Georgia Divorce Issues: When can a child decide?

A question that comes up frequently in a divorce with children is, “when can a child decide which parent they want to live with?” Georgia law states that when a child reaches the age of 14 they have the right to decide which parent they would like to live with. However this decision is not binding to a judge. If the judge feels that the parent chosen would not be in the best interest of the child, the judge will essentially overrule the child’s wishes.


After a divorce a child over 14 can, through the parent seeking custody, ask the court to modify a custody order giving custody to the requesting parent. Under the right circumstances this change in selection may be sufficient to meet the statutory requirements.

A child age 11 to 13 can make their opinion known to the court, but the judge is guided by the child’s desires but also the educational needs of the child. The judge in these situations has complete discretion in making their decision and may or may not give weight to the child’s specific wishes. A judge’s is guided in these matters by the legal standard known as “the best interest of the child”.

As to a post-divorce change in custody, an 11 to 13 year old change in parent selection will not meet the statutory requirements to change custody.

Georgia statutes do not mention the any rights to children younger than 11. Generally speaking a child under the age of 11 will not have his wishes given any weight by the court.

What would happen to your pets if you could no longer take care of them?

Welcome news has arrived for Georgia pet owners. As of July 2010, Georgia has joined the ranks of the many states to adopt “pet trusts”. Until now, Georgia residents had little recourse when it came to planning issues involving their pets and had to rely on the probate process and the good will of others. Pet owners should update existing wills or taking the time to create an estate plan as the new law offers a significant advantage.


The concerned owner now has several options to consider when taking care of their four legged (or even feathered) family members. The traditional route is to gift the pet to a trusted friend. Often this gift includes some language as to how the pet is to be taken care of and sets aside a small sum of money to help pay the costs of the pet. A second option is to leave the pet to an organization that will find the pet a new home. Both of these options have a serious disadvantage – they require the will to go through the probate process. This process can take weeks, maybe months – during that time your pets need immediate help and there is no guarantee that they will get it! Unlike your other loved ones, your pets can not take care of themselves during the probate process.

The pet trust helps correct this problem and offers additional advantages. Trusts pass outside of the probate process and become valid at the specified event included in the trust documents – generally your death or incapacity. With a pet trust, your loved ones can immediately be given to a specified person of your choosing. Other advantages include the ability to leave specific and legally enforceable instructions as to how you would like your pet to be treated and a secured source of funding that must be spent for the pet's benefit.

Part of the purpose of creating a will and associated estate planning documents is to take care of your family and make any transition easier for them. For many, myself included, our pets are part of our family and as such you should make them part of your estate plan. Pet trusts offer a secure alternative to those of us with four legged family members. Please give serious consideration to this new option as generally the inclusion of a simple pet trust would not dramatically increase the cost of your estate planning services.

Feel free to contact me with questions or comments!
Antonio Mari, Esq.
antoniobmari@gmail.com

Property division in a Georgia Divorce – What is equitable division?

There are two major legal principals used to divide property in Georgia. The first is alimony, the second is equitable division.


Before continuing, anyone contemplating or served with divorce papers should contact a lawyer. As you are about to read, property division in Georgia can get complicated and the best way to protect your rights is to contact an attorney right away.

Equitable division is a common feature in most Georgia divorces. The guiding principal in equitable division is fairness – not equality. Sometimes an equitable division does come out to be roughly equal and other times it can send more money to one spouse over the other. The specific mechanics as to who gets how much involve a variety of factors and can vary from case to case. However there are some guidelines to consider.

The only property subject to equitable division is property that is considered marital property by the court. Thus the label “martial property” or “separate property” can be fairly significant. Marital property might generally be described as property acquired by either party during the course of the marriage. While separate property is property that was acquired before the marriage. Both of these concepts are subject to numerous limitations and it is always best to consult a lawyer with your specific situation.

Common examples of things a court may consider marital property:
Wages or salary earned during the marriage
Money held in a retirement account funded during the marriage
Money held in a joint or separate checking or savings account funded during the marriage
A home purchased during the marriage
A car purchased during the marriage
Pets purchased during the marriage
Credit Card debts accumulated during the marriage
Gifts between spouses during the marriage
Gifts to the marital couple during the marriage

The bottom line: if it was acquired during the course of the marriage, it might be considered martial property. It is a mistake to think that the name on the account or title matters – IT DOES NOT! Wages earned by one spouse and placed in a bank account that is held separately from the other spouse will likely be considered marital property. A home titled and mortgaged to only one spouse, if purchased during the course of the marriage, will likely be subject to equitable distribution.

Common examples of things a court may consider separate property:
An inheritance acquired during or before the marriage, awarded to one specific spouse
Personal property owned by the spouse before the marriage: jewelry, computers, cloths
Degrees or licenses earned during or before the marriage

A common situation is that one spouse will have purchased a home (or anything else really) before the marriage and made payments on the mortgage before the marriage. Then during the marriage that spouse will continue to pay on the mortgage. In a divorce the home is now going to be considered both marital and separate properties. The court will determine a percentage based on the amount of the wages paid into the home and that amount will be subject to equitable distribution. This same thing could happen to any item that was purchased before the marriage but funded or paid for during the marriage. By “tracing” wages, the court can often reach property that many individuals assume will be treated as separate property.

Another situation, not as common might involve a home that one spouse brought to the marriage completely paid for. If during the course of the marriage, the non-owning spouse does work on the property that enhances the value, that increase in value might then be treated as marital property.

Once property is divided, the court then must address who gets what. Look for future postings to learn more about factors considered in setting the amount of money between the spouses.

This posting is just a primer on a few of the numerous scenarios and factors when trying to divide property in a divorce. It can get complicated and you will best be served by an attorney – don’t rely on this discussion. This is simply a discussion of legal issues and is not legal advice to any individual and should not be applied to any specific factual scenario. If you have a specific question contact me and I will be happy to answer your questions.

What will happen to your estate without a will in Georgia?

The majority of Americans still don’t have a will. Cost, time and an uncomfortable subject are often cited as reasons to avoid making a will. Despite these hurdles many don’t understand the difficult position that a lack of will can create for your loved ones.


If you are married in Georgia and you die without a will, your property will pass to your heirs through a legal principal called intestate succession. If you have no children the property will pass to your spouse. This seems simple enough, but if you have a charity or a relative that you would like to leave a gift to, intestate succession will not accomplish your goal.

If you have children and die without a will, your property will be divided equally between your children and your surviving spouse, with your surviving spouse guaranteed to receive a minimum of one-third of your estate. Many people assume that their estate will simply pass to their spouse because they are married– that is not the law in Georgia. You need a will to direct your assets and make certain that your spouse is not put into a difficult financial position.

If you have minor children, the significance of a will takes on an additional importance. If both you and your spouse pass, a will is the only legal device in which you can make your wishes known as to who should take care of your children. A judge will ultimately make that decision, but the will lets your preference be known. As a practice, judges give serious consideration to your wishes. Financially, the will can create a simple trust fund that will help provide support for your children on a timeline that you can create. These features cannot be accomplished without a will.

If you don’t have a spouse or children your property will pass to parents that survive you, if none then to your siblings and their children. A will can follow this scheme or alter it to include gifts to friends, charitable donations and even instructions for taking care of pets.

A will can quickly and confidentially be crafted to express your wishes. Additionally a will is more affordable that you might think. Please feel free to contact me with questions or to get a will started.