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Law Offices of Sean R. Whitworth
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Strong Advocacy And Caring Representation
Strong Advocacy And Caring Representation

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Read our latest articles about Family Law in Georgia. Know your rights and stay informed. Call us to schedule your consult. 770-490-0921 http://www.seanwhitworth.com/blog/

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FAMILY LAW AND DOMESTIC RELATIONS

Family law and domestic relations is a broad category of law dealing with a multitude of issues and litigation. This does include divorce; however, it also includes issues before and after divorce and many that are not the result of divorce. These issues may include a prenuptial or post nuptial agreement for individuals concerned with protecting their assets during a possible divorce; issues of contempt to enforce orders of the court not being followed by one or both of the parties; modifications of orders dealing with custody visitation and/or support both child support and spousal alimony; issues of paternity and custody necessary to determine the biological parent and the support obligations that are inherent in this action; adoptions whether consensual or not, which can be brought by a relative; guardianships and power of attorneys, necessary for temporary arrangements; protective orders necessary as the result of domestic violence; juvenile matters of dependency and deprivation, which can be private actions or actions initiated by the state through the Department of Family and Children Services (DFCS); and legitimation actions with all of the issues of visitation, custody and support necessary for preserving the legal rights of fathers.

The practice of family law and domestic relations often deals with other issues such as tax issues, real estate issues and often criminal issues. It is important that a family law practitioner is versed in all of these issues as well.

So you see the field of family law and domestic relations is broad in its scope and it is litigation; which means that the attorney who practices in the field of family law must not only have the knowledge and legal intellect to deal with the procedure and statutes in all of the above matters they must have the skill and experience to present those matters in the court room.

Family law and domestic relations is the most intimate, emotional and demanding practice of law in all legal specialties. There is no other field of law that requires such a broad range of expertise on multiple issues that so dramatically affect a client on a personal level. This is not litigation over money owed, contracts breached or damage suffered as the result of an accident, this is litigation to end a marriage, decide the fate of children and assist in the financial well being of all parties in the future. This is personal law and law that has an immediate and direct effect on people and children’s lives. It is essential that when hiring a family law attorney you find someone who has the knowledge and experience to handle all of the issues above and make those issues a reality in the court room.

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3/21/16
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#Divorce MY SPOUSE IS LEAVING THE STATE WITH MY CHILDREN AND USING THE UNIFORM CHILD CUSTODY JURISDICTION ACT

Most parenting plans and settlement agreements include language that requires a custodial parent to notify the non custodial parent thirty to sixty days prior to any intended move, especially one out of state. When a custodial parent seeks to leave the state they are essentially severing the consisting and regular relationship the non custodial parent has with the children. In most instances the non custodial parent has very limited time with the children and a distant move would make visitation impossible. Because of this a move out of state is a situation in which the courts will hear a modification petition for a change of custody; and if custody is not changed then visitation will definitely need to be changed as well as child support.

If the court decides not to change the custodial arrangement and finds the non custodial parent has good reason to move and it is in the best interest of the children, the court will adjust the visitation schedule to accommodate the non custodial parent. This usually involves extended visitation during the summer and all school breaks. The visitation will not be as consistent as when the parents lived in the same community but there will be longer periods provided when school is not in session.

Visitation will also be adjusted depending on which parent takes on the burden of transportation. If the parents agree to share this burden then it may not be adjusted but if one parent is burdened with driving or flying to a location then the cost of this transportation will be considered in the monthly child support obligation.

UCCJEA

However, if the parent refuses or is not obligated to notify the other parent and simply leaves or has left some time ago the issue is a bit more complicated. State legislatures have adopted the UCCJEA, which is the Uniform Child Custody Jurisdiction and Enforcement Act. What this statute does is provide guidelines in issues of modifications of custody in which the custodial parent has relocated. Time is essential in these matters as the home state of the child and the court of last jurisdiction are determinative in the litigation.

HOME STATE

The home state of the child is the state in which the child lived for six months prior to filing an action for modification. What this means is that if there is a move and within six months you file an action for modification Georgia will still be the home state of the child and the courts in Georgia will maintain control over the custody issue. However, it is essential that one parent, usually the one filing the action, has connections with the state of Georgia. In essence, you must still reside in Georgia .

COURT OF LAST JURISDICTION

The UCCJEA further provides that the court of last jurisdiction will maintain jurisdiction. This means that if the Georgia court gave the last order involving issues of custody and visitation then the Georgia court maintains authority to enforce or modify that order. The issues arise if one party waits too long to bring an action and the home state has changed. Yes, Georgia may be the last court of jurisdiction, but is now no longer the home state of the child. Often the courts must way the connections with the state of Georgia when making this determination. This can get very cumbersome as the parent in the new state commonly files their own action and domesticates an order in the new state of residence.. Most courts will rule on the issue of jurisdiction when the issues are obvious; however, often courts literally contact one another when deciding these issues.

EMERGENCY JURISDICTION

The UCCJEA does allow for special circumstances that involve conditions that require an emergency ruling. This usually involves cases of abuse in which one parent takes or refuses to return another the child to the other parent. If the court that does not have jurisdiction finds that there is significant abuse or harm to the child this court can issue a temporary ruling in their state. The issue will have to be resolved after the temporary period and then you arrive at a situation discussed above in which the courts must determine which jurisdiction will move forward with the matter.

Disturbingly I often see this facet of the act misused by parents. They will take a child to another state and seek and ex parte hearing claiming significant abuse. Many judges will hear these cases seeking to protect the children, but the problem is that ex parte means one party, the other side will not be present to defend their position. They simply get notice that custody has been temporarily changed and the new jurisdiction is proper, which instantly complicates matters.

CONTEMPT

Remember, contempt will always be heard in the court that issued the order. So if a party is violating the visitation schedule or the order you always have the ability of seeking relief from the court that issued the original order. So if weekend visitation is being denied and the pick up or drop off location is not realistic contempt is always available.

The simplest way to avoid the cost and time of complicated jurisdictional litigation is to be proactive in any issue that could hinder the relationship with your child. Often people agree to moves without court orders or modifications and soon discovery they need to go to another state to fight for their rights. Be proactive, get legal advice and take action.
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The hourly billing game! #cos #benefit
#divorcelaw #lawyer
I am inspired to write about why we need to look at “Cost Versus Benefit” when it comes to hiring a divorce and family law attorney. Going agains the grain…charging FLAT FEES! Divorce is hard enough and the unknown of unexpted expenses can be more stressful than anything.


Every purchase we make, every transaction we enter, we automatically review and analyze the cost of the transaction and the benefit received in relation to this cost. Yet when people enter into litigation they rarely, if ever, think about this relationship. They are consumed with emotions and fears, they desperately seek answers and relief and there are far too many attorneys more than willing to neglect any discussion of cost v. benefit and instead promise many benefits with very little discussion of the costs.


Often I am in court and cannot believe that opposing counsel can ask for an amount of attorney fees with a straight face, especially when the original complaint seeks a fraction of what they seek for their own work. Their poor client gazes at the person they hired with admiration and hope never realizing they just spent three times the amount of their damages in attorney fees; never realizing that the person they admire so today will surely litigate against them if they do not pay. They will not walk away from the fees they think they are earned and then the client is inevitably left with the question, was it worth it. I realize that many issues that require litigation, especially family matters, are extremely traumatic and emotional, and often the person seeking counsel is only responding to the actions of another plaintiff; however, I also realize the money spent on this litigation is never worth it. Sadly, the people spending the money do not realize this.

Sean Whitworth Law Atlanta Georgia Fair Attorney FeesMany people spend exuberant amounts of money to hire the attorney on the 35th floor never realizing that you are paying for the 35th floor and most issues in family law do not require the 35th floor firm. In fact in an equity court system in which the judge has broad discretion, I assure you you are probably not getting any more for your money than if you spend far less on an attorney willing to work at a reasonable rate who has far less overhead.

Remember, before you spend thousands of dollars, as yourself what result do you expect for the fees your are paying, are your expectations realistic? Throwing money at a domestic matter in litigation does not guarantee a result it only guarantees that you are spending a great deal of money. Make sure you understand what you are paying for and if the fees being asked are reasonable because in the end all attorneys have a fairly good idea of where your case is going what all attorneys won’t tell you is how much is it going to cost you to get there. Find the attorney who will because this is the attorney not afraid to discuss the cost v. benefit of your litigation.
www.seanwhitworth.com call us at 770-728-6696 for a free consult! 
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ARE YOU PAYING TOO MUCH CHILD SUPPORT?

ARE YOU NOT RECEIVING ENOUGH CHILD SUPPORT?

Georgia Law & Child Support

In Georgia child support is determined by the use of a child support worksheet in which the burden of financial support is divided between both parents based on their gross incomes and this amount is reduced by any deviations, or contributions, paid by one or both parents, such as insurance and daycare. Since 2007 the Georgia legislature made a determination that both the custodial parent and non-custodial parent should share the financial burdens of raising children and the burden is now divided between the parents. The document that itemizes this obligation is the child support worksheet. It is essential that you are proactive in this process as the state will merely look at your highest income as recorded through taxes or the Department of Labor and enter that amount regardless or the reality of this income or the contributions for which you are entitled to receive credit. The state created baseline amounts of child support based on incomes and the number of children for which support is being paid. These numbers reflect what the state assumes to be the necessary financial needs of children in homes of each income bracket. The obligation will be divided as percentages based on the gross income of both parties. For example, if both parties make $5,000.00 per month the obligation stipulated by the state will be divided equally at 50%.

Gross Income

Both parties must verify and enter gross monthly income, which is often a point of contention especially if one or both of the parents are self employed or unemployed. Georgia statutes require an unemployed individual to enter minimum wage income as imputed income. The state demands the representation of minimal income. However, if an individual is under employed the court can impute an amount of child support reflective of past employment, experience and education. If both parties have stated income, or paychecks, the process is simplified; however, there are issues of bonuses, commissions, and various other credits to consider when determining a final amount of child support.

Deviations

After gross monthly income is determined there are multiple credits or deviations to consider before a final amount of child support can be determined. The state allows the parties meeting obligations outside of simple child support to receive credits against the assumed amount of child support obligation. If one parent is paying for daycare for employment purposes then the other parties support obligation will be increased to meet this need. If one parent is forced to travel substantial distances to in order to maintain a relationship with their child then they will be given a credit for this expense. These expenses vary depending on the needs and individual situations of the child and anything from insurance payments, extracurricular contributions, mortgage payments and extra educational expenses must be considered. There are a multitude of issues that must be proven when dealing with deviations and many parties neglect to consider all of the credits for which they are entitled when attempting to determine a final amount of child support.

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http://www.seanwhitworth.com/contact-family-lawyer-in-atlanta-marietta/appointment-request/
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SHE TOOK MY CHILD
#attorney #Georgialaw 770-490-0921

On Christmas Eve I received a tearful phone call from a father tormented by the loss of his child that evening. This man is on the birth certificate, he has raised his son alone for the last four years and this Christmas Eve the mother has decided that she wants her son back. She simply showed up with the police and said I want my son and there was very little they could do but help return the child. You may ask how is she able to show up after all of this time and just take him, and the answer is welcome to Georgia. In Georgia a father who has a child born out of wedlock is penalized by not being giving any legal rights until he petitions for those rights from the court. This is called a legitimation action and for fathers who have children born out of wedlock I strongly suggest you file one. You see, in Georgia you are the biological father and as such you are responsible for paying child support; however, you are not the legal father and you have no rights of custody or visitation. Sadly, when the man above called devastated that the mother returned and left with his child there is very little that can be done at that moment as he is a legal stranger to that child regardless of the fact that he has spent four years raising him on his own. I am very hopeful that he will gain custody now that he is filing the proper legal action but this could have been avoided if he followed my advice months ago. Father’s protect your rights and remember that if you have children born out of wedlock you do not have legal rights in this state until you file for legitimation. Too often I discuss this issue with fathers who are convinced that the mother will work with you and too often life changes, new men are introduced, money is needed and then all of the promises made in good faith are forgotten. The process is not difficult but without this order you are subject to the whims of the mother and may find yourself calling a lawyer on Christmas Eve.
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Prenuptial Agreements in Greater Atlanta #PRENUPTIALAGREEMENTS  770-490-0921 www.seanwhitworth.com

Prenuptial AgreementsGeorgia does honor prenuptial agreements and they will be enforced.  One consideration in Georgia is that this is not a community property state and the court does not consider all assets when deciding the distribution of marital property.  The court can only consider those assets accumulated during the marriage and then must consider equitable distribution.  However, this can be complicated as there are issues in this consideration such as any changes in these assets that converted them to marital property. 

This can happen by combining prior assets with current marriage assets or converting premarital assets, such as a 401K investment, into real estate while married.   Because of this it may not be prudent to simply rely on the fact that premarital property is not divisible.  There are also considerations of alimony, which will be granted based on the needs of the party seeking alimony, the ability of the individual to pay and the length of marriage.   A prenuptial can set limits on the amount of alimony based on the length of marriage.  If an individual is entering a marriage with assets of significance it is highly recommended that they prepare a prenuptial agreement to protect and clarify the distribution of these assets in consideration of divorce.

When deciding a prenuptial agreement the court will consider three factors. 

The first factor the court will consider is whether the agreement was obtained through fraud, duress or mistake, or through nondisclosure of material facts.  The most often relied on argument to set aside an agreement is nondisclosure.  It is essential when preparing and filing an agreement that all assets are included and it is best to include these as a schedule.  Both parties must have knowledge of the income, property and financial assets of the other party and if these items are omitted or hidden it can void the agreement.   The arguments of fraud and duress are difficult and the party must not merely show the agreement was entered into as a condition of marriage but there were actual threats of bodily injury or harm.

The second factor is whether the agreement was unconscionable.  This does not mean simply unfair as these agreements always deal with disparate assets.  To be unconscionable the agreement must be one that “no sane person not acting under a delusion would make…” 

The third factor and most ambiguous factor is have the circumstances changed since the agreement was entered so as to make enforcement unfair and unreasonable.  This does not simply mean that substantial increased wealth invalidates the agreement.  The court relies on the concept of reasonable foreseeable changes.  If all assets and properties are disclosed and both parties have a general knowledge of the others income and earning potential it is difficult to claim that a party is entitled to a greater amount because they did not think the other party would be as wealthy as they are; however, on the other hand a party that loses everything may claim that the agreement is unfair or unjust in light of the current economic realities.

In the end, remember you are entering into a contract with the person you are marrying by creating a prenuptial agreement; and any agreement should be prepared with the above factors in mind.
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I HAVE AN EMERGENCY
#Divorceissues #Atlantalawyer
wwwzseqnwhitworth.com
Every client going through a divorce, especially one involving custody issues, feels that they have an emergency situation. This is understandable as they are usually living with a spouse they no longer want to be with, the dynamic in the home has changed dramatically and often one or both spouses begin to express this tension and loss of affection through damaging behaviors. If they have children the situation is compounded and the home if a place of trauma and destructive emotions. Because of this they come to my office and demand relief, which every lawyer wants to give instantaneously; however, in a contentious matter it is the court that grants relief and the court is not in a rush to resolve domestic matters. It is not because judges simply do not care, it is simply because most courts are overburdened with both domestic and criminal cases and every case gets in line according to the scheduling procedures of a particular judge. I as an attorney have to navigate this system while my client calls asks when will they get him/her out of the house. There are several options for immediate relief.
The court provides for a temporary hearing, which usually can occur relatively quickly. This hearing is a condensed trial in which the client and one witness are allowed to testify and time is limited. The purpose is to establish initial ground rules such as support, custody, visitation and possession of the marital home. A temporary hearing usually can occur in thirty days. However, many situations are more urgent and thirty days can be an eternity.
Sometimes it involves abuse, both physical and psychological. Often it involves a parent who is fleeing the jurisdiction with the children. If there is abuse the most immediate relief will come in the form of a temporary protective order. This order will be granted as an ex parte order the same day as requested and each jurisdiction has their own procedures for this protection. In this case the party must show real abuse and history of abuse if seeking a family violence protective order. If granted the offending party will be removed from the home by the Sheriff that day. The problem is that many domestic situations are incredibly volatile yet do not reach the threshold provided by statue for family violence protection.
These situations are difficult for client’s to understand. They have been dealing with the drama and trauma for months if not years and they finally come to a lawyer and expect immediate relief. They do not want to wait for a temporary hearing , they cannot get a TPO and the only option for quick relief is to file an emergency motion. Every client is in an emergency situation but the courts are very selective with what they consider an emergency. This is a difficult conversation to have with people who are in a volatile domestic relationship. Often they do not have the proof of abuse, they have been living with insanity for an extended period but there is not the level of evidence to warrant an emergency hearing. I regularly prepare motions for emergency hearings in an effort to come to the front of the courts line only to have a desensitized court reject them outright without a hearing. When you seek this immediate relief the level of the emergency must be evident and provable. Often I receive relief when one parent leaves the state and threatens to remove the children, or one parent leaves the children and continues to accept child support; or if there is excessive drinking, drug use or criminal activity; and always in cases of abuse, which should be preceded by a temporary protective order. Volatility and disruption in the home usually will not warrant an emergency, the court’s accept this as part of a divorce situation.
The problem the lawyer has to navigate is the reality that every client feels their situation is an emergency and rightfully so; however, the lawyer is trapped between this reality and the reality that the court’s are slow and very selective in what they consider an emergency situation.
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