Alimony or Palimony?

The extent of alimony in Georgia is ill-defined and relies wholly upon the trial judge. Georgia Courts are "given a wide latitude in fixing the amount of alimony. . . and to this end they are to use their experience as enlightened persons in judging the amount necessary..." Arkwright v. Arkwright, 284 Ga. 545, 546 (2008).

This creates a challenge when advising clients what to expect in the way of alimony. In theory, the statute sets for some criteria to be considered by the court, including -

(1) The standard of living established during the marriage;
(2) The duration of the marriage;
(3) The age and the physical and emotional condition of both parties;
(4) The financial resources of each party;
(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;
(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
(8) Such other relevant factors as the court deems equitable and proper.

In practice, it is hard to tell which, if any, of these factors are important, and the last factor can eclipse everything else. There are a number of "rules of thumb" tossed about, depending on the county and the judge, such as 20% of income for a time equal to 1 year for each 3 years of marriage. But there are no hard guides and litigants can encounter some surprising results.

Consider Sprouse v. Sprouse, S09F0709, handed down by the Georgia Supreme Court June 6th of this year. The Supreme Court upheld a grant of 13 years of alimony, based on a marriage of 2 years duration. That would be 6.5 years of alimony for each year of the marriage. While the result is surprising, the rationale is even more so. The trial judge determined that since the length of the relationship of the parties was 13 years, that 13 years of alimony was reasonable. The parties had shared a common law relationship in Alabama before moving to Georgia to get married. Georgia does not recognize so-called "palimony" and the Supreme Court recognized that. Nevertheless, the court reasoned that the length of the entire relationship "including periods of premarital cohabitation" could be considered. This seems to call into question Georgia's proscription against palimony. It also seems to disregard the statutory language regarding the "duration of the marriage" since a marriage, by definition, can't include pre-marital periods.

It may be that Sprouse will be confined to its facts, but there is no limiting language in the case. For now, it seem the court has given a green light to consideration of pre-marital cohabitation. That being the case, can true palimony be far behind???

Guardians Ad Litem

What is a GAL?

Often in family cases the court will appoint a representative for the children, also called a "guardian ad litem". This is a bit of a misnomer, because guardians, or "GALS", as they are usually called, function more as a fact-finder for the court.

It has been held that "the recommendations of the [guardian ad litem] are not a substitute for the [trial] court's independent discretion and judgment." Uniform Superior Court Rule 24.9(6). See also Hammond v. Hammond, 282 Ga. 456(1), 651 S.E.2d 95 (2007); Urquhart, supra, 272 Ga. at 549(1), 533 S.E.2d 80. King v. King 284 Ga. 364, 365, 667 S.E.2d 30, 31 (Ga.,2008)

Despite this hopeful statement, GALS wield enormouse referential power. As a practical matter, unless the court sees a real problem in their conduct the GAL's recommendation is likely to become the order of the court.

In fairness, GALs take on the difficult job of picking between two parents - and take the pressure that the judge might otherwise face. The role is not an easy one, as usually one side or the other is unhappy with the outcome and the GAL is a frequent target for blame. For this reason, both judges and the rules are solicitous of GALS. For example, they are shielded from liability for their actions in a case, unless the court deems them to have engaged in "bad faith".

"In addition to the privilege afforded a witness, neither a court appointed custody evaluator nor a court appointed guardian ad litem shall be subject to civil liability resulting from any act or failure to act in the performance of his or her duties unless such act or failure to act was in bad faith." Ga. Code Ann., § 19-9-3

This also means that a GAL can get away with a host of minor infractions, and escape accountability. "Bad faith" is a notoriously difficult standard to meet and I am aware of no case finding a GAL to have breached it.

In the next installement, we will review some strategies for dealing succesfully with a court-appointed GAL.

First Posting

This is a new blog devoted to issues involving family law in Georgia. Family law here is very challenging - NOT because the subject matter is complicated, but because of the way the courts handle it. Nowhere else, I venture, do litigants so little understand or appreciate the possible outcomes. Nowhere else are the expectations of the parties entering the system so at variance with the process they endure. This blog is being started in the hope that a groundswell of support may develop to do something about this tragedy. It is also being started to help those who are entering the process have a little hope that the end may not be a total disaster.