Second Divorce- How do we divide our stuff?

One of the most difficult issues in a second divorce is how do you divide your property?  You had a 401k and a house before you married, sold your house and bought a new one with the love of your life, now she wants a divorce!!!!

Georgia divides property under a theory of "Equitable Division".   You may have heard of states like California which uses a different concept called: "Community Property".  Unless there is a prenuptial agreement in California whatever assets are present at the divorce are divided 50/50 regardless of behavior during the marriage.

In Georgia we have a two (2) step process.  The first is to determine whether any property was owned before marriage or inherited.  That property is your "Separate" property which you get to keep.  The remaining property is "Marital" property which is divided "Equitably".  Equitable usually means 50/50 but the Court can consider the behavior of the parties when dividing.

The Court looks to the "Source of Funds" to determine what property is marital and want property is separate.  For example, if before your marriage you had $100,000.00 in a 401k, then contributed $100,000.00 during the marriage, which has increased to $300,000.00, the Court should divide the property as follows:  The first $100,000.00 is your separate property as you owned it before marriage.  The second $100,000.00 is marital property as it was earned during the marriage.  But what about the increase in value of $100,000.00?   Because 1/2 of the money is separate and 1/2 the money is marital, the increase in value should also be split evenly between marital and separate.  In other words, you would be awarded not only $100,000.00 as your separate property but also $50,000.00 as 1/2 of the increase in value.  So you would receive $150,000.00 as your separate property and divide fairly the remaining $150,000.00.  Under this scenario you should get $225,000.00 as your award and your wife should get $75,000.00.

These issues are very fact specific and require good documentation. Often we retain accountants to do the math to make sure our clients get their fair share.

Why do I need an attorney in my divorce case? I can find the forms online!!!

No one likes paying an attorney to represent them.  We'd rather use our hard earned money to start our life over, new furniture, rent, moving expenses, etc..... 

However, I'm often surprised when I see in Court people trying to do their own divorce, especially where there are custody issues, child support issues or property issues.  I'm sure these folks think they are saving money, especially when most courts will help them fill out the necessary forms.  So why get an attorney?

If you are a young, without kids or money, sure, try to do your own divorce.  You may run into paperwork hassles, but if you put the effort in, you can do it.   If you have a longer term marriage, however, an attorney's assistance is important.

An attorney can help you get the needed information to make sure that all marital assets are disclosed.  When relationships go sideways, one of the first things people do is to move and hide money.  An attorney will know the law in regard to child support.  There are numerous issues in the child support worksheet other than just income.  An attorney will know ALL of the items which should be in an accurate worksheet, especially daycare costs and health insurance costs.  Think about this....if an attorney finds an $200.00 difference it could mean $2,400.00 a year.  If your child is twelve years old it could mean a $14,400.00 difference.

Why do we work so hard?  Most of us to provide a better life for our children.  An attorney can make sure your child has the best possible custody arrangement for your situation.  The days of cook book visitation (every other weekend) are over.  Both parents typically work so expanded visitation is common.

Property division is another important issue you need a lawyer to address.  Making sure that your pre-marital property is awarded to you  and making sure you know of ALL the assets to be divided is crucial.

How to prepare for a Custody Dispute

If you are being confronted with an issue regarding custody of your child,  you should be prepared for a close look at your character and your abilities as a parent.  As such, you should do the following:

1)   Be Fair:

The judge's sole duty in any child custody case is to take care of the "best interests of the child".  Distilled down, this is Georgia law on custody.   What does "best interests of the child" mean?  The answer is whatever the judge thinks is in the best interests of the child.   Your duty is to present a picture of your child's life with you as the primary custodial parent versus life with the other parent as primary caregiver.  What does the judge care about?  First of all, the judge looks to who has been the primary caregiver historically.  If the father has not expressed much of an interest in being a father, then he has little chance of getting custody.  On the other hand, if the Mother is refusing to allow visitation, a Judge may see that the child's future may be brighter with Dad because he is willing to work with Mom.

Be Fair.  Sometimes Fathers don't see their child because of conflict with the child's Mother.  As a Father trying to be in your child's life, you need to see your child at every opportunity even if the Mother puts unreasonable obstacles in your path.  Don't let your pride prevent you from being a parent.  As a Mother, you need to allow the Father to see the child (reasonably)  as preventing him from seeing  your child could seem unreasonable to the Court.

KEEP RECORDS!!!  If you are a Father trying to see your child, keep all texts and e-mails of your efforts.  By the time you get to Court if you can show your efforts to be a part of your child's life this will greatly increase the odds of success.  Mom-keep track of your efforts to keep him involved, such as e-mails and texts regarding doctor appointments and school events.

2)   Keep Your Life Clean

Don't post a blow by blow on Facebook, Instagram or any other social media site regarding the great party you had and how drunk you got.  Don't hang out or date criminals or lowlifes.  Keep bad people from your child.  The judge tries to look into the future  to determine which parent would provide a better life for the child.   It's hard to explain why your new boyfriend with an extensive criminal history is providing daycare.  "He's changed Your Honor" is not a good fact.

3)   Be Stable

Now is not a good time to quit your job to be an artist.   Moving three (3) times in a year is not a good idea.  Again, the Judge is trying to look into the future for your child.  A person with a stable work and home life more likely will provide a stable home for the child in the future.

Help! I just got arrested! What's going to happen?

You will be taken to the jail and processed, which means that you will be fingerprinted.  The jail will search to see if you have any warrants outstanding.  If there are no other warrants, typically there will be a set bond for your release.  You can either pay the bond amount or seek a bail bond company, who charges a fee to provide a bond for your release.  For example, if there is a $3,000.00 bond, you can either pay the $3,000.00 to get out or obtain a bail bond company, who will typically charge a 10 percent fee, in this case $300.00, to front the bond.

After you get out on bond, at some point there will be an arraignment, which is your opportunity to plead guilty or not guilty.  Often for misdemeanor crimes there will be an opportunity to speak with the prosecuting attorney about a plea opportunity.  Be careful if you do not have an attorney because the prosecutor can obtain information from you which could be against your interest.  If you take a plea, then you will typically meet with the probation department to discuss the requirements of probation.  After your probation has ended you will have served your sentence.

If you do not take a plea, then you have the right to trial by judge or jury.  The State has the requirement of proving your guilt.  You do not have to testify, and have the right to question the State's evidence.  If convicted, the judge will sentence you based on the type of crime you committed.

In Georgia relatively few criminal cases are ever tried.  If you lose at trial most judges will provide severe penalties that are far in excess of what was offered in a plea deal.   If the State's case is weak, they will simply offer a plea for a lesser offense or provide very light terms.  Often an innocent person will plead to a crime they did not commit because they fear they may be convicted and face the draconian terms provided by a Judge.  This is called an "Alford plea", where you take the punishment but do not admit your guilt.

At all points in this process it is important to retain an attorney.   The public defender's office does a good job with limited resources, but a private attorney has more time to review the State's evidence and present mitigating evidence.   A local attorney will have a good working knowledge of the typical sentences for your jurisdiction and when the State is over charging.  You may need to provide mitigating evidence to seek a lesser sentence, for example, that you are suffering from drug addiction and are seeking help.  If you are working with a family to support the prosecutor may be less likely to seek jail time.  Your attorney may seek a "blind plea", where the client is guilty but the prosecutor's plea offer is too high.  Please remember that it costs the State money to incarcerate people, so it is in everyone's best interests to find alternative sentences.

Please visit my website at tomtierneylaw.com

Please call if you need legal representation to Thomas F. Tierney at (770) 631-1100 or e-mail at tierneylawyer@yahoo.com  Thomas F. Tierney is an attorney who represents clients in south metro Atlanta, including Fayette County, Coweta County, Peachtree City, Tyrone, Fayetteville, and Newnan Georgia.

Temporary Restraining Order-Family Violence Protective Order

The Georgia legislature has passed a series of laws to assist battered women and men to remove themselves from a cycle of violence.   In practice, however, often these remedies can be used, or misused, to obtain a "leg up" in a divorce or custody case.  Often small misunderstandings and arguments are escalated into "family violence" without either party understanding the significant effects of these legal procedures. 

What can I get in a Family Violence Order?  Georgia law allows the Court, WITHOUT THE INITIAL INPUT OF THE OTHER PARTY, the following relief:

(1) Direct the respondent to refrain from such acts;

(2) Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household;

(3) Require a party to provide suitable alternate housing for a spouse, former spouse, or parent and the parties' child or children;

(4) Award temporary custody of minor children and establish temporary visitation rights;

(5) Order the eviction of a party from the residence or household and order assistance to the victim in returning to it, or order assistance in retrieving personal property of the victim if the respondent's eviction has not been ordered;

(6) Order either party to make payments for the support of a minor child as required by law;

(7) Order either party to make payments for the support of a spouse as required by law;

(8) Provide for possession of personal property of the parties;

(9) Order the respondent to refrain from harassing or interfering with the victim;

(10) Award costs and attorney's fees to either party; and

(11) Order the respondent to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of family violence.

How long does this order last?  Under Georgia law for one (1) year, however, upon motion the Court can extend the order PERMANENTLY.    

What is family violence?   Georgia law defines it as :

(1) Any felony; or

(2) Commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass.

Who is family?  "past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household"

Does this go on my record?  If a restraining order is granted, this order is recorded with a registry available to law enforcement.

If you are subject to family violence, including symbolic acts such as breaking personal property or harassment, you need to protect yourself and your children from these acts from escalating.  After an initial ex-parte order, the Court will set up a hearing where the other party can defend themselves.  BOTH SIDES OF A FAMILY VIOLENCE PROCEEDING SHOULD BE REPRESENTED BY COUNSEL.

Too often a minor incident between a boyfriend and girlfriend will result is a family violence proceeding.   The judge will often ask, do mind staying away from her?   Of course not, that's why we broke up!!!  Don't make this mistake, as your record will permanently show that you are an abuser.  If you are being abused, don't go it alone.   An attorney can address financial and custody issues which often are the root core of the abusive relationship.  If either side appears before the Court without an attorney they are risking their financial and custody rights.

Here are some forms:  Family Violence Forms


Please visit my website at tomtierneylaw.com

Please call if you need legal representation to Thomas F. Tierney at (770) 631-1100 or e-mail at tierneylawyer@yahoo.com  Thomas F. Tierney is an attorney who represents clients in south metro Atlanta, including Fayette County, Coweta County, Peachtree City, Tyrone, Fayetteville, and Newnan Georgia.

Bankruptcy Relief from IRS and Georgia Tax Debts

Most people are unaware that bankruptcy can be a useful tool in resolving tax debts.   Generally speaking,  if a Georgia or IRS debt for income taxes is over three years old you can obtain a discharge in Chapter 7.   If it is less than three (3) years old, you can consider filing a Chapter 13 bankruptcy or a Chapter 11 bankruptcy and pay this debt over time.

The benefit to this is that interest and penalties stop while you are making payments via a plan, which makes this a better deal than simply working out a payment plan with the IRS or Georgia.    I run into people who have been making payments for years under a payment plan, but the penalties and interest exceed what they are paying.  In other words,  the debtor will owe this money forever.

What if you have failed to file over years because you're afraid of the IRS and Georgia?  I recommend that you go ahead and file your taxes.   When the tax authorities contact you, work out the lowest possible payment plan.   I don't care if it doesn't even cover the interest and penalties.   So long as you are paying, the government is happy.  Make it a priority to pay your current taxes.   After three years of paying on the old taxes, then file your Chapter 7.

Another issue is what if I have failed to pay payroll taxes or sales taxes on my business?  Although the business owes the taxes, the IRS and Georgia will go after the person responsible for these payments.  In one case, a poor lady was hired by some shady businesses to organize and pay their payroll taxes.  The shady businesses failed to give her enough money, and the IRS went after her personally because she wrote the checks!!!  The best advice for this is to shut down the business, and wait for the authorities to chase you.  Typically the IRS and Georgia will accept the basic amount owed without penalties and interest from an individual   Please call if you have any questions.

Please visit my website at tomtierneylaw.com

Please call if you need legal representation to Thomas F. Tierney at (770) 631-1100 or e-mail at tierneylawyer@yahoo.com   Thomas F. Tierney is an attorney who represents clients in south metro Atlanta, including Fayette County, Coweta County, Peachtree City, Tyrone, Fayetteville, and Newnan Georgia.

Do I have to file bankruptcy? What are the alternatives?

There are basically two (2) reasons to file for Chapter 7 Bankruptcy.  The first is to repair your credit.  I know, this seems contradictory.  But if you ever have looked at your credit report you will understand.  Every month there is a list of your debts, showing whether good payments have been made.  If you are simply letting the bad debt sit there, every month your credit is getting worse.

Do not be fooled by a debt being marked "Charged off".  Often this just means that the debt was sold at a discount to some other creditor.   You can still be sued for a "charged off" debt.  The worst is when you have old debt and are waiting for it to fall off your credit.  After years you might still be sued for the debt.   Here is an article about a woman who won a judgment against Midland Funding when Midland failed to show up for Court.   This shows how all this works.  Charged off lawsuit

So the first advantage to filing bankruptcy is that all of  your debt will show "discharged", so you will no longer owe the money.  Imagine if you are a bank and two people request a loan with similar credit history.  One shows debts "charged off" and the other shows discharged in Chapter 7.  Who would you give a loan to?  As the person who filed bankruptcy no longer owes the debts and as this person cannot file another bankruptcy for 8 years, you would more likely provide credit to the bankrupt person.

Bankruptcy provides a fresh start to your credit, and if used correctly can greatly improve your credit.

The other good reason to file bankruptcy is to protect your income and assets.   Once a creditor obtains a judgment against you the creditor can garnish your wages and your bank account.  A bankruptcy will stop the creditor from such actions.

An alternative to bankruptcy can be a simple as saving money to make an offer to the creditor.  If you were to save $500.00 per month in a year you would have $6,000.00 saved.  You may be able to offer a settlement to your creditors, especially on old "charged off debts".  For example, a collection agency may take 50 cents on the dollar, but only on "cash" offers.  So if you have saved $6,000.00 you may be able to settle a $12,000.00 debt.   At that point your credit would reflect paid in settlement, which is better than leaving the debt or filing bankruptcy.


Please visit my website at tomtierneylaw.com

Please call if you need legal representation to Thomas F. Tierney at (770) 631-1100 or e-mail at tierneylawyer@yahoo.com   Thomas F. Tierney is an attorney who represents clients in south metro Atlanta, including Fayette County, Coweta County, Peachtree City, Tyrone, Fayetteville, and Newnan Georgia.