Number one is that the court is not interested in making you whole from all of the emotional damage that you have. A lot of times people will think that they’re going to go and tell the judge their story and they are going to recite every terrible thing that their spouse did to them and the judge is going to be so outraged that they’re going to be granted whatever they want, and it simply doesn’t work like that. Judges have heard every sad story that you can think of and typically they’re not interested in punishing people in a divorce setting.
We do have equitable division in Georgia, meaning that because the court can look at misconduct and factor that into its decision as to whether it should disproportionately award one spouse the assets or the debt. Generally speaking, it has to be pretty outrageous behavior.
I had a case once where a man who was a probation officer was having sex with his probationers which is incredibly inappropriate of him. He wound-up getting one woman pregnant while he was still married and the judge actually did punish him in that situation, and rightfully so.
It’s not unusual for a court even here in the Deep South to hear evidence about an affair in a divorce and make a determination that, “Yes, this affair probably did cause the breakdown of the marriage but I’m still going to divide the assets fifty-fifty because I just really don’t feel like punishing these people.” That’s where it’s really going to be up to the individual thoughts and biases of the judge you’re in front of. Although one other thing to keep in mind is that you can have a jury trial in Georgia,
Georgia is one of only two states in the country where you can have a jury trial in a divorce, and Texas is the other state. But without a doubt, that is the biggest misconception that people have is that the court is going to make them whole for their emotional suffering that they’ve had during the divorce and that’s just simply not the case the majority of the time.
How Are Marital Assets And Property Divided In A Divorce?
For assets in a divorce case, the standard is an equitable division of assets. This is determined by whatever the judge or a jury think is fair under the circumstances. It very well could be fifty-fifty, that is the most common type of division that a court is going to make, but it doesn’t have to be. It can be 70/30, 60/40, it could be 90/10 if you’ve got extremely bad behavior. So, it’s a very subjective standard, it’s whatever the trier court thinks is fair.
What Does Alimony Mean And How Is it Handled?
There is no automatic right to alimony like there is a right to child support. For example, a person who has custody of children cannot waive his or her right to child support because that right belongs to the children. So, what that means is the court will order child support in any case where there is a custody order and the person that doesn’t have custody is typically going to be ordered to pay child support.
Alimony is different because that is discretionary with the judge or the jury, so what criteria that trier of fact is going to need to look for is the incomes of both parties, let’s say as an example the wife who is working and she makes $50,000 a year and her husband makes $75,000 a year. That’s not a huge difference in income and even though the husband makes more, there’s probably not a big enough disparity in income for the court to order some kind of alimony.
So, the incomes of both parties and whether there is a big disparity there is one factor that the court looks at, the ability of either party to obtain work, certainly the skills and education of the party that’s seeking any alimony, the age, the court’s going to look at that. Length of marriage is very important. Anything under 10 years is considered a short-term marriage and it’s not easy to get alimony unless you have a spouse that has some kind of real health problems or something like that, and along with age of course. The health of both spouses is also a factor.
10 years and over is kind of considered the threshold in Georgia for being able to justify an alimony award. What does the person need it for? Do they need what’s called rehabilitative alimony where they need to go back to school to be able to obtain a marketable skill like nursing or business or something like that? That would also determine the length and duration of the alimony that the person is telling the court that they need this particular timeframe for alimony.
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