Alternative Dispute Resolution in Divorce

Mediation or arbitration?

Sometimes a Georgia divorce case just can’t be settled by the parties. This happens for a variety of reasons. One spouse is too angry over infidelity or other marital misconduct. One wants more money for child support or alimony than the other is willing to pay. Or the spouses just don’t get along, which is often the case in divorce.

Judges settle cases every day but divorcing couples and others involved in legal disputes have two other options. Mediation and arbitration are often confused and thought of as the same procedure. But the two methods of settling Georgia divorces outside of the courtroom are different.

Mediation

Mediation involves a neutral third party who sits down with the two sides and perhaps their attorneys to settle outstanding issues. In Georgia, mediators do not have to be attorneys although some attorneys offer mediation services. Some couples try a mediator first before filing for divorce. In contested cases courts will order a couple to seek mediation before a final hearing can be set.

Tips for successful mediation

  • Bring any documents including tax returns, financial accounts including credit card debt and savings, school records if there are children and appraisal of any valuables you share. Basically, if you think there will be a dispute, bring any documents to support your claim.
  • You probably have a lot to say, especially if you did not want the divorce. By listening to your soon-to-be former spouse, you may learn what lead to the marital break-up (if there was no violence or infidelity).
  • Be concise. Rambling on about an incident that happened a decade ago is just wasting time. Stick to the issues on the table.
  • Be open-minded. No one wins in a divorce. Each spouse gives up something—assets, time with the kids, security. Understand you must compromise. If you don’t, a judge—likely a total stranger—will divide up the life you once shared with your spouse.

Remember, the mediator will not be making the decision for you or your former spouse. He or she will be guiding you to a resolution decided by both of you.

Mediation is non-binding in Georgia. The judge must agree to the agreement decided between the two parties and make an official part of the court record.

Mediation is more commonly used than arbitration in divorce cases.

Arbitration

Unlike mediation, arbitration is decided by one person or a panel. The rules resemble a mini-trial where both sides present their evidence. Arbitration allows soon-to-be ex-spouses to have their case decided by a third party without a public trial.

Spouses do not negotiate with each other during the proceedings and usually are represented by their attorneys. Again, the decision is non-binding. Either party can decide not to accept the arbitrator’s decision and go to trial.

Why are alternative dispute resolutions popular?

Couples seek mediation or arbitration for many reasons. Often the deciding factor is money. While a mediator does require a fee, couples pay less than they would in court cost and attorney’s fees if the case is decided in court. Court calendars, especially in small circuits, are often crowded. Mediation or arbitration can save time by agreeing to a resolution out of court. And finally, many families want to keep their “dirty laundry” from being aired in a public courtroom.

You can find out more about mediation and arbitration for your Georgia divorce here.

 

 

 

Co-Parenting

Jane and John are in the middle of a bitter divorce and custody. While they would rather not be in the same room with each other, the soon-to-be former couple are still co-parents of their two young children. Custody disputes in Georgia divorces require a parenting plan. Ideally, this plan will be worked out between the parents and includes several factors.

Scheduling

Before a schedule is made, the decision of custody will have to be decided. If parents cannot agree, a judge will decide. The arrangements can include:

  • Joint legal custody. Both parents are responsible for the child’s well-being. This includes decisions on health care, religion and education. Joint legal custody can include an agreement about physical custody. Parents can agree that the child will spend equal time with each parent.
  • Sole custody: One parent will have the right to make all the decisions about the child and the child will reside with the parent. Visitation rights are given to the noncustodial parent. Information about the child’s school, extracurricular activities and religious activities could also be limited.

Once custody is decided, the challenge is to create a schedule for vacations, holidays and weekends. This can be one of the most acrimonious parts of the plan, especially if both parents are fighting for certain holidays.

Exchanging custody

Some parents are fine with dropping off the child at their former spouse’s residence. But parents who are bitter or angry may have a difficult time seeing their former partner. In this situation, custody exchanges should happen in a public place. Many law enforcement agencies and social service organizations have designated safe places for custody exchanges.

Supervised visitation

A judge may order supervised visitation in some situations that include:

  • A history of domestic violence against the spouse or the children
  • A history of drug use
  • A history of mental instability
  • A criminal history

If supervised visitation is needed, several issues will have to be decided.

  • Who will supervise? Sometimes a judge will allow a family member or friend to oversee the visitation. If no one is acceptable to the court, many social services agencies have staff that provide court-ordered supervision.
  • How often will the visitation occur? This will be decided by several factors. If the parent is undergoing drug treatment or is incarcerated, visitation may be denied or limited until the parent is released. Some social service agencies have rooms set up for supervised visitation.

Contact with the child

Technology enables non-custodial parents to have multiple ways to have contact with their children. FaceTime, Skype, email and the old-fashioned phone call can help the parent and child keep in touch. Some custodial parents are okay with allowing the other parent to have unlimited contact. In some cases, phone calls and other contact may be scheduled.

How is a parenting plan decided?

Ideally, parents will be able to sit down and work out a plan that is in the best interest of the child. But sometimes the parents cannot agree on holidays, visitation and decisions. Parents have three options if they cannot reach an agreement.

  • Mediation involves a neutral third party who sits down with the parents to help them negotiate the parenting plan. Decisions made in mediation are not binding.
  • Arbitration involves a neutral third party who not only helps them negotiate, but who settles the disputes in the parenting plan. The decisions are binding if the judge approves.
  • If all else fails, a judge will make the final decision on the parenting plan.

Divorce is never the child’s fault. A parenting plan should focus on the child’s best interest, which is to have a stable, loving relationship with both parents.

Why do we co-parent?

Well the answer is never simple but as one parent put it:

“Co-parenting. Some say it’s so hard, but for us, we just make the best of it. Like spending two hours at the ball field on Sunday so your dad and step dad can help you with hitting. People always say ‘I don’t know how y’all do it. Y’all co-parent so well!’ My question is, how do you not do it?? We do it because of one word. B. We all 4 put him first. I mean, is that not what parents do? Once you have a kid, their best interest should always be your number one priority. We all 4 love him and we all 4 understand that our relationship with one another affects him directly. It’s not always easy and sometimes we disagree, but I would not have it any other way. I’m so thankful that he has a step mom and step dad that love him just as much as his mommy and daddy do. He’s one lucky little dude & we are pretty lucky ourselves.”

C.O.

Handling Your Loved One’s Affairs

Grief is a draining, gut-wrenching but natural process after a loved one dies. A sad fact of life is that
after someone dies, their affairs need to be settled. While you are reeling, you also need to start
thinking about taking care of the estate, even if a person only left bills and no property. So, while you
are grieving, how do you handle the process of settling your loved ones’ affairs?

The process gets more complicated if the person died without a will. When a will is written, someone
is named a personal representative, also known as the executor. This can be a sticky situation if the
deceased person has no children or surviving spouse and it can get contentious if the person had
several children and perhaps other relatives all wanting to be in charge.

Whether the death was expected or sudden, you will need time to grieve and adjust to your “new
normal.” Unless the deceased was on Social Security, most bills can wait. If the person was
collecting Social Security, you are required to notify the administration within a month. Continuing to
collect the checks knowing the beneficiary is deceased is fraud.

Another task that must be done as soon as possible is making a list of the decedent’s property. This
includes everything. You will be surprised what can be at the center of a fight between friends and
family members and it’s just not large items like a house or car. Cheap items can have sentimental
value and could be wanted by several people. Of course, if the decedent has a will this task is much
easier.

Very few people are experts at handling estates. That’s why you need a probate attorney to help
you. You can allow yourself some time to grieve before making this important step. Make sure you
have gathered the property list, any outstanding bills, tax information and any other financial
information that is needed. Once the attorney has all the information, you can begin settling the
estate. Here are some of the steps you and your attorney will take.

  • Filing the will or petition in probate court. If no personal representative was named in a will,
    this will be done as well so that person can be approved by the court.
  • You will organize the assets and the debts. The list of what your loved one owned will be
    called inventory when it is filed with the court. The bills and other expenses will be paid from
    one account so you can keep track of what is spent.
  • The personal representative is responsible for handling not only the bills, but the taxes. The
    good news for Georgia residents is there is no estate tax. The personal representative is also
    responsible for the last income tax return. You can apply for an extension from the IRS if you
    need time to gather the necessary documents.
  • The personal representative is not only responsible for the bills, taxes and other expenses,
    he or she will also distribute the assets to the heirs. This cannot be done until all the creditors
    have been paid.
  • Once the bills have been paid and the assets are distributed, a final report must be filed with
    the court. The court must approve the report.

Settling an estate usually takes several months and can go on more than a year. One way to simplify
the process is to make sure you and your loved ones have a will and keep excellent records of your
finances. Hiring a probate attorney to handle a will is less expensive than having the attorney handle
the case after a person dies without a will.

Why a Probate Attorney?

Georgia probate attorneys deal with subjects that we don’t really like to think about but death and taxes are inevitable. The good news a bill passed by the Georgia Legislature eliminated the estate tax. And you only need to worry about a federal estate tax if you are going to inherit more than $5 million.

But when a loved one dies you have other legal issues besides taxes. Probate attorneys help clients sort through the legal issues. Here are just a few of the issues Georgia probate lawyers handle:

  • A Georgia probate attorney helps determine the assets of the deceased. Even if a person doesn’t own a home or a vehicle, he or she likely had something of value in their possession. While some assets are not relevant to probate, some are. A probate attorney helps locate and secure the assets.
  • When property is involved, a probate attorney handles the appraisals. This is important whether or not the person died with a will or without a will. A current appraisal is needed to determine the value for probate. If the property is to be sold, the probate attorney may oversee the sale.
  • Before a loved one dies, many people probably don’t know where the probate court is in their county, much less how it works. This could lead to miss deadlines for filings and once the case is filed, missed court hearings. The probate attorney keeps you up to date on when and where you need to be.
  • No matter what kind of court case you have, there is always a lot of paperwork. Many people google an online legal site and fill out paperwork there and think they are done. Often these sites do not take into account the different requirements of each state or the preferences of local courts. A probate attorney will make sure the paperwork is filled out property for your court.

Just because someone passes away, that doesn’t mean their financial obligations do. This is where a Georgia probate attorney is very helpful. They can help you:

  • Communicate with the life insurance companies so that you can pay for final expenses such as the funeral or hospital bills.
  • Handle any retirement accounts. Theses could be rolled over or transferred to a survivor.
  • Advise on how to pay the final bills of the deceased and help with the checking account.
  • While there are no estate taxes in Georgia, any income that the deceased person made could be subject to income taxes.
  • Setup, and eventually close, an estate account, and the associated Federal Tax ID Number, for the deceased person’s estate.

A probate attorney works with what the courts call the executor of the estate, also known as the personal representative.  If the deceased person had a will, the executor may have been determined in the will.

Without a will, determining the personal representative can be controversial. For example, if a parent dies suddenly without a will, the surviving children may argue over who will handle the estate. When a person has no children or surviving spouse and dies without a will, it may be difficult to find a relative or friend to handle the estate. In some extreme cases, the court may appoint the County Administrator to handle the estate if the family members cannot come to an agreement, this is a step that will cost the family.

Many of the above issues happen when a person dies in what is described as intestate—without a will. Working with a Georgia probate attorney to plan your estate will make it easier for you loved ones when you die. Again, you can find many websites and even books in the library that contain sample wills. Before you complete a will online on your own, ask yourself these questions:

  1. Am I familiar with my local probate court and its rules? Remember, these issues are handled through the Georgia probate court. While you are only handling one case, a probate attorney has likely handled hundreds of cases and is very familiar with the court and its staff.
  2. Have I included all my assets? Some assets are a given—a house, car, or vacation home. But some family members may squabble over collectibles or a treasured heirloom. While some relatives may not be happy with the terms of your will, in most cases your wishes will be honored and squabbling will be reduced.
  3. Have I secured the will in a place where it can be found when I die? A 90s movie “Daddy’s Dying, Who’s Got the Will?” is a comedy but it raises a serious question. If you complete a will, make sure it is in a place and that surviving family members know where it is.

If you don’t have a will, what are you waiting for? Even if you don’t have a multi-million dollar estate, you likely have assets and sadly, financial obligations that will need to be handled after your death. Working with a probate attorney will assure you and your loved ones that your matters are being handled properly.