Georgia Family Law Blog

5 things you need to put in your divorce settlement

Don't miss some of the less obvious things you need to include in your divorce settlement. Here are five things you need to consider:

1.Credit card debt. The division of credit card debt is usually outlined in the final divorce order, but make sure the account numbers are listed, so that if the credit card company duns you for payment, you can mail them a copy of your order that clearly states whose responsibility the debt is.

2.Car insurance. When your children turn 16, most insurance companies automatically increase your premium as much as $1,000 a year. So, if you're the custodial parent, make sure to add a provision that your ex will pay 50 percent of the extra costs.

3.Birthday parties, Christmas presents, clothes, camp and other nonessentials not covered by child support. Be sure to decide now if you'll split these, or if the child support is enough to cover these expenses.

4.Braces. Often considered cosmetic, braces may not be covered under medical expenses. If you have children, make sure to work this out before signing the final divorce papers.

5.College. Most courts consider college an elective and will not force a parent to pay for tuition. Work this out with your ex ahead of time and save yourself grief and money down the road.

SOURCE: www.Divorce360.com

Kansas: In-Court Acknowledgment of Divorce Settlement Becomes "Electronic Signature"

Here is a curious case. A divorce settlement calling for a transfer of real property is read into the record on the day set for trial. Both parties orally acknowledge the settlement in court, and the court's reporter duly transcribes their remarks. However, one party later refuses to sign the agreement. She claims, among other things, that enforcement of the settlement agreement would be unlawful because state law requires a writing to transfer real property.

The Kansas Court of Appeals recently entertained this argument and rejected it, remarking along the way  that an electronic signature was created in the trial judge's courtroom, thereby satisfying the state-law requirement of a writing for real property transactions.

The court said this was so because Kansas had adopted the Uniform Electronic Transactions Act. Under UETA -- with some exceptions that aren't relevant here -- qualifying digital records, sounds, symbols, you-name-it, will be treated as "writings" if a writing is required by state law. UETA, the court said, "probably" makes the electronically produced record of the divorce litigant's in-court statement the legal equivalent of a written signature:

The record does not disclose the type of equipment used by the court reporter, but it would be quite rare today for a court reporter's equipment not to at least require electricity. The UETA deems records generated by electronic means, including the use of electrical or digital magnetic capabilities, to be electronic records.

In order for a record to qualify as an electronic signature, a party must also adopt the record "with the intent to sign." The court doesn't make much of an effort to explain how the litigant in this case "adopted ... with the intent to sign" the court reporter's record of her remarks. Apparently, it was enough that the litigant uttered aloud her acknowledgment of the divorce settlement that had been recited in open court. "[A]ssuming that the court reporter's equipment was consistent with modern practice, it would appear that the electronic capture of Mieko's oral assent that this was the agreement would satisfy the statute of frauds."

The case is In re Marriage of Takusagawa, No. 95,508 (Kan. Ct.App. Sept. 7, 2007)

SOURCE FOR POST: E-Commerce and Tech Law Blog

NATION'S LEADING DIVORCE LAWYERS FINDING MORE CASES SETTLED BEFORE TRIAL

A majority of the respondents to a recent poll of American Academy of Matrimonial Lawyer (AAML) members cited an increase in divorce cases being settled before trial. 58% of the attorneys said that they have seen more cases being resolved without trial during the past five years.

A growing number of couples are having more success negotiating settlements with the assistance of their lawyers," said Gaetano "Guy" Ferro, president of the American Academyof Matrimonial Lawyers.  "Negotiated settlement gives the spouses more input into their divorce judgment than does letting a judge decide the issues.  It affords the opportunity for more creative resolutions which can minimize adverse tax consequences.  Settlement is almost always less stressful for the spouses than trial and, where there are children, makes it more likely that the parties will be able to effectively co-parent."

The number of attorneys who noted an increase in the number of divorces being resolved without a trial during the past five years was significantly greater than those who felt there were fewer negotiated settlements taking place.  Only 12% of the respondents reported fewer cases being settled before trial.

SOURCE: American Academy of Matrimonial Lawyers

Tips for Success at Your Settlement Conference

Many cases can get settled simply by getting the parties together to talk.  This type of informal meeting is called a "settlement conference."  The following steps can help you prepare for a settlement conference and improve the chances of its success:

1. Identify the issues in your case.
2. Understand how the law affects your case.
3. Know the estimated costs of trial.
4. Remain open to unique opportunities.
5. Keep a few secrets.   
6. Be determined.   
7. Be ready for a little give and take.
8. Be patient.
9. Get it in writing.

You can read much more about each of these steps by clicking here.

Source:  "Settlement Conference Success" by Helene Taylor, published at The Modern Woman's Divorce Guide.
SOURCE FOR POST: South Carolina Family Law Blog

Divorce Agreement Not Set Aside - Arnold v. Arnold

The Supreme Court affirmed the denial of the husband’s motion to set aside the parties’ settlement agreement in their divorce case after the trial court reviewed the agreement, found it to be within the bounds of the law and incorporated it into the final judgment. The Court held that the trial court did not abuse its discretion, since the husband voluntarily signed the agreement, no evidence showed misrepresentation or fraud and the wife’s non-compliance with a provision requiring her to pay a debt did not constitute repudiation of the agreement or otherwise divest the trial court’s discretion. The Husband challenged the agreement,contending that it disproportionately distributed his military retirement income and that child support had been incorrectly calculated.

The Georgia Supreme Court granted Husband’s application to appeal this divorce case pursuant to Court’s Domestic Relations Pilot Project. Arnold v. Arnold. The Court held that the Douglas County Superior Court did not abuse its discretion in denying Husband’s motion to set aside the parties’ settlement agreement prior to its being incorporated into the final judgment, where Husband had read and understood the agreement and signed it voluntarily and where there was no evidence that the agreement was obtained by fraudulent means. Justice Hugh Thompson wrote the unanimous opinion for the Court.

SOURCES: Supreme Court of Georgia and Fulton County Daily Report

Ruling on college tuition - Norris v. Norris

In Norris v. Norris, the Supreme Court of Georgia has reversed the ruling of a Chatham County Superior Court judge, dealing with the issue of a divorced parent’s obligation to pay college education expenses under a divorce settlement agreement incorporated into a final divorce decree.

In this case the Court found that "Husband’s obligation to pay his son’s college expenses arose solely from the settlement agreement between the parties that was incorporated into the final decree." Because the settlement agreement did not specify, however, "the time in which the child must complete his undergraduate education, the [trial] court determined an eleven semester limitation was ‘reasonable’ and terminated Husband’s obligation for any period of time thereafter." In reversing the trial court, the Supreme Court ruled that "while the parties could have placed a time limitation on Husband’s contractual obligation to pay college expenses, they did not do so, and it was error for the trial court to impose such a limitation."

In his special concurrence, Justice Melton argued that "the plain language of the final judgment and divorce decree at issue in this case creates two obligations for the Husband: one regarding tuition which is presently capable of calculation, and one obligation regarding non-tuition expenses which has no similar limitations," and that "neither obligation is ambiguous, and each should be enforced according to the terms of the agreement."

In her dissenting opinion, Chief Justice Sears argued that the majority misinterprets language in the settlement agreement when it finds that it "limits only the ‘rate of tuition for which Husband would be responsible,’ even though the parties clearly could have chosen to use the term ‘rate’ instead of ‘amount’ had they intended to create such a narrow limitation." As a result, in her view the settlement agreement’s "limiting clause is really no limitation at all, because as long as the ‘rate’ of tuition is no more expensive than that charged by the University of Georgia, Husband’s obligation is endless so long as the child chooses to attend college." Justice Thompson joined in this dissent.

SOURCE: Supreme Court of Georgia

Sleeping on her dormancy rights? Corvin v. Debter

In Corvin v. Debter, the was over a provision in the parties’ divorce decree that

Husband was to receive $22,000 as his share of the equity in the marital home when Wife either remarried, entered into a meritricious relationship or when the parties’ youngest child turned 18. The record showed that “Wife remarried in 1996, but did not pay Husband the $22,000.” Husband later filed for contempt, and the trial court “found that Wife was in contempt and ordered her to sell the home and pay Husband $22,000 from the proceeds.” Wife contended “that Husband could not recover because the judgment had become dormant pursuant to OCGA § 9-12-60 and that he had not attempted to revive it.”

In affirming the court below, the Supreme Court has ruled that “in her answer to Husband’s motion for contempt, Wife did not raise dormancy as a defense to her obligation to comply with the provisions of the divorce decree,” and that as a result she waived a defense based upon the statute of limitations.

SOURCE: Supreme Court of Georgia