New Divorce Options for the New Year

While I normally post these articles on my website before posting them here, today's article will probably not go up on www.thesuttonlawoffice.com until next week.  My web person is out of town.

New Divorce Options for the New Year

January 9, 2012

In our last article, we examined one alternative to the traditional divorce process: Pre-Divorce Mediation.  Today we take a look at a few other options worth your consideration if you face divorce in the future.  Before beginning however, please remember that these alternatives are not appropriate for every case and local court rules may modify or restrict what is available in your county.  With that in mind, below is a brief description of some of the most popular alternatives to the traditional divorce process.    

Uncontested Divorce.  We touched on this alternative in the previous article.  Uncontested Divorce is a streamlined version of the divorce process.  It is available to some spouses so long as they agree on all settlement terms and there are no issues that require the court’s intervention. These issues can include division of assets, division of debts, alimony, child custody, visitation, and child support.  In an Uncontested Divorce, an attorney will draft all of the required paperwork, including the settlement agreement, and file it with the court.  Often, the judge will let the attorney finalize the divorce process through the mail.  If this is allowed, neither spouse has to appear in court.  However, this rule can vary depending on your county and judge.  If the judge requires a court appearance, the hearing is usually very brief.  An Uncontested Divorce can be completed much faster than a traditional divorce with only a fraction of the legal costs.  The largest drawback to Uncontested Divorce is its limited availability. It is only available to spouses who completely agree on the terms of the divorce from the beginning.

Pre-Divorce Mediation.  Pre-Divorce Mediation was the subject of the previous article and will therefore not be discussed in detail here.  However, I feel it would remiss of me not to mention it given today’s subject.  Pre-Divorce Mediation is an option available to spouses who wish to file an Uncontested Divorce, but cannot agree on some issues.  The spouses meet with a mediator who helps them resolve their differences.  If agreement can be reached, the spouses may then file an Uncontested Divorce.

Collaborative Divorce.  Collaborative Divorce is an attempt to retain a structure similar to the divorce process while replacing the adversarial aspects with cooperation.  In a Collaborative Divorce, each spouse retains a specially trained collaborative attorney whose primary function is to settle the case out of court.  While the attorneys advocate for their respective clients and their interests, they each commit to work together and provide everything the spouses need to ensure the disputed issues are resolved in a way that is fair and beneficial to everyone.  The spouses and their attorneys can utilize several experts including financial analysts, parenting coordinators, and mediators.  What makes Collaborative Divorce especially unique is that in the event the case cannot settle, both spouses agree that they will seek new attorneys.  The collaborative attorneys will not litigate the case.  In a traditional divorce, even the most cooperative and negotiation oriented attorney has a duty to prepare to “win” the case at trial.  By removing even the possibility of trial from the attorneys, they are allowed to devote their time and energy exclusively to negotiating an out-of-court resolution.

Do It Yourself Divorce.  Also referred to as Limited Representation Divorce, Do It Yourself Divorce (DIYD) attempts to empower spouses to handle the divorce process themselves while providing knowledge and guidance from an experienced divorce attorney.  The DIYD process usually begins with an educational workshop or meeting.  A divorce attorney walks everyone through the typical divorce process, explaining each step and the general legal requirements spouses need to know.  The attorney will answer questions but, because no attorney-client relationship is created by the workshop, he or she may not provide specific legal advice.  The workshop attendants can then take their new knowledge and file for divorce on their own.  If they are uncomfortable tackling the process completely on their own but cannot afford an attorney, they may hire the DIYD attorney to help them with specific aspects of the divorce.  For example, they may want an attorney to draft the child support worksheets or parenting plan because these documents have specific legal requirements.  The attorney does not represent the client in the traditional sense, but the spouse does gain the benefit of professionally drafted paperwork.  The spouse also saves a great deal of money by only paying for the specific service requested from the attorney.

Mediate to Stay Married.  Mediate to Stay Married is not an alternative divorce process but is instead an alternative to divorce all together.  It is exactly what the name implies.  Spouses experiencing marital difficulties meet with an experienced mediator who works with them to identify, negotiate, and resolve problems so as to avoid divorce altogether.  This process is not marriage counseling.  No therapy is provided.  The session is limited to mediated negotiation.  The mediator works with each spouse to identify points of contention, clarify interests and positions, facilitate effective communication, and develop a mediated agreement that addresses each spouse’s concerns.

Pre-Divorce Mediation

We are now officially caught up on the articles from www.thesuttonlawoffice.com

November 20, 2011

Divorce is very often an extremely difficult and costly experience to endure, which is why many people look for any way to avoid the traditional approach to divorce.  Many wish to save money by filing an uncontested divorce.  In an uncontested divorce the wife and husband agree on all of the terms of the divorce at the very beginning of the process.  One spouse then usually hires an attorney to draft the necessary paperwork and file everything with the court.  Legal fees for an uncontested divorce usually begin at around $500.  In contrast, most simple contested divorces start at about $5,000 per side and can increase quite exponentially.  Unfortunately because the wife and husband must agree on all issues from the beginning of the process, an uncontested divorce is not an option to many people.  If the parties disagree about a complex issues such as visitation or a simple issue such as who will retain which car, they are out of luck. The traditional approach to divorce dictates that they each retain their own attorney, pay thousands of dollars in fees, and fight in court.

 Pre-Divorce Mediation may be a viable alternative for people facing the above scenario.  Mediation is a process where a neutral third party informally meets with the wife and husband and attempts to help them reach a negotiated settlement.  The mediator does not make a decision for the parties but instead attempts to facilitate communication, clarify interests, and generally work to create an environment of cooperation and problem-solving.  Mediation has a very high success rate and is the only form of dispute resolution that empowers the parties to craft the type of conclusion that they know will work best for them.

Mediation is not a new concept in the realm of law or divorce.  Most divorcing parties attend mediation.  Many judges even require mediation.  However, most divorcing parties do not attempt mediation until after they begin the traditional combative divorce process.  Typically spouses spend thousands of dollars to retain attorneys and those attorneys then fight over the contentious issues.  They file answers and motion.  They request the production of all sorts of discovery documents and then fight if those documents are not provided to their satisfaction.  In most jurisdictions the judge does not order mediation until after the first temporary hearing.

Pre-Divorce Mediation is an attempt to eliminate the above and save the parties time, energy, and costs.  In Pre-Divorce Mediation, the wife and husband meet with a mediator before anything is filed with the court.  Some people prefer to have attorneys with them at the mediation but others do not.  The Pre-Divorce Mediation session is similar to typical mediation sessions.  The mediator works to help the parties resolve their disputes through negotiation.  If the wife and husband reach a settlement, the mediator drafts an agreement which is then signed by both parties.  They can then take this agreement and other necessary information to an experienced attorney who can draft their legal paperwork and file the divorce uncontested. 

There are some things to keep in mind if you are considering Pre-Divorce Mediation.    It is important that you have a firm grasp of your financial situation and bring all important documentation with you to the mediation session.  If you do not have an attorney present it may be helpful to consult an attorney before the mediation, especially if you are unsure of your rights.  The mediator will not be able to provide legal advice at the mediation.  Finally, while a trained and experienced mediator can provide a lot of negotiating assistance even when people adamantly disagree, it is important that both parties are willing to at least attempt to negotiate in good faith.  If one spouse outright refuses to negotiate, mediation may not be helpful.

For most people, utilizing mediation at the beginning of the divorce process gives them the ability to turn what could have been a long and expensive process into a comparatively short and cost efficient experience.  If you would like to know more about Pre-Divorce Mediation and whether it is right for you please contact Adam Sutton at The Sutton Law Office.

Adam M Sutton

HP and Lexmark Toner to Go Up 19%

HP and Lexmark increasing printer toner costs up to 19%. Considering how much toner my small office runs through I am not very happy. I can only imagine the potential impact on larger law offices.

More at: http://www.primercom.com/Social_Media.html

The Child’s Choice: How Age of Election Works in Georgia

The Child’s Choice: How Age of Election Works in Georgia

September 20, 2011

Battling over custody of a child can be one of the most grueling, stressful, and all together emotionally draining experiences one can endure as part of a legal action. A custody battle can be a very long and complicated process that involves multiple court hearings and the services of various experts such as guardian ad litems and mediators. Today’s article focuses on one aspect of custody: the impact of the child’s preference regarding which parent he or she lives with.

Many parents believe that a child always has the freedom to choose, but that is not true. Georgia law is a little more complicated regarding this issue. It is almost impossible to discuss the impact of a child’s choice without first outlining the general rules regarding custody in Georgia. According to Georgia Statute 19-9-3 (a) (2), it is the duty of the judge to determine what is in the best interests of the child and to award custody accordingly. This is commonly referred to as the “Best Interests of the Child Standard”. Georgia statute 19-9-3 (a) (3) lists seventeen factors a judge can consider in determining the child’s best interests. These factors are also listed in the custody section of the Sutton Law Office’s Website. However, it is important to remember that this is a non-exclusive list and the judge has the freedom to consider almost anything he or she deems relevant. In short, the judge has very broad discretion in this matter.

While a child’s choice, often referred to as a child’s election, is not one of the seventeen factors, it does impact custody. The degree that it impacts custody depends on the age of the child. Georgia statutes 19-9-3 (a) 5 and 19-9-3 (a) 6 specifically address this issue. According to 19-9-3 (a) 5, a child that is at least fourteen years old can select with whom to live. The child’s choice is considered presumptive, meaning the judge will award custody based on the child’s choice with one caveat. The child’s choice must still comport to the Best Interests of the Child Standard. If a fourteen year old child wishes to live with dad, the judge will grant dad custody unless, after considering all relevant factors, the judge determines that giving custody to dad is not in the child’s best interests.

This is a slight modification of the longstanding Georgia rule regarding a child’s election. Prior to 2008, a fourteen year old child could choose with whom to live unless the judge determined that the chosen parent is unfit. Proving that a parent is unfit is often very difficult absent extreme circumstances such as domestic violence or drug abuse by a parent. The result was that a fourteen year old child almost always chose with whom to live even if it was not the best choice. In 2008, the Georgia General Assembly modified the law replacing the unfit parent standard with the Best Interests of the Child Standard. The new standard allows a judge to have more flexibility in determining custody. Proving that a choice is not in the best interests of a child is not nearly as difficult as proving a parent is unfit. However, this discussion should not be construed as a dismissal of the importance a fourteen year old child’s choice. When dealing with two similarly situated parents possessing equal parenting ability, a fourteen year old child will, in most situations, have the power to choose with whom to live.

Georgia law 19-9-3 (a) 6 addresses the preferences of children who are younger than fourteen. A child who is at least eleven years old but not fourteen can express his or her desire and the judge will consider the child’s desire as a factor in determining custody. However, unlike the rule governing a fourteen year old child’s choice, the desires are not presumptive. The judge retains full discretion to award custody how he or she sees fit pursuant to the Best Interests of the Child Standard. It simply adds the child preference as another factor for the judge to consider. If the child is younger than eleven years old, the judge will not consider the child’s preference.

For parents wishing to change or modify an existing custody arrangement based on a child’s preference, the age of the child is again an important factor. The side requesting to modify custody must show that a material change in circumstances has occurred warranting new intervention by the court. If the child is at least fourteen years old and desires to live with the other parent, the court will consider the child’s desire as a material change in circumstances and will re-evaluate custody. However, the child’s choice can only be made once within two years of the last custody determination. If a child younger than fourteen desires to live with the other parent, the court will not consider the child’s desire as a material change in circumstances and will not re-open custody.

The above is a brief overview of custody in Georgia and how a child’s election works. If you are dealing with these issues or otherwise engaged in a custody dispute, it is vital that you consult an attorney that can advise you regarding your specific situation.

Adam M. Sutton, Esq.