Frequently Asked Questions About Family Law

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Anita H. Lynn, P.C., Attorney at Law strives to be a valuable  resource. Below you will find answers to some frequently asked questions  about family law and divorce.

• My spouse wants me to move out. What should I do?
• How long does it take to get a divorce in Georgia?
• Do we have to go to court?
• Can both parties use one attorney?
• My spouse/former spouse wants joint custody of our children. What does this mean?
• How is child support determined?
• I am covered under my spouse's medical insurance policy. What happens after the divorce?
• Am I entitled to alimony?
• How are our assets divided?
• My spouse has bad credit, so all of our debts are in my name. Does that mean I'm stuck paying them?
• Can you get my spouse/former spouse to pay my attorney's fees?
• My spouse/former spouse wants to take my children and leave Georgia. Can I stop him/her?
• I just lost my job. Can I get a decrease in my child support obligation?
• I would like to spend more time with my children. What can I do?
• How do you bill?
• What is the "average cost" of attorney's fees in my type of case?
• Can you guarantee results?

The last thing you should have to worry about in a family law dispute  is whether your attorney is serving your best interests. In Atlanta,  family lawyer Anita H. Lynn combines significant experience and knowledge to zealously protect your interests.

Contact Anita for a consultation in her welcoming Buckhead office. She really can help you.

My spouse wants me to move out. What should I do?

Your spouse cannot force you to move out of the marital home without a  written court order; only a judge (or the police) can make you leave.  This issue should be discussed with your attorney and determined on a  case-by-case basis. However, if there is a history of domestic violence,  you may be better off living in separate residences.

How long does it take to get a divorce in Georgia?

You can finalize a divorce as little as 31 days after service. Georgia does not require a waiting period for divorce.

Do we have to go to court?

No. The majority of all domestic cases settle outside of court. In  fact, less than 10 percent of all divorce cases go to final trial. To conclude your divorce, the Plaintiff (the person who files the case) may  have to appear in court briefly to establish the jurisdictional elements. Some judges may want to review your child custody and child  support provisions; however, many judges now allow parties to waive this  court appearance by filing specific court documents, generally known as pleadings.

Can both parties use one attorney?

No. The State Bar of Georgia Ethics Rules prevent lawyers from  representing both parties, because you and your spouse/former spouse  have conflicting interests. For example, if you are the party obligated  to pay child support, alimony or attorney's fees, then I would negotiate  so that you pay as little as possible. On the other side of the coin, if you are the party who is to receive any of these financial awards, then I would negotiate for you to receive as much as possible. The goal of my representation depends upon which party I represent.

This is not to say that each party is required to have an attorney.  Either party is free to represent himself or herself. However, even if one party chooses to go unrepresented by an attorney, I can still only represent one party.

My spouse/former spouse wants joint custody of our children. What does this mean?

"Joint custody" includes joint physical custody and joint legal  custody; you can have joint legal custody without having joint physical custody.

"Joint physical custody" means children spend substantially equal  time with both parents; this type of award is more common with teenagers  16 and 17 years of age, who may also have access to an automobile and  can, therefore, choose which parent they wish to live with at any given  time.

For children younger than this, whether joint physical custody is  awarded by the court or agreed to by the parties depends not only on the  judge's opinion on this issue but also the:

• Age of the child
• Child's ability to cope with such an arrangement
• Bond of each parent to the child
• Primary caretaking skills of each parent
• Parents' ability and willingness to work with one another
• Proximity of each parent's residence to the other

"Joint legal custody" means equal rights and responsibilities for  major decisions in the children's lives, including health, education,  religious training and extracurricular activities. With joint legal  custody, the parents are required to consult with one another when a  major issue arises, yet the courts normally designate a final decision-maker in the event of a disagreement.

How is child support determined?

On January 1, 2007, the Georgia Child Support Guidelines changed.  Child support is no longer set as a percentage of the payor's income. It  is now established using an income-sharing approach that takes into  consideration the income of both parties, each party's proportionate  share of the total income and a chart that sets forth the approximate  cost to raise a child with parents at that income level. Just like the  preparation of an income tax return, there are schedules that need to be  completed to establish income and various expenses, and these numbers are then transferred to a Child Support Worksheet that ultimately calculates the support payment.

You can view the Child Support Worksheet.

I am covered under my spouse's medical insurance policy. What happens after the divorce?

Federal law requires insurance companies to offer you continued  coverage after the divorce is granted, pursuant to the Consolidated  Omnibus Budget Reconciliation Act (COBRA). You may be familiar with  COBRA if you have ever lost your job. Provided your spouse's employer  has the minimum number of employees, the insurance company is required  to offer you continued coverage for three years after the divorce is granted.

Additional COBRA information is available.

Am I entitled to alimony?

Alimony is based on one party's financial needs and the other party's  ability to pay, as well as conduct issues. Realistically speaking,  alimony these days is intended to be rehabilitative in nature, to  provide the requesting spouse with an opportunity to become gainfully  employed and/or to increase his or her earning potential. Some judges  are more likely to award spousal support than others, so it helps if  your attorney is familiar with your assigned judge.

How are our assets divided?

Georgia is an equitable division property state. Equitable division  means whatever is fair and reasonable under the circumstances; it does  not necessarily mean an equal division of "marital" assets between  spouses, although more often than not, most assets are divided somewhere  in the range of 50/50.

There are numerous factors the court will consider to determine what  is fair and reasonable under the circumstances, including the:

• Length of the marriage
• Age of the parties
• Health of the parties
• Cause of separation
• Marital misconduct
• Earning capacity of the parties
• Contributions of each party as a spouse, as a parent and financially
• Each party's separate estate

Note that "separate property" (premarital assets, inheritances and  gifts from third parties) is not subject to an equitable division.

My spouse has bad credit, so all of our debts are in my name. Does that mean I'm stuck paying them?

No, it does not. A division of debts is not necessarily based upon  the name in which the debt is titled. Generally speaking, several  factors are considered, including who incurred the charge, the purpose  of the expense and both parties' financial circumstances.

Can you get my spouse/former spouse to pay my attorney's fees?

In most types of domestic cases, the law authorizes an award of  attorney's fees from one party to the other under certain conditions, including a consideration of each party's financial circumstances.  Regardless of the court's legal right to do so, an award of fees is  always within the judge's discretion. Some judges are more willing to award fees than other judges, depending in part upon the type of case, so it helps to "know your judge." I have a working knowledge of how most  judges in the Atlanta region tend to rule on certain issues and can help you understand what to expect based on a judge's previous decisions.

My spouse/former spouse wants to take my children and leave Georgia. Can I stop him/her?

Generally, when there is a divorce or post-divorce action pending,  the court will enter a Standing Order restraining and enjoining both  parties from removing the children from the jurisdiction of the court.  If you are already divorced, the law requires the custodial parent to  give you 30 days' notice prior to moving, which allows you sufficient  time to consult with an attorney to determine the next step. At this  point, if you wish to prevent your former spouse from leaving the state  with your children, it will be necessary for you to file an action in  court. However, if you are not yet divorced, then prior to the filing of  a divorce action, you cannot prevent your spouse from leaving Georgia  with the children.

I just lost my job. Can I get a decrease in my child support obligation?

If you have experienced a substantial decrease in your income or  financial status since the entry of the previous order on child support,  and provided that no final order has been entered in any other child  support modification filed by you within the period of the preceding two  years, you are entitled to seek a decrease in your support obligation.  Be warned that if your former spouse tells you he or she will allow you  to temporarily decrease your support until you get back on your feet,  you are still legally obligated to pay the arrearage (back support). An  agreement of the parties does not supersede or override a court order.  You must file a modification action if you wish to legally modify your  support obligation.

I would like to spend more time with my children. What can I do?

Every two years you have the right to file for a modification of your visitation without showing a change in circumstances.

How do you bill?

Domestic relations attorneys are not permitted to have a financial  interest in your case. Accordingly, we bill hourly, and most, if not all  of us, require a retainer fee up front. A retainer fee is similar to a  down payment or a deposit against future services.

Contempt actions provide an exception to the hourly charge by  attorneys. An attorney may accept a contingency fee as a percentage of the arrearage you collect in court.

What is the "average cost" of attorney's fees in my type of case?

Short of, literally, reviewing all of the attorney's fees charged  over a particular period of time in a specific type of case, it is very  difficult for any attorney to accurately provide you with an "average"  cost. Nonetheless, I can generally tell you that a custody battle is  typically one of the most expensive types of litigation. Also, court  appearances in any type of case increase your costs. Your ultimate cost  will in large part depend upon the course of action chosen by the other  party as well as the other party's reasonableness. A more reasonable  opposing party, and a more reasonable opposing attorney, can make it  much easier to reach a negotiated settlement, thereby substantially  reducing legal fees and potential litigation expenses. However, if you  have the kind of spouse or former spouse who will argue with you about  what day of the week it is, then you can expect your fees to be higher.  Always keep in mind the amount of your attorney's fees when negotiating  the issues. Is it worth it to spend $7,000 to win an additional $8,000? I  can help you determine the course that is in your best interest from  all angles, as there is a cost to the stress and aggravation of  protracted litigation.

Can you guarantee results?

I guarantee that I will give you 100 percent of the benefit of my  legal knowledge and experience to help you prevail, but no attorney can  guarantee results. If any attorney makes you a promise or a guarantee,  with a very few minor exceptions, RUN. With this said, based upon my  experience I can sometimes give you an idea of the possible range of  results in court, that is, what you stand to gain or lose from your  assigned judge or a jury in a particular county. Beyond that, it would  be unprofessional and irresponsible of an attorney to promise a result  to a client.