Uncontested Divorce

Uncontested Divorce

An uncontested divorce is when both parties agree on all issues and have reduced that agreement to writing. In some cases it is be beneficial to negotiate all issues prior to filing for divorce, and proceed uncontested.  An uncontested divorce is typically the quickest and most cost effective method to obtain a divorce in Georgia. 

Why it’s Always a Good Idea to Hire an Attorney for Your Uncontested Divorce

80% of domestic litigants are pro se, meaning that they represent themselves without an attorney in their divorce, modification, or custody action.  The following are reasons why it is always a good idea to hire an attorney, even if your divorce is uncontested:

  • Parties need to know their legal rights and obligations;
  • Many spouses have inaccurate assumptions about alimony and child support;
  • Divorce and custody agreements have long lasting effects that can lead to unforeseen consequences years later;
  • Having an attorney draft or look over a proposed settlement helps spouses feel the agreement was fair and equitable.
Alimony:

Alimony is necessary where appropriate, but alimony is not appropriate and should not be awarded in every divorce case.  In fact, given the changes in society and the increasingly common duel income household, alimony is not appropriate in a growing number of cases.  “Alimony is an allowance out of one party’s estate, made for the support of the other party when living separately.” GA. Code 19-6-1 (Georgia Code (2014 Edition)).  The statutory factors a court must use to determine whether and how much alimony to grant to one party are as follows:

  • The standard of living established during the marriage;
  • The duration of the marriage;
  • The age and the physical and emotional condition of both parties;
  • The financial resources of each party;
  • Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;
  • The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
  • The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
  • Such other relevant factors as the court deems equitable and proper.

GA. Code 19-6-5 (Georgia Code (2014 Edition)).

It is possible to for alimony to be granted in amounts that would not be appropriate according to the factors.  This sometimes occurs when one party requests an alimony award and the other party fails to file an answer or put up a defense for why the alimony request would be inappropriate according to the factors set out in the statute.

In an uncontested divorce both parties should agree on the amount of alimony; however, if the parties are not familiar with the factors the court will use to determine an alimony award, it is difficult to determine what a fair amount of alimony may be.  In addition, alimony may be modifiable or may not be modifiable depending on the wording of the alimony clause in the settlement agreement.  Whether alimony is modifiable or not is a crucial distinction. Let’s assume one party’s attorney proposes a relatively high alimony payment.  Additionally, let’s assume the paying spouse, agrees to the proposed alimony. Let’s also assume the award is higher than a court would award at trial.  If the payor spouse is independently wealthy or the payor spouse keeps the good job this may be fine.  However, what happens if the payor spouse loses their wealth or is laid off?  One may assume that the alimony obligation would cease or decrease to account for the change in the payor’s financial circumstances.  If the alimony clause contains language making the alimony agreement non-modifiable, then the payor will not be able to change or reduce the alimony obligation. A high alimony award that is not able to be modified can be ruthless enforced even under a change of circumstances.

The opposite is also true.  In a situation where alimony is appropriate, an award that is too low can be equally harmful.  Alimony awards tend to be for a period of years, and in rare cases, alimony can be awarded for life.  It is important to resolve the alimony issue correctly because it can have a lasting impact on both party’s lives.

Child Support:

In Georgia, child support is calculated by the Georgia Child Support Worksheet. http://cscalc.gaaoc.us/.  The worksheet takes a number of factors into account including, the father’s gross monthly income, the mother’s gross monthly income, child care costs, heath insurance costs, costs for extracurricular activities, extraordinary medical and educational expenses, and other costs of raising a child.  The worksheet calculates a presumptive amount of child support for each parent. The presumptive amount can be increased or decreased depending on the family’s situation.  These increases and decrease are called deviations.  The child support worksheet takes into account many different factors. When applied properly, deviations allow flexibility to establish a child support number that is appropriate for each unique family situation.

A parent’s desire to take care of his or her children can be manipulated into paying a greater amount of child support than required by an opposing spouse.  By adding an upward deviation to the amount of child support the worksheet calculates as appropriate, a non-custodial parent’s child support obligation can increase significantly.

In Georgia, child support orders can only be modified by a judge.  Once a child support number is determined by a judge, that number does not change until there is a subsequent order modifying the original support order. If circumstances change, for example, the monthly child support can be modified. However, it is important to remember that child support will not automatically modify, even if the non-custodial parent is medically injured or loses their job.  The parties cannot simply agree to lower or suspend the child support obligation.  They must petition the court for a modification.  The child support obligation remains the same until a judge changes the child support number in a subsequent order.

The duration of child support is sometimes modified by agreement of the parties.  In general, parents are required to support their child until the child’s eighteenth birthday or graduation from high school, whichever comes last.  Although the parties may agree on how to pay for college, the Georgia statue does not require parents to cover college expenses.  Imagine a scenario in which the duration of child support is extended to the child’s 21st birthday, and the non-custodial spouse agrees to pay college expenses.  That non-custodial parent could end up paying thousands of dollars a month in tuition, room, and board for a child to attend a private university while at the same time paying the agreed amount of alimony and child support to the custodial parent just as if the child still lived at home full time!

Even uncontested divorce is riddled with pitfalls that can turn into burdensome situations in the future.  A knowledgeable family law attorney can assist you in avoiding the traps while making sure your family is appropriately cared for. It is always a good idea to hire an attorney even in an uncontested divorce.

DeKalb Divorce Lawyer Helpful Links:

DeKalb County’s case search is a useful online tool to look up your case:

https://ody.dekalbcountyga.gov/portal/

Home Page for DeKalb County Superior Court:

http://www.dekalbsuperiorcourt.com/

Questions About Child Support Enforcement:

www.dhr.state.ga.us

Find Your DeKalb County Superior Court Judge:

http://www.dekalbsuperiorcourt.com/judges/