Alimony

ABA Family Law Section to meet in Fort Worth

This Wednesday through Saturday, the ABA Family Law Section hosts it’s annual Fall seminar (next October we are meeting in Las Vegas). True to form, the programming is excellent, filled with excellent speakers on excellent topics of interest to family law practitioners. New and interesting topics include “Using Stock Options and other Executive Compensation to fund Alimony” and “Parenting Plans for Children Under 3”. There will also be debates/discussions about many far reaching issues, including the need for a uniform act on child support guidelines and the Model Act of the Representation of Children.

Of course, the informal education that comes from the interaction of lawyers from across the country between sessions cannot be overestimated. I look forward to seeing many old friends and to meeting new ones this week in Fort Worth.

The brochure for the program can be found at: http://www.abanet.org/family/events/fall10brochure.pdf

If I can answer questions, before during or after the program, please let me know.


NY last state to go to “no-fault” divorce.

Today, August 15, 2010, the Governor of New York announced that he signed a bill permitting “no-fault” divorce in New York. So what exactly is “no-fault”? Well it varies across the country, but generally it means that one need not prove the other spouse was at “fault” in the break up of the marriage. That is, if one person believes the marriage is over, that is all that needs to be proved. And that will make “uncontested divorces” easier.

But does that make fault irrelevant? In many states the answer is no. Georgia and many other states permit introduction into evidence, proof of “conduct” such as adultery, drug use, spousal abuse and gambling. These types of conduct can affect the decision of the court on issues such as alimony, custody and division of property in some states.

But what no-fault divorce allows, is a less confrontational divorce for many who have peacefully and amicably come to the decision that their marriage should end. The removal of the need to prove “fault” removes the need to accuse anyone of being the cause of the divorce. While such conduct issues may be relevant in some states for some issues, many people simply desire to move on and resolve their differences in a non-confrontational manner. This new New York law makes it a bit easier in New York to do what people elsewhere in America have done for years, to divorce without pointing fingers or laying blame. It is about time.


Alimony: Factors or Guidelines Approach?

On January 1, 2007, Georgia’s most recent child support guidelines and related calculators went into effect.  While there are child support guidelines in Georgia, there are no alimony guidelines, but rather factors that the finder of fact shall consider.

According to O.C.G.A. 19-6-5, the finder of fact shall consider the following factors when determining the amount of alimony, if any, to be awarded:

(1) The standard of living established during the marriage;

(2) The duration of the marriage;

(3) The age and the physical and emotional condition of both parties;

(4) The financial resources of each party;

(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;

(6) 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;

(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and

(8) Such other relevant factors as the court deems equitable and proper.

Given these factors, and especially in light of the last factor, the dilemma may arise as to the predictability of how much alimony, if any, shall be paid and for how long.  Different courts in separate counties may result in very disparate alimony awards.  Attorneys experienced in family law can often predict what the likely result will be, but the lack of consistency between courts may give some parties the perception of an unfair result.  Of course, when a case involves unrepresented parties or attorneys unfamiliar with family law or lacking experience in front of the assigned judge, the lack of familiarity and/or experience may result in very different views on alimony, which in turn can become a roadblock to settlement.

So should Georgia adopt alimony guidelines and formulas similar to other states?  Would such an approach give more predictability, consistency, and a sense of fairness to alimony awards?

Or would such guidelines and formulas unnecessarily restrict judges and limit their abilities to judge each unique case on its own specific merits?   Would formulas have the unintended consequence of making judges akin to a computer that just displays a number?

There are pros and cons to both approaches.  Nevertheless, it is prudent for a party to at least consult with an attorney who is experienced in family law so that the party can ascertain his or her rights and potential obligations as they relate to alimony, whether or not the law provides for a “factors” or “guidelines” approach.