Georgia

Part of Real World Divorce: web edition | Kindle edition

The randomness with which the lives of American children of divorce are mapped out is nowhere better illustrated than in Georgia. According to our expert on Georgia family law, Amy Waggoner, the outcome of a case is likely to be completely different, from a child's perspective, depending on whether the child happened to live in Metro Atlanta or in a more rural part of the state.

Waggoner is a "Super Lawyer" who practices primarily in Atlanta and, like most of our interviewees, goes to trial two or three times per year. Waggoner has 20 years of experience in Georgia family law and has even worked as an associate judge. Waggoner handles a roughly even mixture of male and female clients who are called plaintiff/defendant or petitioner/respondent depending on the county within Georgia. See http://www.whfamilylaw.com/ for a full biography.

Divorce lawsuits can be protracted in Georgia with the trial anywhere from 1-2.5 years after a case is filed. Unlike most other states, Georgia offers jury trials in divorce lawsuits but in a way that makes it the mirror image of Texas, a state famous for its use of juries in divorces. The Texas jury decides custody but leaves most of the money questions up to the judge. The Georgia jury cannot decide custody but can decide some of the most important money-related questions, such as alimony and property division. Who wants a jury? "Usually it is the party who knows they're going to lose if the judge gets hold of them," says Waggoner. Who actually gets a jury? "It is more expensive to have jury trials," she responded. "So it is higher income and more educated parties who are divorced in front of juries." Do juries result in fairer outcomes? "I would get rid of that option," Waggoner responded.

Compared to other states, temporary orders are slow to be issued. "It can take six months to get to a hearing," says Waggoner. (See our Maine chapter for comparison.) Do judges avoid favoring one parent over the other at this early stage in the lawsuit? "No," responded Waggoner. "Judges will tend to pick a primary caregiver at the temporary hearing." How long is the hearing? "That completely depends on the judge," said Waggoner. "It can be a day-long process or 30 minutes per side." Are there witnesses? "The Civil Practice Act provides that each party plus one witness per side may testify. Everybody else may testify by an affidavit served on the opposing party at least 24 hours prior to the hearing." Is it easy to get exclusive use of the house at a temporary hearing? "Unless there is an assertion of domestic violence or a specific reason to kick someone out of the house, most judges will allow both parties to stay," says Waggoner.

As in other states, Waggoner says that plaintiffs impatient to get what they want turn to the domestic violence system for a near-instant resolution. Who hears abuse complaints? "Typically they go to a magistrate court while a divorce case would go to superior court," says Waggoner.

A successful litigant in Georgia can collect child support until a child turns 18 or graduates from high school, with a hard cut-off at age 20. "The court cannot order a parent to pay college tuition," says Waggoner, "but can enforce an agreement by the parties."

Can a consumer calculate likely child support payments using court-published worksheets? "It is challenging in the same sense as doing one's own taxes," responded Waggoner. Is there any limit to how much child support can be collected from a defendant in Georgia? "There is no specific cap," responded Waggoner. "The guidelines go to a combined income of $30,000 per month before taxes. Above that income level the judge can deviate and there is no limit." How are above-guidelines child support awards determined? "Typically the judge will listen carefully regarding the needs of children," said Waggoner. "A judge will look at lifestyle factors and possibly deviate on that basis. Because the guidelines permit deviations for particular factors judges in final orders are very specific about why and how much." What's the largest award that Waggoner has ever seen? "For one child it was about $10,000 per month paid by a person earning several million dollars per year." At the top of the guidelines, a defendant earning $360,000 per year would pay $2,236 per month ($26,832 per year). This is more than the capped support available in Minnesota, Texas, Nevada, or Alaska, but substantially less than the potential award of $61,200 in Wisconsin or New York and roughly $52,100 that could be expected in Massachusetts (for 23 years, rather than 18). The child that is worth $482,976 in Atlanta would be worth $1.2 million in suburban Boston, $234,000 in Las Vegas, or only about $100,000 in Germany.

Georgia does not run a "days for dollars" system that attorneys in other states tell us leads to litigation over a child's schedule. However, in a shared parenting situation it is possible for a judge to deviate from the guidelines. "Theoretically it is possible to have a parent with 75% custody paying 100% of the child support guidelines," said Waggoner. "In 50/50 custody, the higher income person could pay the same as if in a 0/100 situation."

Will the court order the payor to pay for day care on top of child support? "Child support is the beginning. You can use the guidelines to calculate day care, health insurance, etc. or split them by income. Judges routinely add health insurance premiums into the worksheet."

Waggoner says that a "walk-away" prenuptial agreement, in which each party keeps his or her separate property and waives alimony, would be enforceable in Georgia, assuming adequate disclosures and representation.

State background

The average hourly wage in Georgia is $20.82 per hour. Census 2014 data show that median income for a 22-to-36-year-old college graduate is $38,000 per year for a woman ($28,847 after income taxes) and $43,000 for a man ($32,418 after taxes). Attending Georgia State University for four years will cost $88,840. Georgia collects 8.8 percent of state residents' income to run state and local government (compare to a national average of 9.8 percent; source: Tax Foundation).

The average annual cost of child care is $7,030 for an infant and $6,062 for a four-year-old. The total cost of child care from age 0 through 12 is about $39,147 in commercial settings or $31,784 in a family care setting. For comparison, the total commercial care cost in Minnesota would be $87,084 and $76,912 in Massachusetts.

The male college graduate will have an after-tax spending power of $401,307 after 14 years of working (14 years of income minus taxes and the cost of college). Adjusting for USDA-estimated actual costs of child-rearing, he would derive a higher personal spending power by collecting child support when that support is $2,440 per month or more. This is an above-guidelines amount that would require suing a mother earning more than $360,000 per year and judicial discretion being applied in his favor. With two children from two different mothers, however, he could outspend his college/work/no-kids peers if each mother paid $1,600 per month, which is possible when each mother earns $175,800 per year in gross income.

The female college graduate will have an after-tax spending power of $315,018 over the same time period. She would be better off collecting child support when that exceeds $2,208 per month, an amount obtainable by suing a father earning $348,000 per year. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,480 per month from each one. This should be possible within the guidelines if each defendant earns at least $152,400 per year.

Among Georgia residents interviewed by the Census Bureau in March 2014, 98 percent of those collecting child support were women.

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

How often does Waggoner see a case where the woman earns more than the man? "Pretty frequently," she responded. "I personally draw a lot of clients from my surrounding area which has a lot of professionals of both genders earning high incomes."

What happens to the child? "Unless one party is in prison for murder or is a child molester, the parties will share legal custody." Waggoner explained that Georgia adds a twist compared to other states in defining shared legal custody: "The court will designate a tie-breaker on four areas of a child's life so that if they can't agree one person makes the decision: health, education, religion, extracurricular." If someone chose litigation as a means to end their marriage, mightn't they simply refuse to negotiate once given the tie-breaker power? "It does happen that a person sufficiently intransigent to reject mediation and sue the spouse becomes effectively the sole decision maker if given tie-breaking power."

How about the child's schedule? "It is likely that mom would get physical custody," said Waggoner. "Judges are going to look at past behavior as an indicator of possible future behavior. If dad sat around doing nothing then he will have a pretty big hurdle to become primary caregiver." In other words, Georgia courts do exactly what psychology professor Linda Nielsen (see the Citizens and Legislators chapter) says courts shouldn't do, i.e., assume that a parent who was more important to a child at age X will also be more important at age Y. Could the father get 50/50 shared parenting? "That still on the table, at least in Metro Atlanta," said Waggoner, "but you probably wouldn't see it with a 1-year-old child. Perhaps by the time the kid is school-age. The judge's overarching consideration is 'best interest of the child.' The judge looks at bonding, who does the work, who is the primary caregiver, who has the money to hire a nanny if necessary. Judges even look at who has been the primary financial provider. If someone has not been working they take that as an indication that someone doesn't care enough about the family to go get a real job."

Is Georgia like Illinois in that a stay-at-home father with a nanny would likely be treated differently than a stay-at-home mother with a nanny? "Georgia is kind of a donut," responded Waggoner. "In the center you have Atlanta which is fairly modern and liberal. Everywhere else in Georgia is wildly conservative and 20-30 years behind where Atlanta is. So there is a real split between Atlanta and the rest of Georgia in terms of whether or not gender would be a factor."

Suppose that the mother was awarded physical custody. Under what circumstances could the father ask that it be modified to a 50/50 schedule? "He would need first to show that there had been a substantial change in circumstances for the parties or the child and that the change affects the child either positively or negatively," said Waggoner. "He would then have to show that a different schedule would be in the best interest of the child." Would a child growing up from age 1 to age 12 be a substantial change? "That would depend on the individual judge," responded Waggoner.

When would the child's preference become a factor? "The child's preference is considered from ages 11-13," says Waggoner, "but is just one factor. At age 14 there is a presumption that a child's preference is in his or her best interest."

Whether a 50/50 custody situation would expose the mother to paying child support to the father is up to the discretion of the judge (see above). "I would expect the mom to fight hard to keep sole custody," said Waggoner, "mostly because she has been the primary caregiver." What are the financial stakes? Assuming that the father's income remains negligible, the total financial stakes of winning versus losing custody would be roughly $456,144 after taxes (17 years of child support at the top of the guidelines).

For how long can the father continue his Xbox-playing lifestyle? "He might get a little alimony," says Waggoner. "There are no guidelines. It is just need on one side and ability to pay on the other. The amount is totally discretionary with the judge but most alimony is rehabilitative." How long will this guy be in ex-wife-funded rehab? "He might get six months to get him back on his feet, but not outside of Metro Atlanta."

Can the father get a substantial windfall via property division? "Georgia is an equitable division state," says Waggoner. "We start with assuming a 50/50 split. Premarital property is entirely off the table. Marital property is anything accumulated during the marriage except for gifts and inheritance." How about the appreciation in what had been separate property? Can that be considered marital? "Only if he had helped to manage a pre-marital investment could he argue that the appreciation was marital property," said Waggoner. How about a disproportionate property division given that his earning potential is so much lower? "He can argue for a bigger split," she responded, "but given that it is a two-year marriage he is unlikely to get more than 50/50."

Waggoner charges $350 per hour and estimates fees per side of up to $100,000 if the case were to go to trial on all issues. How is the slacker husband going to come up with that kind of money? "Theoretically he could get her to pay his fees," says Waggoner. "And judges can award interim attorney's fees at a temporary hearing. However, this is not typical even in Metro Atlanta. A female litigant outside Atlanta would have a much better chance [of getting fees]."

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

What if the two parents go to court each asking to be the primary parent? Can the judge ignore both and parties and award 50/50 shared parenting? "Yes," says Waggoner. "In Metro Atlanta a judge would often do that. His moving in with a friend is problematic. He will have to show that he has space for the children. Presuming he can do that, most of the judges would not have a problem awarding joint physical custody. Some judges have a personal bias against joint custody." Can a party who hopes to win sole custody blow up shared parenting by asserting "conflict" with the person on the other side of the lawsuit? "Yes," said Waggoner. "Judges believe that if people are fighting then it will be hard for them to carry out joint physical custody." Doesn't that give litigants a powerful incentive to start fights? "We do see parties creating conflict in order to block shared custody."

Can the plaintiff use her allegation of verbal abuse to obtain sole custody of the children? "To make the abuse angle work she would have to show that the verbal abuse was done in front of the kids." How can she do that if it is just the family at home? Do the kids testify? "She can record him surreptitiously," responded Waggoner. "We hear a lot of pocket phone recordings being played in court." (Georgia is a "one-party" state in which it is legal to record a conversation without the other person's knowledge. Attorneys in other states where this is true report that it is a common practice for the plaintiff to provoke the defendant, then start the recording only after the defendant rises to the bait and/or simply play a clipped version in court at a non-evidentiary temporary hearing.)

What's at stake financially here? Georgia is an income shares state, so the combined monthly income of the parents is plugged into the table and a $28,368 per year number for child support comes out. Due to the fact that the parents have equal incomes, in a sole custody/visitor situation the loser parent would pay the winner parent $14,184 per year. Assuming that both need to have five-bedroom dwellings, the loser would be funding that on $46,061 per year in after-tax income (filing single) minus $14,184, which equals $31,877 per year. The winner would be funding that five-bedroom lifestyle on $50,081 in after-tax income plus $14,184 or $64,265 in total spending power.

How about outside of Metro Atlanta? "A judge would be more likely to pick one parent," said Waggoner, "and probably it would be mom. In Cherokee County [north Georgia] it is impossible to get joint custody even by agreement of the parties."

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

As with the other scenarios, Waggoner predicted that the outcome of this case would depend on whether it was heard in Metro Atlanta or outside.

Metro Atlanta: A parenting schedule trending toward 50/50 as the children get older, three years of alimony.

Outside Metro Atlanta: Sole physical custody to the mother. Visits with the father every-other-weekend from Friday evening to Sunday early evening plus dinner one night per week. Alimony for 5-7 years but possibly as long as 10.

Why such a short period of alimony? In Connecticut this plaintiff would enjoy up to 16 years of alimony (until the youngest child turned 18). "The bottom line is that you've got to go to work," says Waggoner. "Period. The question that is county-by-county is how long you can collect alimony while looking for work. Half the length of the marriage is a rule of thumb."

How much alimony could she get on top of $33,672 per year in tax-free guideline child support? "She might get $5,000 per month," said Waggoner. "It depends on her expenses." If she planned the lawsuit a year or two in advance, couldn't she then position herself to get more alimony by developing a fancier lifestyle? "It wouldn't help to take fancy vacations," said Waggoner, "even with the family, but a bigger mortgage and other everyday expenses could be helpful. Judges aren't concerned with maintaining a pre-marital lifestyle [as they are in other states]. They just want to ensure that expenses are covered so nobody is on the welfare rolls."

In Metro Atlanta could she bolster her bid for sole custody by being aggressive about handling all child-related tasks, asking the husband to shop for groceries and maintain the house and yard? "Yes," answered Waggoner, "but she has to start at least a year prior to the lawsuit."

Can the father bolster his bid for 50/50 custody by cutting his work schedule back to four days per week, resulting in a drop in salary from $275,000 to $225,000? "Yes, but the court may order him to keep paying child support as though he still earned $275,000," said Waggoner. "And it helps if he changes his schedule to four days per week during the litigation. Then every day that the lawsuit drags out is on his side." What if she is designated the primary parent at a temporary hearing, which lawyers in other states tell us is the practical end of the custody fight? "Even if he fails to get 50/50 on a temporary basis that's not the kiss of death," says Waggoner. "The judge can still come back in and say 'he's done what he is supposed to do'."

What about property division? Does she get a larger share because her income is lower? "It still might be equal if she is getting a reasonable amount of alimony," says Waggoner.

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

"If you look at our law you would say that everybody is equal," said our Minnesota expert. "But if you look at reality you will find that [a plaintiff] mom is in control when a child is young. Mom is in a better position to be given time to be at home to be with the child as the primary parent. The view that moms are better parents is easier to support [in front of a judge] when a child is young."

Georgia seems to be similar, at least when the father has been a traditional breadwinner parent. "Her period of intensive infant care does not prejudice the father for 17 years but it does prejudice him during the initial litigation," said Waggoner. "He will have a tough case to get 50/50."

What kind of schedule would the child have with the father? "The schedule for an 8-month-old will be all over the board depending on the judge," said Waggoner. "Overnights for an 8-month-old is pushing it." [Note that "Social Science and Parenting Plans for Young Children: A Consensus Report," (Psychology, Public Policy, and Law 20:1, Warshak 2014, an endorsed by 110 additional academics and clinicians) says "There is no evidence to support postponing the introduction of regular and frequent involvement, including overnights, of both parents with their babies and toddlers."]

The mother would get $24,432 per year in tax-free child support based on the doctor's salary. How about this $2 million in savings? Can she make a California-style argument that a high interest rate should be imputed to the savings and that she should get child support and alimony based on that theoretical income? "No," said Waggoner. "It would be only the actual income that shows up on his 1040 [income tax return]." Thus, depending on prevailing interest rates (which in turn will depend on the inflation rate), the mother might get up to the top of the guidelines based on interest or dividend income, about $26,832 per year.

Will a judge supplement this with alimony so that the mother can maintain her stay-at-home lifestyle? "No," says Waggoner. "She needs to start looking for a job as soon as she sues for divorce because she may not get any alimony."

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

How often does Waggoner handle a case like this? "All the time," she responded. "I have several right now."

Does the father have a tougher case for custody because of the lack of a marriage? "He is prejudiced to a certain extent by not having lived with the baby but not as much as if he had chosen not to spend time with a child," said Waggoner. "A lot of times they will give him a chance to develop a relationship with the child."

As in Scenario 4, the mother would get $24,432 per year in tax-free child support based on the doctor's salary ($439,776 over 18 years). She can get this without hiring an attorney by going to the taxpayer-funded Office of Child Support Services. They will sue the doctor to establish paternity and get a support order in place.

Can she wait for 18 years and then collect support back to the child's birth? "No," says Waggoner. "She can go back only to the date of the petition." How about attorney's fees and medical expenses? "Yes on fees but no on the expenses of birth."

What if she marries a billionaire a few years later? "The doctor still has to pay the guideline amount."

What if the doctor already has a wife and six kids at home to support? "It is possible that a judge would deviate from the guidelines in that case, but not by formula."

Does she have any risk that the doctor will die and stop paying her? "No," says Waggoner. "He will be ordered to buy life insurance. And she could get child support from his estate."

Removal/Relocation

"We call it 'relocation'," says Waggoner. "If she has sole physical custody, she can move. Period." However, Waggoner notes that the legal status of "sole custody" is difficult to obtain even if the child sees the father only on a 2 night/14 schedule. "If she is the primary parent, as opposed to the sole custodian, she can't move without permission from a judge. A lot will depend on the dad. The judge would give a lot of weight to the dad's every other weekends as long as it is quality time. The outcome is hard to predict. These cases more than any other I have are ones that require pre-planning, especially if you're mom and can see it coming down the road. She needs to know what her chances are before she makes her decision. She needs to plan to be in the best possible school district. She needs to plan to make the change during a school break. "

Quirks

Georgia opens up a rich field of litigation whenever anyone self-employed is sued. The definition of "self-employment income" for child support calculation includes the following section:

Ordinary and reasonable expenses of self-employment or business operations necessary to produce income do not include:

(i) Excessive promotional, travel, vehicle, or personal living expenses, depreciation on equipment, or costs of operation of home offices; or

(ii) Amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court or the jury to be inappropriate for determining gross income.

In general, income and expenses from self-employment or operation of a business should be carefully reviewed by the court or the jury to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. Generally, this amount will differ from a determination of business income for tax purposes.

In other words, the litigants pay attorneys, and the taxpayers pay court personnel, to determine a "an appropriate level of gross income" that may have no relationship to the tax code. Georgia does not have a comparably detailed alternative code that judges can use and therefore they will make it up as they go along. A defendant whose business was equipment leasing might find it prudent to liquidate the business due to the fact that "depreciation on equipment" may not be deducted from income used to calculate child support and, potentially, alimony.

Georgia assigns different cash values to different children from the same parent. In figuring "adjusted income", amounts for preexisting child support orders are subtracted (see Georgia Code § 19-6-15). Thus the first person to sue gets the most cash and each subsequent plaintiff gets less. Unlike an extramarital child, a child of an intact marriage has no entitlement to cash, though, as noted in Scenario 5, a judge could deviate from the guidelines if a defendant has children at home to support.

As in most other states, Georgia provides financial incentives to have children with multiple co-parents. At the top of the guidelines, for example, three children with one co-parent can yield $723,600 over 18 years compared to three children with three different co-parents where the revenue is a tax-free $1.45 million.

Improving the Georgia System

We asked Waggoner what she would change to make the system in Georgia better for children and fairer to litigants.

Waggoner thinks that judges Georgia should be able to order a parent to pay for college tuition and also to continue to pay child support to former custodial parent while the adult child is in college. [Note that this is the system in place in Massachusetts; the loser parent will typically be ordered to pay 100 percent of college tuition, room, and board expenses while also continuing to pay child support to the winner parent until a child turns 23.]

To reduce the potential for judgments based on personal bias, rather than truly in the best interests of the child, Waggoner liked the idea of a Danish-style three-judge panel where custody and divorce decisions were being made. She also liked the Alaska-/Idaho-style system in which a litigant can simply ask (once, and early in the case) for a new judge to be assigned.

Waggoner thought that child support awards should be "more tailored to what it actually costs to rear a child." She thought that other states were on the right track with their caps on the maximum child support profit obtainable. "The potential for getting a substantial amount of child support is leading to litigation," says Waggoner. At the same time, Waggoner thought that at some income levels "Georgia's numbers are too low."

Like some other veteran practitioners we interviewed, Waggoner was skeptical of conventional litigation as the standard process for ending a marriage. "It's a legal solution to a psychological issue," she noted. "It just doesn't fit."

Summary

Georgia may effectively strip an infant of 18 years of significant involvement by one parent in a 60-minute "temporary" hearing that, as in other states, has results that tend to be permanent. Yet the same court system will lavish enormous amounts of time and effort on coming up with a number for a self-employed defendant's income that is higher than what was figured by accountants and the IRS.

Georgia is similar to other states in richly rewarding people who use the domestic abuse prevention system, even when allegations of abuse cannot ultimately be proved. Georgia rewards parents who generate conflict by blocking shared parenting awards. Georgia rewards spouses who secretly prepare in advance to sue the other (unaware) spouse.

More: read the rest of Real World Divorce: web edition | Kindle edition