Any domestic matter involving minor children can be extremely bitter and contentious.  When attempting to resolve these matters, parents are motivated to reach pre-trial settlements to protect their minor children from the potential harshness of a trial and avoid the public stage.  To reach these settlements both parties usually acquiesce and reach out of court private agreements.  When drafting these private agreements, the question arises – are there any requirements to the terms of these private agreements reached between parties? For instance, can a party waive her right to child support in exchange for full custody?  On one hand, in the spirit of finality and quick resolution we want to promote open and unrestrained boundaries.   On the other, courts must ensure that all agreements remain in the best interests of the child.

Under Georgia Law, the right of child support actually belongs to the child, as such there are some limitations.  Most importantly child support cannot simply be waived by agreement of the parents.  Worthington v. Worthington, 250 Ga. 730 (301 S.E.2d 44)(1983).  This is not to say that the parties cannot reach non-traditional methods in paying child support or even enter into private agreements not directly in accordance with the Child Support Guidelines.  Some examples of non-traditional agreements include lump sum awards, Martin v. Martin, 254 Ga. 376 (329 S.E.2d 503) (1985), and an agreement to exchange equity in a home for a support obligation.  Esser v. Esser, 277 Ga. 97 (Ga. 2003).

The courts keep a tight leash on private agreements not in accordance with Child Support Guidelines.  While parties may enter into an agreement concerning modification of child support (O.C.G.A. § 19-6-15 (a)), the agreement becomes an enforceable agreement only when made the order of the court. See Foster v. Foster, supra; Conley v. Conley, 259 Ga. 68 (5) (377 S.E.2d 663) (1989).  Hendrix v. Stone, 261 Ga. 874 (412 S.E.2d 536) (1992).  By law, before a private agreement which includes child support may be incorporated into a court order, the trial court has an obligation to consider whether the agreed-upon support is sufficient based on the child’s needs and the parents’ ability to pay. O.C.G.A. § 19-6-19 (a). See Arrington v. Arrington, 261 Ga. 547 (407 S.E.2d 758) (1991).  The trial court, however, is not bound by an agreement between the parties regarding child support nor is its obligation satisfied by simply adopting that agreement. The trial court is obligated to consider whether such support is sufficient based on the children’s needs, and the parent’s ability to pay. McClain v. McClain, 237 Ga. 80, 83 (5) (227 S.E.2d 5) (1976); Walker v. Walker, 260 Ga. 442 (396 S.E.2d 235) (1990).

Though private agreements regarding child support are permitted, they are not immune to court scrutiny.  Before reaching an agreement with your spouse it is important that you seek advice from counsel.  Failure to do so risks entering an agreement that is later found against policy or stricken for any other reason.

Please note, the information contained in this article is provided for informational purposes only, and should not be construed as legal advice.  No viewers should act or refrain from acting on the basis of any content included in this article without seeking the appropriate legal or other professional advice.  The content of this article contains general information and may not reflect current legal developments.  Anita M. Lamar expressly disclaims all liability in respect to actions taken or not taken based on this article.

It’s a common complaint heard from single parents all over the State of Georgia. My child’s father is not paying child support! My ex wife is behind on her child support payments!  In this edition of “Legal Ease” we will discuss how to collect child support payments.

Child support cases can take several forms. The case can arise from (1) a divorcing couple with children; (2) a non marital relationship with children or (3) a brief encounter between two people where there never existed a relationship. Regardless of the form the case takes, the child support obligation exists and the law has provided avenues to seek child support and remedies if child support is not paid.

In Divorce cases the amount and frequency of the child support payments will be determined as part of the divorce settlement or decree and the parent with the responsibility for making child support payments will pay according to that order.

In cases where there is not a pre existing legally binding relationship such as a marriage, parties sometimes create an informal agreement for payment of child support. This is not advisable because it provides little protection for the parent with the child support obligation. Often times, we see cases where a parent is summoned to court to answer for child support. During these cases the parent will say that they have provided clothes or paid daycare for the child. They never have any receipts and most times the only available witness is a family member. Depending on the judge, this parent could end up owing back support even though he or she has provided some support for the child. To protect all parties a formal child support order should be sought.

To start this process, either parent makes a trip to child support enforcement and opens a case. The child support office will determine the amount of child support that should be paid and when it is due, the minimum amount being $100 for the first child and $50 for each additional child. This process provides protection for the parent with the child support obligation because the payments are made to the State and then a check is sent to the custodial parent. There can never be any disputes about whether the payments were made.

After the order of child support is established if the parent with the child support obligation falls behind or neglects to make payments the law provides several remedies for the custodial parent.

The first remedy involves child support suspending the driver’s license of the parent. The license can be suspended indefinitely by the Department of Human Resources. The parent will have to contact child support and make payments for the license to be reinstated. Child support can also intercept the tax return of the parent and assign it as child support to the custodial parent.

In addition, the parent owing child support can be held in contempt by the court. Contempt means the willful violation of a court order. Contempt can be civil or criminal. The parent owing child support can be incarcerated until support is paid if held in civil contempt. This can be an indefinite period of time. This amount is called a purge amount. The court can also find the parent in criminal contempt and order them to pay a fine and/or serve up to twenty days in jail for each violation.

Another option is for the custodial parent to seek a warrant for abandonment. How this process is initiated will depend on your jurisdiction. For example, in ClaytonCounty, the custodial parent fills out a warrant affidavit and submits it along with $20 to the Magistrate Court. The Magistrate Court then sends out notices to the parent with the child support obligation and holds a pre arrest hearing. If the court finds probable cause, the parent is arrested on the spot and taken to the jail where they have to post a bond and face a misdemeanor charge for abandonment. In HenryCounty, the custodial parent would present to the Solicitor’s office and fill out an affidavit. After that is done the Solicitor’s office initiates the case without a hearing and sends notice to the parent that they have to present in court to answer the charge of abandonment.

The result of an abandonment case can be jail time, probation or a combination of the two. In some jurisdictions, the court will place the parent on a suspended sentence conditioned on the payment of child support.

The abandonment case does not preclude the Department of Human Resources from suspending the license nor does it preclude the filing of criminal contempt charges by the State. In theory, a parent could find themselves facing two criminal charges in two different courts and a license suspension, all for the same child.

Most people on their wedding day aren’t contemplating the moment they will have to hire a divorce lawyer. When a wife finds a kitchen, in a new home, that she loves where all the women in her family can fit at once and a husband finds a basement perfect for bashment parties they are not thinking of the day a judge will decide who gets the house in the divorce. However, given the astronomical divorce rate in the United States, these exact circumstances are likely to occur in fifty percent of marriages. Therefore, when you are faced with divorce, one of the major elements of that divorce will be the division of marital assets. The biggest purchase made by a couple is usually the marital home. When divorce becomes a reality, the first question that has to be answered is who gets the house in the divorce?  Once that decision is made, the issue then becomes how financial responsibility for the mortgage will be assigned from both parties to one party.

It is common in divorce proceedings that the spouse who wins primary custody of the kids gets the house, but is that really a win?  Should the spouse with primary custody of the kids ask for the house in the divorce?  This decision can have unforeseen financial consequences that were not properly planned for especially in these dire financial times. Consider a stay at home mom who decides after three or four kids that she wants to leave the marriage. This wife will most likely be awarded the marital home, spousal support and child support. However, all of these monies are awarded based on the income presently being earned by the spouse.  The monthly support may not be enough to cover the mortgage and all the other bills in the home. This wife will soon realize that although she has been awarded the house, she now also has the responsibility of releasing her husband from financial obligation for the mortgage. Based on her creditworthiness this may be easier said than done.

In the final divorce decree the judge will pass legal right to the property but the courts do not and cannot handle the financial aspects of the case beyond requiring the party who was awarded the house to assume financial liability for the property. The court will require a financial affidavit and in some cases will question a party’s income relative to expenses when deciding property issues. However, the party asking for the house should do a total financial assessment to make sure they can afford all the monthly bills, not just the mortgage. So how does the wife release the husband from financial responsibility for the mortgage?

When marital property is acquired it is either held by one spouse or jointly by both spouses. After a divorce the property, which is still encumbered by a mortgage, passes to one spouse. In most cases, the spouse who gets the house seeks to execute a quit claim deed asking the other spouse to surrender their interest in the property. A quit claim deed is a legal instrument by which real property can be transferred.  It transfers whatever legal right a party has to a property. A Quit Claim deed does not affect the third party holding title to the property, namely the mortgage company.  A quit claim deed is not the proper instrument to transfer property in these types of cases because it does nothing to release the other spouse from the mortgage. The only way to relieve one spouse from financial responsibility for the mortgage is to refinance the home.

The wife may not have the credit worthiness or the available capital to refinance the mortgage. In that case, nothing has really been accomplished because that spouse will be summoned to court and held in contempt or have the divorce decree substantially altered because they were unable to refinance the home.  So, when you are faced with divorce, you should ask yourself not only, who gets the house in the divorce but based on my circumstances, do I want the house in the divorce? It may make better financial sense to force a sale of the property.

Sentencing is not the time to realize you have a bad lawyer. Two nights ago I was reading a blog that I frequent. One of the side notes referenced Ohio basketball player, Tony Farmer, who fainted during sentencing. I clicked on the link and off I went thinking I would have a laugh. Much to my dismay there was nothing funny about the video. The video showed an 18 year old child fainting next to his attorney. You can hear the judge pronounce sentence on the teenager. The judge said I sentence you to a term of 5 years 3 in prison. The teenager goes into a panic and he looks at his lawyer in fear and whispers, “I got to do 3 years” the lawyer did not look at him, did not speak to him, did nothing to calm him down. The judge continued speaking and the teenager hears her saying he has to serve 5 years again he looks to his attorney and again no reaction, no eye contact, no reassurance. Exasperated and overcome with fear he faints to the floor. The attorney does not move to help, you hear his mother cry out from the back of the courtroom.

As an attorney, this scene was devastating to watch and once again it demonstrated why people have such a terrible perception of lawyers. There were a few things that struck me as I watched this video. Firstly, why was the teenager uninformed about his plea? There is very little that transpires during a plea that an attorney is not aware of beforehand. Why was the teenager so shocked by the judge’s words? You should never stand before a judge to enter a plea if you are not sure what you are entering a plea to and the sentence you will receive. Things move fast when you are in court but this is your life that is in the balance. If you need more time to speak to your lawyer, you should ask for it. Ideally, you should have met the lawyer in his/her office to discuss your plea ahead of time.

Now it could be that this lawyer explained the recommendation to the teenager at length and he was confused because of the way the judge was reading it. This brings me to my next point. As attorneys we are confidant, friend, counselor, and therapist. It behooves us to remember that we are dealing with people and regardless of what they have done they deserve to have someone fighting for them. They deserve a warrior who will fight to make sure that their dignity is not stripped from them. Here is an attorney dealing with a young man who has done a terrible thing for which he is being punished but the person whom he hired or was appointed to represent him, cares so little for him that a kind touch or a reassuring word was more than he could muster as this child melted down before his very eyes. As Mr. Farmer fell to the ground the lawyer’s humanity did not tell him to help his client up instead he looked straight head. This is a scene I have seen play out in courtrooms across this state.

When hiring an attorney you should be confident that the person you hire sees you as a person and not an animal, as a person and not a payday. I have people tell me stories of attorneys not returning calls, not showing up for court, cursing at them, even threatening them. I had one client tell me that an attorney said, “wow, a 42 year old black man with no criminal history that’s a surprise.” that’s a red flag. You should be confident that your attorney is working for you. Every attorney is not a good fit for every client. I often tell my clients, if you don’t trust in my ability, I am not the lawyer for you because at the end of the day you and only you suffer the consequence. It is you that has to leave your family for prison and as those cell doors close you have to be able to say that your attorney did the very best they could for you. An attorney cannot work miracles but you should always have confidence in their ability and their commitment to your cause. Sometimes that means firing an attorney! You should never be afraid to fire your attorney. Sentencing is not the time to realize you hate your attorney.

Fifteen is a magical number in the life of a teenager. They can finally drive instead of being chauffeured by mom or dad. In this edition of Legal Ease we will examine the limitations on the teenage driver and the steps that much be taken to ensure a positive driving experience for your young driver.

Teenage drivers are governed by the Georgia Teenage and Adult Driver Responsibility Act. “TADRA is a graduated driver’s license program for young drivers ages 15-18. The Responsibility Act creates three classes of licenses that govern a teenager.”

At 15 a learner’s permit is granted after the driver has successfully passed a knowledge test consisting of road rules and road signs.  This class CP license requires that the minor be accompanied by an individual that is at least 21 years old, possess a valid class C license, is seated next to them in the vehicle and is capable of exercising control over the vehicle if necessary. The teenager can never be unaccompanied in the car and unfortunately they are not old enough to drive their younger sibling to school just yet.

Upon your teenagers 16^th or 17^th birthday they should return to the DMV and convert their class CP license to a class D license. A driver is eligible for this class of license if they have held their Learner’s permit for 12months and 1 day, have not committed any major traffic violations such as Driving under the influence of Alcohol and has successfully completed a road skills test. The class D allows the driver some more autonomy but still has important rules that should be followed for the road to a class C to be smooth. The class D driver cannot drive between 12 a.m. and 6 a.m.; during the first six months after receiving the class D license the driver can only transport family members. During the second six months you can transport non family members but one of the non-family member passengers has to be older than 21 years of age. For example, if operating a car with four persons. Two can be family members; two can be non-family members with one of the latter two being over the age of 21. After the first year, the driver can transport non- family members but the driver cannot transport three people who are all under the age of 21.

Finally, at age 18, the driver can attain a class C license with full privileges and benefits so long as no major traffic violations occurred within the past year. It is important to note that you are required to change the license from one class to another as it is not automatic and until you do so you are subject to the rules of your class. The rules that govern are driver are based on the class of the license not the age of the driver. In other words, if you are pulled over at 18 and you have a class CP license from when you were 15, you will be treated under the rules of a class CP. This is one of the most overlooked areas. Don’t wait for a citation to take this simple housekeeping step. You should plan a trip to the DMV yearly until your teenager attains the age of 18.

While the class C is a general license there are still some penalties that attach to an 18 year old that does not attach to a 21 year old. If an 18 year old driver is caught driving 24 or more mph above the speed limit they face suspension of their driving privileges. In addition, if the 18 year old driver is convicted of an offense for which 4 points or more are awarded it will result in suspension. There are also offenses that if convicted will result in suspension until the drivers reaches age 21. Driving is a privilege not a right. Equip your young driver for success and allow them to enjoy the road!!

     I hear it time and time again; the police did not tell me my rights! The police did not advise me of my Miranda rights! In this edition of Legal Ease I will explain when you are entitled to the Miranda warnings and why you should never face a police interrogation alone.

Miranda v. Arizona was a landmark decision of the United States Supreme Court. The case was decided in 1966 and forever changed the landscape of police interrogation. In Miranda v. Arizona the highest Court in the land held that statements made in response to interrogation by a defendant in police custody will be admissible against them at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by the police. Law enforcement also has to show that the defendant not only understood those rights but freely and voluntarily waived them.

Everyone who has ever watched an episode of Law and Order is aware of the Miranda warnings. However, most people do not understand when the warnings actually apply. Unlike what you see on television, merely being arrested does not entitle you to the Miranda warnings. Arrest is step one in the process because if the police arrest you and take you to jail you are not entitled to the Miranda warnings. In order for the police to be required to read the Miranda rights they must want to question you. Therefore step two in the process is interrogation. Miranda only applies when there is arrest and interrogation; both have to be present.

When you are faced with a situation where you are subject to an interrogation, you should never go at it alone. Police officers are trained in the art of interrogation. They are trained to respond to your verbal and emotional cues and to exploit them for their gain. You will be outgunned and outmaneuvered. In my experience I find there are two types of people, those that believe they can outsmart the police and those that believe that if they speak to the police they will help them in some way. Both of these people are wrong. The police officer is investigating a crime. His only concern is to solve the crime. His goal is not to exonerate you nor is it to look out for your interest. If you are faced with an interrogation, you should do two things, request an attorney and remain silent. Do not waive your rights without speaking to an attorney. The attorney will advise you on the best way to proceed and accompany you to the interrogation to ensure that your interests are protected. If you are already in custody and you do not have an attorney then you should exercise your right to remain silent and ask for an attorney. The request cannot be in the form of a question and it cannot be equivocal otherwise the courts will deem your confession admissible. You have to be clear and direct in your desire to remain silent and forthright in your request for an attorney. Neither the threat of jail nor the fear of incarceration should ever play a role in whether you speak to the police because if you speak to the police your words will be the strongest evidence against you. I am not saying you should never speak to the police. I am saying that you should seek out guidance before doing so.

]]> http://www.veallawfirm.com/uncategorized/test-post-03/feed/ 0 http://www.veallawfirm.com/uncategorized/test-post-02/ http://www.veallawfirm.com/uncategorized/test-post-02/#comments Thu, 17 Jan 2013 12:55:48 +0000 editor http://localhost:81/veallaw/?p=26 Continue reading →]]> HOW TO HANDLE YOUR SPEEDING TICKETS

     Over my years as an attorney, I often sit in court and watch people come in with speeding tickets, unrepresented by an attorney and leave with their license suspended. Most people don’t think they need an attorney to handle a speeding charge but if you do not know the law you could have some unintended consequences. Judges and prosecutors are not required to advise you of the consequences of your plea and most of them will not. In this edition of Legal Ease I will give you a few options for handling your moving violations.

    Most of us will get a speeding ticket at one time or another. My mother will get at least one a year. In most circumstances it is financially unwise to hire an attorney because the attorney will cost more than the ticket. However, depending on your age, the number of points currently on your license and how your job will be affected by the speeding ticket, you might be better off spending the money for an attorney.

    If you are over 21, do not have close to 15 points on your license and you are not a class A driver then you can exercise your option to plea Nolo Contendere or no contest. This plea will eliminate the points associated with your speed and the courts will report the ticket to the DMV as a zero point offense. The fine will remain the same. If your speed was 85 mph or higher on the highway or 75 mph or higher on a two lane road then you will owe the state of Georgia an additional $200 courtesy of the super speeder law. The DMV will give you 120 days to pay that additional fine or suspend your license.

    If you have already used your nolo plea then you can plea guilty under a subsection 40-5-57(C). This code section reduces your fine by 20% and eliminates the points. The judge can reject the plea and the court will require a defensive driving class before this plea is accepted. This plea and the Nolo Contendere plea can only be used once every five years. If you are close to 15 points on your license and have already used your nolo, it may be worth it to exercise this option.

    If you are under 21 and a class A driver, you have to be very careful about entering a plea to a speeding ticket. For drivers under the age of 21 going 24 miles above the speed limit the DMV will suspend your license for 12 months and will in some cases require you to take the driving test again. Most counties have programs they have developed to help drivers in this age group. Ask about these programs. Most counties will reduce the speed if you are 27 miles over to 23 miles over to avoid the suspension. If you are intimidated by the process, it may be worth the money to hire an attorney.

    For Drivers with a Class A license the DMV does not accept nolo pleas. I have seen many truck drivers come to court and plea nolo only to be sent a suspension of their Class A privilege from the DMV. Truck drivers and other persons with CDL privileges should also be mindful that the laws can vary from state to state but Georgia will take action against your license for violations in other states and will punish you under Georgia Law. CDL drivers should also be aware that the tickets received when operating a personal vehicle also count against your CDL license.

     Most of us enjoy happy hour with friends and co-workers after work. The reality of living in Atlanta is that you will have to drive 15-45 minutes home at the end of the night. This means that many of us will have an encounter with a police officer either at a roadblock or because we committed a minor traffic violation. After Midnight, the officers that work are keeping a keen eye out for drivers to weave, fail to maintain lane, or even forget to turn on their headlights, anything to pull you over looking for evidence of DUI. In this edition of Legal Ease I will tell you what to expect when you are pulled over and what to do after your encounter with the police.

PHASE 1: THE TRAFFIC STOP

After the officer observes a traffic violation, no matter how minor, he/she will initiate a traffic stop. Traffic violations that are overlooked in the light of day are not in the dead of night. The officer will make contact with you and he/she will immediately lean in to smell you and your car. Once an odor of alcohol or marijuana is detected you will be elevated to phase two.

PHASE 2: THE FIELD SOBRIETY EVALUATIONS

The standardized field sobriety evaluations consists of the Horizontal Gaze Nystagmus (HGN) or ” the eye test’” the Walk and Turn and the One Leg Stand.  There are other exercises that can be performed but they are not part of the standard battery of tests. The officer will ask you to step out of the car. Once out of the car, you will be asked to perform the field sobriety exercises. These tests are voluntary and you do not have to do them. Officers are not required to tell you that the tests are voluntary and they don’t. Some officers pose the question in such a way that most people believe they have to do the exercises. You don’t and that is the first big decision you have to make. Whether you will go to jail for refusing to perform the field sobriety tests should not be part of the decision because the fact of the matter is once the officer smells alcohol or marijuana on your breath you already have one foot in the jail. It is now a matter of how much evidence you want to provide against yourself.

The HGN is a test developed by the National Highway Traffic Safety Administration (NHTSA). The theory is that after alcohol is consumed it affects the muscles of your eyes in the same way it affects your gross and fine motor skills. This manifests itself in the involuntary jerking of the eye. You are not aware that your eye is jerking and it does not affect your vision. The test was developed to detect impairment in persons who have a high tolerance to alcohol. The officers are looking for six total clues. If you have had two drinks the officer will see all six clues. This is the only scientific test that is part of the standardized field sobriety exercises and it is also the hardest for the officers to perform correctly. This is why it is very important that you hire an attorney who is skilled at defending DUI cases. This is not an area of law that anyone can dabble in.

The Walk and Turn and the One Leg Stand are divided attention exercises. The theory is that driving requires you to divide your attention between several different things, for example, looking in the mirror and applying brakes. These tests are meant to test your ability to listen to instructions and perform the tests. If you are a person of questionable balance, you will fail; if you are overweight, you will probably fail; if you are tired from a long day of work, you will probably fail. Most people upon encountering an officer are very nervous and add to that the blue lights, the dark of night and doing exercises that you are not familiar with is a recipe for failure.

The officer after performing the field sobriety exercises will ask you to blow into the portable breast testing device or PBT. This is a roadside test that is not admissible in court. Although the machine spits out a number, the only thing the officer is allowed to say is that you were “positive or negative” for the presence of alcohol. For people who performed reasonably well on the field sobriety exercises, the officer uses this tool to make their final arrest decision.

PHASE 3: IMPLIED CONSENT

After the PBT you will be placed under arrest and read the Georgia Implied Consent Statute. The officer will ask for a sample of your breath or blood. This is the state test. This is the test that will be used against you in court. If you refuse this test the officer will seek to suspend your license. This is another point where a driver is tempted to do as the officer asks because they don’t want to lose their license. However, you should also be aware that if you test above the legal limit of .08 your license will also be suspended. After you submit to the state test you have to right to seek and independent test at your own expense. The law requires that if the driver asks for an independent test, the officer has to take you to the nearest hospital and blood will be drawn at your expense and sent to the lab.

DUI outcomes are case specific, officer specific and jurisdiction specific. Don’t assume that because you blew over, you have to enter a plea of guilty. Instead, hire an experienced attorney who has handled hundreds of these cases to fight for you.