Published:

08/16/2013 07:49pm

Divorce-Related Modifications in Georgia

There are many factors that affect divorce related modifications (including child support and alimony), and each of these factors can involve subtleties which may affect the modification in question. While the majority of my clients come from Roswell, Cumming, Alpharetta and surrounding communities, the following applies throughout the state of Georgia.

Child Support

In this current downturn of the economy, unfortunately, former spouses are looking to cut their personal expenses at the cost of dependent children through a downward modification of child support. The law gives ample opportunity for modifications, especially downward, and these provisions are being used more than ever before. O.C.G.A 19-6-15 allows for modification every two years.

There are five different grounds utilized to gain an upward or downward modification. The two year rule applies to 1) a substantial change in either parent's income OR, 2) a substantial change in the needs of the children, The two year rule does NOT apply to 3) the non-custodial parent has failed to exercise visitation, 4) the non-custodial parent has exercised greater visitation or, 5) an involuntary loss of income. Under these last three scenarios, a modification can be brought at ANY time.

The only scenario, under which a modification is RETROACTIVE, is in regard to an involuntary loss of income. Therefore, it is in the affected parent's interest to file a modification immediately upon the involuntary loss so as to 'stop the bleeding' in regard to child support owed. However, the parent should absolutely continue to pay the specified child support until a Judge rules on the modification. If the modification is successful, the Judge will reach back to the time of filing and make the appropriate adjustments. Warning: non-payment, or lessened payment, of specified child support before the court rules on a modification will invoke a Motion for Contempt or worse yet, a warrant for child abandonment.

Alimony

Modification of alimony, after July 1, 1977, is governed by O.C.G.A 19-6-19. Only periodic alimony is modifiable; lump sum alimony cannot be modified. An obligation is considered lump sum if it states the exact number and the amount of payments without any further limitations, conditions, contingencies, or statements of intent.

Either party may file a Petition to Modify under the same procedural rules as a divorce action. The burden of proof is on the Petitioner under proof of a preponderance of the evidence standard that there has been a substantial change in the income and financial status of either former spouse. The two tier test is: 1) has there been a substantial change in the income and financial status (a change in EITHER financial status OR income is sufficient), and 2) does that change warrant a modification?

A modification, unlike under certain instances in modifications of child support, is NOT retroactive. Therefore it is in the petitioner's best interest to get a temporary hearing as soon as possible. Attorney's fees may be awarded in the discretion of the Judge. Modifications of alimony are subject to the two year rule. Most importantly, keep in mind that a marriage, or triggering the "live in lover" statute, can also trigger modification.

No court can ever waive a party's right to seek a future modification of alimony. This can only be done through negotiation of a Settlement Agreement and that waiver language must be very clear and cite specific case law to be ironclad.

Mike Soucy is a sought-after divorce attorney in the state of Georgia. Having made hundreds of court appearances, Soucy is highly regarded for his passionate, trial-ready style to divorce law. Mike practices in all major metro-Atlanta counties with special emphasis on the cities of Roswell, Cumming, and Alpharetta, GA. Contact the Soucy Law Firm for a free consultation at 770-733-1088 or mike@soucylaw.com