Modification of Property Division in a GA Divorce

GA modification of property divisionGeorgia law is clear concerning the modification of a final judgment concerning an equitable division of property in a divorce case. It cannot be done. Although some final orders, such as those for alimony, child custody, child support and visitation may be modified based on a change in circumstances, a change in circumstances does not allow for the modification of a final property division order.

The Georgia Supreme Court made it clear nearly two decades ago that a final judgment of divorce that resolved all issues regarding property division cannot be modified simply because one asset was not divided. There is one narrow exception to the rule provided for in Georgia statutes: If the judgment was based on “fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant…” the final order may be set aside.

Elements of Fraud for Setting Aside a Final Judgment in GA

It is not easy to have a final judgment set aside due to fraud. The party seeking to set aside the judgment must prove:

  • The adverse party made a false statement of fact.
  • The party who made the statement knew or should have known that the statement was false.
  • The statement was made specifically to make the other party rely upon it.
  • The aggrieved spouse reasonably relied upon the false statement.

The adverse party may claim that there was no way he or she could have known the fact relied upon by the other party was false. Even if the statement was false, the adverse party may also claim there was no intent to deceive, or that the allegedly false statement was an opinion, not a fact.

Finally, there may be a challenge that the complaining spouse should have known not to rely upon the statement and should have conducted an independent investigation.

Setting aside a judgment for fraud is easier when marital assets existed at the time of the final judgment but were intentionally not disclosed by one spouse. It may also be set aside if it can be proved that one spouse deliberately deceived the other about the value of an asset, such as the amount of money in a retirement account.

Consequences of Having a Final Order Set Aside

If the ex-spouse is successful in setting aside the order for property division, the entire divorce judgment will be set aside. If the spouse who asked for the judgment to be set aside received property, the property must be returned and the entire property settlement will be adjudicated anew.

Since the final judgment of divorce does not allow for modification of a property settlement, and the standard for setting aside the judgment is difficult to meet, the ideal approach is to be sure the settlement is done right the first time. Both parties should consult an Atlanta family law firm who can help.  If you have further questions and need help please contact me.

Do You Need A Lawyer to Protect Your Business from Facebook’s Latest Changes?

Facebook articleThere are many of us nowadays that use Facebook not only as a social tool, but also a tool to promote our businesses.  And as you know, Facebook has recently updated its terms of service and data use policy.  As a result of these updates, there has been an absolute uproar with customers’ concerns over content ownership and the prospect of privacy invasions.  Should our fears be valid?  The answer to me appears to be a resounding “NO”.

Experts in intellectual property law are telling us that only one of these latest updates is substantive, i.e., Facebook’s agreement NOT to unilaterally change its terms of service in the future without prior notification; all the other updates appear to be merely cosmetic in an attempt to reduce clutter.

For all of us who just checked “Agreed” to Facebook’s terms of service when we signed up and never took the time to read the terms themselves (which includes me), here are some of the most relevant:

  1. You own all of the content you post on Facebook.
  2. By posting on Facebook, you give Facebook permission to use any and all content free of charge.
  3. You can revoke Facebook’s permission to use content by deleting the content from Facebook or by deleting your account, unless the content has been shared by someone else.
  4. If you delete an individual photo, Facebook deletes that photo.
  5. When you share a photo other than an active profile photo (which can be seen by everyone on or off of Facebook), you can control who sees it, even if one of the Facebook “friends” shares it.
  6. If you comment on someone else’s post or photo, they control who sees it.
  7. You can control whether search engines off of Facebook, such as Google, can link to your profile.
  8. No matter what anyone tells or tries to sell you, you cannot see who has viewed your profile – Facebook is not LinkedIn.

Facebook seems to be safe (enough) for now. . . . . .

Your Business and Year-End

Year end pic for blogAs the year draws to a close, many business owners meet with their accountants and focus on tax planning issues. There are other factors to analyze that will assist in ending 2014 in a positive way while focusing on improving success in 2015. Many advisors recommend business owners add the following topics to their end-of-year accountant meetings.

  1. Review the financial results of your business and compare it with the same year-to-date results from the previous year. Use these figures to evaluate your success and make a plan for improvement in 2015.
  2. If you have not already done so, set up a system to track your success. You should be able to tell how much profit is generated by each dollar that comes in from sales.
  3. Compare your profits to those of other similar businesses within your industry. The information is important to help you know how to plan for 2015.
  4. Consider what resources you need to grow your business in 2015. Do you need to invest in new equipment or hire new people? Will you have cash shortages? Do you need a business loan?
  5. Evaluate whether debts have been made on time and if not, will that be a problem for you in getting any necessary business loan. If so, work with your accountant to help you rectify the problem.
  6. Analyze whether equipment you purchased or people you hired in 2014 have given you the return in the investment that you expected.
  7. Schedule quarterly meetings with your accountant for 2015. Discussions should center on cash flow and improving profitability.
  8. Determine the value of your business. Business owners are advised to frequently assess the value of the business if it had to be sold. This generally considers cash flow and earnings as they compare with other businesses in the same industry.
  9. Identify and evaluate strengths and weaknesses from 2014. Make a plan for overcoming the weaknesses while emphasizing and improving on the strengths for 2015.
  10. If you have thought about changing the structure of your business, such as forming a partnership or a type of corporation, the end of the year is a good time to do that so that you start the new year with the new structure in place.

Your business and the end of the year

Year end tax prep picIf you are a business owner, you are probably searching for ways to save money on your state and federal taxes. It can be confusing since tax laws are complicated and change frequently. What was deductible last year may not be deductible this year. Ask your tax professional about whether any of these suggestions will benefit you and if he or she advises you to take advantage of any of them.

  1. Purchase equipment, supplies and software: Whether these expenses are totally or partially deductible changes each year so you need to check with your tax professional to determine what is allowable for the current tax year. Make all possible eligible purchases of necessary items by December 31 so you can include the deduction on your 2014 tax return.
  2. Review personal financial records to be sure that business expenses have been paid: It is common for owners of a small business, whether a partnership or sole proprietorship, to pay for some business expenses through personal checking or charge accounts. Sort through your personal receipts and cancelled checks and submit them for reimbursement from your business account.
  3. Submit expense accounts for yourself and your employees: Be sure all receipts for all business expenses incurred by you and your employees are submitted by the end of the day on December 31 so that you can claim all possible allowable business expenses.
  4. Make maximum contributions to employee retirement accounts: Employer contributions are tax deductible so be sure that, by year’s end, you have made the maximum allowable contributions.
  5. Treat employees and/or clients to a holiday party: Expenses for holiday parties are generally tax deductible, so you have the benefit of being a good guy and treating employees and clients to a party while, at the same time, deducting the costs from your taxes.
  6. Make a charitable contribution: You can give money as well as donate items. Both categories are tax deductible.

Before you take any action, be sure to discuss with your tax professional specific recommendations to be sure you are doing all you can to lessen the amount of your tax bill.

Thanksgiving and Parenting Time

Norman Rockwell PhotoDivorced parents often find it challenging to make plans for the Thanksgiving holiday. They want their children to enjoy the tradition they have always associated with the celebration, but the facts are, things have changed. The old ways for handling holidays no longer work for most people who are dealing with the new family structure.

The first step: check your court-ordered parenting plan. The plan is controlling and if it spells out specifically how the time will be divided, you must comply with the order. If the court order leaves it open for you to arrange with the other parent how the holiday will be divided, some suggestions from parents who have risen to the challenge may be helpful.

  1. First and foremost keep in mind what is in the best interest of the children. Consider what arrangements will best meet their needs. Do this without putting them in the position of choosing between parents.
  2. Many parents alternate holidays annually. One year the children spend Thanksgiving with one parent. The next year, with the other parent.
  3. Keep in mind that children are not as tied to a specific day or date as adults are. Children may enjoy two Thanksgiving dinners on two separate days. One parent can arrange to have the traditional dinner on Thanksgiving Day. The other parent can set aside another day over the Thanksgiving weekend holiday to celebrate.
  4. When discussing with your children how the holiday will be spent, focus on the time you will spend with them, not on the time they will spend away from you.
  5. Develop new traditions instead of trying to replicate the old ones. Spend the day with your children serving Thanksgiving dinner at a homeless shelter or delivering dinners to shut-ins.
  6. Do not compete with the other parent. Focus on the children and encourage them to enjoy the time with each parent.
  7. In communication with the other parent and the children, be sure the arrangements are clear as to what the holiday week-end plans entail. Specifically, what day and time will the children go from one place to the other and which parent will be dropping off and picking up.
  8. If the children spend the entire Thanksgiving holiday week-end with one parent, arrangements may be made for them to “visit” the other parent by Skype.

Some parents put aside their differences for the day and spend it together with their children. Just be sure that if you try this, you agree not to disagree or argue so that you do not end up spoiling the holiday for your children.

 

How Psychologists Can Help Their Divorcing Clients in Atlanta

Psychologist with divorcing parentAccording to many authorities, a divorce is both a legal and psychological process. Psychologists working with clients who are going through a divorce walk a fine line; they are called upon to help their clients make important life decisions during a legal process that will affect their future while, at the same time, the psychologist must avoid giving the client legal advice.

On the other hand, an Atlanta divorce attorney is often faced with angry and sad clients whose emotional overload may be interfering with the ability to make sound legal decisions. But, the attorney too must be wary of stepping out of his/her role into that of a therapist.

The professional can help the client by working to ease the transition from being a married person to being a single person again. In order to do this effectively, it is helpful for the psychologist to know how the GA divorce legal process works and what issues need to be resolved in an effective manner.

The goal is for the professional to help the client make his/her own decisions on major issues such as payment or receipt of alimony, child custody and support, and the division of marital property; and, to figure out all of this at the same time as adjusting to a new situation at home. Each one of these hot button issues on its own can bring up deep underlying feelings.

How Georgia Child Custody Works

Which parent should the children live with? Will the parents equally share physical custody of their children or not? How will each parent get to spend time with their children? Which parent has final decision-making authority over child care issues? What is the procedure for when there is a disagreement over the children?

Georgia family law courts encourage parents to work together to create a parenting plan, a document that is filed with the court. This plan lays out the visitation schedule for parenting time during the week, on weekends, holidays and extended summer vacation.

The plan also spells out the responsibilities of each parent to their children, including who will pay for the children’s health coverage as well as for uncovered medical expenses. It can also prohibit a parent’s boyfriend or girlfriend from spending the night when the children are present.

By taking the focus away from the parent and putting it on the children for the long term, a divorcing client may be better able to achieve a successful life transition.

How to Divide Assets and Liabilities During a Divorce Proceeding

Georgia is an equitable division state, which means the assets and liabilities are divided based on what is “fair” and “equitable,” not necessarily “equal.” Under certain circumstances, George case law finds that conduct can affect a property division, awarding one party a greater share than the other.

Psychologists can help their clients work toward a realistic division of property that both parties will live with and ultimately follow rather than disregard. It is best if the parties can reach their own agreement regarding their property division, but if they are unable to, the court is prepared to do it for them.

GA Alimony Rules – Spousal Support and Maintenance

The key to an alimony award is “one party’s need and the other party’s ability to pay.” This, not surprisingly, is traditionally a very contentious issue for the divorcing client if the parties are not able to work this out between themselves.

Alimony in Georgia, if paid at all, can be for a recipient’s lifetime, or it can be for a finite number of years. What is almost always a given is that it will end upon the remarriage of the recipient or upon the recipient cohabiting with a “live-in-lover,” aka a quasi-spouse.

Psychologists and Atlanta Divorce Attorneys Must Work Together

In a divorce, a lawyer will give advice regarding the client’s rights and obligations under GA law. In a divorce, a psychologist who has been made aware of the divorce process and the many nuanced issues the client must navigate, has a greater chance of guiding the client to a healthier, more satisfactory outcome.

Research shows that when a divorcing couple is guided through the process to make decisions based on what is in the best interest of their children as well as in the best interest of each other, the emotional trauma of the process is lessened.

Recovery and moving on with the single life is hastened and the former spouses increase the likelihood of their being able to maintain a workable post-divorce family for the benefit of all.

Preparing Your Business for Year-End- Part 1

Are you readyBusiness owners often focus their year-end analysis on taxes and other financial issues. Although it is important to consult with your tax professional for year-end recommendations on how to reduce your tax liability, there are a number of other legal matters that need your attention.

Prepare annual corporation registration

Georgia corporations must file an annual registration with the Corporations Division of the Office of the Secretary of State. This provides documentation that the corporation still exists. If the business address has changed, or there has been a change of corporation officers, this is a time to note the change on the annual registration form. Make sure all required documents are on file.

Review all contracts and business agreements

Businesses run on contracts. The end of the year is an excellent time to review them all with the assistance of your legal counsel.

  1. Be sure that vendor contracts are all up-to-date. Some may terminate at the end of the year and need to be renewed. Others may have clauses that require extending them. Be sure all terms have been met on your side of the agreements in order to avoid allegations that you are in breach.
  2. Leasing agreements for property and equipment should be current. If it is time to renew any lease, reevaluate the terms of the agreements to see if they are still applicable. Evaluate whether there are terms you would like to add or delete based on the way the contracts have worked for you over the last year.
  3. Review employment contracts. If you have made changes in a benefits package, be sure that is included in an updated contract. Make certain that your contracts provide you protection from competition if an employee takes a position with a competing company.

Review personnel files

  1. Be sure all required legal forms, such as tax forms and insurance information, are signed, dated and included in the files.
  2. Review job descriptions and edit them when necessary. Legal counsel can assist with this and with how to draft new employment contracts when necessary if the job description needs to be changed.

Co-Parenting During the Holidays-Part 1

Kids HalloweenStores are currently overflowing with Halloween costumes and trick-or-treat candy flourishes on display counters. Any day now, fresh Christmas ornaments will be for sale. You might even find a set of porcelain pilgrims to purchase.

October marks the beginning of the three month holiday marathon which is supposed to be a time of fun, thanksgiving and joy. Instead, for divorced parents, the difficulties of co-parenting during the holiday season are often compounded. Here are some tips to help you co-parent for Halloween, keeping in mind the best interest of the children.

Communicate with the other parent

During the month of October, students often have school holiday events. Both parents should have a school calendar and be aware of the dates of the events and what is expected of the children. The custodial parent should keep the non-custodial one in the loop even if only by email or texting. For example, if there is a field trip planned, like to a pumpkin patch, be sure a parent has signed the permission slip and that the children are dressed appropriately for the day of the event.

How to deal with trick-or-treating or Halloween parties

The parent at whose house the children will be on Halloween needs to be sure the costumes are with the children. If the children leave one parent’s house in the morning, and will be picked up after school by the other parent, be sure the costume is not left behind at the wrong house.

Consider the wants and needs of the children above the needs of the parent. If you are the parent that has custody or visitation for the holiday evening, but the children would prefer to spend the evening in the more familiar neighborhood where they spend more time, be flexible about changing your plans to best meet the needs of the children.

Check your final divorce papers regarding custody and visitation

The custody agreement generally defines which parent has custody of the children for certain holidays. If Halloween is not mentioned, work out acceptable terms with the other parent. If it is spelled out in writing, you either must comply with the order or ask the court for a modification.

Corporate Identity Theft | Cybersecurity Lawyer Atlanta

Corp Identity Theft PicAny type of business of any size, regardless of its legal structure, needs to be on guard for the new rash of online identity theft.

Although consumer identity theft has been around for several years, corporate identity theft now seems to be the target of choice for cyber thieves.

What Are Corporate Identity Theft and Cybersecurity?

Corporate identity theft is when a person or company acts as though they are the business. They use the business credentials and records, whether by manipulating them or falsifying them. They impersonate the business to banks, creditors, suppliers and any other entity the business has dealings with.

They may even change the names of corporate officers in state documents.

Cybersecurity is a company’s efforts to protect networks, computers, programs and data from attack, damage or unauthorized access. These types of cyber attacks can include theft of a company’s bank account numbers, passwords, and routing numbers.

Some of the reasons thieves are choosing corporate identity theft over consumer identity theft are:

  • Businesses have larger bank account balances than ordinary consumers.
  • The credit and charge accounts in the name of the business generally have higher credit limits than ones for individuals.
  • Large purchases by businesses are not scrutinized as carefully as similar purchases by individuals.
  • Identity information from a business is easier to obtain. Identifiers are posted online, such as a sales tax number as well as the business license number. Business credit reports are easily attainable and contain a wealth of information for would-be thieves to use to their advantage.
  • It is easier to get away with it. Corporate identity thieves are better able to disguise their own identity and existence by hiding behind technology.

Steps You Can Take to Prevent Corporate Identity Theft

  • Pay close attention to all emails from the office of the Secretary of State who sends emails to all who are associated with a business entity whenever a change is made to corporate records.
  • Monitor your business credit reports for any unauthorized activity.

The Georgia Governor’s Office of Consumer Protection does not investigate these crimes, but fully cooperates with investigations conducted by law enforcement. Contact this office if you believe you have been the victim of corporate identity theft.

Co-Parenting and Back to School

Co Parenting PicCo-parenting is rarely easy. It becomes even more difficult when school and extracurricular activities are on the agenda and may conflict with visitation or time the children spend with each parent. The first thing you need to do is check your parenting plan and settlement agreement to see how school time is to be divided between the two of you and how you agreed to deal with extracurricular activities. If you note problems that were not considered at the time the plan was put in place, check with your attorney to see if you have grounds for asking the court for a modification of the Order.

Ellen Kellner, who is herself divorced, has written a book, “The Pro-Child Way: Parenting with an Ex” to help parents who are co-parenting to cope with all the schedule changes that come with school and after school activities.  Some of her suggestions include:

  • Plan for each day and be sure your children know exactly what they are to do and where they are go at the end of the school day. Leave a note in their back packs for them to consult if the daily schedule changes often.
  • Both parents need a copy of the school calendar. Hopefully, both parents can peacefully co-exist and attend school functions together, like Back-to-School night, school plays, sports games and parent conferences.
  • Make the children’s needs a priority. Instead of arguing about who has custody on what day or weekend, be flexible and work around the children’s schedules. If a child wants to stay at one parent’s house in order to get help for a school project that is due, work together to make that happen.
  • Keep communication flowing freely between you and your ex.
  • Make your children feel comfortable enough to express their wishes to both parents.

Other suggestions include:

  • Be sure the school knows which parent to call first in an emergency situation.
  • Take advantage of the school website and make certain that you both have access to it so you know about homework assignments, grade reports and attendance issues.
  • Access to the website will allow you both to communicate with the teacher. Just keep in mind, these are not privileged communications, so be careful what you say.