Basic Q&A...for divorce

Embrace the power of your own self-advocacy. In an effort to encourage this, we provide these FAQs to the most commonly-asked questions we receive instead of charging each client for this basic information. We do what we do because we aspire to be true advocates. We want you to be able to benefit from our experience on these basics whenever (and as often as) you would like.

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What should I bring to my first meeting with you?

For our initial meeting, it is helpful to bring essential documents that provide an overview of your situation. Bring any legal documents related to your marriage, such as prenuptial or separation agreements, if applicable. Financial records, including tax returns, bank and brokerage statements, and information about assets and liabilities will assist us in assessing your financial landscape. We also need to review the bylaws or operating agreements for each business in which you are an owner, as well as shareholder and employment agreements to which you are a party. Finally, write down your list of questions for us. You'll have plenty, and that's great. That's why you are retaining us - to answer those questions.

How can I protect my business interests and other assets during and after my divorce?

Protecting your business interests and other asset in a divorce requires strategic planning and execution at every step. Shareholder freezeouts or oppression are common in divorces where family-held businesses are at the core, which means your divorce attorney must be comfortable with those and other business issues. In addition, the level of gamesmanship in divorces involving valuation of a closely-held business or significant assets is ridiculous. Having a financial expert perform a proper valuation can yield tremendous value. Finally, maintaining (or obtaining) meticulous business records is not a nicety - it is a must.

What does the divorce process look like?

At our firm we only handle contentious divorces (as opposed to uncontested divorces), so we will focus here on that type of case. Divorce starts with the filing of a complaint in the circuit court stating the grounds for divorce and the things the filing party wants (custody, assets, etc.). The other party files an answer within thirty days. The court then holds a pendente lite hearing, which is where the judge issues orders regarding child custody and visitation, asset retention, how bank accounts are to be handled and bills are to be paid...basically, how life will proceed until the divorce is finalized. After the pendente lite hearing, the parties engage in the discovery process, which is where each party submits discovery requests to the other party. Discovery requests include requests for admissions, interrogatories, requests for production, and subpoenas to third-parties like financial institutions, phone and social media companies, medical providers, schools, and employers. Once responses to those discovery requests are obtained, the next stage consists of taking depositions of each party as well as relevant third-parties. When depositions are completed, the parties are ready for trial. Numerous motions are typically filed throughout the entire process, like restraining, protective, modification, and exclusive use of residency motions.

How are assets divided in divorce?

In Alabama and Georgia, the division of assets follows the principle of equitable distribution. This means assets are divided equitably ("fairly" according to the judge), but not necessarily equally. Factors influencing the division of assets include each spouse's financial contributions to the marriage, their respective earning capacity, the length of the marriage, child custody, and the economic circumstances of each party. Marital property (property acquired during the marriage) is typically split 50/50, though there are often arguments available to one party that could persuade a judge to alter that division. Separate property (property owned prior to the marriage or acquired during the marriage via inheritance or gift) may be excluded from the 50/50 split of "marital property" and retained by the spouse who received that property. The process of asset division requires identifying and valuing all assets subject to division. Debts are also considered in the division process. As you can imagine, hiding and dissipation (wasting) of assets is something we see quite a bit. We deploy aggressive tactics to attempt to uncover and recover those assets, including off-shore assets and crypto or blockchain assets like bitcoin.

How is child custody determined?

Initial child custody determinations in Alabama and Georgia consider the best interests of the child. This standard prioritizes factors like each parent's ability to provide a stable home, the child's relationship with each parent, and the physical and mental well-being of all parties involved. Courts may consider the child's preference if they are deemed sufficiently mature. Though the term "joint custody" is thrown around as if everyone understands what that means, few actually understand the ramifications of that custody arrangement. Joint custody has two elements that must be addressed - legal custody and physical custody. More about that later. Once initial custody has been established, there is a different standard used to determine whether that initial custody should be changed. The burden that must be met when seeking a change in custody is known as the "McClendon Standard." In a nutshell, this means (i) a change of custody is only warranted when a material change has occurred since the original award of custody, and (ii) the positive good brought about by the proposed change in custody more than offsets the disruptive effect of uprooting the child.

What about child support? Alimony?

Child Support:

In both Alabama and Georgia, child support is determined based on statutorily-prescribed guidelines that consider factors like each parent's income, the number of children, and any special needs of the children. Courts try very hard to ensure the financial well-being of the child. Deviations from the statutory guidelines may be appropriate in certain circumstances.

Alimony:

The award of alimony, or spousal support, varies and is influenced by factors like the duration of the marriage, financial and other contributions of each spouse during the marriage, and the receiving spouse's financial needs. Courts may also consider the standard of living during the marriage and the ability of the paying spouse to provide support. Temporary, rehabilitative, or permanent alimony may be awarded depending on the unique circumstances of each case. Among the many issues to be aware of: different types of alimony carry different implications for taxes as well as estate planning. Make sure you consult with an attorney or firm experienced in each of these areas and how these areas intersect.