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.