Fall 2009 - Atlanta - Divorce Lawyer - Family Law - Atlanta Georgia

Case Law Updateby Vic Valmusvpvalmus@mijs.comALIMONYSprouse v. Sprouse, S09F0709 (June 1, 2009)The parties entered a common lawmarriage in Alabama in 1996. That marriagewas terminated in 2001 by decree of divorcein an Alabama court. Shortly thereafter,the parties resumed cohabitation and at awedding ceremony, they married on March5, 2005. The husband brought a divorceaction on Jan. 2, 2007. After a bench trial, thetrial court entered a final decree which inrelevant part, awarded alimony to the wifein the amount of $1,000 per month for sixmonths or until she began receiving socialsecurity benefits, whichever first occurs, atwhich time alimony would decrease to $500per month for twelve and one-half years.The husband appeals and the SupremeCourt affirms.The husband argued that the trial courtdid not thoroughly examine all of therelevant statutory factors in determiningalimony pursuant to O.C.G.A. § 19-6-5(a). With respect to alimony, there is nostatutory requirement that findings beincluded in the decree. However, afterreview, the transcript shows that there weremany questions and comments by the trialcourt which tends to indicate that the courtconsidered many of the statutory factorssuch as the wife’s need, the husband’s abilityto pay and so forth.The husband also contends that the trialcourt abused its discretion by considering thelength of the time the parties lived togetherin a meretricious relationship prior to theirmarriage in 2005. O.C.G.A. § 19-6-5(a) alsostates that the court can consider suchother relevant factors that the court deemsequitable and proper. Therefore, the SupremeCourt saw no reason why that discretionnecessarily excludes considering the lengthof the parties premarital cohabitation.Therefore, the court held that the “catch-allphrase” as set out in O.C.G.A. § 19-6-5(a)(8)provides the trial court with the discretion toconsider the parties’ entire relationship. Thisincludes periods of premarital cohabitationand no one factor is dispositive.ALIMONYCrosby v. Lebert, S09A0061 (April 28, 2009)The parties were divorced in Dec. of 2005,and their final decree incorporated termsand conditions of a settlement agreement.Pursuant to the agreement, the wife wasto receive, among other things, a CadillacEscalade. The husband was required tomake monthly installment payments on theautomobile and transfer title of the car to thewife once the car was paid off. The settlementagreement specifically stated that the husbandshall make these payments in the form ofpermanent periodic alimony. The husbandwas also required by the agreement to pay for18 months of health insurance for the wife.These insurance payments would also bemade in the form of periodic alimony. The wiferemarried in April of2006 and in July 2006,the husband notifiedthe wife that she wouldbe responsible for theremaining payments onthe automobile and hispayments on the healthinsurance would cease.The husband fileddeclaratory action andmoved for summaryjudgment, arguing hisobligation to makeperiodic alimonypayments under thesettlement agreementceased upon thewife’s remarriage. Thetrial court grantedsummary judgmentto the husband. Thewife appeals and theSupreme Court affirms.Under O.C.G.A.§ 19-6-5(b), allobligations for periodicalimony, howevercreated, for which atime for performancehas not arrived,6Fall 2009

shall terminate upon remarriage of a party to whom theobligations are owed unless otherwise provided. The wifecontends that the automobile is included in the settlementagreement as equitable division of property and notperiodic alimony. However, the automobile paymentshere are clearly defined in the settlement agreement aspermanent periodic alimony. To interpret the agreementhere as providing for only a property settlement instead ofpermanent periodic alimony failed to give full effect to allof the language included by the parties in the settlementagreement. Therefore, the trial court was correct in grantingsummary judgment to the husband. In addition, the wifemakes no argument to appeal or contest the husband’srefusal to make payments for her health insurance.ALIMONYPatel v. Patel, S09F0505 (May 4, 2009)The parties filed for divorce after 22 years of marriage.Following a bench trial, the trial court awarded to the wifealimony in the amount of $5,000 for the first year, $4,000 forthe following two years and $3,000 for one final year. Thewife appeals and the Supreme Court affirms.The wife contends that the trial court failed to properlyconsider the factors set forth in O.C.G.A. § 19-6-5(a). Here,there was evidence to support the trial court’s findingbased upon wife’s ability to work, the wife’s need foralimony and the husband’s ability to pay. Furthermore, thiscourt will uphold the trial court’s finding unless clearlyerroneous, which is the same as the “any evidence” rule.The wife also argues that the reduction of alimony afterthe first and third years constituted an improper futuremodification which would not be based on a change ofcircumstance as required by O.C.G.A. § 19-6-19. However,because the alimony provisions set forth in the trial court’sorder state the exact amount of each payment and the exactnumber of payments to be made without other limitations,conditions, or statements of intent, the obligations is onefor lump sum alimony payable in installments. Therefore,O.C.G.A. § 19-6-19 does not apply and it is in the trialcourt’s discretion to establish an installment paymentschedule for such a lump sum award. In addition, thefactors established in O.C.G.A. § 19-6-5(a) are relevant for adetermination of permanent alimony, whether periodic orlump sum.ATTORNEY CLIENT PRIVLEDGEBrown v. State of Georgia, A09A0295 (June 25, 2009)The parties were in the middle of a contested divorcecase when the husband (Brown) tookhis son and fled to Mexico. He wasapprehended and returned to Georgiaa month later. While being held in jailprior to his arraignment, the husbandasked to speak to his former attorney.He asked his attorney if everythinghe said was confidential and shereplied “yes”. The husband then toldthe attorney that when this is over, heis going to kill his wife, he is goingto kill her mother and then he wasgoing to kill himself. The husband’smother had also given to his attorneya letter that he had sent to her, which,among other things, had wrote acrossthe bottom “kill, kill, I kill, I kill,” andother obscenities. The husband alsosent his attorney a letter complainingabout her defense of him, including thestatement: “never is a man more freethan one with nothing to lose. I will beback and crime: loving my son.”The husband’s attorney becameconcerned after the husband wasreleased from his short stay in jailabout the husband’s possible futureconduct and contacted the State Barfor advice. After being instructed bythe State Bar, the husband’s attorneyreported Brown’s statements to theThe Family Law Review 7Fall 2009

produced. In its Oct. 15, 2008, written order, the trial courtconcluded that the child resided in Georgia from October2007, until at least May 1, 2008, thus Georgia was the homestate of the child within 6 months of the commencement ofthis action pursuant to the UCCJEA. The father appeals andthe Court of Appeals affirms.Georgia adopted the UCCJEA in 2001 and pursuant toO.C.G.A. § 19-6-61(a), a court of this state has jurisdictionto make an initial trial custody determination only if: (1)the state is the home state of the child from the date of thecommencement of the proceeding or was the home stateof the child within 6 months before the commencement ofthe proceedings and the child is absent from the state buta parent or person acting as parent continues to live in thestate. Here, the child moved to Georgia with the parties inOctober 2007. Assuming for the sake of argument that thechild moved to South Carolina and began staying therewith the father for 4 days a week, that did not occur untilMay 1, 2008. The mother filed for divorce and custodypetition on Sept. 15, 2008, thus, the child did not live ineither South Carolina or Georgia for six consecutive monthsimmediately before the date the mother filed her petition.However, Georgia was the child’s home state within sixmonths before the commencement of the proceeding andat the time the mother filed her petition, the child wasabsent from Georgia while the mother continued to live inGeorgia. Therefore, to UCCJEA conferred jurisdiction onthe trial court.The father also argues that the trial court erred in failingto confer with the Trial Court in South Carolina beforeit exercised jurisdiction pursuant to O.C.G.A. § 19-9-66.However, the South Carolina court did not have jurisdictionsubstantially in accordance with this article and therefore,there was no requirement that the trial court here conferwith the trial court in South Carolina.The father also argued that the trial court improperlyordered him to be held in the custody of the Sheriff untilthe child was brought to the court house. The father doesnot cite a case to support this argument and simply arguesthat absent a finding of contempt, the trial court had nosuch arrest powers. However, pretermitting the trial courtexceeded its authority in requiring that the father be heldin the court house until the child was produced, he didno object to the ruling at the hearing. No matter howerroneous a ruling of the trial court might be, litigantscannot submit to a ruling or acquiesce in the holdingand then complain of the same on appeal. Therefore, theincident claim of error was waived.UCCJEA/EMERGENCY JURISDICTIONTaylor v. Curl, A09A0749 (May 19, 2009)The parties were divorced in 2007 in the SuperiorCourt of Jackson County. The court granted custody of thechildren to Taylor (mother). After the divorce, the mothermoved with the children to Florida and the father movedto Walker County. On Jan. 28, 2008, the father filed apetition in the Superior Court of Walker County requestingtemporary and emergency custody of his two children.The trial court found the children had been subject to and/or threatened with mistreatment or abuse and grantedtemporary custody to the father. The mother appeals,claiming Walker County lacked both personal and subjectmatter jurisdiction to issue a temporary order. The Court ofAppeals affirms.The father asserts that the mother may not appeal atemporary order of the court without complying with bothinterlocutory appeal procedures pursuant to O.C.G.A.§ 5-6-34(b) and the discretionary appeal procedures ofO.C.G.A. § 5-6-35. In 2007, the Legislature amendedO.C.G.A. § 5-6-34 to provide that all modifications of childcustody orders filed on or after Jan. 1, 2008, are directlyappealable and are no longer subject to the interlocutoryappeal procedures. In addition, this court recently heldthat the general assembly’s amendment to O.C.G.A. § 5-6-34 also makes it unnecessary for the applicants in childcustody cases to comply with the discretionary appealprocedures set out in O.C.G.A. § 5-6-35(a)(2). Therefore,the mother was not required to comply with either theinterlocutory or the discretionary appeal procedures.The UCCJEA’s basic purpose is to prevent a noncustodialparent from seeking to modify custody determinations inhis or her home jurisdiction without regard to where thechild of the custodial parent has the closest connections.However, there is one exception to this general rule whichis found in O.C.G.A. § 19-9-64. Pursuant to this section,the state has temporary emergency jurisdiction to make achild custody determination if the child is present in thestate and it is necessary in an emergency to protect thechild. However, the order must specify the period thatthe court considers adequate to allow the person seekingthe temporary order to obtain an order from the courtmaintaining continuous jurisdiction over the custody of thechild. Here, the order provided that the father shall have90 days to obtain an order from the other forum that mayhave jurisdiction in this case, which would have been theSuperior Court of Jackson County. Therefore, the trial courtwas correct in finding that Walker County Court properlyasserted temporary emergency jurisdiction, as the courtfound that the children had been subject to and threatenedwith mistreatment and that the children were in WalkerCounty visiting the father, which are the only requirementsto assert temporary emergency jurisdiction.VALID MARRIAGEBeard v. Beard, S09A0501 (June 15, 2009)The parties were married in 1992 and the husbandfiled for divorce on Jan. 17, 1996. The court signed a finaljudgment and decree of divorce, however, the order wasnot filed in the clerk’s office until March 19, 2003. On Feb.26, 1996, after the divorce decree was signed but before itThe Family Law Review 13Fall 2009

was filed, the couples engaged in a wedding ceremony. Thewife filed a verified complaint for divorce on Feb. 13, 2008,stating that the parties were married on July 3, 1992. Thehusband answered the complaint that the 1992 marriagehad been dissolved and the complaint should be dismissed.The wife amended her complaint to allege that the couplewas married on Feb. 26, 1996. The trial court enteredan order denying the husband’s motion to dismiss andawarded the wife temporary alimony. The husband appealsand the Supreme Court reverses.The 1992 marriage was dissolved by the 2003 orderof divorce and no valid marriage could be entered intoin 1996. Under O.C.G.A. § 9-11-58(b), the civil judgmentmust not only be signed by a judge, but must also be filedwith the clerk and, unless the court otherwise directs,no judgment shall be effective for any purposes until theentry of the same. Here, the trial court did not otherwisedirect and there is no statement that the order grantingdivorce was to be entered nunc pro tunc. Therefore, itwas not until March 19, 2003, when the decree was filedin the clerk’s office that the divorce decree became a finaland effective judgment. Therefore, the motion to dismissshould have been granted because there was no existingmarriage that could be subject to the divorce action.VISITATION AND DIVORCE/INTEREST RATEMongerson v. Mongerson, S09F0132 (June 15, 2009)The parties were married in 1986 and were divorcedby a Final Judgment and Decree of Divorce filed on Oct.1, 2007. The Final Judgment, among other things, orderedcustody of the couple’s three minor children to the wife,gave limited visitation to the husband and prohibitedhim from exposing the children to his sexual partners andfriends. The decree further required the father to maintaina life insurance policy on his life with the children to benamed as beneficiaries, monthly alimony to the wife foras long as she was enrolled in the educational system andearning passing grades in a program to obtain a collegedegree and to pay the wife’s attorney’s fees of $8,800 withthe option of paying $200 per month with the awardaccruing interest at a rate of 11.25 percent per annum. Thehusband appeals and the Supreme Court affirms in partand reverses in part.The trial court required the husband to maintain alife insurance policy on his own life with the childrenof the marriage named as equal beneficiaries. However,at the time the Final Decree was entered, one child hadreached majority and there was no evidence of specificand unambiguous language that reflected a voluntaryobligation on the part of the husband, and therefore, thisobligation exceeded his legal duty.The husband also claims that the trial court erred inprohibiting the husband from exposing the children to hishomosexual partners and friends. There is no evidencein the record before the court that any member of theexcluded community has engaged in inappropriateconduct in the presence of the children or that the childrenwould be adversely affected by exposure to any member ofthat community. Prohibition against contact with any gayor lesbian person acquainted with the husband assumes,without evidentiary support, that the children will sufferharm from such contact. Such an arbitrary classificationbased on sexual orientation flies in the face of our publicpolicy that encourages divorced parents to participatein the raising of their children. Therefore, the trial courtabused its discretion when it imposed such a restrictionon the husband’s visitation rights and that part of the FinalJudgment is vacated.The husband also makes issue of the Final Judgmentgiving the wife a right of first refusal that requires thehusband to notify the wife when he plans to leave thechildren in the care of a third party and ordered that thewife can decide whether she shall provide care for thechildren in that instance. The husband complains that theparties did not agree on such a provision, however, thejudgment issued by the trial court and the divorce actionis not limited only to the matters upon which the partieshave agreed, therefore, the trial court was in its discretionto include that provision in the Final Judgment.In regards to the attorney’s fees, the Final Judgmentand Decree of divorce did not cite the statutory basisfor the attorney’s fees award, but that omission does notmean that the statutory basis of the award is in question.It is clear from the transcript of the final hearing thatthe trial court properly considered the relative financialpositions of the parties whereas the wife’s income wasapproximately 1/10th that of the husband. Therefore, thecourt properly considered the financial circumstances ofthe parties. However, the husband also challenges theinterest rate imposed on the award of attorney’s fees inthat it is not consistent with O.C.G.A. § 7-4-12 (a), whichstates that “all judgments in this state shall bear annualinterest upon the principle amount recovered at therate equal to the prime rate on the date the judgment isentered plus three percent.” Therefore, the part of thejudgment setting the rate of interest is vacated and thecase is remanded to the trial court to determine the rate ofinterest on the judgment pursuant to O.C.G.A. § 7-4-12(a).The trial court also awarded child custody andawarded visitation according to terms of the parties’stipulated agreement. The trial court order advised theparties that it would entertain a request to review andmodify the current visitation schedule at any time, at therequest of either party and would consider specified factsestablished at the hearing when faced with a request toreview and modify the visitation. Here, the language atissue is an attempt by the trial court to retain jurisdictionof the case and as such, is wholly ineffective. FLRThe Family Law Review 14Fall 2009

Secret continued from page 1questions on all possible topics can serve the valuablepurpose of educating a witness on what issues areimportant and get them to focus on these areas.Theme DevelopmentNothing is more important than your theme of thecase. Your theme is what the case is all about. It is theframework within whichyou make strategicdecisions about themanner in which thecase should proceed, thepositions you take andhow your client shouldbe prepared for bothdeposition and trial.The theme helps theclient to understandand digest what hisor her case is about atthe most basic level.It provides the clientwith a foundation fromwhich he or she willbe able to respond toany question posed,regardless of whetherthe particular questionwas addressed duringpreparation. Therefore,it is not enough for youas the lawyer to knowand understand thetheme, but it is yourclient who must knowand understand it.It is the witnessconsultant who candevote the time andenergy required to havethe client gain thatunderstanding. Goodwitness consultantshelp elicit from theclient his/her story andassist (when, but onlywhen, they are asked)in the development ofthe theme of the case. Awitness consultant willwork with the witnesson how to focus answerson the case theme,instead of wanderingaround giving less important details. Since it is impossibleto predict each and every area of inquiry that opposingcounsel may pursue, having a theme for your case iscrucial to success. The more in command your client isof the theme or themes of the case, the more prepared heor she will be for his or her testimony, regardless of theultimate questions posed.15Fall 2009

Witness Consultant As OmbudsmanDivorce cases are especially delicate and privatematters. We are often faced with very demanding clientsgoing through the absolute worst times in their lives.Even for the most even-tempered of counsel, there isthe possibility that the relationship between counseland client could fray. One of the valuable roles a goodwitness consultant serves is as ombudsman betweenthe lawyer and the client. For example, you becomefrustrated with the client because he/she answers thesame question differently each time it is asked and theclient becomes frustrated with your frustration. It hasbeen my experience that a witness consultant can often bea lawyer’s best friend, by helping to bridge those kinds ofdivides and maintain and preserve a strong relationshipbetween counselor and client.Cost SavingsFinally, in most cases, the rate charged by a witnessconsultant is substantially lower than the hourly ratecharged by the attorney, particularly the partner incharge. Therefore, practitioners may find that thecost/benefit analysis favors the retention of a witnessconsultant, allowing for proper and effective preliminarypreparation of the witness while you focus on preparingother aspects of the case. Once the preliminarypreparation is completed, the consultant and lawyer oftenwork in tandem to complete the preparation.Considerations In Conjunction With Retaining AWitness ConsultantHowever, retention of a witness consultant is nota decision to be made lightly. If you elect to employ awitness consultant, you must give consideration to thelegal and practical implications of that decision.Legal ConsiderationsTurning first to the legal implications of a decision toemploy a witness consultant, you must be prepared toaddress the propriety of the communication itself andthe protection it is to be afforded under either (or both)attorney-client privilege or work product protection. It iscritical that you research how courts in your particularjurisdiction have handled the use of witness consultantsand the issue of privilege before engaging the consultantto ensure that the consultant’s work conforms with thelaw in your jurisdiction.Be aware that while the use of trial consultants isgrowing the case law is relatively sparse. Judges oftenhave a particular bent on whether and under whatcircumstances the communications between a client anda witness consultant is protected. Accordingly, while itis necessary for you to be familiar with the law in yourparticular jurisdiction, it is equally important to determinethe practice of the particular judge before whom you areto appear.Protection under the attorney work product doctrinehas been afforded to litigants at the federal level. Ofparticular relevance to this issue is the decision ofthe Third Circuit Court of Appeals in In re: CendantCorporation Securities Litigation, 343 F.3d 658 (3d Cir.2003). In Cendant, Dr. Phil McGraw was retained as a trialconsultant by Ernst & Young. Opposing counsel soughtto inquire of a former Ernst & Young employee, SimonWood, as to his conversations with Dr. Phil. The Courtdetermined (at p.660):Compelled disclosure of the substance of conversationsbetween Wood, his counsel and Dr. McGraw wouldrequire disclosure of communications protected by thework product doctrine. The communications took placeduring a consultation that focused on those issues thatcounsel and Dr. McGraw perceived to be central to thecase. Moreover, the communications were intended tobe confidential and made in anticipation of litigation.As such, the communications are at the core of the workproduct doctrine and are only discoverable upon ashowing of rare and exceptional circumstances.The Third Circuit concluded by finding no exceptionalcircumstances present, the “communications merit workproduct protection” and that while it believed “Wood maybe asked whether his anticipated testimony was practicedor rehearsed” the “inquiry should be circumscribed.”Notably, in concurrence, Justice Garth found that theattorney client privilege would also be applicable, citingto an article by Stanley D. Davis and Thomas Beisecker,Discovering Trial Consultant Work Product: A New Wayto Borrow an Adversary’s Wits?, 17 Am. J. Trial Advoc.581, 626-27 (1994), which explains that:‘communications between a client practicingtestimony and a consultant are not discoverablebecause ‘interwined with the client’s responsesto mock questions and the consultant’s reactionsthereto, will inevitably be client communications… which are … intended by the client to be aconfidential part of the communication. Extirpatingthe comments of the consultant from this contextmay well be impossible without bringing alongthese communications and thus frustrating thepurpose of the attorney-client privilege.’In New York, for example, under appropriatecircumstances, the protection has been extended underthe cloak of the attorney-client privilege by the SecondCircuit and the Southern District of New York. See,e.g., In Re Grand Jury Subpoena Dated March 24,2003, 265 F.Supp.2d 321, 332-34 (S.D.N.Y. June 2, 2003)(“it is common ground that the privilege extends tocommunications involving consultants used by lawyersin performing tasks that go beyond advising a client asto the law”); United States v. Kovel, 296 F.2d 918 (2d Cir.1961) (privilege applies to communications of a thirdpartymade at the request of an attorney or the clientThe Family Law Review 16Fall 2009

where the purpose of the communication was to put inusable form information obtained from the client).In February 2008, the Northern District of California,in Hynix v. Semiconductor Inc., v. Rambus Inc., 2008WL 397350 (N.D. Cal. Feb. 10, 2008), concurred with theholding of the Third Circuit in Cendant, and specificallyidentified the limited questions that may be asked of theclient with regards to a witness preparer. The Hynix courtdetermined that:the parties may ask a witness whether he orshe met with a jury consultant, the purpose of anysuch meeting, who was present, the duration ofthe meeting and whether the witness practicedor rehearsed his testimony. The court will notpermit questioning beyond those limited pointsbecause inquiring into work-product protectedmaterial creates unfair prejudice and doing so willlead to both confusion and delay. Either of thesereasons justify precluding some of the proposedquestioning under Rule 403.In an effort to buttress any attempt to pierce attorneywork product protection or attorney client privilege,consider implementing two measures:• If you elect to employ a witness consultant itshould be pursuant to a written retainer agreementclearly defining the consultant’s role as an agentof the firm. It formalizes the retention and makesthe propriety of the relationship less susceptible tochallenge.• In accordance with the Cendant decision,consideration should be given to whether counselshould be present for any meetings between thewitness consultant and the client. In many casesthe lawyer’s presence, particularly in the firstsession or two may inhibit the development of arapport between the witness and the consultant.Practical ConsiderationsBeyond the legal implications attendant to yourretention of a witness consultant, you must also considerthe practical implications. While lawyers are governedby various model rules and ethical codes, there are noexternal controls whatsoever on the conduct of trialconsultants. Accordingly, you need to do your homeworkand know who you are hiring.It is critical in choosing a witness consultant, as inchoosing any professional, that the person be interviewedthoroughly and references verified to determine whetherthe consultant can actually deliver on representationsmade. The vast majority of consultants are members ofan organization known as the American Society of TrialConsultants (ASTC). The website for the organizationis www.astcweb.org. As an initial screening matter, itis good to know your consultant is a member of theASTC. A review of the ASTC website will reveal thatthere is a Professional Code, which provides for EthicalPrinciples, Professional Standards, Practice Guidelinesand Commentary.The problem is that the ethical principles areaspirational and members of the ASTC are not subjectedto enforceable internal standards. In addition, there areno standards for admission, no core skill requirementsor training and no continuing education requirements.As a result, even if the witness consultant you retain is amember of the ASTC, that retention may be susceptible toattack at trial. Accordingly, it is something that you needto be prepared to address.The witness consultant must also be someonewith whom you are able to work closely. You and thewitness consultant should be compatible in style andtemperament. For example, not all witness consultantswork alone with a client. They do not want to. Somewitness consultants, instead of training a witness onhow to properly handle questions (not substantively, buttechnically), come in, listen to testimony and start fixingand tweaking. If you require a consultant who can workalone with the client or one who is available to workwith you from the inception of the preparation, witnessconsultants like the ones in the above examples may notbe right for the engagement.Finally, notwithstanding the potential upside toinvolving a witness consultant, a witness consultantis not an attorney. Attorney oversight is critical to thesuccess of the representation and under no circumstancescan you abdicate your role. It is your case and you mustremain in charge. You must be available to familiarizethe witness consultant with the case to maximizethe effectiveness of the preparation and remainintegrally involved in that preparation to maximize theeffectiveness at deposition or trial. FLRMichael A. Mosberg, a partner withSheresky Aronson Mayefsky & Sloan,LLP in New York, represents clients in allaspects of matrimonial litigation. Prior tojoining the firm, he served as a law clerk tothe Honorable Virginia M. Morgan of theUnited States District Court for the EasternDistrict of Michigan. . Mosberg was recentlyselected as one of the Ten Leaders in Matrimonial and DivorceLaw in New York City under the age of 45. He is a memberof the Family Law Section of the American Bar Associationand currently serves, by appointment, on the Executive andMembership Committees for the Family Law Section of theNew York State Bar Association and as the Secretary of theMatrimonial Law Committee of the Association of the Bar of theCity of New York.The Family Law Review 17Fall 2009

Property Settlements ImpactHome Ownership in a NewCredit Marketby Ellie Shannonellie.shannon@pinestate.comDivorce often results in one or bothparties buying or selling real estateand/or obtaining a new mortgage.How well protected parties to aproperty settlement may be when attemptingto transact real estate and the associateddebt has been impacted greatly by bothtechnology and the financial crisis.Technology has made it possible formortgage lending to be based on credit scores.If one party to a property settlement does notpay previously joint debt now stipulated asthat party’s sole obligation, it can still lowerthe credit scores of the party who is no longerobligated. Litigationwill not resolve thisissue. Although theinjured party maypursue damages,litigation will notchange the damageto credit scores. Inthe past, mortgageoptions were readilyavailable even toborrowers withlow credit scores.Today, mortgagesfor borrowers withlow credit scores arelargely unavailable.Property settlementsthat do not protectthe client fromnon-payment ofpreviously joint debtmay leave the injuredparty with very fewmortgage options.The financial crisis has reduced manycredit options available to consumers. Forexample, current mortgage guidelinesrequire an applicant prove receipt ofalimony and/or child support for at leastthree months and show continuance for atleast three years before considering it asincome to qualify for a mortgage. Thus, someapplicants may not qualify for a mortgage ifthe lender will not consider child support oralimony as income. Prior to tightening creditguidelines, mortgages were available thatdid not require proof of income. Those “noincome verification mortgages” are no longer18Fall 2009

available. And, if the property settlement allows for aprorated reduction in alimony until the marital residencesells, the mortgage applicant may only qualify for amortgage based on alimony actually received.The current financial crisis has also had a significantimpact on property values and marketing time. Anexample of a “no win” property settlement scenariocan be the requirement that oneparty sell or refinance the marital“residence within one year afterthe final divorce. The settlementassumes the property can besold within one year. In a slowmarket, not only may one year notbe long enough, it may requirereductions in the selling price thatcould require the seller to owemoney at closing. Refinancing theproperty may no longer be an option because now theproperty is not likely to appraise for an amount sufficientto qualify for a refinance. The responsible party is nowout of options. At this point, it is not uncommon forthe responsible party to “give up” and stop making themortgage payments. Litigation will not resolve the issuebecause now the credit scores of both parties originallyobligated on the mortgage have been lowered due to nonpaymentof the mortgage. In summary, what originallyappeared to be a reasonable property settlement has notprotected either party.Realtors and mortgage lenders have always been afree source of current information. Now more than ever,current information is essential to protect the parties toa property settlement. A realtor can provide informationabout current property values and marketing times.Mortgage lenders are now required by law to providea copy of the credit report to an applicant. Not onlydoes a credit report provide an instant snapshot of one’scurrent financial obligations, but being pre-qualifiedfor a mortgage can provide the client with valuableinformation for decisions about a prospective propertysettlement. For instance, the average consumer is oftenunaware that ownership of the property and obligationof the debt are actually separate issues —that signinga quit claim deed does not alsorelease the owner from mortgageRealtors and mortgagelenders have always beena free source of currentinformation.obligations on the property. But,this issue would become clear inreviewing a credit report with areputable lender.“There have been numerouschanges in both real estate andmortgage lending over the pastyear. Drafters of settlementsmay best serve their clients byevaluating the potential implications any agreement mayhave on either party’s ability to dispose of or acquirereal property or mortgage debt in light of these changes.Property settlements that do not consider these changesmay fail to protect the settling parties. FLREllie Shannon is a Senior AccountExecutive at Pine State Mortgage Corp.She is the recipient of multiple productionawards including awards from the GAMortgage Bankers Association and hasalmost 30 years experience in the mortgageindustry. She can be contacted at ellie.shannon@pinestate.com.The Family Law Review 19Fall 2009

Lesson Learned: PreparationPrevented Disasterby Paul Oelandpaul@landopc.comWhen the rest of the world heardon June 19, 2009, that the GeorgiaTheater in Athens was on fire,many thought of the great bandsthey had heard there and the beer they hadspilled inside. I thought of John and TriciaLyndon. Their office was in the buildingadjacent to the Georgia Theater, sharing aninterior wall. When my father called me at7 a.m. to give me the news, I assumed thattheir office would soon be in flames as well.Throughout that morning I got updates frommy sister who works for the Lyndons, thatsomehow the flames had not spread and thatit seemed the damage to the office would bemuch less than they feared. The end of thisstory is much happier than it could havebeen. While John and Tricia have moved theoffice permanently out of that space due tofears of structural damage to the building, theoffice suffered no fire or water damage. Triciadescribed a very fine layer of soot that coveredthe entire office and while this created seriousproblems for them, they both recognize itcould have been much worse.Once it was clear that they had avoided amajor catastrophe, I started to wonder whatthe Lyndons were thinking as they watchedthe theater burn. Specifically, I wondered whatthey knew they had done right to prepare for apotential disaster and what they wish they hadthought of. So, I sat down with both of them toask that and other questions.Question: What was that morning like?John: I got the call from your sister, Terri, thatthe Georgia Theater was on fire at about 7a.m., so I raced to the office, driving the wrongway down the one-way street that runs nextto the parking lot to get there. You could seesmoke billowing into the air from three milesaway, so I was not encouraged. I parked andran towards the office and was met by a fewfiremen who discouraged me from gettingmuch closer to the building. From the vantagepoint I had when I first got out of my car, itlooked like the flames had already spread tothe roof of our building, so I thought it wasalready burning, and I uttered a few choicewords. As I came around to the front of thebuilding, I could see that the flames had notspread so I was relieved.Question: What were your first thoughts aboutwhat you wanted out of the office?John: Obviously, I was not thinking veryclearly. My first thought was to run into theoffice to get the files for the cases I had beenin court for the day prior, simply because theywere the most recent concerns.Question: What was it like to stand there onthe street and watch the building burn?Tricia: The streets had been blocked offto traffic, so people from the downtownbusinesses and other law offices walked downto be with us. Everyone was very kind, comingto stand and watch and pray with us while thiswas happening.The Family Law Review 20Fall 2009

Question: So as you’re standing there watching thisunfold, what did you know you had done right?John: Well, honestly, those thoughts just don’t come intoyour head when you’re watching the building burn. Inretrospect, here’s what we did right: 1) we back up theserver everyday and we take these back up tapes out ofthe building and store them off-site every night. So, I knewthat we would be able to recover everything that we hadproduced in cases for our clients. 2) we synchronize ourBlackberrys to our server everyday and we store all of ourclients’ contact information and opposing counsels’ onour Blackberrys, so I knew that we would be able to get intouch with our clients immediately.Tricia: I think the third thing that we did right was wehad renter’s insurance. We had carried a policy for yearswithout ever really thinking about it. The premium wasminimal and we had thought about cancelling it before, butjust kept paying it. It has paid and will pay for everything –the move, the furnishings, the professional cleaning of all ofthe items in the office – and with a very small deductible.Question: In retrospect, then, what did youdo wrong?John: I don’t think there’s a whole lot morethat we would have done differently, orthat we will do differently in the future.Probably the only thing is that we shouldscan more original documents in and storethem on the server. Had everything goneup in flames, we would have been able tosave only what we produce, not pleadingsor motions from opposing lawyers, ororders, or anything like that. So, we willprobably scan more of these in, but youhave to decide how much is too much.We can’t scan in every document that weget for discovery, for example, becauseit’s too much. They make fire-proof filecabinets, but no one is going to go out andbuy those, because they’re prohibitivelyexpensive. We’d been in practice for 30years and hadn’t had a fire. There aresome things that just aren’t practical toplan for.Tricia: I suppose now I question whether it’sa good idea to be right next to a bar, with allthat it brings with it.John: Well, the flip side to that is that is was wonderful tobe next to the Georgia Theater when bands would comein, set up and do sound checks. I would get to listen togreat music in my office for nothing. It was part of thecharm and character.Question: So after you see that your building is not going toburn down, what do you do?Tricia: By about noon that day, we knew our first prioritywas to reassure everyone that works for and with us that wewould be okay and that we would continue on. So, we gotsome note pads and pens and all of us sat at The Nationalfor lunch and planned how we would move forward.John: And around 3 p.m. I managed to convince someoneto let me in the office for a few seconds. I grabbed theserver and got the chance to look around. I saw there wasno fire or water damage, so I felt like we’d be okay. The firstpeople we called after I got in were Terri and Amber, whowork for us, to tell them we were going to be okay.Tricia: We had so many generous offers of space andeventually settled on space in the building where ReginaQuick and Roy Finch are. One good thing we learnedis that AT&T is able to forward your telephone numberto any phone you choose, without you actually havingto physically forward the calls from the phone itself. So,within very little time, we had the telephone ringing to ourcell phones.Question: What has the process been like since?John: I describe it this way, it’s like going camping becauseyou have no routine and you can’t find all of the things youneed and you have at home, it’s just so hard to get anythingdone. Luckily, we were pretty well caught up before thefire, so it’s enabled us to only have to play catch up sincethe fire.The perspective is this – early that morning while I wasstanding outside watching the fire, I remembered that Ihad a mediation scheduled at my office that day. I calledmy client, told her what was going on and told her sheneeded to call her husband and have her husband call hislawyer to tell him about the fire and that we couldn’t dothe mediation. She was very concerned about us during thecall and understood. A little while later she called back andasked if we could do the mediation somewhere else thatday. So, while the owner of the Georgia Theater was worriedabout his building and business and I was worried aboutmy law practice, my client was worried about her divorce.I wanted to interview John and Tricia for the lessonslearned from this disaster, believing we all need to bereminded about things like off-site server back-ups,appropriate insurance coverage and the benefit of keepingclient contact information on Blackberrys and the to scanmore original documents. The central lesson, though, isthat while it doesn’t seem fair that things like this happento wonderful people like John and Tricia, it may also be thatthey are the only two that could manage it with the humor,grace and courage necessary to survive it. FLRPaul Oeland graduated from the Universityof Georgia School of Law in 1998 and theprimary focus of his practice is family law.His main office is in Conyers and there is asatellite office in Midtown Atlanta.The Family Law Review 21Fall 2009

After the Representation:How to Maximize Income and Earn More Clientsby Robert S. MeyringMeyring Law FirmThe actions you take duringand especially after the firstrepresentation of the family lawclient may be more important thanthe original representation of that client.Meaning, strive to be the lawyer the clientlikes the best by communicating withthem in a post-representation continuingrelationship. The relationship with the clientshould be very good or great. By making afew adjustments, your law firm can generatemore fees per file and earn more referralsfrom existing clients. Here are my thought onhow to make that happen.When it comes to practicing family lawthere two areas seldom examined: 1) theimpact of a divorce, remarriage, adoption orprenuptial agreement on the client’s estateplan and estate beneficiaries and 2) thecontinuing attorney-client relationship afterthe divorce representation. With more focuson these two areas you will earn more money.Here’s an example where some estateplanning intersecting with family law can headoff a lot of trouble. It’s very likely that a divorceclient with children and sizable assets willseek an antenuptial or prenuptial agreementbefore the next marriage. I strongly suggestimplementing an estate plan at that time forthe comprehensive protection of the client’slong term interests. More specifically, thisscenario without estate planning often givesrise to a decedent’s unintentional transfer of thedecedent’s sizable assets away from decedent’snatural children and toward the step familyas inherited or devised through the survivingspouse and stepparent. Here, a testamentaryqualified terminable interest property trustcrafted by an estates attorney will oftenpreserve the asset-laden divorced client’s estatelegacy for his or her children and still providelifetime support for the surviving spouse.In the interests of full disclosure, as a trustsand estates attorney that often litigates overestates, I do not practice family law, but I dooften help resolve issues and conflicts betweenthe beneficiaries of decedent’s first family andstep-families. Conflicts between first familyand step-family originate from the divorceand are almost always avoidable with someinformed estate planning. From this probateand estates lawyer’s viewpoint, the familylaw attorney would do well financially byadding a review of the impact of the divorceon the estate plan. An estates review could beincorporated into the divorce representation toallow the client to know the long term impactof the divorce on the divorce client’s child’sinheritance. More likely, the attorney couldcheck back with the client after a proper timeto offer a reasonable or free review of theirfamily law or estates issues. There is a chancethat upon checking up with the client, thefamily law attorney will be retained by thatclient on another matter. Even if the chanceof being rehired is small, isn’t it statistically22Fall 2009

Casual Contemplationsby Heidi Geigerheidi@geigerlaw.comWhy do I practice Family Law?Why? Why? Why? Admit it.We have all had days whenwe question our career choice.Sometimes we have several days in a rowwhen we may be losing our religion. Theclient who took several years to create themess they are in expecting you to straighten itout and fix it in 30 days and then not pay you100 percent of your fees. The secretary whoforgot to calendar a court date. The spousewho doesn’t understand why you stayed inmediation until 8 p.m. Your grandma whothinks you should help families stay togetherrather than break them up. The step-kid whowants to see “the little card that let’s you takewhatever you want” that his mom told himabout. (Your bar card a.k.a. license to steal.)The guy at the neighborhood pool with a“quick divorce question.” The brother-in-lawwith a speeding ticket.Acquaintances come and go. Childrengrow up. Clients move on. Statutes change.Case law updates. Technology accelerates.Security tightens. Stock markets crash. Taxesincrease. Benefits decrease. Some medicationhelps. But what remains the same, consistentand dependable? The fellowship of our Bar.Not only do we work together. We go toeach other’s weddings. We go to each other’sfunerals. We handle each other’s divorces.We send birthday cards and sympathy cardsto each other. We help each other run foroffice. We go to the beach together. Even if wechange law firms, we are still engaging with,working with, battling with each other. Wedeal with the same group of folks for the mostpart.I have read a statistic that people willchange jobs or careers an average of eightto ten times in their life. I’ve been practicingFamily Law for 14 years now. I anticipatedoing it for another 30. One of the things thatI really look forward to is working with andlitigating with my fellow members of theGeorgia Family Law Section. I feel lucky to notbe a part of that statistic.I found two quotes to share with you.Robert McAfee Brown:“How does one keep from "growingold inside"? Surely only incommunity. The only way to makefriends with time is to stay friendswith people…. Taking communityseriously not only gives us thecompanionship we need, it alsorelieves us of the notion that we areindispensable.”Virginia Woolf:“One of the signs of passing youth isthe birth of a sense of fellowship withother human beings as we take ourplace among them.”A quick summary of my last 14 yearswould be something like this. Being the greenlawyer, first jury trial, owning a cell phone,getting married, buying a house, changingfirms, starting my own firm, enduringback surgery, speaking at CLE seminars,watching the World Trade Center collapse,going through secretary after paralegal aftersecretary, getting in shape, disbelieving thata judge was actually shot and killed on thebench, trying to have a baby, having a baby,using a Blackberry, finding a nanny, jugglingwork and family, gaining weight, marketing,father dying, trudging along through arecession. Every step of the way there hasbeen a Family Law lawyer advising me,encouraging me, supporting me and makingme laugh.Thanks! I’ll see you in court… or atmediation… or at the beach…or at yourbirthday party… or for lunch…FLRGeiger & Associates, LLC, wasestablished as a Family Lawpractice in 2000. Located inthe historic Vinings Village,Heidi Geiger is the principalof the company which providespersonal attention to each andevery client, helping them through difficult times.24Fall 2009

Chief Justice Sears Honoredby Rebecca L. Crumrine, Esq.Davis, Matthews & Quigley, P.C.Upon the retirement of Chief Justice Leah WardSears from the Georgia Supreme Court, theFamily Law Section of the State Bar of Georgiahonored her at the 2009 Family Law Institute inAmelia Island, Fla. Tina Roddenbery presented Justice Searswith a Frabel Dogwood, “a reflection of Chief Justice Sears’sbeauty inside and out,” inscribed:From the State Bar of Georgia Family LawSection in honor of your commitment tofamilies in your judicial leadership in the areaof Family Law.Roddenbery thanked Chief Justice Sears for her 17 yearsof service on the Supreme Court and her leadership andservice to the families of Georgia.The honor took Chief Justice Sears by surprise. Shegraciously thanked the Family Law Section. She stated herreal deep abiding passion is for all things family. As manymay know by now, Chief Justice Sears will be studying theevolving issues involving family law this coming year with athink tank out of New York. She lauded family lawyers andthe profession, and expressed her special affection for theFamily Law Section, stating: “Really this award goes to you.The most important aspect of this democracy is families.”We thank Chief Justice Sears for her commitment tofamilies and legal equity, and look forward to her futurework. FLRChief Justice Sears receives a recognition giftfrom Tina Shadix RoddenberySave Valuable ResearchTime, Log In ToCasemaker is a Web-based legal research library and search engine that allows youto search and browse a variety of legal information such as codes, rules and case lawthrough the Internet. It is an easily searchable, continually updated database of case law,statutes and regulations.Each State Bar of Georgia member may log in to Casemaker by going to the State Bar’swebsite at www.gabar.org.The Casemaker help line is operational Monday thru Friday, 8:30 a.m. to 5 p.m. locally at(404) 527-8777 or toll free at (877) CASE-509 or (877) 227-3509.Send e-mail to: casemaker@gabar.org.All e-mail received will receive a response within 24 hours.The Family Law Review 25Fall 2009

Judge Robert W. Chasteen Jr.,Superior Court for CordeleJudicial Circuitby Lucy M. Martinlmartin@hsrblaw.comwww.hsrblaw.comOn July 29, 2009, I had the pleasureof interviewing Judge RobertW. Chasteen Jr., who has beena Superior Court Judge for theCordele Judicial Circuit since 2005. Prior tobecoming a Superior Court Judge he was inprivate practice for approximately 35 years inFitzgerald, Ga., the town where he was bornand bred. Judge Chasteen received his J.D.,cum laude, from the University of GeorgiaSchool of Law in 1969.Q: What influenced your decision tobecome a lawyer?The Hon. Robert W. Chasteen Jr.26A: My father-in-law was a lawyer and Iwould listen to him talk when I was in college.He would talk about his interesting cases. Ialso went to court with him a few times or I’ddrive him to court, so I guess that’s when Ibecome interested in becoming a lawyer.Q: What type of cases did you handle inprivate practice?A: It was a general practice. About 25percent of our cases were domestic relationscases. We did some criminal work. I alsorepresented the County as County Attorneyfor about 35 years. Our firm alsorepresented a bank and a bankholding company.Q: Do you miss anything aboutprivate practice?A: I miss the aspect of helpingclients, of being able to take theirparticular situation or problem andresolve it for them, so that you bothfeel good about the end result. Iused to enjoy sitting and talking tomy clients. When you’re a Judgeyou can’t sit around and do that.Q: What counties are in yourCircuit?A: Ben Hill, Wilcox, Crisp andDooly Counties.Q: What is your schedule likein terms of having to travel to eachCourthouse?A: If we’re not having jury trialswhich might require me to be inone place for several days, I spendabout one day a week in eachcounty. Also, I do a mix of civil andcriminal cases – some days I’ll doall civil cases and other days I’ll doall criminal.Fall 2009

Q: Is there any additional travel you have to do in yourjudicial role?A: I also go to habeas proceedings at the Wilcox StatePrison in Abbeville once a month. The hearings are at theprison in a little courtroom set up there. I may have six orseven hearings in one day and it is much easier and lessdemanding of resources to hold the proceedings at theprison. You avoid the necessity of having to transport theprisoners here to the courthouse with all the guards andsecurity concerns that involves.Q: What is that experience like for you?A: Well, at the habeas hearings most of the prisoners arepro se and it is difficult sometimes to explain to them whatthey can and can’t do. Quite often, if you tell them thatlegal procedure doesn’t allow them to do certain things,for example, you are not allowed to file successive habeasproceedings, they think that you are criticizing them. Itcan be interesting work though and sometimes you hearinteresting reasons why you should set them free. I thinkthere may be a barter system where a prisoner can getsomeone to help them prepare for the hearing for money. Ihad one case where the prisoner said that I should overturnhis conviction because venue was not proper in the countywhere he entered his plea. However, I don’t know whofilled out the paperwork, but I was looking at the pleatranscript and saw that venue was proper in that county.He commented “I guess I paid money for nothing.” I don’tknow whether he was misled and the person who preparedthe paperwork didn’t know what he was doing, but theyraised some assertions that were not reflected in the record.Q: What was your first priority on becoming a Judge?A: One of my goals was to make the experience ofcoming to court as uncomplicated and efficient as I couldfor the lawyers, the parties and the jurors who appearedbefore me. For instance, I’m cognizant of the fact thatjurors’ time is very valuable and someone is paying forthem to be there, so I try to make sure that I’m using theirtime as efficiently as I can. I don’t like to have unnecessaryhearings. At a calendar call I’ll hear the uncontested casesfirst, so those people don’t have to wait two hours to beheard. If a lawyer is from out of town, I try to take hiscase first unless it’s going to take all day. But if they havesomething very short, I want to get these people out andback on the road so they can go home. Also, my goal wasand still is to treat everyone that comes before me withdignity, and to be fair and impartial while also taking carethat everyone’s time is being used as efficiently as possible.Also, I always keep in mind that I’m not only a Judge buta lawyer and people are observing me as a representativeof all lawyers and that when people are in my courtroom,they are getting an impression from how I conduct myselfof how the judicial process works.Q: As a Judge, what are your favorite types of cases?A: Adoption cases are the most fun. I enjoy thosebecause you see children going into a home wheresomeone is really interested in caring for them.Q: Do you have many pro se litigants coming before theCourt?A: I do see a fair number, but mostly in situationswhere there are no children. For people with children, Isee fewer pro se litigants now that they’ve changed all thefiling requirements, so that people now have to submitChild Support Worksheets and a Parenting Plan and so on.People now find they need attorneys because it’s difficult tojump through all the hoops necessary to get the paperworkdone and get everything into a form that will be acceptedby the Court.Q: Do you all require the filing of the Child SupportWorksheets and the Domestic Relations Financial Affidavitwith the initial filing?A: There is a Uniform Rule that is being consideredwhich will change the procedure such that you don’t haveto file those documents with the initial filing, but ourcurrent Internal Operating Procedures do require that theWorksheets and Domestic Relations Financial Affidavitbe filed at the time of the initial filing. When you file adomestic relations case, we have a Standing Order thatincorporates those requirements.Q: Do you make much use of the deviations on theChild Support Worksheets?A: Yes, I do use the deviations from time to time.One that is particularly useful is the deviation for travelexpenses related to visitation, especially when one parenthas moved far away from the other and the travel expensesare significant. I don’t see the use of the parenting timedeviation so much, because you really need to go beyondstandard visitation to warrant the use of that. But I’vehad some cases where a parent has more than just regularweekend visitation, for example the parent is takingthe children for the whole summer and in that case theparenting time deviation is appropriate.Q: Is there anything that frustrates you in particularabout cases where there are children involved?A: Something I don’t like to see is people not takingchildren into consideration in these cases, particularlywhen people don’t see that it is important for both parentsto be involved in the children’s lives as much as possible.It’s hard for two parents in a traditional household toraise children nowadays, particularly when it comes tosupervising the children, so you can imagine how hardit is when there is only one parent. I think sometimeslawyers need to do a better job educating their clientsabout the need for both parents to be involved in raisingthe children and spending as much time as they can withthem. I don’t mind telling parents, and I did this whenI was practicing, that if they tell me they don’t want theother parent visiting the kids, that is just not going toThe Family Law Review 27Fall 2009

happen. Sometimes parents don’t want to hear that – butyou need to tell them.It is very rare for me to take away all contact with eitherparent. But you do have situations where somebody ison drugs and they can’t be trusted to take the children offby themselves. In those situations I’ll order supervisedvisitation. I don’t order supervised visitation when oneparty asks for it just to aggravate the other, just because theother parent has a beer or something.Also, sometimes I will be asked to come up with avisitation schedule. I can do that, but I’m the least qualifiedperson to do it. How do I know if the visitation scheduleI come up with will comport with your schedule? Theparties are in the better position to know when they aretaking family vacations or when the children might bevisiting other relations. So I encourage the parties to sitdown and see what works best for them.My primary concern in these cases is the welfare of thechildren. I want their lives to be as normal as they can beand it is always my goal to structure things to make thatpossible. The adults can handle themselves.Q: Do you think split parenting is a good idea?A: I think split parenting works well when the partiesget along well together. I’ve seen cases where the partiesjust work real hard at trying to make everything work forthe children. But again, I can’t make that structure work ifthe parties are not going to work together and commit toputting the children ahead of themselves.Q: You were President of the State Bar of Georgia from1995 to 1996 and were active in many other capacities withthe State Bar over the years as well. In what ways did yourterm as President and involvement in other Bar activitiesaffect or influence you as an attorney in private practiceand as a Judge?A: Actually, before I got to be President, I was co-chairof the Bench & Bar Committee which was a committeeformed for lawyers and judges at the trial court level,to try and resolve issues that come up. I was lawyer cochairwith Hilton Fuller who was the judge co-chair atthat time. We had some very significant meetings wherewe were able to talk about issues that affect both the Barand the Bench. The Bench & Bar Committee provideda significant opportunity to communicate from mystandpoint as a lawyer to Superior Court judges aboutthings that concerned us and we had a lot of really gooddiscussions. One of the issues we focused on was how tomake the operation of the courts more efficient.Mostly I would say my experience with the State Barallows me as a Judge to understand the concerns of lawyersfrom all different types of practices. When I was Presidentof the Bar, I enjoyed going all around the state listening tolawyers talk about all sorts of things that were of concernto them. That was very enlightening and I got a really goodinsight into how everybody’s practice is different and thatyour large firm will have different needs from your solepractitioner or rural practitioner – if we implement rulesand/or laws it effects people in different ways so you’vegot to think about that sometimes. So some rules of the Barmight work well in a metropolitan area law firm but maynot work so well in Fitzgerald. For example when the Barinitiated the Trust Account Overdraft Notification rule – theway that worked was if your trust account got overdrawn,they were going to file a complaint based on that. But youcould have an inadvertent overdraft in a small communitywhere the lawyer wrote somebody a check at a closing andthat person carried it across the street to the bank and got acashier’s check, but the lawyer may not make a deposit thatday. So while that rule was fine for say larger firms withmore staff, it might not work so well in smaller firms withlittle staff. So my time as President of the Bar gave me anappreciation for the kinds of things lawyers in all differentlocations have to deal with.Q: What kinds of things did you find lawyers looked tothe Bar for?A: Lawyers want information about things that canbenefit their practice. A person in a large practice hasdifferent needs than the sole practitioner but all wantContinuing Legal Education that addresses hot buttonissues so they can get the knowledge they need to helpthem better serve their clients. Something that workedwell on a local level was a one day seminar held in ourvocational technical college for lawyers and judges on howto prepare child support worksheets. These are the type ofevents that lawyers want to have available to them. The Baris a service to help them provide that information. We havean excellent CLE program. Also, the State Bar has been ableto offer low cost programs at the Bar Center in Atlanta.We’ve also opened offices in Tifton and Savannah withteleconferencing facilities. During the year I was President,we started a program called Law Practice Management,which helped a lot of lawyers with the business side oftheir practice. There was a reduced fee schedule for firmsdepending on their size. So these are the types of thingslawyers really appreciate.Q: Your Presidency of the State Bar coincided withyour position on the Code of Professional ResponsibilityCommittee and the State Disciplinary Board Review Panel.What was your experience in those roles?A: When I was President, one of the things I didn’tanticipate was having to deal with the disciplinary sideof things. That was the committee that Chief Justice Huntstarted, as he was leaving as Chief Justice of the SupremeCourt to go on the federal bench. It was a committee tolook at how the Bar handles discipline cases. We sat downand conducted a self–examination and looked at ourprocedures and processes. One of the things that we didat the time was to conduct a detailed screening processof how complaints were being handled. It was foundThe Family Law Review 28Fall 2009

for example, that in some cases people were calling upcomplaining that their lawyer wouldn’t call them back,but the lawyer being complained about wasn’t evenrepresenting the person calling to complain. The processthen was that the lawyer had to fill out a form that took aconsiderable amount of time to complete, when a simplephone call would have resolved that problem. So there wasa program instituted at that time to weed out these types ofclaims. We did a pretty good analysis of the overall processand came to the conclusion that we had a good system, butwe did some things to improve that system and make it runmore efficiently.Q: Has the shrinking economy affected the types ofcases you are seeing?A: Yes. We do have more petty crimes, such asburglaries where cash might be found, and typically theperson wants the money to buy drugs. One of the biggestrelated problems is that we have so few options to beable to help these people with drug problems, because ofbudget cuts. We’re talking about a long waiting list to getthese people into facilities and we just don’t have enoughmoney or resources to get them the help they need, evenwhen they ask for help. Also, budget cuts have affectedour ability to help people with mental health issues. InBen Hill County, we had a mental health office that hassince been closed. The nearest place is now in Tifton, buthow can we get those people there? Most of them have notransportation. Most of the people that bring these peopleinto court are family members who want to get help forthe mentally ill relation. The choice is if you don’t put themin some sort of program that will make them take theirmedication, they end up being kept in jail. That is really apoor outcome for people with mental health issues.Q: Any tips of lawyers in the courtroom?A: Be prepared before you come to court. For example,if you are reasonably sure that when you come to court youare going to get some sort of relief, go ahead and preparethe Order and bring it with you, and more often than notit will be reviewed and signed right there. Telling me thatyou are going to send the Order in to me is just one morething I have to keep up with.Q: You were an Olympic Torchbearer for the 1996Olympics. How memorable was that experience for you?A: It was a very special experience. The passing of thetorch occurred early in the morning just as the dawn wasbreaking. I lit my torch from the last torchbearer and ranmaybe less than a mile to the next torchbearer. You could seethe light from the torches shining in the early morning light.There were crowds of people lining the sides of the road. Itwas pretty spine-tingling and I really enjoyed that. FLRLucy Martin is an associate with the lawfirm of Holland Schaeffer Roddenbery Blitch,LLP. She practices in the areas of family lawand trusts and estates litigation.Past Bar Presidents Include:1964 Hugh M. Dorsey Jr., *1965 Will Ed Smith *1966 Henry P. Eve *1967 Omer W. Franklin Jr. *1968 David H. Gambrell1969 Frank C. Jones1970 Howell C. Erwin Jr. *1971 Irwin W. Stolz Jr.1972 A. Gus Cleveland *1973 Frank W. Seiler1974 F. Jack Adams *1975 Cubbedge Snow Jr.1976 W. Stell Huie1977 Harold G. Clarke1978 Wilton D. Harrington *1979 Charles H. Hyatt *1980 Kirk M. McAlpin1981 Robert Reinhardt1982 J. Douglas Stewart1983 Frank Love Jr.1984 Richard Y. Bradley1985 Duross Fitzpatrick *1986 Jule W. Felton Jr. *1987 Robert M. Brinson1988 J. Littleton Glover Jr.1989 A. James Elliott1990 Gene Mac Winburn1991 Evans J. Plowden Jr.1992 Charles T. Lester Jr.1993 Paul Kilpatrick Jr.1994 John C. Sammon1995 Harold T. Daniel Jr.1996 Robert W. Chasteen Jr.1997 Ben F. Easterlin IV1998 Linda A. Klein1999 William E. Cannon Jr.2000 Rudolph N. Patterson2001 George E. Mundy2002 James B. Franklin2003 James B. Durham2004 William D. Barwick2005 Rob Reinhardt2006 Robert Ingram2007 J. Vincent Cook2008 Gerald M. Edenfield2009 Jeffrey O. Bramlett* denotes deceasedThe Family Law Review 29Fall 2009

After the Divorce is Done:Client Financial Failure or Success?by Suzanne Durbinsuzanne.durbin@gvfinancial.comAfter the Divorce is Done: ClientFinancial Failure or Success? Threeeasy steps you can take duringrepresentation to prepare yourclient for financial security long after thesettlement is finalized.It’s a story every one of us has heard:Jenny 1 is a 52 year-old who divorced overthree years ago. She received a $5M all-cashsettlement. Her attorney was very effectivein the representation, garnering over 50percent of the marital assets, even in the faceof extensive family business ownership bythe husband. By all rights, Jenny “should” becomfortably off for the rest of her life.Instead, she finds herself in a costly“dream home” she will have to sell as soonas the construction is finished. The COBRAperiod on her health insurance is about toexpire and the multiple sclerosis she has beendiagnosed with in the meantime will makeobtaining her own coverage astronomicallyexpensive or unobtainable. She is close tocompleting training as a pastry chef, thoughher medical condition will limit both herworking hours and years. The alimony shewas due to receive for two more years is atrisk; her former spouse has become disabledand has not been making his payments. Sheinvested most of her settlement in real estatedeals, some of which are now bankrupt, therest of which will likely take many years topan out. Jenny is trying hard to keep a stiffupper lip and make the right decisions, buther reality is far from what either she or herattorney imagined the day her settlementagreement was completed.The reality:No professional can prevent their clientfrom making bad decisions she is determinedto make and nobody can be more responsiblefor a client’s financial future than the clientherself. But none of us like to hear thesestories, either. As a financial advisor who helpsmoneyed divorcees manage their share of thesettlement, I am often asked about steps thefamily law practitioner can take to set their30clients up to be successful with their hardwonsettlements, instead of becoming the next“Jenny.” Following are my favorites.Step One: Identify and remedy financialilliteracy early.In most marriages, one party handlesthe financial decisions, from spending, toinvesting, to insurance. Within moments ofmeeting your client, you know if they arethe one with the financial experience. If theyare not, you can help your client increasetheir financial understanding and capacityto manage their share of the settlement,long before the final decree is signed. At aminimum, each client should develop comfortaround the “big four”: income, expenses,assets and liabilities. Great resources includethe family’s current financial advisor,investment manager, insurance agent andCPA. If they don’t have these experts, orfeel they are too tied to their spouse, this isa great opportunity to refer to a competentfinancial professional in your network. Ifyou are going to use a forensic accountantor certified divorce financial analyst for thecase, these experts can also provide greateducation as part of their services. You canalso recommend non-profit educationaloptions like Visions Anew www.visionsanew.org, or low-cost continuing education classesat local colleges. A client who understands thebasics of finances is better able to manage thesettlement you work so hard to get.Step Two: Plan to cover the “holy three”investment needs in your settlementagreement.Cash reserves: Each person, divorcingor not, benefits from having cash reservesto draw on in the event of an unplannedemergency or expense. This protects yourclient from having to liquidate longer-terminvestments or retirement accounts at aninopportune time. A good rule of thumb isto ensure your client will have 3-6 months ofliving expenses in a checking, savings, moneymarket, CD or other liquid account. Anotheroption or addition is to provide for access toFall 2009

credit cards, home equity lines of credit, or personal linesof credit.Near-term income: This is a traditional strong point indivorce representation. The process is naturally designedto help the parties evaluate their income and expensesin the near term, using the Domestic Relations FinancialAffidavit as a key tool. Your client’s earnings, alimony andchild support can all contribute to establishing a positivecash-flow situation for your client. A common danger spotis with real estate. Often, your client may want to keep ahome they cannot afford with their post-divorce income.Showing them the numbers early and often can help themcome to grips with this reality and become emotionallyready to move to a more affordable home.Long-term income: With so much focus on near-termcash flow needs, identifying the sources of longer- termincome can be challenging. Yet for most non-breadwinners,if they overspend in the short run, they have no ability toreplace those assets with future earnings. It is thereforecritical that they understand this concept and receive assetsthat can be left to grow and provide lifetime income in theirlater years.I’ve found a good rule of thumb that helps many clientsgrasp this concept easily: For every $1,000,000 of assets, youcan spend about $3,000/month, after-tax, inflation adjusted,for about 40 years 2 . So in our Jenny example above, if sheused $1M of her settlement to buy a home and investedthe remaining $4M, she could likely spend around $12,000/month after tax well into her nineties, giving herself a raisewith inflation each year. This is in addition to any incomeshe earns, and any alimony, child support, or social securityshe receives. If the assets available cannot create the desiredincome, it’s better for your client to get that message early.It can be particularly helpful in moving an unrealistic clientpast a desire to hold onto assets that won’t create income(i.e. personal real estate), or helping someone reluctant tore-enter the workforce understand the benefits even modestamounts of earnings can provide in protecting their assetsfor future growth.Step Three: Identify and protect against your client’s fourmain foreseeable risks.Medical problems: Where your client will receive healthinsurance is a key factor in most divorce cases. One of thesafest options can be if your client has access to her ownpolicy through work. If she does not have this option, shelikely has access to coverage under COBRA under herspouse’s employer. While this is an easy solution in theshort term (up to 36 months), your client faces a significantrisk by accepting this solution. At the end of her coverage,she will have to obtain an individual policy (unless shegains access through an employer plan or Medicare).Any health condition she develops in the meanwhile, likeJenny’s MS, will be fair game for the insurer to consider indetermining whether and at what price to offer coverage.If your client is healthy, recommend that she contact herinsurance agent, refer her to a good one in your network,or encourage her to contact primary player’s in the Atlantamarket directly (such as Blue Cross Blue Shield) to obtainunderwritten quotes for her own individual policy.Reflect that premium, which may be higher than the costof COBRA coverage, on her DRFA, to ensure her neededexpenses are reflected accurately.Disability: If you structure your settlement withalimony, your client is going to rely on that income inplanning her financial future. Assuming you prevail in thealimony award, what will protect your client in the eventthe payor becomes disabled and suffers a loss of income?Does the payor have a group and/or individual disabilitypolicy that would continue a least part of his incomeshould he become disabled? If not, you can anticipate amotion for modification that puts your client’s alimonyin jeopardy. Therefore, particularly if your client will bereceiving a large amount of alimony for any length oftime, ask about the spouse’s disability insurance. Makemaintaining coverage part of the settlement agreement.If they don’t have coverage, ask for them to get it. Mostemployers offer disability on a group basis, often withoutunderwriting. There are many good individual disabilityinsurers as well. Also, don’t forget your own client. ifshe is or will be earning income that is not “gravy” toher financial security, urge her to get their own disabilityinsurance to help protect that income stream.The Family Law Review Fall 2009

Death: Many settlement agreements require lifeinsurance to replace child support and/or alimonypayments that would terminate at the death of the payor.While this is a great idea, there are wide variances in howthe life insurance is handled, providing widely variableresults for your client.In all cases, having the right amount of insurance isthe first step. Most financial advisors and accountantscan easily provide you with a so-called “net presentvalue” calculation to determine a reasonable amount ofinsurance to replace the income stream that would belost. Next, you will decide whether to use an existingpolicy, or if a new policy is needed to meet your client’sneeds. If the latter, ask the spouse to apply during thesettlement negotiations, not after. Underwriting can take6-12 weeks and you never know what medical issues canturn up. If the new policy turns out to be unavailable ormore expensive than planned, you want that informationbefore your client signs the final decree. Last, the ownerand beneficiary of the policy are critical. If the spousewill be the owner of the policy, naming your client asbeneficiary, be aware that your client will not receivenotification from the insurance company if he changesthe beneficiary, reduces the death benefit, or cancels thepolicy altogether. Your decree may provide her the rightto request periodic proof of coverage, but if he has diedor become uninsurable in the meantime, redress becomeschallenging. An added protection is to have your clientnamed as irrevocable beneficiary of the policy. This way,the insurance company will not process any request toremove your client as beneficiary. It does not, however,prevent the spouse/owner from canceling the policyintentionally, or through failure to pay the premiums. Themost secure option is for your client to be the owner ANDbeneficiary of the policy. As the owner, she retains control.Only she can change the beneficiary or make otherchanges to the policy. She will be notified if premiums arenot being paid and can make payments herself to keep thepolicy in force.Long-term Care: When someone begins to need helpcaring for themselves, the first line of defense is often thespouse 3 . Your client will soon be single and will thereforenot have a spouse available to provide this initial care;she may instead need to pay for in-home assistance. Ifher needs become too complex to care for at home, shewill need to turn to adult day care, assisted living ornursing homes. In fact, nearly three out of four nursinghome residents are women 4 . How will she pay for thisexpense? How will she find and select the caregivers? Agood long-term care policy can be the answer. For anyclient 50 or older, I urge you to make this part of thesettlement discussion. Using the family’s current agent,the employer’s HR department if they offer LTC, orsomeone you refer from your professional network, obtaininsurance quotes during the settlement process and reflectthe cost on the DRFA. Depending on the age and healthof your client, she could transfer much of her risk foranywhere from $2-$6,000/year.One great “trick of the trade” with long term careinsurance is that many insurers provide discounts of 20-40 percent if couples apply together. Some even allow thecouples discount to continue after a divorce. Therefore,collaborating to obtain coverage before while the coupleis still married can allow each party to obtain reducedpricing on this critical coverage. As with life insurance,underwriting can take 6-12 weeks, so encourage your client(and their spouse) to apply early in the process.Conclusion:No matter how well a family law practitioner representstheir client, it is ultimately the client’s responsibility tomake good decisions and properly manage their share ofthe settlement. By using the three steps outlined above,however, you can increase the impact you have on yourclient, giving them a greater chance to avoid becomingthe next “Jenny.” You can expand your reputation asan effective practitioner. And you can generate moreopportunities to send business to professionals in yourreferral network (or develop relationships with new ones),thereby increasing the odds of gaining referrals in return.Good for your client, good for your referral partners, goodfor you. Good practicing! FLREndnotes1) Jenny is an example, not meant to represent any specific client2) Assumptions include: inflation- 3.5 percent; gross rate ofreturn- 7.5 percent ; average tax rate- 25 percent3) Nearly 23 million Americans are providing unpaid care fora relative or friend. Speech by Josefina Carbonell, U.S.Assistant Secretary for Aging, on April 10,2003. RetrievedAug. 9, 2005, from the World Wide Web at www.aoa.gov/press/speeches/2003/04_apr/speeches_archive_04_14_pf.asp.4) Derived from Table 13, the Centers for Disease Control andPrevention, Vital and Health Statistics, June 2002, Retrievedfrom the World Wide Web Aug. 13,2005, at www.cdc.gov/nchs/data/series/sr_13/sr13_152.pdf.GVFA 2009 0091DOFU 8/2009Suzanne Durbin is a partner with GVFinancial Advisors. She has been recognizedby the Five Star: Best in Client SatisfactionSM Wealth Manager Program in both2008 and 2009. She and the other Advisorsat GV use the proprietary Guided WealthTransformation TM process to help their clientsuse their wealth to create the lives they desire,enhance the lives of the people they love, and create a legacy thatrepresents their passions and values. You can contact Suzanneat suzanne.durbin@gvfinancial.com, 770-295-5611, www.gvfinancial.com, or her profile on LinkedIn, www.linkedin.com/in/suzannedurbin.The Family Law Review 32Fall 2009

Young Lawyers Division Family LawCommittee Updateby Tyler BrowningIN THE SUPERIOR COURT OF GRAPE COUNTYSTATE OF GEORGIAThe Young Lawyers Division Family LawCommittee provides educational and networkingopportunities to young lawyers whose practice involvesfamily law. In May, we held a well-attended receptionat the Family Law Institute at Amelia Island. We arecurrently busy planning our annual The Supreme Corkfundraiser, which will take place at a great new venue:5 Seasons Brewing Company - Westside on Oct. 1. Asin past years, this popular wine tasting (and this year,beer tasting!) and silent auction will benefit The Bridge,a treatment center, school and residential programhelping troubled adolescents and their families. Lastyear we raised more than $20,000 for The Bridge, andwith your help we can do even better this year! If youare interested in sponsoring the event or donating silentauction items, please contact Gillian O’Nan at (404) 237-5700 or gonan@levinesmithlaw.com.We are also always looking for new members to joinour committee. If you are a young lawyer or know anyin your firm that you can compel into joining us, pleasecontact one of our officers for the 2009-2010 bar year:Tyler Browning, chair (770) 424-1500tyler@browningsmith.comKatie Rohr, secretary (770) 951-2700krohr@wmbmlaw.comTraci Weiss, treasurer (770) 951-2700tweiss@wmbmlaw.comGillian O’Nan, event chair (404) 237-5700gonan@levinesmithlaw.comSTATE BAR OF GEORGIAYOUNG LAWYERS DIVISIONFAMILY LAW COMMITTEE,PETITIONER,VS.INVITEE,RESPONDENT.SUMMONSTO THE ABOVE NAMED RESPONDENT:You are hereby summoned to appear before:A Wine Tasting and Silent Auction Event6:30 pm – 10:00 pmThursday, October 1, 20095 Seasons Brewing Company - Westside1000 Marietta StreetAtlanta, Georgia 30318$40 per person in advance; $45 per person at the doorTicket price includes wine tasting and hors d’oeuvresSilent Auction closes at 9 pmCash, Check and Credit Cards AcceptedCIVIL ACTION FILE NO.10-01-2009Tickets can be purchased at www.thebridge-atlanta.org orby contacting Beth Pann at 404.446.1536 or bpann@thebridge-atlanta.orgThis event benefitsThe Bridge is a 40-year old family treatment center, specialized schooland residential program serving troubled and abused adolescents and theirfamilies.The Young Lawyers Division Family Law Committee would like to thank thefollowing sponsors whose generosity made our reception at the 2009 FamilyLaw Institute at Amelia Island a success:Platinum SponsorsBrowning & Smith, LLCDavis, Matthews & Quigley, P.C.Huff, Woods & HambyGold SponsorsCallaway & Company, LLCLevine & Smith, LLCThe Family Law Review 33Fall 2009

Creating an Alimony Trust:A Good Tax Planning Tool?by Sue K. Varon, Esq. and Martin S. Varon, CPA, CVA, JDsvaron@armvaluations.com, mvaron@armvaluationsEstablishing a trust prior to divorce mayserve to accomplish several desiredresults. One type of trust, provided forunder IRC Section 682, is commonlyknown as an alimony trust. Pursuant toSection 682(a) this trust must be created priorto divorce or separation, not in contemplationof it. These trusts are primary used for clientswith significant financial resources, who couldfund the corpus of the trust.Economic protection benefits afforded bythe alimony trust would be accomplished ineach of the following situations:• One spouse may not have a goodtrack record when it comes tohandling financial responsibilities.The recipient may be a spendthrift orhave an expensive addiction, with thepotential of dwindling away a lumpsum settlement. This could leave thedoor open for later pleas for additionalfunds from the more financially stableformer spouse.• In contrast, the funding spouse maybe the financially irresponsible partyor may be involved in an unstablebusiness venture, leaving the recipientspouse concerned about the likelihoodof not receiving future support orinstallment payments in accordancewith a settlement agreement.• If a significant part of the maritalestate is comprised of stock in a closelyheld business that will ultimately bedivided, the spouse who is activelyinvolved in the business will wantto prevent the other spouse frominterfering with the operation of thebusiness by exercising voting rightsthat accompany stock ownership.A solution may involve transferringthe stock to a trust for the recipientspouse’s benefit.IRC Section 682 specifies rules applicableto alimony trusts. A specified sum is set asideto be paid to the former spouse. The amountin excess of the specified sum (interest on theprincipal) reverts back to the person fundingthe trust. The recipient of the specified sumis taxed on the amount received, just as shewould be taxed on alimony payments. Once34Fall 2009

Husband transfers the principal amount to the trust, he nolonger pays tax on the earnings. However, he does not get adeduction for the funds transferred to the trust.Example 1:Husband and Wife have decided to divorce. Wife willhave primary physical custody of the parties’ two minorchildren. Husband agrees to pay child support in theamount of $1,200 per month for each child until each childis 18 years old, for a total of $2,400 monthly. When the firstchild reaches the age of 18 years, Husband will pay $1,200per month in child support. If Husband pays $2, 400 directlyto Wife, he does not get a tax deduction nor does Wifeinclude the amount in her income. Instead, Husband canfund an alimony trust with a sufficient amount to produce aminimum of $28,800 annually ($2,400monthly child support multiplied by12 months), with the trust setting outthe requirement that the trustee payWife $2,400 monthly so long as bothchildren are under 18 andthe amount to be reduced to$1,200 monthly when onechild reaches the age of 18years. The trust would alsoprovide that any annualtrust income in excess of$28,800 is to be paid toHusband. Wife will not betaxed on trust income that isspecifically classified as childsupport in the divorce decreeor separation agreement.Example 2:Husband agrees to payWife monthly alimony in theamount of $1,000 for 5 years.Instead of making monthlypayments directly to Wife,he sets up an alimony trustwith Wife as the beneficiary,funding it with enoughassets to generate $12,000a year for a total of $60,000over the next 5 years ($1,000/mo x 12 months x 5 years).Each year Wife will pay taxon $12,000 that she receivesannually; $12,000 per yearis excluded from Husband’sgross income (receiving thesame benefit as if he hadthe alimony deduction).However, Husband willhave the additional benefitof enjoying the increase inthe trust principal (the amount earned on the principal inexcess of the $12,000 paid to Wife). Further, if Husbandis responsible for the total of $60,000 over 5 years, hecould create the trust with a corpus well below $60,000 ofprincipal at the inception of the trust. Because the trust ispaying out $1,000 the first month, the remaining corpuscontinues to earn interest income. Thus, the time value ofmoney concept reduces the amount of corpus needed toinitially fund the trust to satisfy the alimony obligation.Alimony trusts are governed by section 682(a) ofthe Code and, in terms of deduction and inclusion,produce results similar to those under regular alimonyarrangements. Trust distributions are excluded fromtransferring spouse’s gross income (giving Husband/transferring spouse the same benefit as if the amount wasincluded in his income and then deducted as alimony), arenot subject to alimony recapture, can continue after therecipient spouse/trust beneficiary’s death and are taxable tothe recipient/trust beneficiary spouse (with the exceptionnoted below).Section 682 sets out specific requirements for thealimony trust. The trust applies to people who aredivorced or legally separated pursuant to a divorce degree,separate maintenance decree or separation agreement.Trust distributions paid to the recipient/beneficiaryspouse (Wife) are includable in her gross income anddeductible from payor/Husband’s gross income. Thereis one notable exception. When amounts are specificallydesignated as child support in the divorce decree orseparation agreement, those distributions are treated as ifthey were received by the payor/Husband and then paiddirectly by him to the recipient/Wife. As a drafting tip,when a trust will make both child support and non-childsupport distributions, it is imperative that the trust termsspecifically designate the character of the distributions(child support or alternative support) to avoid taxconsequences to the recipient/Wife.Clearly, the alimony trust is not appropriate for allclients. However, it is a good planning vehicle for clientswho have sufficient assets to fund a settlement, particularlywhere either of the parties is concerned about the otherspouse’s financial stability. FLRMartin S. Varonmvaron@armvaluations.comSue K. Varonsvaron@armvaluations.comAlternative Resolutions Methods, Inc.770-801-7292www.armvaluations.com35Fall 2009

Confessions of aGuardian Ad Litem —Guardian ad Litem FAQ’sby M. Debra Golddebbie@mdgoldlaw.comIt seems like every case I become involvedin as Guardian ad Litem (GAL), theparties have questions about me, myrole, their roles and anything else thatcrosses their minds. I know the attorneys havealready explained everything to them, yet thequestions keep coming my way. It is thereforenot a surprise that my confession for this issueis that sometimes I feel like a broken record,repeating the same answers over and overagain. Accordingly, I reduced the answersto the most frequently asked questions towriting. As I have done in past issues, I inviteyou to share this article with your clients so asto enhance their understanding of who I andmy fellow GAL’s are and what we do.• What is a GAL in custody disputes?A GAL is a duly trained and qualifiedexpert who is appointed by the judge in casesinvolving custody of children, includingdivorce, modification of custody or visitationand legitimation. The GAL represents thebest interests of the children and is appointedto assist the Court in reaching a decision asto what is in the children’s best interests.Although the GAL is not always an attorney,in Georgia this is the general rule. However,since the GAL does not represent the father orthe mother, he or she cannot give legal adviceto either party.• How is the GAL appointed?The GAL is appointed by way of anorder signed by the judge which sets outthe GAL’s role, responsibilities, rights andcompensation. Usually the attorneys willagree on a GAL. However, if the parties areunable to agree upon a GAL, some judgeswill appoint one from their own lists ofqualified GAL’s. Other judges will utilizeservices available in their counties whichprovide qualified GAL’s for appointment.• What will the GAL do?The GAL will perform a full investigationinto all child-related issues involved in the caseand make a recommendation to the judge asto what is in the best interests of the children.Every GAL has his or her own proceduresFrequently Asked QuestionsWhat is a GAL in custody disputes?How is the GAL appointed?What will the GAL do?How can I convince the GAL that I should win the case?Will the GAL keep the things I say confidential? What will the GAL say to my children and how should I prepare them?Will the GAL help to settle the case?If I do not agree with the GAL’s recommendation, am I stuck with it or can I contest it?Who pays for the GAL?36Fall 2009

and means of obtaining information and investigatingthe facts. You can expect that the GAL will likely visityour home and meet with your children. The GAL willalso probably speak with witnesses including teachers,doctors, friends, neighbors, relatives and other peoplewho can shed light on the case. The GAL has the right torequest and review records related to the child, includingmedical, psychological, school and Department of Familyand Children Services records. The GAL also has the rightto request that the parties and/or the children undergoa medical or mental health examination. In addition it islikely that the GAL will participate in all legal proceedingsconcerning the children including hearings, depositions,mediation and final trial.• How can I convince the GAL that I should win the case?Firstly, we must remember that there are no “winners”in custody litigation. The proper question is “What canI do to show the GAL what is in the best interests of mychildren?” The answer is that you should be yourself, tellthe truth, be cooperative and always place your children’sneeds ahead of your own. Sometimes that can be easier saidthan done. It is normal to go to extra lengths to impress theGAL. However, don’t fool yourself. The GAL will get to thebottom of things and will be able to see the truth regardlessof how well you sugar coat it. If you act with integrity, youwill shine.• Will the GAL keep the things I say confidential?The GAL has no duty of confidentiality and in fact has aduty to disclose those facts that he or she relies upon whenmaking a recommendation to the judge. The GAL’s rightto obtain confidential information regarding a party (i.e.,medical and mental health records) is conditioned uponthe party signing a release allowing the GAL access to theinformation. While you do not have to sign the release,unless there is a good reason to keep your records or anyother information from the GAL, it is usually wise to do so.Otherwise, the GAL will think you are hiding somethingand may go to greater lengths to find out information inother ways. Remember, the truth generally prevails. If yougo ahead and own up to your shortcomings and issues upfront, they may not have as bad an effect on your case asyou thought they would. Talk to your attorney about howyou should handle this issue.• What will the GAL say to my children and how should Iprepare them?So much depends on the GAL appointed, the agesof the children and other facts and circumstancessurrounding the case. Sometimes the GAL will onlyobserve the children or play with them. In other cases,usually those with older children, it may be appropriatefor the GAL to talk with the children about some of theissues or the family situation in general. You should discussthis with your attorney and the GAL prior to him or hermeeting with your children so you will know how youshould prepare the children and introduce them to theGAL. In no case, however, should you tell the childrenwhat they should or should not say to the GAL.• Will the GAL help to settle the case?Unless the parties otherwise agree, the GAL will likelyparticipate in mediation and settlement negotiations.It is the GAL’s goal to reach a final disposition of yourcase with as little disruption to the children as possible.Thus the GAL will be supportive of your settling thecase. However, although it is not a common thing to do,the GAL has authority to object to a settlement if he orshe believes that the settlement will not further the bestinterests of the children.• If I do not agree with the GAL’s recommendation, am Istuck with it or can I contest it?You have the right to contest the GAL’srecommendations but it is not always wise to do so.Generally, upon the completion of the GAL’s investigation,if the case does not settle, the GAL will write a reportdetailing his or her findings and recommendations.The GAL will also likely testify at your trial. The judgewill consider the GAL’s report and testimony in makinghis or her decision, but may or may not adopt therecommendations, as the judge is required to use his or herown independent discretion and judgment in making adecision. You should discuss with your attorney whether itis advisable to contest the GAL’s recommendation and howyou should do so.• Who pays for the GAL?In some cases, usually when the parties are in financialneed, the courts will appoint volunteer GALs. However, inmost cases the GAL is compensated by the parties. Unlessthe facts and circumstances indicate otherwise, the partieswill generally be required to pay for one-half of the GALfees and they may be required to pay a retainer. The partiesshould be aware that the costs for a GAL can run into agreat deal of money, particularly if they or their attorneysdo not cooperate or insist on monopolizing the GALs time.Most attorneys agree, however, that this is money wellspent because a GAL can generally cut to the chase, gostraight to the facts and facilitate a final disposition whichis truly in the best interests of your children. FLRM. Debra GoldGuardian ad Litemmdgoldlaw@aol.comGold regularly serves as a Guardian ad Litemthroughout Georgia and has done so since1991.The Family Law Review 37Fall 2009

2009 Family Law InstitutePicturesMelody Richardson, Tara Stoinski andAndy PachmanThere is plenty of time for socializingDan Bloom and Robert Cowan enjoytheir evening with friendsJudge Tain Kell and Paul Johnsonnetwork after a productive dayJustice Robert Benham networkswith Nancy Ingram Jordan andCassandre M. Galette38Ready for an exciting evening.Fall 2009

Debbie Ebel and Georgia LordNed Bates Jr.The afternoon session was at capacityChildren pondered Chief Justice Sears’statementsTom BrowningChief Justice Sears, Jennifer and MattieMcKinzieChief Justice Leah Ward Sears after her session withthe future lawyers at the InstituteTommy Algood and Trish LyndonThe Family Law Review 39Fall 2009

Tina Shadix Roddenbery andAndy PachmanJill RadwinFLI attendees at the opening nightreceptionTamar Faulhaber, Dana Floyd andGlenda SullivanKynna DuncilBruce Steinfeld and Glenda SullivanHala Carey of Carey Associates and Margot fromVisions AnewWade Padgett, Nancy and Kurt Kegel andEd ColemanThe Family Law Review 40Fall 2009

Rick Newton and his new grandsonJudge Steve JonesTrinity Hundredmark andWhitney MaukAlison Arce, Stephen Clifford andJudge Gail TusanJudge BensonettaLaneJudge Stephen Schuster and Tom Kell.Rachel Platt, Joseph Szczecko and Judge CynthiaWrightQuinton Washington, Cassandre M. Galette andCeleste BrewerThe Family Law Review 41Fall 2009

Tommy Allgood and Ed ColemanJudge CynthiaWrightJudge Adele GrubbsJudge Bonnie Oliver and friends areready to start the sessions!AtlanticInvestmentsKathy Portnoy and Charla StrawserBob Boyd, Ned Bates and Chris OlmsteadDaniel Moore, Kelly Miles, Russell Smith andCatherine HicksThe Family Law Review 42Fall 2009

Tina Shadix Roddenbery, Dawn Smith,Katie Connel and John Collar Jr.Brian and TomHawkinsJolie, Randy and Valerie KesslerSeth Harp, Judges Mary Staley, BonnieOliver and Stephen SchusterDeniseEssermanLisa Kaplan, Carl Pedigo andCarla SteinMore good times at Amelia Island.Clay Metts and Paul JohnsonThe Family Law Review 43Fall 2009

Judge John Simpson, SuperiorCourt, Coweta Judicial Circuitby Jill Radwinradwinj@gaaoc.usAt the beginning of court in late May,Superior Court Judge John Simpson called upto the bench three men who had a history of notpaying their child support obligations. Thesethree men had just gained employment and hadbeen participating in the other requirementsof the newly established Child SupportProblem Solving Court in Carroll County. Mostimportantly, these men had begun paying someof their child support obligation and arrearages.Judge Simpson said, “Normally, I am not a fanof applause in the courtroom, but could thosesitting in the courtroom give these men a roundof applause?”Everyone in the courtroom that morningdid applaud, especially Judge Simpson.Following that court session, Judge Simpsonmet with me and my summer law school intern,Siobhan Phillips, to discuss his involvementand motivation in establishing this pilot site ofthe Child Support Problem Solving Court inCarroll County. Judge Simpson, Superior CourtJudge in the Coweta Judicial Circuit, who hassat on the bench in Carroll County since 1996,also answered questions about his career andcommunity involvement.Radwin: Judge Simpson, what was yourinspiration for establishing a Child SupportProblem Solving Court here in Carroll County?Judge Simpson: After being involved lastyear in drug court, I got the idea of takingthis same problem solving court model andapplying to the issue of child support. As withmost of the judges in the state who hear childsupport cases involving the Office of ChildSupport Services, (the state’s child supportenforcement agency), the docket is alwayscrowded and often, the judges see the samefaces over and over again. I asked the Office ofChild Support Services (OCSS) if they wouldbe interested in establishing this specialtycourt with me. The timing could not be betterbecause the state office of OCSS was lookingfor a court to serve as a pilot with this verysame concept. OCSS had already been indiscussion with the Administrative Office ofthe Courts (AOC) to assist due to the AOC’sexpertise in establishing drug, DUI and mentalhealth courts. The AOC agreed and becamea stakeholder here with the responsibility offacilitating an evaluation of the court.Radwin: When was the court establishedand who have become the stakeholders?Judge Simpson: On Dec. 5, 2008, we hadthe kick off to announce to the communityin Carrollton about the establishment of thepilot project. We actually started the programJan. 1, 2009, with the first court hearing atthe end on Jan. 30, 2009. The stakeholdersare OCSS, including the state agency’sFatherhood Program, representatives fromstate headquarters at “Two Peachtree inAtlanta”, the local Assistant District Attorneywho prosecutes child support cases for OCSS(Kelly Owens) and representatives from thelocal Child Support Office. The case managerof this court, Debra Folds, is an employee ofOCSS. Also, we have the AOC as a stakeholderand Applied Research Services, the firm AOCcontracted with to do much of the evaluation,including a logic model and quantitativeand qualitative evaluations. The GeorgiaDepartment of Labor is a stakeholder withtheir assistance in job placement and trainings.We have the treatment/services providers asstakeholders, including Pathways, TannerBehavioral Services and the local chapterof NAACP. The local Presbyterian Churchvolunteering to help with visitation is anotherstakeholder. We are working with our localresources that we already have here. We alsohave use of the courthouse facilities, includingthe sheriff deputies, to hold court once amonth with the participants of the program.Radwin: Will you please summarize forus the concept behind your Child SupportProblem Solving Court?Judge Simpson: In a number of cases thenon-custodial parent may be jailed for notpaying the child support obligation and thensits in jail from 90 to 100 days. During thisperiod, no child support is being paid. This44Fall 2009

scenario frustrates everyone. The individual is in jail notworking, not doing any job training, and it comes at a costof about $38 per day to the taxpayers for jail cost. So itseems there has to be a better way.Radwin: How did you come to associate the problemsolving court model with the issue of unpaid child support?Judge Simpson: I worked for a year with the CarrollCounty drug court so this caused me to think about childsupport in the same light. Carroll County was one ofthe first drug court programs in the state and has a verysuccessful drug court with a very knowledgeable directorand I learned a lot from the drug court team.I also had the opportunity to attend a National JudicialCollege program in Reno, Nev., where I was able to observea drug court in an urban setting. It is interesting to see thedifferent styles that judges use. I mean, drug courts arevery similar across the country; but it is interesting to seethe different styles that judges use in drug court.Radwin: Have you had the opportunity to observe thisspecific type of problem solving court elsewhere, and if so,describe what you observed?Judge Simpson: Yes. I had the opportunity to go toNorth Carolina and observe Judge Kristin Ruth’s court.(Judge Ruth is a circuit court judge in Wake County, NorthCarolina.) We have used her court as a model and we havetried to institute much of what she has done. However, sheis in Wake County, which is Raleigh, North Carolina, andThe Hon. John Simpsonshe seems to have more resources than we have in CarrollCounty. This is in part due to her having the resources of acourt in an urban area that is doing relatively well in spiteof the current recession. But, we have pressed ahead eventhough we didn’t have all those resources.Radwin: How many participants do you plan to have inthe program during this first year of its operation?Judge Simpson: We want to have 30 participants.Currently we have 19 so we will be expanding to have 30within the year.Radwin: Please describe for us the process one goesthrough once enrolled in the program?Judge Simpson: Our problem solving court participantsmeet with the Child Support Case Manager, Debra Folds.Information she receives at that initial meeting will guideher in assigning each participant to various programsthat match their individual needs. We have programs toassist with finding jobs which utilize the Child SupportFatherhood Program and the Department of Labor. Thefocus is the number of applications the participants submitto potential employers. The Fatherhood Program assistswith literacy training, too. We feel like the more jobs eachof these participants are able to apply for, the better theirchances of getting a job increases. Our substance abuseand mental health program is provided by Pathways, ourCommunity Service Board (CSB). The lack of jobs andaddiction issues may be the underlying problem of whythese non-custodial parents are not paying child support.Other underlying problems involve the lack of visitationand no quality interaction between the non-custodialparent and the child. So, another possible referral is toa supervised visitation program we have set up with alocal church. A possible referral could be to a volunteerlawyer from the Carroll County Bar Association to assistwith legitimation petitions and mediation for visitationissues. The Carroll County Mediation Center is practicallynext door to the courthouse, which makes it convenientif mandatory mediation is involved. Also, the local childsupport office is going to do a modification on orders thatare clearly out of line with the father’s ability to pay.Radwin: Any perceived successes at this early date?Judge Simpson: Yes; I think that today (May 30), out of19 individuals that are currently in the program, we have 12of them working and paying child support. This was sucha chronic group of non-payers when we started. This is thetype of group who would sit in a jail for the 100-day periodand pay nothing, so I think this is good initial success.Radwin: Tell us a bit about your background, legaleducation?Judge Simpson: I graduated from Mercer Law School in1985. I was the law clerk for one year to the Coweta judicialcircuit upon graduation from law school. In 1986, I ranThe Family Law Review 45Fall 2009

for the Georgia House of Representatives and I won thatoffice. I served in the Georgia House for ten years and I hada private practice at the same time. I dealt with domesticrelation cases, with real estate and criminal law workand some complex civil litigation. I ran for judge in 1996,and have been in office ever since. I have, though, beeninvolved with 13 contested elections. That is, if you countthe primaries, the runoffs and the general elections.Radwin: How did you come to work and serve inCarrollton?Judge Simpson: I was born in LaGrange and I lived thefirst six years of my life just across the state line in RandolphCounty, Ala. Since I was six years old, I have lived in CarrollCounty. I graduated from Bowden High School and thenWest Georgia College, so this was the natural place for meto start my practice and political career.Radwin: What made you decide to run for judge inCarroll County?Judge Simpson: I worked as a law clerk right out of lawschool and this gave me a good view of the job. I workedfor a wonderful judge who actually allowed me to travelwith him around the five county circuit. Right out of lawschool, I had the opportunity to get to know all of thelawyers in the area. That gave me a good view of the joband that is one reason that I ran for it.Radwin: How has the experience been?Judge Simpson: It has been a good experience. Humanbeings are fascinating, the many problems they have andyou can see the important roles the courts play. On our bestdays, we are able to resolve a person’s problems so thatthey can get on with their life.Radwin: Any final comments?Judge Simpson: I think that the problem-solvingcourt approach has rejuvenated me in my work becauseI am able to work with people more directly on solvingproblems as opposed to sitting there as a judge andobserving. I, too, was skeptical of this whole area initially,as I think a number of judges are, but as I have gotten intoit more, I find that it really helps me to enjoy my work. Ithas also been really great to collaborate with all of thesecommunity organizations. FLRJill Radwin works for the GeorgiaAdministrative Office of the Courts, whereshe serves as the staff attorney to the ChildSupport Commission and is the executivedirector of the Georgia Supreme CourtCommittee on Civil Justice. She is a graduateof the University of Alabama School of Law,and is a member of the Family Law Section.She can be contacted at radwinj@gaaoc.us.I want to thank Siobhan Phillips, a law school student at JohnMarshall and who served as my summer law school intern, forher assistance with this article.InstItute of ContInuIng LegaL eduCatIon In georgIaThursday • sepTember 17, 2009Nuts & Boltsof family law6 CLE Hours including1 Ethics Hour • 1 Professionalism Hour • 3 Trial Practice HoursCANCELLATION POLICYCancellations reaching ICLE by 5:00 p.m. the day before the seminardate will receive a registration fee refund less a $15.00 administrativefee. Otherwise, the registrant will be considered a “no show” andwill not receive a registration fee refund. Program materials will beshipped after the program to every “no show.” Designated substitutesmay take the place of registrants unable to attend.SEMINAR REGISTRATION POLICYEarly registrations must be received 48 hours before the seminar. ICLE will accept onsiteregistrations as space allows. However, potential attendees should call ICLE the daybefore the seminar to verify that space is available. All attendees must check in uponarrival and are requested to wear nametags at all times during the seminar. ICLE makesevery effort to have enough program materials at the seminar for all attendees. Whendemand is high, program materials must be shipped to some attendees.The Family Law Review 46Fall 2009Presiding:ICLECo-sponsored by:sTaTe bar of GeorGia headquarTers1 0 4 M a r i e t t a S t r e e t N W • A t l a n t a , G AParking is free in the State Bar Headquarters for State Bar members attending ICLE seminars. Entrance to theConference Center is located on Level 6 of the State Bar Headquarters parking deck. Please have parking ticket stamped byICLE registration personnel before leaving the seminar.• From the East on I-20: Take the Windsor-Spring Exit. Turn right on Spring Street. Turn right on Marietta Street.• From the West on I-20: Take the Windsor-Spring Exit. Turn left on Spring Street. Turn right on Marietta Street.• From the South on 75-85: Take Andrew Young International Blvd Exit. Turn left on International. Turn left on CentennialParkway. Turn left on Marietta Street.• From the North on 75-85: Take Williams Street. Exit. Turn right on International Blvd. Turn left on Centennial Parkway.Turn left at Marietta Street.• Marta: The State Bar of Georgia Headquarters is about one block from Station W1 (Philips Arena/CNN Center) onMarta’s west line and 2 blocks from Forsythe Street from 5 points Marta Station.To make hotel room reservations, call:Embassy Suites phone: 678-686-0760 • Hilton Garden Inn phone: 404-577-2001 • The Omni phone: 404-818-4334Ask for the State Bar of Georgia’s negotiated corporate rate.http://www.gabar.org/parking_deck/Three ways To reGisTer: check the ICLE schedule on the web at www.iclega.orgMail: ICLE • P.O. Box 1885 • Athens, GA 30603-1885 (make check payable to ICLE)Fax: 706-354-4190 (credit card payment must accompany fax to be processed)Online: iclega.org (credit card payment only)Nuts & Bolts of family law • September 17, 2009 • 7153NAME ____________________________________________________ GEORGIA BAR #________________________FIRM/COMPANY ____________________________________________ OFFICE PHONE (________)_______________vEMAIL __________________________________________________ (for registration confirmation and email notificationof seminars, no postcard or brochures will be sent)MAILING ADDRESS __________________________________________ ZIP + 4 __________ - ______STREET ADDRESS ___________________________________________ (for UPS) ZIP + 4 __________ - ______CITY ______________________________________ STATE __________earLy reGisTraTion fee: $160on-siTe reGisTraTion fee: $180q I have enclosed a check for the early registration fee received 48 hours before the seminar.q I authorize ICLE to charge the early registration fee to my q MASTERCARD q VISA q AMERICAN EXPRESS* q DISCOVERq i am sight impaired under the ada, and i will contact iCLe immediately to make arrangements.q I am unable to attend. Please send written materials and bill me for the cost of materials only. Sorry, no phone orders!Credit Card Verification Number: A three-digit number usually located onAccount #/the back of your credit card; *AmEx is four-digits on the front of the card.Expiration Date:The registration fee for all seminars held at the State Bar of Georgia has been reduced by ICLE in recognition of the Bar’s service to Georgia attorneys.7:45 REGISTRATION (All attendees must check in uponarrival. A removable jacket or sweater is recommended.)8:25 WELCOME AND PROGRAM OVERVIEWRandall M. Kessler8:30 EQuITABLE DIVISION OF PROPERTYEdward J. Coleman, III, Surrett & Coleman, P.A., Augusta9:30 uNANSWERED LEGAL AND ETHICAL FAMILY LAWQuESTIONS IN GEORGIAK. Paul Johnson, McCorkle & Johnson LLP, Savannah10:30 BREAK10:40 DISCOVERYKelly A. Miles, Smith Gilliam Williams & Miles, P.A.,Gainesville11:10 CHILD ABDuCTIONSKaren Brown Williams, Attorney at Law, Atlanta11:40 LUNCH (Included in registration fee)12:10 FEDERAL RuLES OF EVIDENCE v. GEORGIA RuLESOF EVIDENCE: WHAT THE DIFFERENCE MEANS TOGEORGIA ATTORNEYSRebecca L. Crumrine, Davis, Matthews & Quigley, P.C.,AtlantaSignature:AGENDARandall M. Kessler, Program Chair, Kessler, Schwarz & Solomiany, P.C., Atlanta12:40 THE BASICS OF WHAT THE juDGEWANTS TO HEARHon. Warren P. Davis, Judge, Gwinnett Superior Court,Division 10, LawrencevilleHon. Cynthia D. Wright, Judge, Superior Court of FultonCounty, Atlanta Circuit, Atlanta1:10 BREAK1:20 CHILD SuPPORT GuIDELINES uPDATELaurie Dyke, CPA, Investigative Accounting Group,MariettaJill O. Radwin, Administrative Office of Courts, Atlanta1:50 FAMILY LAW CASE uPDATEMarvin L. Solomiany, Kessler, Schwarz & Solomiany, P.C.,Atlanta3:20 QuESTIONS AND ANSWERS3:30 ADjOuRNDuplicate registrations may result inmultiple charges to your account. A $15administrative fee will apply to refundsrequired because of duplicate registrations.© 2009 Institute of Continuing Legal Education in GeorgiaQuestions? Call ICLE Atlanta Area: 770-466-0886 • Athens Area: 706–369–5664 • Toll Free: 1–800–422–0893

Bates Honored with Awardby Jonathan TuggleEdward E. “Ned” Bates, Jr., longtime Atlantafamily law attorney, was recently awardedGeorgia’s top professionalism award from theFamily Law Section of the State Bar of Georgia.The Joseph T. Tuggle, Jr. Award is given in recognitionof the person who the Family Law Section deems tohave most exemplified the aspirational qualities ofprofessionalism in their practice as a lawyer and/orjudge. Past recipients include some of Georgia’s mostrespected and admired family law attorneys and judges.Ned Bates Jr. receives the Joseph T. Tuggle Jr. Awardfrom Wilbur WarnerBates was awarded this honor at the Section’sannual Family Law Institute on May 22, 2009, duringthe morning session. The award was presented byBates’ partner, Wilbur Warner, who entertained thecrowd with humorous stories of Bates’ childhood, andspoke proudly of his association and friendship withBates. Bates humbly received the award and graciouslythanked the section for this prestigious honor.Throughout his career, Bates has carried a reputationas a true “gentleman lawyer”. “He is the sort of lawyerthat even after you lose to him you still feel good aboutgoing over and shaking his hand” says Family LawExecutive Committee member John Lyndon. “Nedhandles cases the way they should be handled. Ifeveryone would follow his example, the practice of lawwould be much more enjoyable.”Bates has been a dedicated member of the FamilyLaw Section, serving as past section chair in 1987-88. Heis also the past president of the Georgia Chapter of theAmerican Academy of Matrimonial Lawyers, as well aspast chairperson of the Atlanta Bar Association’s FamilyLaw Section, among other honors. He is also the authorof Georgia Domestic Relations—Forms and Practice, whichis recognized by lawyers throughout the state as thedefinitive domestic relations form book in Georgia. FLRPast Recipients of the Joseph T.Tuggle Jr. Award Include:1995 - Hon. Hilton M. Fuller Jr.1996 - Hon. Elizabeth R. Glazebrook1997 - Ms. Debra A. Segal1998 - M.T. Simmons Jr.1999 - Joseph T. Tuggle Jr.2000 - Hon. Cynthia D. Wright2001 - Hon. Mary E. Staley2002 - Hon. Louisa Abbot2003 - H. Martin Huddleston2004 - John C. Mayoue2005 - Hon. Carol W. Hunstein2006 - Deborah A. Johnson2007 - Jill O. Radwin2008 - Carol Ann WalkerThe Family Law Review 47Fall 2009

Fraud’s Effect on Settlementsin a Deteriorating Economyby Michael Levittmlevitt@mhlevitt.comwww.mhlevitt.comIt is well known that deterioratingeconomic conditions exacerbate stress andtensions in marriages and often result inseparations and divorces. While the oldadage advises that both spouses, for their ownprotection, should understand and be familiarwith family finances, it is problematic andgenerally not the case, when there is a familybusiness or a closely held company, run solelyby one spouse (the Owner/Operator).Historically when business is booming andasset values are high, a divorcing spouse mightcommit a fraud in order to reduce the businessvalue either for example, by accounting fraudor diversion of assets, thus having to share lesswith the other spouse, or using the funds fora “lifestyle” change. In the current economicenvironment where asset values are alreadyreduced, a spouse may still be inclined tofraudulently minimize values even further soas to retain more going forward particularlygiven the current recession.In periods like these, the engagement ofa Certified Fraud Examiner is a cost effectiveway to determine if any “monkey business”has occurred. Generally, the cost of a fraudexamination produces a significant return oninvestment, especially if one spouse has someinkling of wrong doing.I had been engaged in a case of corporatefraud at a privately held commoditydistributor (ComCo) 1 where it was suspectedthat funds had been fraudulently siphonedout of a subsidiary, which was a debtor toits bank (BankCo). Metaphorically, ComCowas married to BankCo, which had loanedmany millions to the company under aLoan Agreement. ComCo and BankCo eachassumed a significant level of trust, just asin a marriage. ComCo relied on BankCo toprovide funds when needed and BankCorelied on ComCo’s integrity to adhere to theterms of the Loan Agreement and repay theloans as prescribed therein. Unfortunately inthis case as in some marriages, ComCo wasup to no good.The initial evidence of a problem, aprerequisite to having access to the company’sbooks and records, was a violation ofbank covenants related to the level of anintercompany receivable from ComCo’sparent, which was not a debtor under the LoanAgreement. Often in a marital situation, thereis some feeling of doubt that the non-operatingspouse has about the legitimacy of the businessoperations, which supports the engagement ofa fraud examiner or forensic accountant.As a fraud investigator and forensicaccountant, the scope of my assignment was toidentify and quantify any fraud in the operationof the business. I began with interviews of keymanagement personnel as well as other keyemployees. This phase was undertaken to learnthe business flows and processes, as well as to“put the word out” about concerns of fraud. Asa result of discussing concerns of fraudulentactivity, several confidential tips of possiblefraudulent activitywere received andinvestigated. The nextphase was to conductan investigation ofpast transactionsinvolving cash,checks and letters ofcredit above a certaindollar level, lookingfor inconsistenciesor any suspiciousactivity. Transactionswere traced frominitial orders throughthe payment cycleand includedreconciliations toproduct receivedinto inventory.The purpose ofthis activity wasto confirm thelegitimacy of the cashmovements.48Fall 2009

The determination was that payments for productfrom ComCo to the parent were made many months inadvance of product delivery, in clear violation of the LoanAgreement and prior business practices and overpaidfor the purchase of product. It was discovered that thisfraud was initiated to fund a debt obligation of the parentincurred for a failed business venture.Following submission of my forensic investigationreport, a civil action was filed by BankCo and ComCo filedfor bankruptcy protection under Chapter 11. I assistedcounsel in litigation activity during both the civil actionand the bankruptcy, including development of motions,preparing to take depositions for State and FederalCourt, and providing deposition testimony, all based onknowledge gained from the fraud investigation. Followingmy preparation of a valuation of ComCo, BankCo agreedto settle their claim and the company was refinanced outof bankruptcy. The fees for this case were recognized byBankCo to be worth the cost considering the amount oftheir funds at risk.Correlating the ComCo case to a divorce matter, itwould be possible for an Owner/Operator of a (maritalasset) family business or closely held company to embezzlefunds from the company by committing a fraud. Theembezzled funds could then be hidden in anticipation ofdivorce or used to fund a different lifestyle, like infidelity,substance abuse or other addictions. There are many pathsa fraudster might take to accomplish this, however, thefraud examiner has been trained to investigate and identifythem. Some of the more well-known and often used fraudsto siphon money from a company are the use of fictitiousemployees, vendors and consultants. Checks written fromcompany funds to these fictitious entities are then hiddenby the Owner/Operator in any number of ways, e.g., loansto relatives or friends, purchase of assets in other parties’names, etc.The fraud investigator is knowledgeable in thetechniques and methods used to discover the siphoningof funds from a company and how they are thenhidden. If the ComCo fraud investigation had not beenconducted and the fraud had been allowed to continueand undoubtedly expand as frauds generally do, BankCowould have suffered a larger loss. Similarly, a divorcingspouse may receive less in a settlement due to theperpetration of a fraud.The importance of engaging a fraud examiner in adivorce proceeding cannot be overstated, particularly whenthere is a business involved, even if the non-operatingspouse has no doubt about the legitimacy of the businessoperations. A preliminary assessment of the business toidentify any red flags of fraud could be accomplished ata reasonable cost. If there were findings of fraud, a moreextensive investigation would be undertaken.In addition to the issues of embezzlement andhidden assets, an appraisal or business valuation mustbe performed using reliable accounting numbers.The company’s financial statements may have beencompromised by a fraud and need to be restated forvaluation purposes. If there is any suspicion or evidence ofpossible wrongdoing at a family business or a closely heldcompany, a fraud examiner or forensic accountant shouldbe engaged immediately to evaluate the situation and toinsure a fair distribution of assets. FLRMHLevitt Consulting, LLC, was foundedto provide the highest level of professionalservice in the areas of forensic accounting,fraud investigations, litigation support,solvency and related valuation analyses, aswell as troubled company and bankruptcyadvisory services. These areas of expertise areapplied in advisory and support work as wellas in providing expert testimony. Levitt has an MBA in Financefrom Columbia University, a BA in Theoretical Mathematicsfrom Lehigh University, and is a Certified Fraud Examiner, aCertified Insolvency and Reorganization Advisor and a CertifiedTurnaround Professional.Levitt can be contacted at mlevitt@MHLevitt.com or (404)234-4949.Endnotes1) The commodity supplier, renamed herein to maintainconfidentiality, was based in the Caribbean and hadinternational business dealings in Europe, South America andthe Middle East.The Family Law Review 49Fall 2009

Mediation Preparation: Top 5Ways Your Paralegal or LegalAssistant Can Helpby Sue K. VaronAlternative Resolution Methods, Inc.Once you determine it is time to setyour case down for mediation,your paralegal or legal assistant canprove invaluable by following thesesimple steps:Step 1: Assess What is Necessary to Get theCase Ready forMediation.“As the person incharge of schedulingthe mediation,paralegals/legal assistantsshould have basicinformation.Regarding thetiming of themediation, makesure that the attorneypossesses sufficientinformation and, ifnot, what additionalinformation isneeded. Hasdiscovery beencompleted or can the attorneys and theparties have a meaningful mediation withoutcompleted discovery? If the case is not ready,find out what needs to be done to get the caseready for mediation.Step 2: Mediator Selection InquiriesAsk the attorney what style of mediatorwould be most helpful for the client andfor the case. Which type of mediator doesthe attorney prefer for the case: facilitative(the messenger), analytical (discussing thelegal issues), or evaluative (emphasizingthe weaknesses of each party’s case and thelikelihood of the outcome in court). Somemediators are known for their abilitiesin dealing with emotional, intractable orunshakable clients. Also important is findingout what the attorney believes the other sideneeds in terms of mediator skills.50Step 3: Research MediatorsGather information about mediators anddevelop a resource list. Find out what peopleare saying about different mediators. You canfind out a lot simply by picking up the phoneand talking to the mediator. For those youare unfamiliar with,you can ask howMediation and arbitration aredifferent. In arbitration, theparties hire and pay a privatejudge or pane of judges to decidethe case. In mediation, themediator facilitates the parties’negotiation in an effort to assistthem in reaching a mutuallyacceptable agreement.“long they have beenmediating and findout about the types ofcases they mediate.You can inquire howthey conduct themediation, whetherattorneys makeopening statements,how they avoidhaving openingsessions waste timeor escalate the case,and whether theywill agree to gostraight to caucuswithout anopening session.Criteria that should be made available toyour attorney in helping mediator selectioninclude the following:• Does your attorney need a personwho is able to deal with difficultpersonalities?• Are you looking for someone with aproactive approach to negotiation?• Does the mediator need to have quickanalytical skills?• If this case involves significant assets,does this person have a financialbackground or can they bring insomeone to the mediation withfinancial expertise?• Consider which mediator will havecredibility with both parties.Fall 2009

• Does the mediator’s style involve helping theparties find new ways to explore settlement?Step 4: Help The Attorney Prepare for MediationOrganize the file so that pertinent documents areeasily accessible. All files, documents, letters, pleadingsand evidence should be indexed for the attorney andthe client. This will avoid having the attorney shufflethrough documents.Prepare a mediation notebook divided into sections thatinclude the following:• Summary of the Case• Domestic Relations Financial Affidavit• Child Support Worksheet• Net Worth Statement• Discovery Responses• Appraisal(s)• Settlement Proposal(s) (any settlement offers thathave gone back and forth; different settlementoutlines)• List of Relevant Documents (which should be in aseparate file box)Frequently, one party arrives at mediation organized,and the other party notices whether his/her attorney ismore or less prepared.Step 5: Prepare Your ClientAn attorney-client meeting should be scheduled priorto the mediation to explain the mediation process to theclient. You can inform the client that the attorney will bediscussing the following:• The logistics: that initially they may be sitting ina conference room with the other party and theirattorney or, in the alternative, the parties may gostraight to caucus.• The procedure: who will summarize the case(attorney or client) and whether the client will needto speak or just listen. The client should be informedthat there will be long periods of down time. Duringthe caucus, the parties will have the opportunityto vent, discuss and inform the mediator of theirwants and needs. The client should be made awarethat caucus discussions remain confidential unlessthe mediator is given permission to disclose thingsto the other side. Clients should be forewarned thatthe mediator will discuss the weaknesses of thecase, as well as the possible outcomes at trial.• The negotiation process: The client should bewarned about creating bottom lines. Mediationshould be viewed as an opportunity to thinkoutside the box, coming up with creative solutionsin order to resolve the case. It is important for theclient to think about things that are important tothe other party. Framing proposed resolutions thattake into consideration some of those factors maygenerate positive movement toward a settlement.• The compromise: Clients need to be reminded thatcases settle because both parties compromise. Thepoint should be driven home to the client that whena case settles, both parties have given up somethings in order to have the case concluded and thelitigation over. The client needs to consider the costsof a trial as part of the cost benefit analysis.Preparation is often the key to a successful mediation.Pass along this 5 Step list to your paralegal or legal assistant.With the help of your paralegal/legal assistant the processcan be much more productive for all participants. FLRSue K. VaronAlternative Resolution Methods, Inc.svaron@armvaluations.com770-801-7292www.armvaluations.comMediation Preparation:Top 5 Ways Your Paralegalor Legal Assistant Can HelpStep 1: Assess What isNecessary to Get the Case Readyfor Mediation.Step 2: Mediator SelectionInquiriesStep 3: Research MediatorsStep 4: Help The AttorneyPrepare for MediationStep 5: Prepare Your ClientThe Family Law Review 51Fall 2009

Family Law SectionState Bar of GeorgiaRandall M. Kessler, Editor104 Marietta St., NWSuite 100Atlanta, GA 30303PresortedStandard MailU.S. Postage PaidAtlanta, GAPermit No. 14472009-10 Family Law SectionExecutive CommitteeTina Shadix Roddenbery, chairtroddenbery@hsrblaw.comJohn F. Lyndon, member-at-largejlyndon@lawlyndon.comPaul Johnson, chair-electpauljohnson@mpjattorneys.comRandall M. Kessler, secretary/treasurer/editorrkessler@kssfamilylaw.comEdward J. Coleman III, immediate past chairedward.coleman@psinet.comMarvin L. Solomiany, editormsolomiany@kssfamilylaw.comJohn L. Collar Jr., legislative liaisonjcollar@lawbck.comKelley O’Neill Boswell, member-at-largekboswell@wslc-attorneys.comRebecca Crumrine, member-at-largercrumrine@dmqlaw.comKelly A. Miles, member-at-largekmiles@sgwmfirm.comAndrew R. Pachman, member-at-largeandy@prfamilylaw.comRegina Michalle Quick, member-at-largermqpc@mindspring.comJonathan J. Tuggle, member-at-largejtuggle@wmbnlaw.comKaren Brown Williams, member-at-largethewilliamsfirmpc@yahoo.comTyler Jennings BrowningYLD Family Law Committee chairtyler@browningsmith.com