Family Law FAQ

Hall County Divorce and Family Law Attorney

Frequently Asked Family Law Questions

Can I date before my divorce is final?

Clients frequently ask whether it is permissible to begin dating after the separation but before the divorce decree has been entered. As a general rule, we recommend that dating be postponed until after the Court has entered a decree of divorce.

There are several reasons for this advice.

First, if your spouse has knowledge that you are dating, unexpected feelings of anger and resentment may arise, which make it extremely difficult to negotiate a reasonable settlement out of court. This could cause your legal fees to increase. I tell clients all the time that “a pound of flesh will cost you two pounds of money.” Oftentimes, the reaction from one’s spouse comes as a surprise, and the extent of anger, resentment or bitterness is unexplainable.

Second, a spouse will frequently contend that a relationship existed prior to the separation if dating begins immediately following a separation, and your spouse may accuse you of having an improper relationship before separation occurred. Obviously, if you are not dating, it minimizes the likelihood of at least one area of arguments. A spouse may also contend that the relationship is preventing reconciliation between you and your spouse. If custody or visitation rights are in issue, dating can interfere with a negotiated settlement or may be used as evidence before the Court as to why custody or visitation should be predicated on perceived conduct during dating. Often a spouse will seek to use as evidences any money that is spent by you while dating for that purpose.

Dating may also give the appearance of adultery, and the appearance of adultery or proof of adultery will have a profound effect on the outcome of a divorce proceeding. Ideally, adultery occurring after separation but prior to the divorce should not be viewed as the cause of the divorce itself. Nevertheless, many judges and juries place much weight on this conduct in making determinations of custody, visitation, support, and other such matters. We encourage restraint and caution in dating before a decree of divorce has been entered.

Should I be the first to file?

In most cases, it doesn't usually matter who files first however if your attorney feels there is some strategy in being the first to file, he or she will discuss this with you.

Why did opposing party ask for so much in his or her Petition? I thought we agreed on some of those things.

Before knowing what the issues will be and what might happen under the law and the facts of the case, no one wants to take the chance of asking for too little. So people tend to ask for more than they really expect.

What are the chances my case can be settled?

This question depends a lot on you and the opposing party and how eager you are to reach an agreement.

What about Mediation?

Mediation is a process where the parties meet with a neutral person who has been trained on domestic cases to assist them in trying to reach an agreement on some or all of the issues in your specific action.

How long will my case take?

That depends on many of things. Every case is different. Factors that can make a difference include the schedules of the parties, lawyers and the court, the cooperation of witnesses, the speed of any experts that may be needed and ultimately, the complexity of the case including whether a jury trial has been demanded. From the date of filing to finalization, your time can be as short at 31 days or up to several years if a jury trial is demanded.

Nothing is happening in my case; what can I do?

Talk to your attorney or to a paralegal. You are entitled to know the status of your case. There may be a very good reason for a pause or delay.

I have had some problems with depression. I saw a psychiatrist/psychologist/counselor. Friends, family members and even the opposing party says I'm crazy and will lose custody of the children. Is that right?

The mere fact that you have sought help for the problems you have encountered in your relationship is not a basis to lose custody or change custody if it is otherwise in the best interest of the children for you to have it. In fact, the ability to recognize the need for and to get professional help is usually seen as a good sign of maturity and responsible action, both desirable characteristics in a custodial parent.

I am a good father. Are judges prejudiced against fathers?

Both parents are equally entitled to seek custody of children.

Will I have to attend any mandated seminars?

Yes, generally every court is requiring parties who have minor children to attend some form of a parenting seminar. The cost for this seminar is generally $30.00 and takes 4 hours to complete. Your attorney will supply you with a schedule if you are required to attend.

What is the difference between legal and physical custody?

Physical custody refers to where the child lives and who has responsibility with daily care. Legal custody is the decision making responsibilities associated with education, health care, religion and upbringing of the child.

When parents fight over custody, how does the Court decide?

The standard in Georgia is the best interest of the child. The Court will usually take into consideration the following factors:

  • The love, affection, bonding, and emotional ties existing between each parent and the child
  • The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children
  • The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child
  • Each parent's knowledge and familiarity of the child and the child's needs
  • The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent
  • The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
  • The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
  • The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child
  • The mental and physical health of each parent
  • Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities
  • Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child
  • The home, school, and community record and history of the child, as well as any health or educational special needs of the child
  • Each parent's past performance and relative abilities for future performance of parenting responsibilities
  • The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child
  • Any recommendation by a court appointed custody evaluator or guardian ad litem
  • Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent
  • Any evidence of substance abuse by either parent

What is a Parenting Plan?

Effective January 1, 2008, all aspects of caring for the children have been combined into “Parenting Plans” which are now required in every divorce granted in Georgia. Parenting Plans need to be tailored to meet your circumstances taking into consideration both parents’ work schedules and children’s needs.

If my former spouse is behind on child support, can I prevent visitation?

Short answer is no. Child support and visitation are independent. Should a party fail to pay their child support obligation, a contempt action can be pursued. Likewise, should a parent be refusing visitation, then a contempt action could be pursued.

Can I modify custody arrangements or visitation after the divorce?

A: The Courts of this State have the ability to modify visitation and custody arrangements if they determine that there has been a material change of circumstances and that it is in the best interest of the child or children that the custodial or visitation arrangements be modified. An experienced family lawyer can guide you through this assessment and help you determine whether or not you have sufficient grounds to consider pursuit of the modification the underlying Court Order.

Can I move to another state with our child?

This area of law has undergone major revisions since 2003 at which time the case of Bodne v. Bodne was handed down by the Supreme Court/Court of Appeals (Bob check cite). Just because you have decided that it is time to leave the state for personal reasons which include job change, need to care for an ailing parent or other reasons does not mean it is necessarily in the best interest of the child to relocate them to another state. Prior to 2003, the law favored the parent who was initially granted custody. Now the Court ultimately must determine if it is in the best interest of the child to be relocated to another state.

What are custody evaluations?

A custody evaluation is a process in which a mental health professional (usually a psychologist) evaluates both parties and the children and makes a specific recommendation to the Court. It is the evaluator’s responsibility to determine what is in the best interest of the child and to make specific recommendations to the Court regarding issues of visitation, custody and decision making.

What happens if my ex-spouse files bankruptcy?

This is not an easy question to answer. Generally, alimony and child support are not dischargeable in bankruptcy. For example, if your husband was to make your car payments and fails to pay, the creditor may be discharged.