June 5, 2023

What is mediation and is it required?

In family law cases mediation is a process in which the parties and their attorneys informally meet to discuss the issues in the case with a mediator, who is often referred to as a “neutral”.   Typically, the mediation is “in person” occurring in a caucus, which means that the Parties remain in separate rooms throughout the process.  In some cases, mediation is done “virtually” over the web (Zoom, Skype etc.) and neither party is physically present for the session.   Mediation is an informal process.   You are not required to agree to ANYTHING at mediation.  Mediation is nothing like court.   The mediator is not a judge.  In fact, the mediator is not even required to be an attorney.

The goal of the mediation process is to reach either a partial or full agreement concerning the issues in a case.   If the Parties resolve their issues at mediation, then the judge is not required to hear evidence in the courtroom and the judge is not required to make a decision.  Of course, judges prefer this and they REQUIRE mediation in an effort to reduce their caseloads.  Cases resolved at mediation do not require the judge’s time.  One must keep in mind, however, that nobody can be required to agree to anything at mediation.   Each Party is required to participate in the process for an hour, and after the hour has passed either side may ask to leave the session.

The mediation rules and requirements are determined on a circuit-by-circuit basis (individual counties are typically grouped together into “circuits” with other counties).   The rules and procedures used at mediation may vary from one circuit to the next.   For example, mediations are not required in contempt cases in Fayette County, but mediations are required in contempt cases in Henry County.  Also, in Coweta County a party may typically obtain a temporary hearing prior to participating in mediation, but with very few exceptions mediation is required in Spalding County before any hearing is held.

Judges typically insist on mediation regardless of whether one or both attorneys feel that it will most likely be unproductive.  Mediations are not scheduled at the option of the attorneys.  Many attorneys would probably skip the process altogether if they could.

When a case is filed the Plaintiff’s lawyer cannot even begin efforts to schedule mediation through the Alternative Dispute Resolution office until 30 days after the Defendant has been served with the filing.  Keep in mind that even after the 30-day period it often takes several weeks to get mediation scheduled, and the  ADR office has almost complete control over the scheduling and cancellation of mediation sessions.  This is often frustrating for both the client and the attorney.

During a mediation session the mediator will start discussing the issues in the case with the party who filed the case (the Plaintiff), and he or she will attempt to obtain an initial settlement offer from the Plaintiff.  That proposal is then shared with the Defendant and his or her attorney in a separate room.   The Defendant then makes a counterproposal for consideration by the Plaintiff.  This process continues back-and-forth until a settlement is reached or until an impasse (stalemate) is declared by the mediator.  The case is free to go to court for the judge to decide the issues in the event that an impasse is declared.

Why is mediation required?    Well, not all attorneys communicate well with the opposing attorney about settling a case.  Mediation ensures that there has been some effort to discuss the issues between the attorneys and their clients.  It is also the best opportunity for the parties to determine the outcome of their case without court intervention, although cases are often settled after unsuccessful mediations.

Failing to settle a case and having a judge decide the outcome can lead to both parties being disappointed.  The parties know all of the issues because they have LIVED through those issues.  A judge will merely hear a summary of the issues over the course of a few hours (at most).  It’s just not possible for the judge to fully grasp everything during this short period of time.   Judges are human, and they sometimes forget and misunderstand things during the course of a trial.

Your attorney is required to have you fill out what it’s called a “Financial Affidavit” to be used at mediation. The Financial Affidavit will be addressed in a separate article on this website.   The Financial is essentially a statement made by the client under oath, meaning that the client swears that the content of the Financial Affidavit is complete and accurate. The Financial Affidavit discloses the income, assets, household expenses, and debts of each party.

The Financial Affidavit is used in court if mediation proves to be unsuccessful.  The judge will study and review the information on the Financial Affidavit when making his or her decision about your case.   So, when your attorney asks you to provide a complete and accurate Financial Affidavit, he or she is asking you to provide information that only YOU know.   Your cooperation is absolutely required.     Your attorney can assist you with preparation of your financial affidavit, but he or she cannot pull the figures out of the air for you.

For additional information about the ADR process in the 6th District ADR Program covering Henry, Fayette, Spalding Pike, Upson, Lamar, Butts ad Monroe Counties please visit:  The 6th District ADR Program (adr6th.org

For additional information about the ADR process in the Coweta Judicial Circuit please visit:  Coweta Judicial Circuit ADR Program – Georgia Office of Dispute Resolution (godr.org)

June 3, 2023

How Much Does Divorce Cost in Georgia?

Abraham Lincoln once emphasized the value of a lawyer’s time when he said, “A lawyer’s advice is his stock in trade.” The value of the professional services of lawyers are not easily measured since legal matters differ widely and no two factual situations are exactly alike. Therefore, in most instances, the fee will depend upon the factors involved in the specific case at hand and cannot be determined by any pre-established general fee schedule. The elements most often considered include:  (1) the time and labor required, the novelty and difficulty of the question involved, and the skill needed to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer based upon the fact that he or she has accepted responsibility to handle your case rather than other cases; and (3) the experience, reputation, and ability of the lawyer or lawyers, performing the services.

Our firm endeavors to bill our clients a fairly and ethically.  Our clients must understand, however, is that as professionals in the legal world we are selling our TIME.   Our time may be invested meeting with clients, litigating in the courtroom, preparing for court, representing clients at mediation, or sending and responding to emails from clients, opposing counsel, judges, clerks of court, witnesses or a number of other third parties.   We are committed, however, to taking any and all actions necessary to prevail and to obtain the results that our clients hope to achieve without engaging in billable activities that do not benefit the client.

I have been practicing family law in the Griffin, Flint, Coweta and Towaliga Judicial Circuits for nearly 28 years.   My current hourly rate is $300 per hour.  Over the past few months I have litigated cases against opposing counsel in the area with similar levels of experience who both billed their time at $450/hr.   I recently undertook a case against a larger family law firm from outside of the area.   The senior attorney handling the case bills his time at $780/hr. (35 years’ experience).   His associate attorney assisting him with the case is billing his time at $400/hr.  (8 years’ experience).  Their paralegals and secretaries that work on the case bill their time at $250/hr.

 Lawyers.com is a website that provide legal information to the public.  In 2020 I came across an informative article that might be a helpful read for anyone that is interested in this particular subject matter.  How Much Does Divorce Cost in Georgia? | Lawyers.com

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Divorce Cost in Georgia

December 28, 2019

Periodic alimony will no longer be tax deductible by the payor or taxable to the recipient beginning January 1, 2019.

Traditionally periodic alimony payments have qualified as a tax deduction from the payor’s gross annual income under the Internal Revenue Code. This means that the payor is allowed to reduce his total annual gross income by the amount of periodic alimony paid in that tax year, which has had the effect of reducing his or her tax liability to the federal government. On the other hand, the recipient of periodic alimony has traditionally been required to claim the periodic alimony payments as income, which has had the effect of causing him or her to potentially incur a greater tax liability to the federal government.

The traditional approach to the deductibility and taxability of periodic alimony payments may seem to be a “wash” as far as the federal government is concerned. Why should it care? One party deducts the payments and the other party claims the payments as taxable income. Quite often, however, the ex-spouse that is paying periodic alimony is in a higher tax bracket and the tax dollars that he or she saves are substantially greater than the additional tax dollars that the recipient ex-spouse must pay since that spouse is often in a lower tax bracket. The federal government has wised up to this.

In December of 2017 Congress passed the “Tax Cuts and Jobs Act”. A portion of this legislation provides that periodic alimony payments paid in divorce agreements made and divorce decrees entered by the Court after December 31, 2018, will have new tax implications. The paying spouse will no longer be able to deduct periodic alimony payments from his gross income after December 31, 2018. The receiving spouse will no longer be required to claim the periodic alimony payments as income after December 31, 2018.

If you are paying alimony based on a divorce agreement or divorce decree entered prior to December 31, 2018, you can relax. You are “grandfathered in”. Your payments will continue to be tax deductible and your ex-spouse will have to continue claiming the payments as income.

So, what will be the practical effect of these changes moving forward? In my experience judges have typically given consideration to the amount of taxes saved by the payor and the amount of additional taxes paid by the recipient whenever they have set an alimony obligation. I see no reason why judges will not take into consideration the fact that alimony is no longer tax deductible or includable in gross income moving forward, and I see no reason for them not to adjust the obligation based on the new tax rules.