ask for and what your goals are. For example, if you have children think ahead of time what you would like to happen as regards custody and visitation.  As regards financial matters think what you would consider a fair division of marital assets to be.  An attorney can give you legal advice and help you reach your goals in a divorce but they cannot tell you what those goals should be without your help and input.
• Give some thought as to where you hope to be in the future. What are your career goals?  Do you think because of career or other reasons you will have to move in the future?  While no one knows what the future holds it is a good idea to be thinking about these issues before seeing a divorce attorney.  For example, if you think your job will cause you to have to move then that is something that will have to be considered when determining child custody and visitation.
• Create a list of your assets and debts. Any divorce will involve the division of marital assets so you need to know what those assets are.  Don’t overlook small items such as store credit cards and other small lines of credit.
• Gather evidence you think might be helpful in your divorce case and do not let that evidence be destroyed or mislaid. For example, if you are considering a divorce based on your spouse’s adultery and you have a text message where he or she admits to adultery make sure that you save that message.  It is best to not only to keep an electronic record of such a message but also have a physical copy of it.  If your spouse has posted something incriminating on Facebook print that post out and do not rely on it being there in the future.
• Do not text, email or leave voice messages that you do not want seen and heard in court. A divorce can be a stressful time and it is easy to lose your cool and send a text message in a fit of anger.  However, remember such text messages and other recorded conversations can be used in court and may portray you in a bad light to the judge.
• If you have young children do not discuss the divorce with them. Not only will the court frown upon such conversations it is harmful to your child.  Remember that your spouse is that child’s parent as well.
• Be prepared financially for your divorce. Take a careful look at your bills and expenses consider and the implications that your divorce will have on your budget.  Most people will need to make significant adjustments in their lifestyle, spending habits and budget after a divorce.

At a time when health insurance premiums are on the rise I am often asked how health insurance affects child-support?  Health insurance will always be a factor in determining child support.  The parent who pays child support will get credit for that in making the child support calculation pursuant to the child support guidelines.

The usual way this is calculated is as follows.  You take the total amount of the insurance premium and divide it by the number of persons covered by the insurance policy and then multiply the resulting amount by the number of children covered by the insurance policy.  For example, through a employment -related insurance plan, a parent provides medical insurance covers the parent, one child who is the subject of the child support case and two other children.  The parent pays a total of $170 for the family option that provides coverage for the employee in any number of dependents.  To calculate the amount attributable to the child, divide the four persons covered into $170, which would equal $42.50.  The resulting $42.50 is added to the basic child support obligation as a health insurance cost for one child for whom support is being calculated.  Usually unless otherwise agreed uninsured health expenses are divided equally between the parties.

With that being said, child support calculations can be very tricky.  Many people think that it is as simple as putting in both parties income into a child support calculator.  However, depending on the case and the financial situation of the parties child support calculations can be extremely complicated and the above example is not always how health insurance will be used to determine the child support obligation.

You should always contact an attorney for advice before agreeing to any child support amount.  Also remember child support is for the child and not for you so you want to ensure that if your receiving child support that you get a fair amount for the child.  If you’re paying child support you want to make sure that your paying a reasonable and fair amount pursuant to law.

I frequently have people call my office and ask what happens to my custody/visitation with my children if I move?  The typical scenario is that parents of young children get divorced.  One parent has custody of the child and the other parent has visitation.  Several years later due to job changes, remarriage or other life changes one parent moves.  What happens to the court ordered or agreed custody and visitation provisions of the original court order?

If the move is of such distance that the visitation exchange would become a hardship under the previous provisions then the parties must address the move either in an agreed order or bring the issue before the court to make a decision to change the current parenting plan.

For example, parents of a five-year-old child get divorced in Georgia and mom gets custody and father gets standard visitation with the child.  The fathers visitation is every other weekend.  A few years later mom changes jobs and wants to move to California.  Of course, the original parenting plan in the divorce decree will not work under the above circumstances.  The parties may between themselves agree to a new parenting plan but if they cannot agree then one party must file a petition to modify the original parenting plan.

In the above scenario, the parenting plan must change to accommodate the move across country.  The court can do several things in the above scenario.  The court could decide that due to the mother’s decision to move the father should receive primary custody and the child stay in Georgia with the mother receiving visitation.  The court could decide that it is still the child’s best interest to move with the mother to California and change the fathers parenting plan to accommodate the move.  A typical parenting plan in such circumstances might be that the father receive the entire summer break from school and visit with the child on any extended school break.  The other big issue the court must address is who shall bear the burden of travel expenses.

The above example is extreme in that one party is moving across the country.  However, even moves that involve travel of over two hours can necessitate the need to amend an existing parenting plan.  Therefore, before making any decision to move a divorced parent should consider the possible implications to the existing parenting plan and consult with an attorney about their options.  In addition, the divorced parent should carefully read the existing order and parenting plan to see what limitations have been put in that order or parenting plan as regards moving.

Legal disclaimer: The information contained on this page and this entire website is for informational purposes only and are not intended as legal advice.  You should always consult an attorney before taking legal action.  Reading this website or any website is not a substitute for a trained attorney.  This website does not create an attorney-client relationship between you and Shawn Bible Law Firm.  Mr. Bible serves all Northwest Georgia, including the cities of Ringgold, Fort Oglethorpe, Dalton, Lafayette, Trenton, Summerville and Rossville, in the counties of Catoosa, Walker, Chattooga, Dade, and Whitfield.