Ballingerlaw

Promise to Marry is Legally Enforceable in Georgia

2013-12-06T16:23:00.002-08:00

Getting cold feet and butterflies in the stomach is a part of the of getting married. Fear of the ceremony fear of commitment often play into the stress leading up to actually getting married. Some engaged couples never get around to setting a date for ceremony, while others simply leave their beloved bride or groom standing at the altar. Either way, a broken promise to get married or broken engagement can be a very traumatic. Breaking a promise to get married has legal consequences. On November 22, 92,013, the Court of Appeals of Georgia Affirmed the judgment against Christopher Ned Kelley for breach of a promise to marry and fraud in the amount of $50,000. On December 23, 2004 Kelley proposed marriage to his live-in girlfriend and mother of his child, Melissa Cooper. Kelley bought Cooper a $10,000 engagement ring and continue to live with Cooper, buying a new home and raising the their children. In April 2011 Cooper confronted Kelley about an affair he was having with another woman that extended back prior to the date of his proposal. When confronted, Kelley responded that he wanted to be with the other woman and told his fiancé that she and the children had to move out of the home. Cooper filed suit and following a trial before a judge, was awarded $43,500 in damages for breach of contract and fraud as well as $6500 in attorneys fees. Kelley took case to the Court of Appeals of Georgia and contended that the breach of the contract marry was not enforceable. He claimed that the law prevented the enforcement of the contract claim because it arose out of his meretricious relationship with Cooper and that his actions constitute fraud because they were promises about future acts. In a split 5-2 decision, the Court of Appeals rejected Kelley's claims and affirmed the judgment. Judge Lisa Branch, writing for the majority of the court wrote that deed defense of a contract made involving a meretricious relationship did not apply in this situation. This legal defense is intended to prevent contracts of an illegal or immoral nature such like an agreement to cohabit in exchange for sexual relations. On the other hand, marriage is encouraged under the law and the fact that Cooper and Kelley lived together before and after the engagement was not material to the contract. The Court of Appeals upheld the fraud claim as well. Kelley is correct that claim for fraud can not be made on for a promise to do an act in the future. However a claim can be made if the promisor has no to perform or if the promisor knows that the future event will not take place. Court of Appeals held that there was sufficient evidence to justify a finding that Kelley never intended to marry Cooper when he proposed because of the affair and other circumstances. Kelly's lawyers announced they intend to further appeal the decision to the Supreme Court of Georgia. With the dissenting opinions in the Court of Appeals, it is likely that this is not the last of this case. Until then, this opinion is the law of the State of Georgi

a with about a promise to marry. Kelley v. Cooper, Court of Appeals of Georgia Case No.: A13A0982 November 22, 2013 http://ballingerlawyer.com

Debtor's Rights

2012-10-07T19:04:00.001-07:00

In these tough economic times it hard for many North Georgians to pay their bills. Unfortunately creditors are not very understanding and the incessant dunning can be very unnerving at best and creates much stress in the household. However when the creditors turn to filling law suits, it can only ratchet up the problems. When creditors start to take legal action they are taking collections to a whole new level that that results in draconian measures to extract the money from the debtor. Debtors who know their rights can protect themselves from the aggressive tactics used by collections agencies and their attorneys.

Collections agencies are known for their aggressive tactics. The constant calling and degrading attitude of bill collectors is a hallmark of the trade. Collectors have one aim and that is to get the debtor on the phone to get a payment and they will do or say anything to accomplish that end. One tactic is to threaten repossession, repossession and foreclosure. When collections agencies turn the accounts over to their lawyers, they are just as aggressive and they have one aim, to collect money. Collectors and their lawyers know very well that debtors have rights, but they will push the envelope on those rights to see what they can get away with.

The fact is that there are guidelines that creditors must follow on in all of their actions. Bill collectors are subject to the Federal regulations of the Fair Debt Collection Act which sets boundaries for the collectors and very stiff penalties if they cross those lines. There are also Georgia and Federal laws that govern the process of repossession and foreclosure. The law includes notice requirement and certain steps that a creditor must take to protect the debtor’s interest in the property. While creditors will try to take every short cut they can get away with, the knowledgeable debtor can use the process to work with creditors to create a mutually beneficial outcome.

When the creditors turn around and sue the debtors there are still rights that every debtor enjoys under the due process of law guaranteed by the Constitution. Creditors that can successfully bring a law suit to judgment can collect money from debtors by garnishing wages and bank accounts as well as levying on property and personal possessions. They may even be able to collect their attorneys fees for the trouble of collection. However the creditors have to be able to prove their case in court with legally admissible evidence. The truth is that many creditors do not have the evidence they need to prove their case.

The greatest tool that collectors and their lawyers have is fear and hopelessness. Out of despair, many believe that since they owe money that there is nothing they can do. The biggest mistake many debtors make is to ignore the collectors until it is too late. One of the hardest things in the law is to undo a court order. When a debtor receives a garnishment notice, it may be too late to take steps to their rights. A debtor educated on their rights is proactive and takes steps insure that they are not preyed upon by the collectors.

While a letter threatening legal action is not a lawsuit, when a debtors are served with a summons, they needs to take action. The worst thing to do it to throw the papers in the trash out of despair. In Georgia, if a summons has not been answered in forty-five days, the matter is in default and a judgment will issue, even if the debtor never really owed the money. A debtor that finds them self facing a lawsuit should contact a lawyer. While it may not be affordable to hire a lawyer for the case, the lawyer can answer questions and give advise on how to handle the case. For the price of a small consultation fee, many lawyers will coach a debtor through answering the suit and presenting the case in the courtroom. There are many websites and even workshops available to help debtors understand their rights.

Facing creditors can be stressful and frightening situation, debtors need to know their rights. Taking the time to learn the rights and protections available to all debtors under the law is time well invested. A debtor that knows their rights can level the playing field and protect their family from the misfortunes of the bad economy.

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October is Domestic Violence Awareness Month

2012-10-02T06:08:00.001-07:00

This month it will be hard to miss the purple ribbons about Cherokee County as agencies and individuals promote awareness to a serious issue that plagues many households in our community. While the issue is far more pervasive than most can imagine, these victims are not alone and there are places and people they can turn to.

Family Violence is criminal behavior that cuts across all socio-economic layers and touches the lives of old and young, men and women, gay and straight and even rich and poor. One in five teens report that they are involved in a relationship where they have suffered physical, sexual or emotional abuse. Violence is not something that people outgrow in a relationship but only get s worse as a battering partner seeks to manipulate and control their partner.

Physical and mental abuse in the home is not related specifically to a alcoholics or drug abuse but is a separate and distinct problem. It is a condition that is borne of an acceptance in the use of violence means of control of another person. This situation is only magnified when children are involved. While they may not be the target of the violence, children raised in a violent atmosphere are more likely to grow up believing that violence in the family is acceptable, creating another generations of victims and abusers.

Violence within a relationship is something of a stigma that society has swept under the rug. For batterers it is acceptable to punish their partner to keep them in line while many of the victims believe that they deserve the treatment inflicted upon them. Family violence is a cycle in a relationship that builds a level of tension in the relationship until there is a explosive climax of violence followed by a relative calm. Many victims will provoke the violence in order to get to the following calm. The victims of Domestic Violence feel trapped in this cyclic pattern of tension, violence and calm.

The greatest misunderstanding about Domestic Violence is that the victims can just escape if they wanted to. The socio-economic pressures weigh heavily against the victim of Domestic Violence who wants to leave the relationship. Victims are usually isolated financially without the means to help while clergy and counselors emphasize the benefits of preserving the relationship. For many, the social stigma of becoming a victim prevents them from reaching outside the relationship for help while other victims are isolated from the community, family and friends by their batterers. In either case, the victims face a community that is not willing to accept the truth about the batterer or that real problem exists.

In Cherokee County there are resources for victims to turn to. The Cherokee Family Violence Center offers a crisis hotline and a shelter to accept the victims fleeing a violent relationship. Once there, the staff offers counselors that can help victims obtain restraining orders against their abusers, obtain financial resources to get the family on its feet and look for employment. There is counseling available to victims and their non-offending family members to help cope with the emotional impact of the violence. The Cherokee County Family Violence Center Center has the countries’ first Transitional Housing program that can place qualified families in to safe, stable affordable housing to help a family wracked by violence achieve independence.

The month of October is more than just a time to remember those who have endured or are still trapped by Domestic Violence but to become more aware of its presence in our community and society. A society that is aware of its signs and its impacts will make this crime socially unacceptable and make it possible to break the cycle of violence that many families live in.

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Substance Abuse and Child Custody

2012-09-23T21:22:00.001-07:00

The risks to children with a chemically dependent parent are countless. Intoxicated parents have a diminished capacity to supervise and protect children. They can even engage in risky behavior such as driving under the influence with the children in a vehicle or bring children into dangerous situations. Intoxication can lead to violent behavior, leading children to witness domestic abuse or even leading to become the victims of violence themselves. Even worse, children will follow the example of the chemically addicted parent and become addicts themselves

Addiction is often the cause of the disintegration of the relationship between the parents. Aside from symptoms such as abuse, neglect and habitual intoxication, chemical dependence takes a financial toll on a family. Chemical addiction is expensive and draws a great deal of family resources from household necessities to pay for the drug of choice. In many cases, the chemically addicted parent loses their job, becomes unemployable and is a financial burden on the household.

However, children in these situations love their parents, warts and all, just as any other child does. Most do not understand what is going on with between their parents and and are left wondering why they do not get to see one of their parents. While the sober parent is left in the situation of trying to protect the children from a bad situation, children often resent that parent and blame them “running off” the other parent. The emotional impacts on the children can run very deep.

There are a number of resources that the Courts can use to help children and families in situations with chemical dependent parents. The Courts can allow a child to see a chemically dependent parent with supervision. While many times these visits are supervised by a trusted relative or friend, the Court can rely on professional supervisors. Professional supervisors are usually trained and can supervise the interaction between the parent and child in a neutral setting or even sometimes in a clinical setting. While professionals come with some level of expense these supervisors can provide reporting back to the Courts insuring safety and guidance for future visits.

Supervised visits are usually augmented with a regimen of substance abuse counseling and drug testing. A good counselor can make the difference and bring an addict back from the brink of self destruction. When treatment is court ordered as a part of a parenting plan, it gives the treatment some teeth and makes it mandatory as a matter of law. Testing also is a significant part of the parenting plan for an addict. It not only insures compliance with the treatment but it insures that the children are not placed in the hands of an intoxicated parent. Many plans require testing both before and after a visit to insure that the parent did not consume any substances during the time with the children.

Successful participation in substance abuse treatment and testing in most instances will result in a relaxation of supervision requirements. As parents learn how to cope with their addictions, they are able to more engage in a less restrictive relationship with their children. However, there is always a heavy burden placed on the parent that is not addicted to remain ever vigilant to protect the children. This parent too can suffer a great emotional toll.

Overcoming chemical addiction is never easy for a family, especially as that family breaks up. Placing the interests of the children first is always the concern of the Court as well as the obligation of the parents. Courts can help the parents maintain an appropriate relationship with their children and protect their safety. There is no quick easy answer to dealing with a chemical dependency issue but with treatment, supervision, testing and patience the situation can become manageable. To best deal with this situation, consult an experienced child custody lawyer.

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Enforcement of Islamic Dowry

2012-05-23T06:52:00.001-07:00

by Eric A. Ballinger

In a traditional Islamic marriage, it is customary for a written contract containing provisions for a dowry. This is not similar to the Western concept of dowry where the family of the bride pays the groom to take the hand of their daughter. In the custom of the Islamic world, the groom pays the dowry to his bride as her own property in the event of the death of the groom or divorce. There is no doubt that these written marriage contracts are enforceable under the Shari 'a or Islamic law, but are there are questions as to their enforceability in civil courts in the Untied States.

The enforcement of these contracts is met with some controversy. Some groups contend that enforcement of nominal amounts in dowry agreements deprive women of remedies available to them under state law theories of recovery regarding equitable division of property or community property as well as alimony. ¹ On the other side, there are contentions that many dowry agreements amount to a windfall to a wife on the entry of a divorce.

The appellate courts in Georgia have yet to deal with the issue, however courts in other jurisdictions have ruled in such cases with some surprising results. These agreements that are grounded in centuries old religious tradition and written in vague terms compared to formally drafted ante-nuptial agreements may see unenforceable. However in the application of neutral principles of law, these agreements may be enforceable under Georgia law. The Islamic marriage contract contemplates the payment of a dowry upon the death of the husband or divorce. While these agreements may be construed as contracts in contemplation of marriage, the implication of divorce may very well render the agreement as a contract in contemplation of divorce and subject it to the rules of contract construction. Furthermore, if these agreements are deemed to be valid ante-nuptial agreements, then the courts will have to determine their enforceability in accordance with the case law on subject.

Just as in Western culture, marriage is an important part of the Islamic world, however it comes with its own traditions and taboos. Prior to marriage, a man and woman are not allowed to be alone together. While the Koran espouses that marriage is a joinder of equal partners with separate roles, it is generally recognized that the husband plays a dominant role in the marriage.² A Muslim man may marry a woman of equal or lower status than him and is free to marry an non-Muslim. Women are prohibited from marrying a non-Muslim and must marry equal or above their station in life.³ While an Islamic marriage ceremony involves a cleric or Imam, marriage in Islam is contractual in nature and not sacramental.⁴

Under the Shari 'a, to constitute a valid marriage contract, there must be an offer and an acceptance.⁵ Generally, the groom makes the offer to the wife through her representative, her father, grandfather or uncle. While the Islamic law requires that wife is free to accept or reject the contract, culturally young women are under a great deal of pressure to accept marriage contracts from men who the family deems to be acceptable.⁶ An essential element of the Islamic marriage contract is the dowry, also known as mahr, sadaq, ujr or fareeda.⁷ In some cases the dowry is pledged to the wife upon the formal engagement of the couple.

The dowry is money or goods that the husband pays to the wife and becomes her property upon the marriage of the parties. There is no law specifying the amount required and value is based on the, "age, beauty and virginity of the bride".⁸ According to Islamic law, the dowry is irrevocable by the husband and cannot be claimed by the wife's family.⁹ The intent of the dowry it to provide for the wife in the event of the divorce as Islamic law allows for the husband a great deal of latitude to divorce his wife. There are two parts to the dowry. The first is the prompt and it is payable at the time of the marriage ceremony. The second is the deferred and it is payable to the wife at the time of the death of the husband or divorce.¹⁰ It is usual for the family to negotiate a nominal prompt and a large deferred to make divorce more difficult for the husband.

Islam does not promote divorce and considers a marriage to be a life-long bond. Because the husband is deemed to carry the financial burden in the marriage, Shari 'a gives the husband broad discretion to divorce his wife.¹¹ A husband need only pronounce the talaq, "I divorce thee…" three times in order to end the marriage.¹² On the other hand, in order for the husband to be free to marry again, Islamic law requires that he pay the deferred portion of the dowry in full.¹³ A wife may divorce her husband, however if she so chooses, she will forfeit her dowry and may have to repay the prompt portion back to the husband.¹⁴ In a divorce sought by a wife, called a khul' a, it is understood that the wife is to reimburse the husband for what he has put out for her.¹⁵

While the marriage contract in an Islamic ceremony is certainly enforceable in Islamic countries and amongst clerics who minister to the faithful, there is some question as to the enforcement of these contracts in civil courts in the United States. While some contend there is bias against Moslems in this country, the issues raised in in enforcement concern whether or not the courts can enforce religious based contracts, First Amendment issues, whether or not the agreements meet the criteria for valid contracts and whether or not the agreements meet the requirement for a valid pre-nuptial agreement. Courts around the country have addressed the issue of the Islamic dowry and in some cases enforced the provisions.

In 1985 the Appellate Division of the Supreme Court of New York in Aziz v. Aziz¹⁶ enforced the dowry provisions of and Islamic marriage contract, holding that they could enforce the non-religious portions of a religious agreement. The New York court looked to similar rulings where Jewish marriage agreements were determined to be enforceable.¹⁷ Likewise, the appellate court in Florida upheld the award of $50,000 judgment to the wife under a sadaq in Alrilich v. Elchahal,¹⁸ finding that the contract was a valid ante-nuptial agreement.

On the other hand, the Court of Appeals in California declined to enforce the provisions where wife had filed for divorce in Dajani v. Dajani.¹⁹ The Court applied principles of Islamic law and tradition that hold that the wife forfeits her dowry if she chooses to divorce her husband. The Court also applied state law principles involving ante-nuptial agreements, holding that the enforcement of the agreement would promote profiteering through divorce.

The application of the First Amendment to the enforcement of the Islamic marriage contract in the civil courts was raised in the New Jersey Superior Court in Odatalla v. Odatalla.²⁰ In this case, a bride and groom entered into arms length negotiations along with witnesses, all of which was captured on video and After the documents were signed and witnessed, the ceremony took place. The trial court enforced the dowry, giving a judgment in favor of the wife. The husband appealed, contending that the enforcing the contract violated the Establishment clause of the First Amendment and the dowry portions did not meet the requirements of a contract under New Jersey law.

The New Jersey appellate court looked to the United States Supreme Court decision in Jones v. Wolf
²¹ for guidance in applying "neutral-principles" of law. Jones arises out of property dispute between two factions of a Georgia church congregation. While one faction sued in civil court for a determination of ownership of the church property, the other group objected, contending that civil courts have no authority to decide church ownership based on doctrinal issues. Justice Blackmun, writing for the majority held;

We cannot agree, however, that the First Amendment requires that States to adopt a rule of compulsory deference to religious authority resolving church property disputes, even when no doctrinal controversy is involved.²²

The Supreme Court applied a "neutral-principles" approach, claiming its advantages are completely secular and flexible enough to accommodate all forms of religious organizations. "The method relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges." ²³ "Furthermore, the neutral-principles analysis shares the peculiar genius in ordering private rights and obligations to reflect the intentions of the parties."²⁴

The New Jersey court in Odatalla held that the application of the neutral principles analysis in the issue of Islamic dowry was a logical extension of the Jones v. Wolf analysis.²⁵ In applying neutral principles of contract law, the Court was able determine that the marriage contract did meet the state law requirements of a contract and was enforceable.

There has been some issue as to the enforceability of the dowry provisions as a valid ante-nuptial agreement. In Texas, the appellate court reversed and remanded the trial court's decision to enforce the provisions of the mahr in Ahmed v. Ahmed.²⁶ While the parties did participate in an Islamic marriage ceremony complete with a mahr agreement, the uncontroverted evidence was that the parties did participate in a civil ceremony six months prior to the Islamic ceremony and as such the agreement was not made prior to the marriage. The appellate court found that there was no sufficient evidence to enforce the agreement as a post-nuptial agreement in that there was no provision as to whether the mahr was to be paid out of the separate property of the husband or the marital property.²⁷

In Zawahiri v. Alwattar
²⁸ the Ohio appellate courts refused to enforce the Islamic marriage contract both on the grounds that it violated the Establishment Clause of the First Amendment and it did not meet the requirements under Ohio law for a valid pre-nuptial agreement. The court can only enforce a pre-nuptial agreement if 1) the parties entered into it without fraud, duress, coercion or overreaching; 2) there was a full disclosure of the nature, value and extent of the prospective spouse's property; and 3) the terms do no promote or encourage divorce or profiteering by divorce.²⁹ The Court also pointed out that prenuptial agreements also must meet all of the requirements of a contract, to include an offer, acceptance, contractual capacity, consideration and manifestation of mutual assent.³⁰

The court found that the marriage contract was not discussed until the day of the marriage after the guests had arrived. After a hurried negotiation the husband agreed to a postponed mahr because he was embarrassed and stressed. As such, the court found that the agreement was entered due to overreaching or coercion.³¹

In 2010 the Washington Court of Appeals reversed the trial courts enforcement of the mahr in Obaidi v. Qayoum.³² The Court held that the trial court erred in applying Islamic law and principles of fault to the application of the mahr agreement.³³ The Court applied neutral principles as set out in Jones v. Wolf and found that the contract was not enforceable as it was negotiated fifteen minutes before the ceremony, prior to that the husband had never heard of a mahr and the agreement was written in Farsi, which the husband neither spoke or wrote. The appellate court even took into consideration that the trial court made findings that the husband may have been under duress.³⁴

However, in Rahman v. Hassain ³⁵, the appellate court in New Jersey once again enforced the provisions of the mahr, requiring the wife to refund the dowry she was paid. The court found that the wife's pre-existing mental health conditions was an impediment to marriage under Islamic law and the interpretation of Shari 'a that she would have to return the money.

While the appellate courts in Georgia have yet to deal with the issue of the Islamic dowry, the application of neutral principles of Georgia law will give the court some level of direction and guidance to determine the enforceability of such an agreement. The Georgia Code provides that contracts in contemplation of marriage are to be liberally construed to carry out the intent of the parties and th is no requirement of any specific language, only that the contract must be signed by the parties to be married and in the presence of two witnesses.³⁶ Shari 'a requires that the contract for marriage must bear two witnesses in order to attest to the existence of the marriage, to make sure that the relationship is not illicit. However the Supreme Court of Georgia has held in Lawrence v. Lawrence
³⁷ that a contract that references provisions for alimony and property division is a contract in contemplation of divorce and not subject to the same rules of construction.

The Supreme Court of Georgia ruled in Cousins v. Cousins³⁸
that where parties enter into a martial settlement agreement, the its meaning and effect should be determined according to the usual rules of contract construction. The Georgia Code provides that construction of the contract is a question of law for the courts to determine.³⁹ The cardinal rule of contract construction is to take the document as a whole to determine the intentions of the parties.⁴⁰ This can be difficult as most Islamic marriage contracts are hastily written at the close to the time of the ceremony and are short on details. That would open the contract to the statutory rules of contract construction to include the inadmissibility of parole evidence to explain the terms of the written agreement.⁴¹ Further, some may argue that the terms of the written agreement lack and consideration. In order to form a contract under Georgia law, there is required valuable consideration.⁴² While there may be some question as to consideration in the Islamic marriage documents, the Georgia code provides that marriage in and of itself can be valuable consideration for a contract.⁴³

If the courts determine the requirements are met for the existence of a contract, the three-pronged test for enforceability set out in the Scherer v. Scherer
⁴⁴ must be applied. (1) was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) Is the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable? ⁴⁵ Only of the answer to all three questions is "no" can the agreement be considered enforceable. However, given the appropriate facts and circumstances, the Islamic marriage contract can be considered enforceable under Georgia law, applying neutral principles as outlined in Jones v. Wolf.⁴⁶

However, in protection of the economically disadvantaged party, the Georgia Supreme Court has found ante-nuptial agreements unenforceable where the economically advantaged party has failed to disclose their income and assets prior to the marriage.⁴⁷ In fact there is an affirmative duty of each party to disclose the material facts and there is no requirement that the other spouse exercise due diligence to determine the assets of the other.⁴⁸On the other hand, persons planning marriage are not in a confidential relationship and each must exercise ordinary diligence in verifying contract terms. ⁴⁹ If the parties enter into the agreement with full knowledge of each other's economic status the agreement may be enforceable, despite the financial disparity. ⁵⁰

While the courts thought the United States have made desperate rulings on the issue of the enfocement of the Islamic dowry, they have generally followed the same logic through the determination whether or not to enforce the contract. They have cleared the issue of the First Amendment by applying neutral principles to and looked to the non-religious portions of the agreement. In doing so, the courts look to the agreement to determine of the agreement meets the requirement of the contract under state law and then determines if the agreement is enforceable as an ante-nuptial agreement. The courts have on few circumstances relied on the Muslim traditions and Shari 'a to determine the intent of the parties, neutral principles of contract and family law decide these cases.

The Georgia Appellate Courts have yet to decide the issues of the enforceability of Islamic marriage contracts and dowry provisions, the Courts are well equipped with the tools it needs to decide the issues. The clear guidance from other jurisdictions points for the Courts to interpret these religious documents in using the existing laws regarding contracts and ante-nuptial agreements.

Notes

Bleckhorn, Lindsey E., Islamic Marriage Contracts in American Courts: Interpreting Mahr Agreements as Prenuptials and Their Effect on Muslim Women Southern California Law Review Volume 76, page 189. (2002)
El-Alimi, Dawoud, Marriage
Modern Muslim Society Marshall Cavendish Corporation. 2011 p. 44.
Id. @ p. 45.
Smith, Jane I., Islam in America Columbia University Press, New York. (1999) p.118
El-Alimi, Id. @ p.45
El-Alimi, Id. @ p.45
El-Alimi, Id. @ p.47
Smith, Id @ p.119
El-Alimi @ p. 48
El-Alimi @ p. 48
Al-Sheha, Abdul Rahman (Translated by Mohammed Said Dabas) King Fahd National Library. (2000) p. 102
El-Alimi, Id. @ p. 58
El-Alimi, Id. @ p. 58
El-Alimi, Id. @ p. 59
Al-Sheba, Id @ p. 103
Aziz v. Aziz, 127 Misc. 2d 1013, 488 N.Y.S. 2d 123 (1985).
Hurwitz v. Hurwitz, 216 A.D. 362, 215 N.Y.S. 184 (1926).
Akilieh v. Elchahal, 666 So. 2d. 246 (1996).
Dajani v. Dajani, 251 Cal. Rptr. 871, 204 Cal. App 3^rd 1387 (1988).
Odatalla v. Odatalla, 355 N.J. Super. 810 A2d. 305 (2002).
Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed. 2d 775 (1979).
Jones v. Wolf, Id. @ 605.
Jones v. Wolf, Id. @ 603.
Jones v. Wolf, Id. @603.
Odatalla v. Odatalla, Id @ 96.
Ahmed v. Ahmed, 261 S.W. 3d 190 (2008)
Ahmend v. Ahmed, Id. @195.
Zawahira v. Alwattar, 2008 Ohio 3473 (2008)
Zawahira v. Alwattar, Id. @ 3479.
Zawahira v. Alwattar, Id. @ 3479
Zawahira v. Alwattar, Id. @ 3483
Obaidi v. Obaidi, 154 Wash. App. 609, 226 P. 3d 787 (2010).
Obaidi v. Obaidi, Id. @ 790
Obaidi v. Obaidi, Id. @ 791
Rahman v. Hossain, Docket No. A5191-08T3 Superior Court of New Jersey, Appellate Division (2010).
O.C.G.A. § 19-6-63
Lawrence v. Lawrence, 286 Ga. 309, 687 E.E. 2d 421 (2009).
Cousins v. Cousins, 253 Ga. 30, 315 S.E. 2d 420 (1984).
Dohn v. Dohn, 276 Ga. 826, 584 S.E. 2d 250 (2003).
Carlos v. Lane, 275 Ga. 674, 571, S.E. 2d 736 (2002).
O.C.G.A. § 13-3-2
O.C.G.A. § 13-3-40
O.C.G.A. § 19-6-60
Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662 (1982).
Scherer v. Scherer, Id. @ 641.
Jones v. Wolf, Id @ 603.
Alexander v. Alexander, 279 Ga. 116, 279 S.E. 2d 48 (2005); Corbett v. Corbett, 280 Ga. 369, 628 S.E. 2d 585 (2006).
Blige v. Blige, 283 Ga. 65, 656 S.E. 2d 822 (2008).
Mallen v. Mallen, 280 Ga. 43, 622 S.E. 2d 812 (2005).
Dove v. Dove, 285 Ga. 647, 680 S.E. 2d 839 (2009).

The End of Spousal Privilege in Georgia

2012-04-01T18:26:00.001-07:00

Lawmakers in Georgia are poised to change the balance of power in the prosecution of domestic violence. The Georgia House of Representatives approved HB 711 last month and sent it on to the Georgia Senate. The bill was approved without change and sent to the governor’s desk. Once it goes into effect, HB 711 will allow prosecutors to compel victims of domestic violence to testify against their abusive spouse. It also protects the communications between victims of domestic violence and sexual abuse and the agencies that are created to help them.

This changes an age-old loophole in the law that made it much more difficult for prosecutors to obtain convictions against battering spouses. The loophole, coupled with an 8-year-old opinion from the Supreme Court of the United States, severely tied the hands of domestic violence prosecutors and allowed batterers to go free. In recognition of the sanctity of marriage, a spouse has a general privilege as not to be compelled to testify against one another in criminal proceedings. This privilege became abused in the prosecution of domestic violence cases. Spouses, generally under pressure from their abusers, could refuse to take the stand to testify against the attacker.

Until 2004, prosecutors were able to get around this privilege with some creative legal maneuvering. Once spouses exercised their privilege to refuse to testify, the witness could be deemed to be legally unavailable, allowing the admission of hearsay statements of the victim to 911 operators and law enforcement officers at trial. This exception to the hearsay rule allowed prosecutors to present some very powerful evidence. But the noticeable absence of the victim on the witness stand or the noticeable presence of the victim in support of the batterer sent an equally powerful message to a jury as well.

In 2004, prosecutors were dealt another blow when the Supreme Court held in Crawford v. Washington that the admission of hearsay statements of unavailable witnesses was a violation of the Sixth Amendment in that an accused has a right to confront his accuser in court. This left prosecutors without a witness to many brutal attacks, trying to piece together cases with photographs of injuries and 911 recordings.

The new law will allow prosecutors to compel these victims to take the stand against their abusive spouses. Even if they fail to testify honestly, once these witnesses have testified, their prior inconsistent statements to law enforcement can be admitted to as evidence in trial. According to Solicitor General David Cannon, Jr., “Georgia was the last state to allow this privilege in domestic violence cases, but this bill will allow us to put some real teeth into prosecuting these cases. We will be able to make a difference.”

Eric Ballinger is private practicing attorney in Canton, GA. He serves as the attorney training coordinator for the Cherokee Family Violence Center and handles may pro-bono cases each year for victims of domestic violence.

Protect Indigent Defense Funding

2012-02-23T21:13:00.001-08:00

Indigent defense is never a popular topic with lawmakers or the public. The concept of the government paying to help criminals go free runs contrary to conservative values. However, indigent defense is closely aligned with the most essential of conservative values: liberty and the regulation of government power.

The criminal justice system in the United States is the best anywhere. When our government chooses to accuse a person of a crime and restrict his or her liberty, there is a process the government must follow. Citizens, in the form of a jury, make the decision. While the government is represented by a lawyer to present its case, the accused is also represented a lawyer to challenge the government. When the two sides are matched, ultimately what the jury hears is the truth.

Yet many in this country are unable to afford to hire a lawyer or prepare a defense. Crime, for the most part, mainly affects the poorer members of our society. A society where liberty and justice is only available to those who can afford it runs contrary to core conservative values. It is why the effective assistance of counsel is guaranteed to all under the Sixth Amendment to the United States Constitution ever since Gideon v. Wainwright.

Our system is designed to protect its citizens from an overzealous government. If government is able to run roughshod over the poorest and weakest members of society, our society cannot be free. The men and women who work in the public defenders office and represent indigent persons accused of crimes act as a check and balance to government power on a daily basis.

However, indigent defense comes at a significant cost to the government. In this day and age of government cutbacks, the Georgia Public Defender Standards Council must struggle like every other government agency for funding.

In 2004, the General Assembly created the Georgia Public Defender Standards Council to ensure effective counsel for the poor. In order to fund this constitutional mandate, the Legislature also imposed an additional $15 charge on civil court filing fees. While these fees have generated between $41 million and $44 million annually, the state has only budgeted between $35 million to $38 million for indigent defense. This year, Gov. Nathan Deal has proposed a budget of $40 million for indigent defense. There is no guarantee that this level of funding will continue in future administrations.

Rep. Rich Golick (R-Smyrna), chairman of the House Judiciary Non-Civil Committee, has proposed a constitutional amendment to ensure funding for indigent defense. HR 977 provides that the funds that collected from the civil filing fee add-on be used to support indigent defense and not other budget items. This resolution has made it out of committee and is going to the floor of the General Assembly. A two-thirds majority is required to approve a constitutional amendment and send it to the general public for a vote. All those who support liberty and justice for all should contact their representative to support this important amendment
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Changes to the Garnishment Laws: Corporations Need Not Answer Through A Lawyer

2012-02-20T07:13:00.001-08:00

On Feb. 7, Gov. Nathan Deal signed HB 683 in to law, effectively eliminating the requirement that corporations have a lawyer represent them to answer a garnishment.

This new law is lauded as removing an unnecessary regulation on business. While this change to the law does help cut some amount of bureaucracy and expense for business, but it is not without some pitfalls. A garnishment is a legal proceeding and if it not handled properly can come with some very expensive consequences for business.

Garnishments are a routine part of operating a business. It is a legal process that allows a creditor who has received a judgment in a court to have the money taken from that person’s wages or bank accounts. Employers and banks respond to garnishment proceeding for creditors collecting from their employees and customers as a part on a regular basis. Most of the information required for a response to a garnishment is administrative in nature, such as payroll information and account balances. These tasks can and in the past have been handled by bookkeeper or payroll clerk. In fact, this is how most businesses have handled garnishments in Georgia up until 2011.

On Sept. 12, 2011, the Supreme Court of Georgia approved a formal advisory opinion of the State Bar of Georgia's Unauthorized Practice of Law Committee that interpreted the current law, as it is written, to prohibit non-lawyers from answering garnishments on behalf of corporations. This ruling had a profound effect on employers and banks that are most likely to answer garnishments. Justice David Nahmias, following the recommendations of the State Bar of Georgia on the issue, recommended that those interested should seek to modify either current Georgia State Law or the Court Rules.

HB 683 did just that, giving clerical workers and agents the authority to file a garnishment on behalf of the corporate entity. While this comes as a great relief and savings to business, garnishments should not be seen as just routine paperwork. A garnishment is a legal proceeding pending in a court, and as such, as procedures that must be followed. Failure to follow those procedures and meet the specific deadlines can result in the creditor taking a judgment against the employer or the bank for the amount owed to the creditor. This could have the effect of the employer or the bank taking the place of the original debtor. While there are some provisions in the law that give the corporation some relief, those measures are time sensitive and procedurally driven and may cost the creditor out of pocket as well.

The law allows for an employer or bank to deduct up to $50 for legal fees to answer a garnishment. While this probably will not cover the cost of hiring an attorney to answer the garnishment, it may cover the cost of getting some sound legal advice to make sure the garnishment is answered correctly.

Cracking the DUI Code

2012-02-14T06:34:00.001-08:00

There is a controversy brewing in how law enforcement makes cases for driving under the influence, and that controversy is coming to a head. For a number of years, criminal defense lawyers have been mounting an attack on the breath testing device used in Georgia to detect the level of alcohol in the blood stream of suspected drunk drivers. Now, defenders are closer than ever to cracking the code.

At the heart of the controversy is the Intoxilyzer 5000, the device approved by the state as the official breath testing device since 1995. The device is manufactured by CMI, Inc. a company out of Kentucky, and is used in several jurisdictions as well as government agencies and private firms. The device is designed to scan a sample of deep lung air with ultraviolet light and detect the amount of alcohol in the air. Internal software called the source code calculates the amount of alcohol in the bloodstream.

While the base models of the Intoxilyzer 5000 all work on the same principle, the model used in Georgia is unique in its features. CMI manufactures the device to meet specifications selected by theGeorgia Bureau of Investigation Division of Forensic Sciences and selects some features while rejecting others.

The device is supposed to be equipped with certain failsafes to prevent false readings. These include detection for radio frequency interference, a means to rule out mouth alcohol as opposed to deep lung breath alcohol, and filters to rule out substances that could mimic alcohol in the test. Some of the options rejected by the state include a feature that allows the device to capture and seal a breath sample for independent testing as well as the ability to download results to keep a database of test results.

Defense lawyers have been skeptical of the Intoxilyzer 5000 since it was proposed by the GBI. On his website, noted Atlanta DUI lawyer William "Bubba" Head said that the device was originally manufactured in 1982, before the advent of cell phones and other devices that cause low level radio frequency and effect the accuracy of the test results. Defense lawyers have also noted other problems over the years to include issues with the volume of air required to provide a sufficient sample and the effects that some substances (smokeless tobacco, gum or mints) in the mouth have on (the test's) accuracy.

One of the biggest red flags to defense lawyers is the extent which CMI has gone to protect is proprietary device. All repairs and maintenance on the Intoxilyzer 5000 must be done by the manufacturer at its facility in Kentucky. Nobody in Georgia knows how the device works, not even the technicians who are charged to inspect, calibrate and certify each machine every quarter. Defense lawyers want to get ahold of the device to see if it works the way the manufacturer claims. However, CMI refuses to sell an Intoxilyzer to any third party.

At the heart of the controversy is the source code or the computer program that operates the Intoxilyzer. Thomas Workman, Jr, an engineer and computer programmer from Massachusetts with experience working for Xerox, Texas Instruments, Hewlett-Packard and IBM device emulation, contends that the source code for the Intoxilyzer 5000 consists of some 60,000 lines of code, making it highly probable there is a flaw somewhere in the programming. This has prompted defense lawyers to subpoena the computer program that runs the Intoxilyzer as well as the engineers that write the code. This is not so simple.

Because CMI and its employees are located in Kentucky, they are not subject to direct subpoenas from the Georgia courts. There is a two step process. First, the courts in Georgia must find that the out of state witness is material or necessary to the case. Second, the court in Kentucky must order the witness to appear in Georgia. CMI and prosecutors have fought these "source code motions" vigorously here in Georgia as well as in other states. In Georgia, the Prosecuting Attorneys Council, an agency that assists and coordinates the various prosecuting agencies throughout the state, has an attorney who is a resource to help prosecutors fight these motions.

Last year, defense lawyers received some help from the Supreme Court of Georgia on this issue. In June 2011, the Supreme Court issued opinions in Yeary v. State and Davenport v. State, which addressed the issue of materiality of the source code and gave the green light to forward the subpoenas on to the courts in Kentucky. Before long, defense lawyers will crack the DUI code and be able to put the Intoxilyzer 5000 to the test.

To what end will the production of the source code bring? While prosecutors who stand by the reliability of the Intoxilyzer 5000 contend that it is a bit like the dog who catches the car, defense lawyers contend that the code will expose the flaws in the device. For many, this is an issue that goes beyond the prosecution of driving under the influence. It goes to transparency of government. If the government is going to use a computer program to arrest, convict and incarcerate its citizens, the government should disclose its methods and means.

Ryan Brunn: It's Only Just Begun

2012-01-14T12:09:00.001-08:00

This week's indictment of Ryan Brunn is just the beginning of the quest for justice for Jorelys Rivera.The 13-count indictment gives the public a sickening glimpse of the last minutes of this 7-year-old Canton Elementary student, yet authorities are still tight-lipped about the evidence that ties the 20-year-old maintenance worker to the crime.In order to indict the case, District Attorney Garry Moss presented evidence to convince the 23-member Grand Jury that there was probable cause, or reason to believe, that Brunn committed the crimes alleged.As the weeks progress, prosecutors and law enforcement will continue to prepare their case for arraignment and trial while Brunn and his lawyers look at every aspect of this case to challenge the allegations of the government.In high profile cases, especially those that may involve the death penalty, both prosecutors and defense lawyers will work vigilantly to make sure that due process guaranteed by the United States Constitution is flawlessly followed.While many would prefer swift justice be meted out, the process ensures the guarantee of justice for all. It is often said, "The wheels of justice grind slow, but they grind fine."While justice will move forward, it will come with a substantial cost. Prosecuting and defending such a high profile murder case will come at a high cost to the taxpayers of Cherokee County and the state of Georgia. Yet that cost will pale compared to the price that the family of Jorelys Rivera pays as they are forced to relive the gruesome tragedy already visited upon them.

To find out more go to http://ballingerlaw.com

Criminal Justice Reform: A Challenge for the 2012 Legislative Session

2012-01-07T07:46:00.001-08:00

Each year, criminal justice is a serious concern for the Georgia Legislature. Fighting crime is always an important platform for lawmakers, however with costs increasing and budgets tightening, changes need to be made to the $1 billion a year corrections system. While costs of corrections are increasing, many question whether or not business as usual is effective.

House Bill 265 from the 2011 session of the General Assembly created the Special Council for Criminal Justice Reform for Georgians. The Council, made up of appointees from the Governor, Lieutenant Governor, Speaker of the House and the Chief Justice of the Supreme Court of Georgia, was established to address the spiraling costs of crime and punishment. With help from the Pew Charitable Trusts, they were tasked to identify the current problems and make recommendations on how to best use the state resources. The Council made its report to the legislature on Nov. 1, 2011.

The Council found that prison population in the past two decades has doubled to nearly 56,000 inmates, placing 1 in every 70 adult Georgians behind bars. Projections show that by 2016, that inmate population will grow to 60,000.

Georgia’s prisons are already operating at 107 percent capacity. Much of this space is presently being taken by non-violent offenders. Yet this rising prison population is not deterring crime as recidivism—offenders returning to the community to commit new crime—remains unchanged.

Similarly, the Council found the state’s community based corrections systems are stretched to the point of becoming ineffective. As of 2010, there were 156,000 probationers and 22,000 parolees supervised in Georgia. Those charged with supervising these offenders are without the tools to rehabilitate as the services and programs that the officers refer offenders—particularly substance abuse and mental heath services—are insufficient and in some cases non-existent.

Overall, the Council found that business as usual in the criminal justice system in Georgia is going to break Georgians and needs to become more effective in preventing recidivism. In its November 2011 report, the Council made a three part recommendation that called for improving public safety and holding offenders accountable; focusing expensive prison beds on serious offenders; and examining the priorities of reinvestment of funds in the criminal justice system.

The overall plan outlined in the report calls on the system to strengthen community based corrections (probation and parole; allowing for increased supervision; and more resources for rehabilitation). The Council also saw a great deal of benefit in “accountability courts” that use a carrot and stick approach of intensive court supervision over a period of rehabilitation.

Offenders in these accountability court programs see a judge routinely and interact with a panel of counselors, probation officers and drug testing personnel on a daily basis. Offenders that are making progress are rewarded while offenders that slip spend short periods in jail. These courts presently function in several counties as “Drug Court” and “DUI Court” and are enjoying very successful numbers in both rehabilitation and preventing recidivism at costs far less than incarceration. Accountability courts received attention last year as Governor Deal’s son, a Hall County Superior Court judge, oversees the drug court in that county.

While strengthening community based programs offers more opportunity for rehabilitation to non-violent offenders, it frees up the expensive bed space for serious violent offenders that need to be removed from society. To effectuate such changes will require a reinvestment of the funds spent on the criminal justice system. Money will need to be focused on community based treatment for mental health and drug treatment as well as funds to establish the statewide system of accountability courts.

Now, the task of breaking the centuries old model of crime and punishment in the State of Georgia is laid at the feet of the Georgia General Assembly just in time for the 2012 session. Implementing these changes is not only going to require a reinvestment of funds but also a change in the mindset of the many people and agencies that operate the criminal justice system. While many of the players are resistant to change, it is clear that Georgia can no longer afford business as usual.

Gingrich Divorce Documents Tell New Story

2011-12-26T19:28:00.001-08:00

By Eric A. Ballinger

Today, documents were released to the media regarding Newt Gingrich's first divorce from Jackie Battley Gingrich. The documents seem to show that the first Mrs. Gingrich fought the grant of the divorce because her husband would not admit that the marriage was irretrievably broken. This contradicts statements that the Gingrich campaign has made indicating that his wife sought the divorce.

While snippets of the pleadings filed in a high profile case can make for some interesting sound bites for the media, they do not tell the entire story. The statements made can reflect a position taken by a party at one time during the case or could just be a part of some legal wrangling by the Warner's to get a better position with the Court. Once the entire file is made avaiable to the public, the documents can be placed in thier proper context and wil unfold the entire story of the divorce. Of course this will not fit into a 15 second sound bite or even a newspaper article.

Divorce and the Family Business

2011-11-27T13:25:00.001-08:00

While every divorce case comes with its own challenges, those cases involving people who own their own business have a unique set of challenges. The challenges come in the computation of income as well as the division of the business as an asset of the marriage. In handling the small business as a issue of a divorce, there are a number of methods that experienced lawyers use and experts to employ in order to insure that their clients interests are served.

The income of a small business owner is a difficult issue that is often fraught with a great deal of emotion. Unlike a wage earner, there is no single document or series of documents that a party can point to support income of a small business owner. While most small business owners pay themselves a salary, there profits of the business, over and above the salary, are taxed to the owner as income as well. This can be a sore subject because many business owners plow these profits back into the business in order to build the enterprise instead of taking this money home. Another issue of contention with the small business owner is the benefits that a owner receives. Most owner operators will pay their vehicles, cell phones, fuel and other reasonable related expenses from the business and write them off as company expenses or shareholder disbursements to be taxed at a lower rate. The main issue with regard to income in a business is the uncertainty.

While most successful business do show a track record of increasing revenues, expenses and incomes, the future holds a level of uncertainty that nobody is willing to predict. This is especially true when those predictions are being used to assess child support and alimony. Another issue that comes into play in determining the income of a family business is taking into account how much of that income is reflective of the efforts of the entire family member and not just the efforts the spouse that is taxed on the income as the, "front-man". In a divorce, a family business will lose the efforts of a spouse who has provided a critical roll in that business.

This raises several questions that will need to be answered. What sort of income should be attributed to the "unpaid" spouse leaving the business, what is the cost of replacing the efforts the former spouse put into the business and what is the loss to both the profitability and the value of the business due to the loss of a spouse who is also a key employee? The answers to these questions are just as important as the income of the owner but another critical piece of information is the value of the business.

The significance of accurately determining income can not be underestimated. While income is the most significant factor in determining child support and alimony, mere tax documents and wage documents will not give a clear picture. Under Georgia law, income is calculated by a different formula than that used by the Internal Revenue Service to calculate taxes. In many cases, the deductions allowed for the purposes of Federal taxation are not allowed in calculating child support. The income the family business generates is most important for setting support as well as detaining the value of the enterprise as well.

Determining the value of a family owned business is critical part of the dividing the assets of a marriage that owns a business. In many cases, the business can be the largest asset of the family, even greater than the house. The opinions of the value of a family owned business will vary greatly especially between the spouses who are vying for a favorable split of the marital assets. While most family businesses are service based and the value rests in the reputation of the owner as well as the ability of the business to generate a cash stream, some family businesses do have significant assets in property, equipment and customer base that can be transferred for value. Of course this presupposes a balance between transferable value of the business versus the income the business generates for its owner.

While the value of the business is important, there are issues that arise out of that value. Is there any personal debt of either spouse attributable to purchase or investment in the business? Is that debt secured to any other assets of the marriage, such as the house? Does either spouse have a non-marital interest in the business as either an ownership acquired prior to the marriage or through inheritance? The answers to these questions are critical in insuring a good and equitable division of the business.

The issues raised here are the same issues that a judge will need the answers to in order to render the most accurate decision with regards to all of the major issues, child support, property division and alimony in a divorce where the is a small business. Yet, despite this need for financial details, many people choose to proceed with this complicated type of divorce on their own and try to answer these questions for the court based on emotion, opinion and biased speculation. Evidence of this caliber is not very helpful to a judge making these complex decisions and the court will choose err against the side that has the most access to the information it needs. To best present your position regarding a family business, it takes a qualified team.

First, you need to have a lawyer who is experienced in business matters as well as family law. It is not recommended that the corporate attorney handle the divorce. In fact the corporate attorney may have a conflict of interest in representing both the business and one of the spouses. The best lawyer to handle the divorce needs to have some corporate experience, family law experience and experience handling divorces involving family owned businesses. Second, the team needs a forensic accountant who is experienced in business valuation.

A forensic accountant can not only help to present the financial information the court needs to best set an accurate income, the accountant can run projections to establish an income for the non-compensated spouse and project the costs involved in replacing the productivity of losing that key employee. A forensic accountant can best place a value on the business both as of the date of the divorce as well as at the time of the marriage. Most importantly, a forensic accountant can accomplish this using Generally Accepted Accounting Principles (GAAP) that will be more credible with the court than the opinion of either party.

In the event a family that owns a small business is going through a divorce, it is necessary to have the right team to represent the interests of each party. These cases present complexities over and above the divorce for a wage earner. It is important to pay special attention to the needs that this sort of case presents and have a team that can deal with these needs in addition to the other issues that the divorce case presents. This means having and experienced lawyer and a forensic accountant on the team.

Military Legal Assistance Program: The Bar Helping Heroes

2011-11-11T09:59:00.001-08:00

On Veterans Day we take pause to remember those who have served and those who serve our country and defend our freedom. The State Bar of Georgia remembers our veterans every day through the Military Legal Assistance Program. Was created in 2009 out of the research and efforts of a committee of volunteers committed to help service members with legal issues reach out to qualified lawyers who can help them, in many cases on a pro-bono or reduced fee basis. Since that time, the program has gown to a cadre of lawyers throughout the State who stand ready to help out when called on.

Lawyers from the Military Legal Assistance Program handle hundreds of referrals in the areas of family law, debt relief, landlord tenant, employment law, disability and Veteran's benefits claims. These lawyers are located all over the State of Georgia and have a wide variety of practice concentrations. Many of the volunteer lawyers have prior military service or a loved one who is serving. Still many more are just willing to help serve our heroes. It is important that we all support our heroes who have committed and even laid down their lives to give us the freedom we so richly enjoy. Remember today that freedom is not free and we all need to help share the cost.

If you know of a service member or a veteran who has a need for legal services, please contact the Norman Zoller Military Legal Assistance Program Coordinator at normanz@gabar.org

Retirement Accounts and Divorce: Protecting Your Rights with a Qualified Domestic Relations Order

2011-11-06T06:29:00.001-08:00

For most families, their retirement accounts are their largest asset. While Wall Street is showing signs of recovery, the housing market still suffers from losses. So, while most people are upside down in their house, their retirement accounts are increasing in value. For families going through a divorce, retirement assets can be the most sought after property of the marriage. Protecting this asset is critical.

Retirement accounts, such as 401(k)s are comprised of pre-tax dollars and are titled only in the name of the employee who has built the retirement account. What this means is that there are substantial penalties for removing these funds before reaching the age of fifty nine and a half. On the other hand, Georgia law provides that retirement accounts are subject to division in a divorce. Federal law recognizes that retirement accounts can be divided in a divorce and has created special provisions that allow for the division of the retirement accounts without incurring penalties.

In general, Federal Law provides that a retirement account may be divided in a divorce by a Qualified Domestic Relations Order, or QDRO for short, and avoid the tax penalties. A QDRO works by allowing the retirement plan administration to roll out of the employees retirement account and set up a separate account for the spouse. The retirement plan participant does not incur any tax penalties and the spouse has a retirement account of their own which they can roll over to a retirement vehicle of their choosing. If the spouse elects to take the money out of the retirement account, the spouse incurs the tax penalty.

A QDRO is a separate order from the actual divorce decree and is drawn so exacting specifications that identify the dates of marriage and divorce as well as identify the plan participant and the spouse. If these orders are not drawn to the specifics required by the Internal Revenue Service and the plan provider. If the order does not meet the specifications, the plan provider may reject the order. Many plans have specific forms they require over and above the Federal regulations. It is important, in order to protect this valuable asset to consult your attorney. There are also many lawyers who specialize in drafting QDROs and have experience with the many peculiarities of each individual plan.

Drafting Your Will: The Devil is in the Details

2011-10-07T18:17:00.001-07:00

When putting your will together, going in to detail is the only way to truly insure your intent, protect your estate and prevent a hardships for your family and chosen executor. The market place is full of options for putting together a will such as forms from office supply stores, software packages and even online solutions. Most of these forms are legally sufficient and will accomplish your basic intent, so long as that intent is very basic. Many people make the mistake of believing that there estate is too simple to warrant a will with any detail. Most people figure that their executor is knowledgeable about their intentions and can carry them out.

The problem is that once a person dies, each heir has their own idea as to what deceased would have wanted. Much of your personal property will have some sort of significance to your relatives. Many times, the death of a loved one brings out the worst in people and relatives will squabble over the division of every stick of furniture in the house and every dime of the estate. These relatives will challenge your chosen executor every step of the way. Since the estate has to satisfy the fees of the executor as well as the legal expenses. If the will merely provides that the estate is to be divided between the heirs, then the executor may end up having no choice but to sell every item and split the cash.

Here are some ways to try to litigation-proof your will:

Choose a good executor: Your executor needs to have good head for business. While it may hurt some feeling of your relatives for not being chosen, the executor will be called on to make some very important business decisions in disposing your estate. This person also needs to be able to stand up to all of your heirs to make sure your written intent is carried out. This person needs to have the strength and stamina to decide when to go to court or how to best settle your estate. Further, resist the temptation to name more than one person as executor. It is nearly impossible to manage by committee and the same holds true for an estate. While it might seem diplomatic to spread the power out amongst the heirs, if they cannot agree on how to handle the estate, the legal battles that will ensue between them can drain the estate before it is even divided.
Carefully select a guardian for your minor children: The person you name in your will is the person who may very well raise your children. If you do not select a guardian one may very well be decided by the State or the Courts. The person you select should be willing and capable of raising your children the way you would like to see them raised. Do you want your children to go to college, do you want them to be nurtured in the arts. Make sure your guardian is somebody who will insure your wishes. Make sure your guardian is willing to insure your children have a relationship with their entire family. The death of a parent is a huge loss for a child at any age, but the loss of the rest of the family can only serve to compound the problem.
Set up trusts: Under Georgia law, assets left to minors must be placed in a trust or a conservatorship. While the law does provide some direction as to how those assets are to be used before the child reaches the age of majority, those directions are broad and do not take into account what the minor will be able to do with the assets when they reach the age of eighteen. Most eighteen year olds are not equipped to handle large sums of money or assets. However, with a carefully drawn trust, you can direct how the money is to be used and when, if at all the money is to be disbursed. With careful drafting of the trust, you can insure that your wishes are carried out with specificity. Furthermore, trusts are not just for minors but can be set up for persons who are not wise with money or even to shelter heirs from other consequences.
Make specific bequeaths and devises: Do not trust your executor to make sure that your personal property and real property is going to get into the hands you want to see it go. The best way to insure that happens is to put it in your will. Making a list is not enough, even with the best intentioned executor. If the list is not a part of the will, then it is not legally enforceable. If the heirs end up in a dispute, the Probate Court may have no other choice but to order all of the property sold.

The most important thing is that a will should be a specific document that clearly spells out your desires with regard to your estate. The best way to do this is to sit down with a lawyer who is trained and experienced in not only drafting wills but has handled disputed estate cases. An experienced lawyer can point out the possibilities of problems and can lead you to draft a will that will insure your intent is carried out and prevent your heirs form having anything to dispute.

Flag Flap

2011-09-19T10:43:00.000-07:00

While I was walking the Saturday morning when I grabbed my copy of the newspaper and noticed that for the first time in my life the words, "Solicitor General" were in the banner headline. If asked, most people do not even know what a Solicitor General does. For all he has done in the community, David Cannon, Jr. has never made the top new. Not for the drunk drivers he gets off the streets, not for the closure he brings to the families of vehicular homicides, not for his work starting a accountablity court for drunk driving and drug offenders. He never makes the papers for improving the efficiencey of government, cutting costs or saving money for taxpayers. He didn't grab a headline when the Supreme Court gave him an award for community service nor a single photograph for the countless hours he spends performing thankless menial tasks for the citizens of this county.

No, my friend made the headlines for the most ridiculous news flap of 2011. David asked his community service workers to remove some three thousand flags that were scattered about square in Downtown Canton. While the task proved to be bigger that expected and storing all those flags posed a logistical nightmare, the publicity stunt that followed from the so-called patriots who are outraged has blown this incident way out of proportion. It is safe to say that this flap has gotten more press, air time and bandwidth than the original tribute and certainly more than the "retirement ceremony" that was canceled.

It is real easy to wrap yourself in the flag, post one on your Facebook page and call yourself a patriot. It takes no courage to use a pseudonym to snipe at a public figure that had a bad day. It takes real courage to walk out in front of a television camera or to grant an interview with a critical press, to admit you made a mistake and applogize for taking action in hopes to serve the community. This is why David Cannon is a leader in the community and why I am proud to call him my friend

Decision Fatigue: What You Need to Know About Court Before You Go to Court.

2011-08-22T12:07:00.001-07:00

The New York Times
Do You Suffer From Decision Fatigue?

Thinking about taking that case to the Judge? Before you step foot in the Courtroom, be sure to read a most recent article by John Tierney in the New York Times Do You Suffer From Decision Fatigue? This article highlights the wear and tear that the act of making decisions through the day has on the mind. While we are all called on to make various decisions through the day, however making difficult is at the heart of a judge's job description. The article makes a case study of judges hearing Israeli parole cases. The writer shows that the outcome of the hearings in very similar cases produced very different results as the day wore upon the judges hearing the cases. Tierney shows that the act of making a decision actually drains the mind of energy during the day, even if the body cannot tell it is getting tired. The more decisions the brain is called on to make, the mind begins to take shortcuts. One shortcut is the brain becomes more reckless producing bad decisions such as e-mailing that tirade to all 140 co-workers. The other shortcut the brain takes is to avoid making decisions by either procrastination or maintaining a perceived status quo. Either way, the results are less than desirable and get worse as the day wears on the brain. The study further shows that blood glucose levels have an effect on decision making. So the lower the blood sugar level of the decision maker, the more the decision maker suffers from decision fatigue. In other words, those decisions made after meals and snacks were much better reasoned.

So what does this have to do with going to court? Judges are ultimately decision makers called on to make tough decisions every day. In today's litigious society, the typical docket is packed with cases for the Court to hear on that given day. This is especially true in domestic relations calendars where it is common for there to be more cases scheduled than hours during the day. From the get go, the Judge is called on to make decision in a rapid fire setting. Normally the court will hear the short and more routine cases first and handle the longer more complex cases later in the day. That means by the time the Court gets to hear the complex divorce and custody case, the Judge has made many decisions. Once the hearing begins, the court will be called on to make decision about evidentiary and procedural rulings so that by the time the judge is actually deciding the ultimate issues in the case, the judge has been taxed to make hundreds of decisions during the day. Decision fatigue can set in.

But aren't judges educated professionals? How can they let this effect the outcome of a case? There is no escaping the fact that judges are human as well and are subject the same fatigue as everybody else. The study in this article comes as no surprise to judges. The Court routinely and repeatedly advises and encourages people to resolve their cases before the need of having a hearing. Parties need to understand the effects that wear and tear that court has on the judge hearing their case. The best way to deal with the possible effects of decision fatigue on judges is to resolve their case while they are still in control.

Alternative dispute resolution is one means to avoid the effects of decision fatigue. While mediation takes the wear and tear of decision making off the judge and places it on the parties, mediation is scheduled for a time when all involved can be well rested and ready to handle the multiple decisions needed to resolve their matters. Also, mediation usually takes place in a relaxed atmosphere that allows for snacks to replenish those crucial blood glucose levels. Arbitration is like having a judge that you can schedule at the convenience of the parties. This means the decision maker can go straight into hearing that complex case without deciding array of smaller cases first. Arbitration is also less formal that court, allowing for more frequent breaks and rests.

There are also a number of things that can help to reduce the strain brought on by decision fatigue. Parties and counsel can reduce the levels friction, thus reducing the number of times the judge has to rule on preliminary issues. The parties can also narrow the issues for hearings in order reduce the number of issues left for the judge to decide. Finally, the parties may wish to allow the court to take the ultimate issue under advisement, allowing the court to delay actually making the decision to a time when the judge is more refreshed and producing a better result. While decision fatigue is humanly impossible to eliminate, it is something that all concerned should take into consideration before stepping foot into a courtroom.

Child Custody of Relatives: Helping to Raise Your Family’s Children

2011-08-17T18:44:00.000-07:00

In these times more and more people are called upon to help raise the children of their family members. There are any number of situations arise where a relative needs to get guardianship or custody of children. At this time there are parents on military deployment overseas, parents tied up in the criminal justice system or even parents who are just not capable or fit to raise their own children. While this is a time honored tradition of family taking care of its own, in the modern legal climate there is a need to formalize the arrangement through the courts. Even in situations where all of the principle players agree, there it is best to solidify the arrangement with a court order.
There are many situations where a relative will need to present a court order to perform some of the most routine actions that a guardian needs to take in order to raise children. Enrollment in school, authorizing medical treatment, signing up for extracurricular activities and even signing a permission slip all requires the signature of a parent. In the absence of the parent signature, a court order of guardianship or custody is required. Further, having a court order will allow a person acting in the roll of a parent to take advantage of certain benefits available for dependent such as health insurance through group plan of an employer.
Depending on the situation, there are a number of options available to a relative to obtain a court order. One such option is to obtain Letters of Temporary Guardianship through the Probate Court. These letters or order allows the guardian the legal authority to act in the roll of a parent. Temporary Guardianship requires the consent of the parents and can be terminated at any time by the parents. These are perfect in situations where the parents agree that the children need to live with a third party. What happens if the parents do not agree that a third party stepping in s the best for the child? There are two other options that much more drastic in nature but can.
First, a third party can seek temporary custody through the Juvenile Court on the basis that the child is deprived. If the Juvenile Court finds a child is deprived of its essential needs of health education and welfare, the Juvenile Court can award a third party temporary custody for up to two years. If the Juvenile Court judge finds deprivations exists and awards custody, the Judge establishes a checklist or plan of action to take in order to for the children to be reunited with the parents. If the plan is not completed by the parents, the court can extend custody, however there is a limit. Because the Juvenile Court is strongly associated with the Department of Family and Children Services, the plan may include services offered by children's watchdog agency. Also, parents who are in court for deprivation may be eligible to a court appointed attorney if they cannot afford one, but there is no reciprocal for the relative seeking custody.
Second, a relative may seek permanent custody through the Superior Court. Certain relatives such as grandparents, aunts, uncles and even siblings can petition the court for custody of the minor children of their relations. To be granted custody, the relative must show first that there is harm will come to the child unless the parent child relationship is altered and then second the relative must show that it is in the best interest of the child to be placed in the custody of the relative. A Superior Court order remains in effect until the child reaches the age of eighteen. While custody may be returned to the parent, there is not a specific plan laid out by the Court for the child to be returned to the parent and the parent has to file a new case to take the child to modify the custodial order to the relative in the county of residence of the legal custodian.
Getting custody of a relative's children is not an easy prospect. Due to the stigma of court proceedings, many times the parents are not willing to let the children go to a relative with a court order, no matter how temporary the situation. The matters can become emotional for all involved. The parent child relationship is a constitutional right and the burden of proof required to alter that relationship is very high, clear and convincing evidence. It is the highest standard in any civil case. These matters should not be entered into lightly.

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It's Official: Casey Anthony More Hated Than O.J. Simpson

2011-08-15T19:14:00.001-07:00

Americans have a love hate relationship with their criminal justice system. While we are very proud of our system that presumes innocence until proven guilty, we revile those who are found innocent that we have presumed guilty. According to the New York Post and Reuters, Casey Anthony has just made it to the top of the list of most hated people according to Americans participating in the poll. Ms. Anthony was propelled to celebrity status when she was charged with the murder of her own daughter, mainly due to the fact that she partied for a month before reporting the child missing. Then insuring that her own star will never fade, she was acquitted of the murder charge.

Ms. Anthony's status as most reviled is an endorsement for the American Criminal justice system. Right behind her is former football star O.J? Simpson who was also acquitted of a murder charge eighteen years ago. The Simpson trial proved that with enough money and a star studded team of lawyers innocence could be brought. However, Casey Anthony was defended by a team of court appointed and pro-bono lawyers representing a woman who could not afford to defend herself against the resources of the government that was willing to spare no expense to convict her.

Before Ms. Anthony stepped one foot into the courtroom, the media and pundits like Nancy Grace had convicted her of the the carve of murder. Yet a jury heard weeks of testimony, poured over hundreds of exhibits and heard both sides to exhaustion. The jury deliberated in this case, not just for hours but for days, and returned it's verdict of not guilty. Yes, despite the opinion of the expert pundits, the men and women who were actually sworn to fairly listen to all of the evidence decided that the government failed to prove its case for murder against Ms. Anthony. For that, she will always be hated.

Ms. Anthony's most hated status is proof that the system can work. Regardless of your opinion of Ms. Anthony, the verdict in her case is proof that the jury system is not merely a rubber stamp for the government or public opinion.

Your Facebook Page Could Hurt Your Case

2011-07-31T20:12:00.001-07:00

There is a modern wisdom, "Be careful what you post, it could come back to haunt you in the courtroom." In this day where everybody has access to social media through Facebook, Twitter, Myspace and even blogs, it is astonishing the things that people are willing to put on line. Some people are willing to make statements they would never dream of stating in person or even in a letter. Still even more will communicate the most intimate secrets in a public "wall" page or chat room. Online users are willing to admit everything from extramarital affairs to criminal conduct. Spouses will bicker with one another on Facebook and carry on a torrid affairs all the while their "friended" children can read. Every day these same people are surprised when they are confronted with the details of their behavior in the form of printouts of their social media activity.

Social media is not private. No matter how much you restrict the access of the material you post, it will still come back to haunt you in court. First, social media outlets routinely cooperate with law enforcement agencies and will provide information to investigators and prosecutors. Second, social media posts are subject to subpoena and would be tuned over to an attorney who is not working on your side. Third, no matter how private your settings, there is inevitably somebody on your list of friends who is going to share your innermost secrets with somebody you would rather not find out.

However, for all the same reasons, social media is a goldmine for investigating just about any kind of case. Many people do not bother to secure their posts and are willing to gloat, brag and boast about anything and create some valuable sources of evidence. It is important to secure this evidence as soon as it becomes available. In many cases valuable evidence is posted and can be lost just as quickly as soon as the author realizes the vulnerability of their private thoughts. Make sure to save and print these valuable nuggets of evidence as soon as they come into your possession.

Before your post, think twice. Think about how you will feel answering questions about the post in court. What you put up on Facebook or any other social media outlet can and will effect your case and usually negatively. The best course of action is to not post.

What Effect Does Fault Have in a Divorce?

2011-07-27T18:40:00.001-07:00

by: Eric A. Ballinger, Esq.

The issue of fault is a complex when it comes to divorce. It usually is the straw that breaks the camel's back with regard to ending the marital relationship. While some refuse to recognize role that their own fault plays in the dissolution of their marriage, many are surprised at the roll that fault plays in the outcome of their divorce. In the modern divorce, fault plays a roll in determining the outcome of a divorce case, but it is not the sole decisive fact.

Into the late Sixties, fault was an essential element in a divorce case. Until the Georgia legislature adopted the "no fault" ground for divorce, there was a requirement of fault by one party for a spouses to divorce, even if they agreed that the marriage should be dissolved. In the modern divorce, there is no requirement of a finding of fault for the parties to divorce, however the issue of fault is legally relevant in deciding the issues that are ancillary to the divorce, division of assets and debts, alimony and even child custody.

Usually fault, adultery, alcoholism, drug addiction, abusive behavior and the like, are the facts that motivate a spouse to seek a divorce. These are usually the most emotional issues of the divorce and motivate the parties to press the issue. However, fault is not the only issue the court takes into consideration in deciding the issues before it and fault must be put into perspective. Many litigants are surprised when they find out that even in the face of a partner that has committed the most despicable acts, divorce is rarely a "winner takes all" proposition and there are no punitive damages in a divorce.

When reviewing the facts in a divorce case, it is important to look at the case from the through the lens that the judge sees the case. One thing to take into consideration is that divorce cases are heard by Superior Court judges. These are the same judges that hear murder, rape and child molestation cases as well in addition to their civil case load. This gives the judge hearing a divorce case a much different perspective than most civil litigants who have never experienced this sort of in their life.

In addition, the Court is weighing many other aspects in deciding the divorce case as well. A mother may have committed adultery, but still is a loving parent who has never exposed the children to her indiscretions. A Father may be a unemployed deadbeat, but if he has no money, how can he pay alimony? A husband may be a functional alcoholic but how will the children feel if he is cut out of their lives? A man my have brutalized his wife during the marriage but what is to be gained if he is left on the street destitute?

The Court also looks at the effect that marital fault has on the break up of the marriage. Is the fault complained of really the cause of the break up of the marriage or is is some remote act from years gone by? The truth of the matter that judges are used to hearing the many gripes that spouses have about each other and figure that in a divorce there is usually more then enough blame to go around. If the fault is from years gone by, the court will very likely treat the act as condoned. On the other hand, if one spouse catches the other in serious misconduct and acts decisively on it, the Court can will treat the issues seriously.

Most importantly, the Court looks at the fault issues as they may effect the minor children of the parties. While judges rarely loose sleep over what happens between adults, they are always looking out for the best interest of the children involved. Children that are exposed to alcohol, drug abuse, violence and even adulterous relationships are at risk. Regardless of the what has transpired between the parents, the Courts will take decisive action to protect children from these sorts of risks.

The effect that the fault issues will have on each divorce case varies. Much of it depends on the evidence presented. It also depends on the individual judge hearing the case. While evidence of fault is not the most important facts the Court needs to hear, it certainly will help the judge decide which of the two parties to inconvenience the most. It is important to consult an experienced family lawyer to help you put the issue of fault into persecutive for your divorce case.

Adoption: Helping to Grow Families.

2011-07-25T12:47:00.000-07:00

By: John A. Early, Esq.

Adoption starts as a simple concept: bring child into a family. However, brining that simple concept to fruition is a complex legal path. This article will attempt to inform individuals wishing to travel that path of what they can expect if they choose to adopt.

To begin, note that adoption proceedings take place in the Superior Court of the county where the adoptee resides. The proceedings are very private matters, and courts conduct the adoption process "in camera," which means person not party to the adoption are disallowed from attending. Also, be aware the Georgia Department of Human Resources is the state agency that oversees adoptions. The Department exercises custody and care for those children in need of adoption and helps guide the court when determine proper placement for the child. In the processes of adoption, the Department and the Superior Court will work hand-and-hand to assure the adoption is in the best interest of the child.

The first step in the adoption processes is making sure the adopter is eligible to adopt the adoptee. While most people would see no reason for this type of assessment because common sense dictates the appropriate qualities of both adopter and adoptee, Georgia decided to remove all doubt from the issue by setting the legal parameters for adoption. For a person to adopt another in Georgia, the law requires the person be at least 25-years-old, at least 10-years-older than the adoptee, a residence of Georgia for six months, and financially, physically, and mentally able to have permanent custody of the adoptee. Further, in the event a married person seeks an adoption, then both spouses must petition for the adoption. The only exception to this rule is the "stepparent adoption rule," which allows a stepparent to adopt his or her spouse's child without severing the relationship between the spouse and child.

The second step involves the surrender or termination of parental rights between the biological parents and the child. The parent-child relationship is sacrosanct in Georgia. Before a third party is allowed to adjust that relationship by adopting the child, both biological parents must surrender their parental rights or have their parental rights terminated. The only exception to this rule is that is in cases where the "stepparent adoption rule" discussed above because the spouse of the stepparent does not have to surrender or terminate his or her rights for the stepparent to adopt the spouse's child.

However, in most cases, the biological parents must have either surrendered their parental rights or a court must have terminated their parental rights. The choice to surrender parental rights is solely within the power of the biological parent. The choice must be freely and voluntarily made. In the event both parents choose to surrender their rights to the child, then Georgia Department of Human Resources enters the picture, and will assume custody of the child pending an adoption.

The other means of severing the relationship between biological parent and child is by termination of parental rights. The termination processes, as it title implies, is not consensual, but occurs in those cases where the court determines the mother and/or father is unfit. A court will terminate the parental rights of a biological parent if the court finds there is misconduct on the part of the parent whose rights are being terminated and the court finds termination is in the best interest of the child. If both a court terminates both parents' rights, then the Department will assume custody of the child pending the adoption.

Once the parental rights of the biological parents are terminated or surrendered, a person may petition the Superior Court for adoption of the child. The petition phase involves three steps: filing a proper petition with the Superior Court, responding to objections to the adoption if any are filed, and an investigation of the petitioner by the Department of Human Resource. Because the petition requires adhering to a great many statutory requirements, the petitioner is encouraged to seek legal counsel in drafting and submitting an adoption petition. Once the petition is on file with the Superior Court, the biological parents and relatives are given an opportunity to object to the adoption. The court must here these objections when determining whether the adoption is in the best interest of the child. If the court finds the objections are without merit, then the process continues. Finally, the Department will conduct an investigation into the petitioner, reviewing his or her background, financial status, family status, and other relative information. The Department provides this investigation to the court to assist it in arriving at its determination.

If the Superior Court grants the adoption, it will issue a Decree of Adoption. The Decree has the effect of forever severing the parental connection between the biological parent or parents and the child. Further, the Decree creates a binding relationship between the adopter and adopter akin to the relationship to a biological parent and child. After the decree, the Court seals all the matters relating to the adoption, and the adopted child is thereafter considered and treated as if it were the biological child of the adopter.

The path between desiring and achieving an adoption is long and circuitous. Any person seeking adoption is encouraged to seek the advice of counsel. However, with the assistance of an skilled attorney, navigation of the adoption processes is not only possible, it is done every day, bringing children into families.

The Right to Remain Silent

2011-07-18T18:45:00.001-07:00

We have all heard the words over and over on television programs. "You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford one, one will be appointed to you at no charge." These words have been so stirred into our popular lexicon that there meaning has evaporated. For the most part, we are more worried about having our rights read than what our rights really really mean. In reality, the Miranda rights are seldom read at the time of an arrest and are only required to be read when the police are going to question a suspect.

The right to remain silent, or the right against self incrimination, is one of our most important constitutional safeguards. It is guaranteed to us both by the Fifth Amendment as well as the Constitution of the State of Georgia. The right against self incrimination frees us as Americans from hours of harassing, arduous and even tortuous interrogation by the agents of our government. However, this right is most important in its subtleties. It is easy to remember to, "take the fifth" when a uniformed police officer is screaming in your face. It is another thing to keep that same right in perspective when a detective is just trying to get you "tell your side of the story" in order to "clear up the details of the case".

Most people fall into the trap and decide to speak with law enforcement. It is human nature. Most of us are raised to respect authority and law enforcement is indeed authority. Further, most of us feel that if we can only explain the details of the situation, we can "square this situation away". However that is rarely the case. Law enforcement officers are trained to investigate in a very methodical manner. By the time they are calling people in questioning or interviews, they have developed a picture in their mind as what happened and the interrogation is designed to obtain facts that support the theory law enforcement has already developed. If anything, the police are striving to get a confession to bolster an already weak case.

If you are contacted by law enforcement and they want you to come and answer questions, the best thing to do is to contact a lawyer. If you cannot afford to have a lawyer come with you, then decline to speak with the police at all. You still may be arrested for the charges, but chances are, you would have been arrested had you spoken with the police. The difference is your chances of beating the case are much better.

Top Ten Common Mistakes People Make Getting a Divorce

2011-05-18T11:03:00.001-07:00

By Eric A. Ballinger

10. If I ignore this problem, it will go away. The truth of the matter is that is your spouse has mentioned the words, "I want a divorce." This is a serious problem and it will not go away with time. Usually, one spouse is much more emotionally ready for divorce than the other and that spouse enters into the case with a distinct advantage. The better prepared spouse begins taking calculated action while the emotionally unprepared spouse is usually reacting and mostly out of emotion. If your spouse is threatening an end to the marriage, that is a wakeup call. You need to either work to improve your marriage or get ready for the end.

9. I'm moving out of the house. It is no surprise that a divorce ratchets up the tension at home and moving out seems like the easy answer. While moving out of the house will put an end to the arguments and restore your own personal privacy, you put your divorce case at a tactical disadvantage. Strategically, the marital residence is the high ground and should be held on to dearly. During the divorce case you will need access to financial records and to inventory of personal property, all of which is located at your home. Moving out of the house will entail taking your kids from their home they are familiar with or leaving them behind with your spouse. Either action will damage your argument for custody. You either rip the children form all that's familiar to them or you leave the children with the parent you think should not have custody. You also take the incentive away from your spouse to resolve the divorce. The spouse left in the house has all of the benefits of being divorced without any of the costs. Unless you are in fear for life or limb, it is best to remain in the house is until you are advised by counsel or ordered by a judge.

8. It's my money, I'm taking it out of the bank. Financially, going through a divorce is a balancing act. On one hand you do not want to leave your finances exposed and open to a spouse whom you no longer trust, however you do not want to leave your spouse destitute either. Once a divorce is filed, State law and Court orders dictate that you cannot spend money or dispose of your assets, except in the ordinary course of business. Once the proceedings are underway, every penny that has come in and out of the marriage will be scrutinized by the lawyers and the judge. The Court has the authority to order that funds be replaced, even if they no longer exist. The party that gets heavy handed with the money is often penalized by the court as a way to level the playing field. On the other hand, you want to secure enough funds to handle the situation. Securing funds in order to retain a lawyer, obtain separate housing and cover other expenses in the early stages of the divorce is an important part of your strategy.

7. Wait until my spouse's boss hears about this. When your spouse has been caught in some sort of misconduct, especially if it involves their job, there is an overwhelming urge to expose the behavior to their boss, co-workers and even friends to somehow make the situation right. The reality is, most of us know our spouses well enough to know plenty of juicy tid bits that we would not want shared with our employers, co-workers and friends. Despite the burning urge, this is a bad idea. It is never a good idea to shoot the goose that lays the golden eggs. Most of the issues in a divorce are income driven; child support, alimony and division of debts. If your other half loses their job or their income is reduced due to some action of your own, that financial burden is going to fall back to you. In a divorce, discretion is the better strategy. You want your spouse to come out of the process making as much money as he or she can, so that money can work for you.

6. It's going to make me look better if I wait and let my spouse file. It is a common fallacy that it looks better if your spouse is the one that asked for the divorce. While some people would rather not file for moral and religious reasons, there is no real benefit to waiting for the other spouse to file. In fact, there are certain tactical advantages in the courtroom that make it advantageous to be the party plaintiff. While the Plaintiff carries the burden of proof, the Plaintiff gets the first and last word in front of the judge. This is a very powerful advantage in the courtroom. Further, there is some peace of mind to take a proactive stance in what is one of the most disruptive events in your life. The sooner you take action, the sooner you can put your divorce behind you and move on with your life.

5. I'm not giving that !@#$% a dime. A common mistake people make in getting a divorce is being able to separate their angst for their spouse and the money they pay for the support of the children. One of the hardest thing to do is to write a check to the person you are the angriest with. However, not financially supporting the children is a huge mistake. It is against the law to leave your children in a state of want and can lead to criminal prosecution. Further, judges take a dim view of people who do not help out their children financially. There are ways to ease the pain of support and insure that your children are receiving the benefit of your financial support. If there is no order for support, you can always provide support by directly paying for items such as mortgage, vehicles and utilities or by providing in kind support by buying groceries and supplies. Once an order is entered requiring a specified amount that is what is required and failure to pay support can result in further unpleasant consequences with the Court.

4. The kids don't need to see my spouse. This is the converse to mistake number five. Sometimes it is just very hard to send your children to spend time with the person you are the angriest with. There are certain circumstances where it is not appropriate for children to be around the other parent, however that sort of determination should be made only after careful consideration and sound counsel. Divorce is toughest on children and when one of their parents is no longer in their life, it can be as emotionally difficult as having a parent die. Children do not understand the conflicts between adults and often blame themselves. What the Courts look for in a custodial parent somebody who is going to facilitate the children maintaining a relationship with both parents.

3. Let me share my perspective with the kids so they understand. No matter what age they are, your children will rarely, if ever, understand why you are getting a divorce. Most certainly they do not need to get involved with the divorce. However, it never fails, parents always feel the need to justify their position to the children as if they were the jury that decides the case. Young children do not understand divorce and have a tendency to blame themselves when their parents split up. As children get older, they tend to see divorce as grown up business and just do not want to get involved. It is a terribly cruel thing to force a child of any age to pick between their two parents.

2. My spouse wouldn't do that to me. Naiveté in a divorce is almost as bad as open hostility. Many people walk into a divorce believing that their spouse is incapable of doing the sort of cruel acts and misconduct that permeate these sorts of cases. While the hostility of divorce can be bad, turning a blind eye can leaves a party vulnerable. Many of the hurtful acts that go on in a marriage can have devastating effects on the minor children of a marriage. They can also lead to making poor strategic and tactical decisions in handling the divorce, which can be very costly. In handling your case, you only get one chance and no "do over". Vigilance and prudence are very important.

1. I can handle this without a lawyer. The biggest mistake people make in their divorce is trying to handle the case without a lawyer. Even if your case is completely un-contested, you need a lawyer to insure that the documents are drafted properly and to guide you through the process. A divorce encompasses every aspect of your life, custody of your children, title to your home, payment of your debts and division of all of your assets. Even if your spouse has hired an attorney, it pays to have the documents reviewed by an experienced family lawyer whom you trust. They can insure that the documents not only accurately reflect your agreement but also are drawn properly to be enforced in the future. If your case is contested, your lawyer can help you identify and frame the issues to present your best case to the Courts in your jurisdiction.

For more information visit our website or contact us.

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