5. Divorce Decree

Question 1

What is the effect of a divorce decree?

Answer 1

A divorce decree permanently ends the marriage and determines property division, alimony, child support, and custody rights.

Question 2

What is Equitable Division?

Answer 2

Georgia’s ‘equitable division’ principle divides marital property based on both monetary and non-monetary contributions, aiming for fairness under the circumstances.

Question 3

Does Equitable Division require that the spouses’ shares upon divorce be equal in amount?

Answer 3

No, equitable division aims for overall fairness in asset distribution, not necessarily equal shares.

Question 4

What is the first step in the Equitable division analysis?

Answer 4

Identify all property owned by either or both spouses and classify each asset as separate or marital.

Question 5

What is marital property in Georgia?

Answer 5

Marital property is all property acquired by either spouse, individually or jointly, during the marriage, except separate property.

Question 6

Can marital assets continue to accrue until the date of the final decree ending the marriage?

Answer 6

Yes, marital assets may continue to accrue until the date of the final decree ending the marriage.

Question 7

What is Separate Property in Georgia?

Answer 7

Separate property includes gifts, legacies, property acquired before marriage, property excluded by agreement, and property awarded by judgment.

Question 8

Do courts treat the separate property of one spouse as subject to equitable division?

Answer 8

No, separate property is not subject to equitable division.

Question 9

What is the second step in the equitable division analysis?

Answer 9

Valuation of property. Property value must be established through evidence or agreed upon by the parties with court approval, determined as of the trial or hearing date.

Question 10

Apportionment

Does a separate asset that appreciates in value during the marriage in itself transform that asset into marital property?

Answer 10

No, appreciation in value does not transform a separate asset into marital property.

Question 11

Apportionment

What happens if the value of a separate asset is increased through marital funds or significant spouse labor?

Answer 11

It may be apportioned into separate and marital components.

Question 12

Apportionment;

What is the source-of-funds rule?

Answer 12

Allows a spouse to retain an interest in nonmarital property proportionate to their contribution.

Question 13

What happens when property types are commingled?

Answer 13

Contributed property assumes the marital or nonmarital status of the receiving estate.

However, if marital and nonmarital properties are mixed into newly acquired property, it is deemed marital property.

Question 14

What is the first step in determining the marital residence’s status?

Answer 14

Look to see how the house is titled. If a residence is titled as a jointly held property, then it will be considered marital property.

Question 15

Pensions and Retirement Accounts;

Answer 15

Both vested and unvested employee retirement accounts are marital property to be equitably divided to the extent accumulated during marriage.

Question 16

Stock and Stock Options

If a stock that was separate property appreciate due to market forces or stock splits during the marriage, it remains _________

Answer 16

separate property

Question 17

Stock and Stock Options;

If the stock’s value increases due to the efforts of either spouse, the increase is considered_________

Answer 17

martial property

Question 18

Are professional degrees and licenses subject to equitable distribution?

Answer 18

No, they are not subject to equitable distribution.

Question 19

Is a professional practice and goodwill subject to disposition as a marital asset?

Answer 19

Yes, they are subject to disposition as a marital asset.

Question 20

How do Georgia courts divide personal injury damages?

Answer 20

They divide into marital and separate property components based on compensation type.

The damages are the separate property of the injured spouse to the extent that they represent compensation for pain and suffering of the individual spouse.

To the extent that the amount represents compensation for medical expenses or lost wages during the marriage, it is a marital asset.

Any amount included for loss of consortium is the separate property of the spouse who suffered the loss of consortium.

Question 21

How are lottery winnings classified in Georgia during a marriage?

Answer 21

Generally considered marital property.

Question 22

Expectancies;

Although a future interest in property may be treated as a current property interest subject to equitable distribution, an expected inheritance from a parent (where the parent is still alive at the time of the divorce) is

Answer 22

NOT subject to distribution.

Question 23

What is alimony?

Answer 23

Alimony is an allowance out of one party’s estate made for the support of the other party when living separately.

Question 24

What are the four types of alimony?

Answer 24

• Temporary alimony
• Rehabilitative alimony
• Permanent alimony

Question 25

What is temporary alimony?

Answer 25

Alimony awarded during the pendency of the proceedings.

Question 26

What is rehabilitative alimony?

Answer 26

Temporarily supports a spouse until they can become self-sufficient.

Question 27

What is permanent alimony?

Answer 27

continues indefinitely and is rarely awarded

Question 28

What factors are considered in awarding alimony?

Answer 28

1. Marriage's standard of living 2. Duration 3. Both parties' age and health 4. Financial resources 5. Time needed for employment training 6. Earning capacity 7. Liabilities 8. Other relevant equitable factors

Question 29

A party is not entitled to alimony if:

Answer 29

if the separation was caused by that party’s adultery or desertion. However, condoned adultery doesn’t eliminate the possibility of alimony, but it can be considered by the court.

Question 30

What happens to alimony obligations upon remarriage of the recipient?

Answer 30

All obligations for alimony terminate.

Question 31

What is the standard for modification of custody orders?

Answer 31

A significant change in circumstances that would benefit the child's best interests.

Question 32

What is the presumption of custody of minor children involving a parent and a non-parent?

Answer 32

There is a presumption that it is in the best interests of the child to be in the custody of one of the parents.

Question 33

What is the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)?

Answer 33

To discourage jurisdictional competition among state courts by deferring to the continuing jurisdiction of another state court.

Question 34

When can a third person such as a grandparent or stepparent be able to obtain custody against the parents?

Answer 34

They must show that the parents are not fit for custody or it is not in the best interest of the child to remain with the parent.

Question 35

How is custody awarded between parents?

Answer 35

Custody is awarded impartially, favoring the primary caretaker before separation.

Question 36

What is a custodial parent?

Answer 36

The parent with whom the child resides more than 50% of the time.

Question 37

What factors does the judge consider in custody cases?

Answer 37

Factors include emotional bonds, ability to provide care, involvement in education, home environment, and any history of abuse.

Question 38

Best Interest of the Child; In all custody cases, the judge's primary duty is to determine what best serves the child's welfare and happiness. Factors considered may include, but are not limited to:

Answer 38

1. the emotional bonds between the child and each parent or siblings; 2. each parent's ability to provide love, guidance, and basic care like food, clothing, and medical needs; 3. involvement in the child’s education and activities; 4. each parent’s home environment, stability, health, and support systems; and 5. any history of abuse or substance use.

Question 39

What are the visitation rights of the non-custodial parent?

Answer 39

Generally granted reasonable visitation rights unless detrimental to the child's best interests.

Question 40

what are the visitation rights of grandparents?

Answer 40

In Georgia today, the court may grant a grandparent reasonable visitation rights upon a finding that: 1.the health or welfare of the child would be harmed unless such visitation is granted; and 2.if the best interests of the child would be served by such visitation.

Question 41

Consultation with and Preferences of the Child; Age 14 and up; What is the right of a 14 year old and older child in selecting the parent to live with?

Answer 41

A child aged 14 or older can choose which parent to live with, and their choice is typically honored unless it's not in their best interests.

Question 42

Ages 11 through 13; What is the right of child between 11 and 14 years old in selecting the parent to live with?

Answer 42

If the child is between 11 and 14 years old, their desires and educational needs must be considered in custody decisions, but the judge has discretion, and the child's wishes are not decisive.

Question 43

What must occur for a child support award to be modified?

Answer 43

A substantial change in either parent's income and financial status or the needs of the child This ensures that support remains relevant to the current circumstances of both parents and the child.

Question 44

What are the operative provisions dictated by the decree in a divorce?

Answer 44

* Grounds and order for divorce * Distribution of marital property * Spousal awards * Custodial arrangements * Support obligations for the child These provisions outline the legal responsibilities and arrangements following a divorce.

Question 45

Can agreements related to marital property and spousal awards be modified after a divorce decree?

Answer 45

Generally, such agreements cannot be modified except for provisions fixing child support and custody Child support and custody can be modified due to changed circumstances.

Question 46

How are appeals from judgments or orders in divorce cases handled?

Answer 46

They follow the rights of appeal laid out by the appellate court in other civil contexts This means the process is consistent with how other civil cases are appealed.

Question 47

Are child-custody orders appealable?

Answer 47

Yes, child-custody orders are directly appealable as of right ## Footnote This provides an avenue for immediate legal recourse regarding custody issues.

Question 48

Can a spouse appeal provisions of the decree that were part of a separation agreement?

Answer 48

No, a spouse cannot appeal provisions that were contained in a separation agreement incorporated into the decree by consent ## Footnote This emphasizes the finality of consented agreements within the decree.