Considering Divorce? Georgia Attorney Answers Questions About Alimony

[Music] hello everyone I'm Leslie roadie with asta lawyers.com and welcome to another episode of ask the lawyers we get questions from married couples here considering divorce and what some of the common questions include am I entitled to alimony or will I have to pay alimony to my spouse we've invited an expert to help us sort through these questions Kelly bires who / practices divorce in family law in the Greater Atlanta area she has offices in Atlanta and in Fayetteville Georgia she's the incoming chair of the family law section of the American Association for justice she is the chair of the Child Support Committee for the American Bar Association Kelly thank you for being with us today no problem thanks for having me let's talk about alimony there in Georgia what types of alimony are there well I think it's really great that you started by asking about the particular state because as it turns out across the nation the alimony rules are different depending on what state you're in so in particular here in Georgia um Allen there are two different types of alimony may have temporary alimony and permanent alimony um the names are actually a little deceiving because temporary alimony is designed to be awarded to parties during a divorce proceeding and permanent alimony is anything that happens subsequent to a final order so you know the names can be confusing because you might think that temporary alimony is just something that's for a short period of time or that permanent alimony is something that lasts long time or maybe permanent but that's actually not the case here in Georgia definitions may be a little different than you think thanks for clearing that up so what does a court look at what factors does a court consider when they're trying to decide whether to go with temporary or permanent alimony well it really comes down to the behavior of the parties in some states their schedules and caps even on the amount of alimony that you can get in a divorce here in Georgia the sky's the limit we look at the income of the parties you look at the corpus of the marriage or the asset and debts of the marriage you look at the ability of the pay or the potential payor to pay and then you look at the person who would be receiving the alimony and see well how much would they actually need in order to maintain the status quo if you were to look way way back into the beginning of alimony and how courts began awarding it you would notice that it really was intended to maintain the status quo when a marriage ends and so we still work towards that ideal when trying to craft a an agreement or asking the court for a judgment for Alan I've wondered about the length of the marriage does a person have to be married for say 5 10 years or is there a certain limit of the number of years that a person can be married before receiving alimony no actually not not here in Georgia at least in other states where there is a schedule as we talked about there might be length of time and then the assets of the family and then you know you sort of like triangulate that and come up with a number here in Georgia we don't have that several years ago I helped the lady who was only married for two weeks get a very sizable alimony payment when it comes down to is the actions of the parties comes down to the again the ability to pay and those factors but the length of the marriage why you would expect for it to have more impact it really doesn't I know you've been working there in Georgia for a number of years have you seen any changes to alimony in Georgia or across the nation well I mean everyone has across the nation so when the new tax law went into effect what we saw during 2018 is divorce attorneys across the country you know seeking to educate our clients about the implications of the new tax law and what changes they could expect after December of 2018 so under the old rules when someone paid alimony then that was a deductible event for them as a tax tax wise and then the recipient had to record that income is and that that alimony payment as income under the new tax rules is no longer a deductible event for the payor and the receiver does not have to report the alimony income is actually in time so that was a game-changer and I can tell you any divorce attorney across the nation can tell you what an impact the new tax law had on their on domestic practice I can see that any other trends that you're seeing there in terms of temporary maintenance and permanent maintenance well you know nobody ages for temporary maintenance or a permanent maintenance so again you know temporary here in Georgia means just an award of funds from you know one party to the other during the pendency of a divorce proceeding so you don't really see much change in that it's really based on you know the income of the parties and the ability to pay I think the real changes that we're seeing in practice and there's a lot of gray area right now is where it comes to how we structure alimony payments and settlement agreements whether we're encouraging parties to make a lump sum payment or whether we're encourage them to put funds in an IRA to transfer over to on the receiving party and all of that comes down to the tax implications there if there is a higher earning spouse who's making a payment to a low earning spouse then of course the tax considerations are more significant for the the party with more income and so what you're seeing right now is a lot of creativity in domestic practice when it comes to how we're advising our clients to handle those payments I've had friends go through divorce and she was at home with the kids for years and years she hadn't been in the workforce for a while tell us when you see that type of a case does that affect alimony in the end well I don't know if it affects alimony in the end I think that it's certainly on the table and it really is a fact sensitive inquiry as is most things in family law so you would look and see you know if that person walked into my office I would have several questions for them the first would be was their agreement in your marriage that you were to stay home and forgo having a an income driving profession in order to take care of children because I'm the first one to tell you that you know a lot of times at home mom's probably work harder than those of us that have 95 jobs and so sometimes in in relationships there may be a moneyed spouse or the spouse with the higher income who can make more money and there's an agreement that when the other spouse should stay home if in that instance that there has been an arrangement and certainly there should be some alimony because likely part of that agreement is the one who stay at home was foregoing their ability to earn in order to take care of children and so to maintain the status quo then you would expect that the moneyed spouse or the working spouse would make payments to the other spouse in the event of a separation or divorce whether she goes back to work or not well whether she goes back to working on you see a lot of that in couples where you know one has really helped the other one through an MBA program or through a you know a doctoral program or through law school or medical school and the idea is hey I'll stay home and take care of the kids while you go and you know sort of live your best life but if the agreement was well while I'm doing that my expectation is that you're going to take care of home and then the marriage breaks up well then obviously there's an expectation of them of the spouses staying home and taking care of children that there would be some support while they got back on their feet to support to make it so that they can earn on their own the idea generally for alimony is that you know you're maintaining the status quo as I've indicated but also to help the one who hasn't been working get to the point where they can support themselves so generally what I will often do in a lot of my orders is dictate for a period of time you know if one of the parents if one of the spouses is in school then the alimony will last you know during the period of time while this person is in school and maybe a little time afterwards to help them get through their program become you know self-sufficient and able to earn on there and then the expectation is alimony would go away they'd be able to earn on their own and everyone can live on I see what about fault Kelly like something like adultery or abuse or any other kind of fault how does that affect an alimony case well I mean the court looks at the behavior of the parties um so the first thing I tell people when they come into my office and they're asking about alimony is I make sure that they understand that the court is gonna look at the behavior of each parties it's not so much about who's filed for divorce but it's really what's the reason for the breakup of the marriage if the spouse who was the reason for the breakup of the marriage is now seeking alimony that's usually not a case that that's not a fact pattern that I would be supportive of it really works out a lot better when you have the person who is not the reason for the breakup of the marriage asking for alimony it's actually in the statute one of the things that the court can consider is who is the reason for the demise of the marriage you know it can and there are a couple of things that people need to understand if they are in sort of post divorce litigation or they're seeking to modify an alimony payment post divorce the first thing is you need to look at your settlement agreement and see whether or not you've waived your ability to modify one party or both parties can waive their ability to modify alimony payments and subsequent litigation so you need to check and see if you've done that and if you have not then you have the ability to go in and ask the court to modify but it's not you know a full-on sort of relitigate of your divorce proceedings it really is a narrowly tailored inquiry as to whether or not the alimony payments should change generally you see that when there's been one party who's making payments and then there's been a change in income a change in ability to earn or whatever the funds were that were used to determine the alimony that should be paid right because we talked about the the inquiry starting with whatever the purpose of the marriage is so let's say for instance you know many payments were based on the understanding that the husband was making $200,000 a year and they had a house here in Atlanta and one down on st. Simons Island let's say you know God forbid husband loses his job and tornado comes through or hurricane better comes through st. Simons Island wait wipes out the house so there's no income from that house anymore well provided that the husband assuming he's the payor has not waived his ability to modify then that would be a good case to go in and look at modification of alimony any other advice are thoughts that you have for people considering a divorce that have questions about alimony are very many people considering marriage who are thinking down the line no well I mean you certainly we're telling people now I say we family law attorneys are cautioning people to look at their prenuptial agreements to see what specifically it says about alimony because it's very likely if those documents were drafted prior to the tax rule then they contemplated the taxable events occurring right so you may need to go back in if you have a prenup that's been fine you may need to go in and change it to a postnup and adjust for the new tax situations that we have and then I would just encourage people that you know you should always speak with an attorney probably one or two before you decide on filing for divorce and really sort of look at the assets of the marriage to determine if that's something that's going to be available to you and I would assume it would be best to contact an attorney that you just specialize in family law like this oh absolutely I mean I am absolutely Kelly bires Hooper thank you so much for all of this information you've helped us understand this so much better oh no problem thanks for having me and thank you all for watching another episode of ask the lawyers we will remind you all to click on the icon on the bottom right hand corner of your screen so you can subscribe to our youtube channel and not miss any episodes of ask the lawyers i'm leslie roadie with the loggers com where you can choose a lawyer at loggers choose [Music] you you

Channel: AskTheLawyers™

Views: 2,847

Rating: 4.8461537 out of 5

Keywords: georgia, alimony, divorce, spousal support, maintenance, does adultery affect alimony, georgia alimony laws, stay at home mom, tax law, prenuptial agreement, postnuptial agreement, divorce lawyer, divorce attorney, changing alimony, modifying alimony

Id: 80jHYYdHPAE

Length: 13min 32sec (812 seconds)

Published: Wed Mar 13 2019