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Nuts and Bolts of Family Law Continuing Legal Education Notes (10/3/14)

by merlin on October 4th, 2014
  • Sumo
Nuts and Bolts of Family Law CLE
October 3, 2014; State Bar HQ

Judge’s Panel: 

Attorney’s Fees

Present your bill before the hearing; be very specific and realistic

Remember – this is NOT to punish; rather you are seeking to LEVEL THE PLAYING FIELD (if one party appears to have more money and deeper pockets, then fees will come out of their pockets wherever possible)

  • Be prepared – you MUST have an itemized bill BEFOREHAND

 Legitimation actions – try § 19-9-3 (because of the custody and control aspect from visitation); remember, § 19-6-15 is for THE WINNER ONLY (in retrospect)

If it is contested, PLEASE COME WITH A PROPOSED PARENTING PLAN!!!!

Also – older child is viewed as more able to deal with being shuttled a distance back and forth, while younger children are NOT (ex. a 45-minute drive)

Question the judges ask themselves about Parenting Plan arrangements:

            Is this more of a convenience to the parents?

-VERSUS-

            Is this more of a convenience to the CHILD?

Remember – “AFFIDAVIT OF ELECTION” (Child 14 or older elects which parent to live with) – GET A FORM FOR THIS)

  • The argument is that this is A CLEAR CONFLICT OF INTEREST wen prepared by an attorney
    • (To avoid this, have child discuss the issue with the judge; sign it there, not beforehand)

Representing Immigrants in Family Law Cases

Adrianaa de la Torriente – Torriente Marum LLC, Decatur

  • Unusual immigrant client – Check whether the interpreter is meeting with the opposing party, also – REMEMBER ALL POTENTIAL CONFLICTS
  • MAKE SURE!!!!!! That they ACTUALLY UNDERSTAND what you are saying – need to verify to avoid a language barrier
  • Mrarriage versus “Union Libre” (maybe they aren’t legally married) versus COMMON LAW MARRIAGES (ex. must use partition to divide property in absence of legal marriage)
  • If permanent residence is based on the marriage, consult with an immigration law specialist first to ensure divorce won’t = deportation

Need to check on PROPERTY IN THE COUNTRY OF ORIGIN.  If they have family/friends still there, they can pull the title for you, etc.

Parenting plans:

  • What about when one parent is undocumented? What happens if they get deported?
  • What about international visitation??!!!

Cross-Examining the Psychological Expert

Karine Burney, Esq., and Marlyne Israelian, Ph.D.

  • 19-9-3:

Mental and physical health of parent; also recommendation of GAL

REVIEW OF THE FILE

  1. Obtain Discovery from the Psychological Evaluator;
  • Specifically put into Order that you are entitled to ALL NON-PRIVILEGED DISCOVERY (if it isn’t confidential, then it is DISCOVERABLE)
  1. Review Qualifications, Training, and Competency;
  2. Evaluate the Selection and Appropriateness of the Tests, the administration of the tests, and how they were interpreted;
  3. Did the evaluator PROPERLY represent the conversations that occurred?
  4. Did the evaluator take the information provided by the parties and third parties at face value and assume all to be true, or did they engage on an INDEPENDENT FACT-FINDING MISSION?
  5. Was there more communication with one side than the other?

Qualifications for Administering and Interpreting Psychological Tests in Custody Evaluations

  • Need to have specialized training and experience in understanding how the context of a custody evaluation may affect test results

 

Need to find out whether projective tests (ex. Rorschach, human figure drawing, etc.) – subject to bias – versus OBJECTIVE TESTS (ex. MMIP-2, etc.) are used (projective is WORTHLESS, but objective is great) – scores generated in comparison to a normative sample, and assesses response style (50 is average, so watch for outliers)

Need to make sure that erratic behaviors are LONGSTANDING, and not just a reaction to the stress the client is going through right then.

What about confirmatory bias (selectively choosing something that confirms the evaluator’s earlier diagnosis) AND confirmatory DISTORTION (actually selectively OMITTING stuff that is contrary to that diagnosis)????????

To verify it:

Hire your own psychological consultant to look at this stuff.

Federal Agencies’ Implementation of Windsor and Same-Sex Marriage Issues

William John Camp (wmj.camp@wpmlegal.com; expert at military law issues)

Case is pending in Northern District of Georgia challenging the same-sex marriage ban!!!!

Remember – the VA is hard to deal with, because their benefit determination is based on State of residency of the claimant (and residency State may not recognize same-sex couples)

Remember – SCOTUS has agreed to hear the same-sex challenges in summer 2015.

  • Believed that it will be a Loving v. VA kind of decision – expected to strike down DOMA/State versions entirely!

Jurisdiction and Venue in Substantive Areas of Family Law

Andrea M. Knight – Senterfitt and Knight, LLC

www.skfamilylaw.com

Watch the presentation online: tinyurl.com/ka7pjoh

Venue:

  • File divorce in Plaintiff’s county IF Defendant lived in same county within 6 months of filing AND at time parties separated,
  • OR marital residence was in same county
  • OR waiver cure-all.
  • 19-5-2: Subject-matter jurisdiction for divorce in Georgia.

Subject-matter jurisdiction IS essential, but personal jurisdiction is NOT essential

Once UIFSA lost, must file modification where Defendant resides;

  • 19-11-170:

After a child support order issued in another state has been registered in Georgia, the responding tribunal of Georgia may modify that order only if Code Section 19-11-172 does not apply and, after notice and hearing, it finds that:

(1) The following requirements are met:

(A) The child, the individual obligee, and the obligor do not reside in the issuing state;

(B) A petitioner who is a nonresident of Georgia seeks modification; and

(C) The respondent is subject to the personal jurisdiction of the tribunal of Georgia; or

(2) The child, or a party who is an individual, is subject to the personal jurisdiction of the tribunal of Georgia and all of the parties who are individuals have filed written consents in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction over the order. However, if the issuing state is a foreign jurisdiction that has not enacted a law or established procedures substantially similar to the procedures under this article, the consent otherwise required of an individual residing in this state is not required for the tribunal to assume jurisdiction to modify the child support order.

(b) Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state, and the order may be enforced and satisfied in the same manner.

(c) A tribunal in Georgia may not modify any aspect of a child support order that may not be modified under the law of the issuing state. If two or more tribunals have issued child support orders for the same obligor and child, the order that controls and must be so recognized under the provisions of Code Section 19-11-116 establishes the aspects of the support order which are nonmodifiable.

(d) On issuance of an order modifying a child support order issued in another state, a tribunal of Georgia becomes the tribunal having continuing, exclusive jurisdiction.

Uphurch v. Smith, 281 Ga. 28 (2006) – UCCJEA jurisdiction is COUNTY THAT ISSUED THE LAST ORDER

Range of tests available to parties in family law cases

Kelly Martinez (The Artimes Group): – www.labtestservices.com; help@theartimesgroup.com; 1-800-492-9484

  • Drug testing, alcohol testing, paternity testing, DNA testing
  • Also long term abuse testing, ???
  • They can do an 80-hour test!!!!!
  • Hair follicle alcohol – how much alcohol the donor is consuming DAILY
  • Test takes 5 full business days to get results
  • They can test fingernail or toenail!!!!!
  • Hair follicle – if they can’t do head, they’ll do armpit, back, etc.
  • THEY CAN CHECK 12 MONTHS BACK!!!!

CHILD GUARD TEST – what if Mom and Dad have sweated on sheets; it absorbs and child will show metabolites from their ENVIRONMENT

They do pre-natal paternity testing; accurate as early as 9 weeks of pregnancy!!!!

If the office schedules the meeting and mentions this presentation, then you get a discount.

If you collect the information on your own – NOT ADMISSIBLE;

However;

It is probably enough to get an Order compelling them.

QDROs – Matt Lundy

  • What shouldn’t you do to divide retirement plans?
    • Sanmaru case: they were agreeing to pay 50% of “vested pension plan”
    • Plainly, when he died 3 years afte divorce, she got nothing
      • In settlement negotiations, they NEVER referenced pre-retirement survivor benefits, etc.
      • Plans are SELF-SERVING

QDROs are not universal – creatures of individual plan rules, made partly from family law and partly from employment law

Check the materials (pages 4 – 9)

  1. Get the plan RULES;
  2. Valuation; what is the accrued benefit (what does the valuation cover, and what are the payout options)?
  3. What are the different forms of payout available (ex. cash payout option)?
  4. Time frame for all major events
  5. Preserve jurisdiction to enter QDROs
  6. Absolutely address SURVIVOR BENEFITS (all ERISA plans by law have these terms), including cost-of-living adjustments

Child Support Guidelines (Revisited)

Laurie Dyke, CPA/CFF, CFE, CFC

  • Income included is in 19-6-15(f)(1)(A); low-income deviation is 19-6-15(i)(2)(B) [ SB 282]
  • Current calculator version is 9 (7/1/2014) – NEWEST VERSION OF THE CALCULATOR IS IMPORTANT TO POINT OUT
  • Calculator changes (by the end of 2015) – it is ONLY WEB-BASED, not Excel version.

New law – LC 39 6200 – allows LIABILITY FOR IMPROPER RECEIPT (if a party retains overpaid child support

  • Allows the court to remove work-related child care an allocate pro rata
  • Parenting time deviation both upward and downward

See www.georgiacourts.org/csc

  • Sign up for the listserv there

Caselaw:

Court MUST make findings of fact:

Black, 740 S.E.2d 613

Court CANNOT award extracurricular expenses OUTSIDE THE WORKSHEET:

Turner, 684 S.E.2d 596

Voluntary underemployment:

Friday, No. S13A1625 (Ga. Mar. 3, 2014)

Parenting time deviation: Child support PAYABLE by custodial parent:

            See Williamson, No. S13A0953 (Ga. Oct. 7, 2013)

Decision-making versus ability to pay: Hardman, No, S14A1187 (Ga. Sept. 30, 2014)

  • Decision-making power centers around WHO PAYS – Settlement agreement is NOT res judicata as to continuing obligation to pay money (new Order to pay is not precluded by the original one)

Check LINE 10, SCHEDULE E – that will allow you to do a downward deviation for child support paid to make the worksheet match the agreement

If the parties are going to pay the provider directly, leave it out of the worksheet; what goes INTO the worksheet is the stuff that one party pays the other party for; contemplates paying them back!

 

Judges’ Panel

“Top 3 Attorney mistakes”:

  • Have your child support worksheet done before
  • Settle the case before you come to Court!
  • Lay out what your goals are at the start of the hearing; lay out the STANDARD for decision; PRE-MARK YOUR EXHIBITS

Parenting time: Not a favored deviation

Experts: Which expert spent the MOST TIME with the subject of the evaluation?

Remember – for alimony, half the business may both KILL the golden goose AND may be 2 times that alimony award because the person’s joy in their work may be gone

Need to raise the attorney fee issue up front and justify it in writing.

  • Make a regularly recurring award (also has the benefit of motivating settlement)!!!!

Jurisdictional Defenses

Caroline Kresky and Malone W. Allen (Ichter Thomas, LLC)

  • 50-2-21: “Sojourner Rule” – jurisdiction of this State and its laws extend to all persons while in its limits

Personal jurisdiction:

  • Remember – time to answer runs from date it is SIGNED, not the date it is FILED.

Insufficiency of process (§9-11-4(1)(b)) – certain defects on the PROCESS ITSELF

-versus-

Insufficiency of service of process: arises in situations in which sheriff service is flawed

  • 9-11-12(b) require Defendant to ASSERT these defenses in the pleading itself.

Remember – filing no responsive pleadings (ex. when they aren’t required, such as “no need to answer a counterclaim”) means the jurisdictional defenses are still preserved for trial

CHECK OCGA § 9-11-12(d)!!!!!!!!!!!!!!!!

Plaintiff has a DUTY to raise jurisdictional issues. – they MUST be raised and argued prior to the case!!!!!

  • PLEAS IN ABATEMENT
  • Not the same as a Motion for Summary Judgment (that is a judgment on the merits)

Had to leave at the last break – missed the business valuation discussion and the caselaw update.

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