These articles DO NOT constitute legal advice and should not be construed as such. If an article is relevant to your particular legal situation you should understand that it is merely intended to provide a very general preview of matters that would be discussed in detail during a face-to-face consultation. The law is constantly changing and some of the information in these articles might be obsolete. Please also recognize that seemingly insignificant details often have a big effect on the advice that we give our clients concerning a particular legal issue.
Our firm endeavors to bill our clients as conservatively as possible. We are committed, however, to taking any and all actions necessary to prevail and obtain the results that our clients hope to achieve. Divorce cases may may become quite expensive based upon a variety of reasons. Martindale-Nolo conducted a study to find out about the experiences of Georgia litigants with their divorce cases and the costs incurred.
According to the survey, the average divorce in Georgia costs $14,700, including $11,600 in attorneys’ fees. Attorneys’ fees are a significant chunk of the cost of divorce because the average hourly rate for attorneys in Georgia is $280. Your attorney’s hourly rate—plus the rate of any paralegals and other firm staff—factored with the total time spent on your divorce case will determine the amount of attorney’s fees you’ll pay. Other expenses include fees for things like court filings, the cost of copying and sharing documents, and compensation for expert witnesses and consultants (like child custody evaluators, appraisers, or financial analysts).
What Can Increase the Cost of Divorce in Georgia?
Spouses who have minor children or a high-net worth have higher divorce costs than the state average. In addition, if you file for a divorce in Georgia based on fault, such as adultery, cruelty, or abandonment/desertion, the cost of your divorce is likely to be higher than the average.
Having Minor Children
The most expensive category of divorce in Georgia is one involving children. The cost of a divorce that involves child custody and/or child support issues can be about 50% more expensive than the average. According to our survey results, divorce costs an average of $22,000 in Georgia when minor children are involved, including $18,600 in attorneys’ fees. However, costs for divorce with children are significantly lower for spouses who are able to reach a settlement before trial than those who go to divorce court to let a judge resolve their disputes.
Having a Dispute Over Alimony
Whether or not minor children are involved, divorces in Georgia that involve a dispute over alimony also cost more than the average. In alimony disputes, spouses often disagree on how much the working spouse actually makes or how much the non-working spouse should be able to earn. According to our survey results, divorce involving alimony disputes costs an average of $20,300 in Georgia, including $16,900 in attorneys’ fees.
Getting to a settlement or preparing for trial in these situations can be expensive because of the costs of hiring and reviewing the opinions of financial experts and vocational analysts. And of course, the more alimony a spouse requests, the more the other spouse will fight it, and the more expensive it becomes.
Having Property Division Issues
Divorces in Georgia where property needs to be divided cost more than the average, especially for high-net worth couples and couples who have to go to trial on their issues rather than settle them out of court.
According to our survey results, divorce with property division issues cost $20,700 in Georgia, including $16,900 in attorneys’ fees.
Under Georgia law a court must make a determination as to what arrangement will serve a child’s best interest when making an initial custody decision. When modifying a prior Custody Order the court must first determine that there has been a “material change of conditions or circumstances” since the previous Custody Order was entered. If the court finds that there has in fact been a material change of conditions or circumstances then the court may then determine if a different arrangement would better serve the child’s best interests.
A child’s age has a substantial affect on custody determinations. A child that has reached the age of 14 has the right to select his or her custodial parent. A child’s custodial parent is the parent with whom the child resides for the majority of the time. The right of the child to select his or her custodial parent is not automatic once the child has reached the age of 14 because a court case must be filed to obtain an Order from a judge modifying the prior Custody Order. The court must determine that the child being placed in the selected parent’s physical custody will serve the best interests of the child, bu the law requires the judge to presume that the child’s election is in his or her best interest.
Contrary to popular assumption a child does not automatically have the right to determine whether or not he or she will visit with the other parent once the child reaches the age of 14. The court must consider the wishes of the child and determine whether or not requiring visitation will serve the child’s best interests. The court may or may not require visitation.
A provision under Georgia law that is often overlooked by many lawyers provides that a child may only elect his custodial parent once every two years. So, if a child elects to reside with one parent then in theory he or she must remain in that parent’s custody for a period of two years before he or she can make a different election. There are ways that a competent attorney can navigate around this restriction and file a file a new modification case within the two year period.
When a child has reached the age of 11, but has not yet attained the age of 14, the Court is required to consider the wishes of the child with regard to his or her custodial parent. The child’s wishes, however, shall not be considered determinative until the child reaches the age of 14. Furthermore, the law provides that any case seeking a modification of physical custody cannot be based solely on the wishes of a child that is younger than 14 and that there must also be a material change of conditions or circumstances to accompany the child’s election.
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.