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Redacted Divorce Motion to Cast Fees on Opponent

by merlin on September 22nd, 2015
  • Sumo

My custom is to share a pleading that I am experimenting with after it is filed.  In this case, it is not a winner.  I argued it, but I submitted it at the same time, which meant that the judge had no chance to consider it before making his decision.  However, I believe the logic and argument are sound, and I share it in case someone else can make use of my research.

MOTION TO CAST FEES IN ACCORDANCE WITH ABILITY TO PAY AND TO AWARD TEMPORARY ALIMONY AND CHILD SUPPORT

COMES NOW XXXXX XXXXX, Defendant in the above-styled action, and makes and files this, his Motion to Cast Fees in Accordance With Ability to Pay and to Award Temporary Alimony and Child Support, requesting that this honorable Court cast the fees assessed in this matter for a Guardian Ad Litem, which he requested and which the parties honestly require in this matter, in direct proportion to their ability to pay.  To that end, Defendant requests that this Court grant both temporary alimony and child support to him to enable him to continue to participate as an equal in this action, and says the following in support:

1.

            “A provision for temporary alimony is different in character and purpose from an award of permanent alimony because it is intended to meet the exigencies arising out of the domestic crisis of a pending proceeding for divorce; it takes into account the peculiar necessities of the spouse at that time and provides the means by which that spouse may contest the issues in the divorce action.”  Langley v. Langley, 279 Ga. 374, 375, 613 S.E.2d 614 (Ga. 2005)(quoting Coleman v. Coleman, 240 Ga. 417, 420(2), 240 S.E.2d 870 (Ga. 1977)).  This is a matter of the financial competitiveness of the unprepared Defendant XXXXX XXXXX in light of the calculating moves that Plaintiff XXXXX XXXXX has made.  She planned for this divorce action previously, and not seeks to use money issues to force him to agree to her poor choices about their shared children and their shared expenses.

2.

Section 19-6-3(b) of the Official Code of Georgia doesn’t look to fault, but to ability.  It say that “In arriving at a decision, the judge shall consider the peculiar necessities created for each party by the pending litigation and any evidence of a separate estate owned by either party.”  According to the Domestic Relations Financial Affidavit that he submitted, XXXXX XXXXX has to pay $1,100 every month just for household expenses, and this is not something he had to pay before the marriage, when his expenses were only for the marital residence, but she threw him out of it.  She may have to pay over a thousand dollars, but she does not even have to pay that, because she has a house sitting empty, that she owns entirely.

She takes in over $6,300 every month, and has the benefit of a more in-demand degree than Mr. XXXXX’s, which she uses to its fullest advantage.  He still has to pay for family debts and expenses, but he does not have the benefit of a regular paycheck, working on a freelance basis.  In addition, several of the debts that she has listed may be duplicative, and she may be in possession of greater funds than she has disclosed.  This is not an even contest, and Plaintiff’s legal ambush puts Defendant in a losing position from the beginning.  The Court has already heard testimony regarding the transportation matters that Defendant XXXXX XXXXX must deal with to exercise visitation with his child – a situation that he would not be required to undergo at all if the child had stayed in her previous educational institution, but which costs the better part of a day’s drive on a regular basis to him, as well as costing money because he cannot spend that time working on assigned projects.  The drive also directly negatively impacts the younger son of the parties, since he has to spend several hours in the car with his father.  This is unfair to Defendant, unfair to the children, and not amenable to any visitation arrangement that would be anything less than a prejudgment of the case by the Court.  A Guardian Ad Litem’s services are desperately needed in this case, as has been proven from the testimony, but Defendant does not have the money or financial merit to pay in advance for the fees.

3.

            OCGA 19-6-5 requires that temporary alimony be paid with thought given to maintaining the standard of living of the spouse being sued by the more financially-capable spouse.  In fact, it is expressly to be determined by the spouses’ respective wealth and earning capacity, with reference to their standard of living before the separation.  That standard of living is the very first factor the statute lists in determining whether and how much alimony should be paid.  Another factor that the Court must consider is the financial resources of the party, or need versus the ability to pay, as Section 19-6-5 phrases it.  In this case, the debts that Plaintiff owes, according to the Domestic Relations Financial Affidavit that she submitted, are almost the very same debts that Defendant has listed in his own Domestic Relations Financial Affidavit, with rare exception.  He continues to pay these, even though he is now out of money.  She has a job that pays well and regularly, and has placed him in an untenable financial situation.  Even after the parties separated, he continued paying their joint bills, as indicated on the XXXXX Mortgage Receipts, dated December of 2014 through May of 2015, attached hereto and incorporated herein as Exhibits “A” through “E”, respectively, and the XXXXX HVAC service order receipt of $850, paid by him in March of this year, a copy of which receipt is attached hereto and incorporated herein as Exhibit “F”.  Defendant should be made whole for this by Plaintiff, so that he may fully participate in the divorce action as the law provides for.

4.

            This Court heard testimony at the hearing before it on August 25, 2015, that attending the Montessori School costs a fee of several hundred dollars each month; however, this is a matter that, before the separation of the parties, was borne in equal shares by Plaintiff and Defendant.  Now, Defendant has abruptly transferred the child to a location nearer her home – though she still does not spend time with the child, preferring to leave her with afterschool care and camps, and her younger son with daycare providers, while she works.  She has made the step without accepting, or even, apparently, considering that Defendant was willing to make payments on his own, if necessary, and the amount of money that he would save on the drive expenses that the school change necessitates would make such a thing possible.  Now, he loses more money, no matter what, and both children suffer.  Parental power should not be taken away by force from Defendant when he has done nothing to deserve that it be taken away, and the obvious solution to this would be payment of child support in an amount sufficient to provide for the private education at Montessori of a plainly gifted child.  If this were done, then both children could be spared the excessive difficulty that Plaintiff’s choices against Defendant have caused, and Defendant could spend time with his children without suffering undeservedly.

            WHEREFORE, Defendant respectfully requests the following relief:

  • That the Court expand the duties of the Guardian Ad Litem appointed for the children to address all issues of custody and support that are relevant to the divorce, since custody and support are plainly central to this divorce;
  • That Plaintiff be Ordered to permit the older child to attend a Montessori school, and the younger child be permitted by Plaintiff to remain with his father until this court can hear the matter;
  • That the costs for the Guardian Ad Litem, which must be paid up-front before her work begins, be apportioned entirely against Plaintiff, to reflect the equitable payment of the money that Defendant has spent on her behalf and for the bills that she has forced him to incur on her behalf, while she plotted divorce and financial punishment against him, and in recognition of the disparate earning power and financial abilities of the parties;
  • For a grant of temporary alimony from Plaintiff and to Defendant in an amount sufficient to permit him to continue to engage in the style of living the parties enjoyed before Defendant chose to separate from Plaintiff; and
  • For such other and further relief as the Court in its discretion deems equitable and just.

This 22nd day of September, 2015.

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