While the purpose of divorce law is clear, dissolving a marriage can be complicated. Finalizing a divorce is a lengthy process that follows an emotionally difficult decision, and disputes and delays are likely along the way. Unfortunately, there are also a lot of misconceptions about the proceedings, and these can complicate things further. Gaining insight into the most common misunderstandings will help you begin your next chapter on the right page.  

Divorce Law Misconceptions Many Georgians Have

1. The Same Attorney Can Represent Both Parties

One attorney cannot represent both husband and wife in a divorce proceeding. This would be a conflict of interest.   It is permissible for one party to hire an attorney to prepare a divorce petition and proposed agreement of all issues such as division of property, child custody, child support, and payment of debts, while the other party does not hire an attorney.  In that situation, the other party must understand that the lawyer who prepared the documents does not represent him or her – the lawyer can only represent one party to a divorce proceeding.  And while the document the lawyer presents to the unrepresented party may appear fair and appropriate, only an attorney who practices family law can advise a party whether an agreement contains all the provisions that a party may wish to cover.  

Bottom line:  Don’t count on your spouse’s lawyer to protect your interests.  If you have property or children or joint debts, it is best to have your own attorney examine any document you are asked to sign by another attorney.

2. Adultery Automatically Means Alimony and Child Custody Go to the Innocent Spouse

Discovering that your spouse has not been faithful can be painful.  Hurt can lead also to anger and a desire to punish the cheating spouse, and what better way to punish them than by taking away the children he or she loves or the money he or she earns?

 Not so fast! While adultery can be a factor in determining whether or not to grant alimony, the primary consideration is whether there is a need for alimony on the part of the person asking for it and an ability to pay on the part of the person from whom it is requested.  The first and most obvious place to find that is in a comparison of the spouses’ incomes.  When husbands and wives earn approximately the same income, it is difficult to show a need on the one hand or the ability on the other.  If the cheating spouse earns less than the true spouse, it is virtually impossible to show a need or ability unless the cheating spouse has considerable assets (land  or investments for example) at his or her disposal.  

Furthermore, custody of children between two parents is based solely on the best interests of the children.  While flagrant adultery can impact children, there may be countervailing reasons to nonetheless award the cheating parent custody (for example if the non-cheating parent is on drugs, has a job that takes them away from the home for days or weeks at a time, or is verbally or physically abusive to the children).  

Bottom line:  Don’t count on adultery to overcome the fact that your spouse does not have enough money to support you and don’t count on adultery to be the focus of a custody battle if you can not put forward positive reasons for custody to be awarded to you.

3. Joint Physical Custody Means “No Child Support”

Many people are under the impression that they do not have to pay child support if they have their children the same amount of time that their spouse has the children.  At first glance that seems fair, since it costs each parent the same amount of money to feed, house, and clothe the children, so why should one parent receive money from the other parent?  However, the only true scenario where joint physical custody mandates no child support is where parents earn exactly the same amount of income and spend exactly the same amount of money on health insurance and work-related child care for the children.  Rarely will this occur.  The Georgia Child Support Guidelines apply in cases of joint physical custody just as they do in other cases.  The non-custodial parent’s child support obligation will be calculated, regardless of the fact that the parties have the children an equal amount of time. The non-custodial parent is the parent who would have the greater support obligation even though the parties have the children for equal amounts of time.  That is usually -- but not always --  the higher earning spouse.  The Guidelines give the judge or jury the option of deviation from the presumptive child support amount to take into account the shared physical custody arrangements, but there is no specific dollar figure that is required, and it is not uncommon for a higher earning spouse to pay some amount of child support to a lower earning spouse even when they share physical custody.  If, in addition to shared physical custody, the non-custodial parent provides other support, such as paying for extra-curricular activities, or tutoring, or car insurance for a child, this may be enough to convince the Court to reduce the support obligation down to $0.00.  Judges scrutinize $0.00 child support agreements and have the power to refuse to sign off on them if they believe them to be against the best interests of the children.

Bottom Line:  If you share joint physical custody of the children and would owe support to your ex-spouse under the Guidelines, you will have to provide very good reasons to the Court for eliminating entirely your child support obligation, although you can probably expect to pay less than a parent who has the children on alternating weekends and holidays.

If you’re considering ending a marriage in Georgia, Nina M. Svoren can answer your questions on divorce law as it pertains to your situation. At NMS Law Firm in Toccoa, GA, this family attorney helps clients navigate complicated legal proceedings and resolve even the most contentious disputes, including those involving child custody, child support, and alimony. To schedule an initial consultation, contact her on her website or call (706) 282-4696.