Many, if not all, counties in Georgia have responded to the increase in unrpresented parties in their family courts, by creating and handing out forms, templates, and packets for individuals to complete themselves. Almost always these forms come with disclaimers, advising the user that they should seek legal help from a lawyer, and that they use the forms at their own risk.
Unfortunately, the warnings do little, if anything, to cause litigants to slow down and really consider the effects of what they are doing. Too many parties view the paperwork simply as a hoop they must jump though to get that divorce.
Certainly all individuals have the right to represent themselves. But preprinted forms won't help a pro se litigant against an experienced divorce lawyer. Lawyers know not only the published rules, but the informal practices at each court. They know the judges, usually, and their likes and dislikes. Lawyers are practiced at assembling the evidence into a presentable and understandable fashion. Too many litgants, show up before the judge with a naive outlook that they will somehow get justice if they speak earnestly.
Divorce courts are no place to play amateur lawyer. The stakes, in terms of family relationships and finances, could not be higher. Too many clients come to me after the disaster has struck, wondering just what happened to them and where it went wrong.
If you find yourself in a likely divorce situation, don't trust your future to a blind faith in the court. It is likely to come out poorly. Save your pennies and go hire a good lawyer.
Saturday, July 31, 2010
Friday, July 23, 2010
Court denies relief from abusive quasi-criminal proceedings
We were disappointed to see that the U.S. Supreme Court, after accepting certiorari in Robertson v. U.S. ex rel Watson, belatedly changed its mind and denied cert as "improvidently granted." Justice Roberts authored a stinging dissent, arguing that the court should have re-emphasized that the power to bring criminal proceedings belongs exclusively to the sovereign, and should not be wielded by private parties.
This cert denial allows the Court of Appeals and trial court rulings to stand. Those rulings had allowed the former girlfriend to sue her former boyfriend in criminal contempt, thereby adding three consecutive 180 day jail stays on top of an existing multi-year sentence - even though a duly-empowered prosecutor for the state agreed that no charges would be brought as part of a plea bargain in a subsequent case.
This dangerous ruling allows to continue the dangerous trend of mixing civil and criminal remedies together, under the umbrella justification of addressing "domestic violence". This author believes the laws empowering civil courts to impose criminal sanctions is not only dangerous, but a breach of our fundamental constitutional rights to confront our accusers and receive a fair and impartial trial, and the rights against double jeopardy.
Too many states now rely upon the federal dollars attached to so-called domestic violence cases. Too many prosecutors are being constrained from making common-sense decisions. The lure of federal funding for such cases, in a time of tight state budgets, creates near-irresistable pressure to take domestic violence cases to the mat, wastes important state resource, and causes defendants in domestic violence cases to be singled out for harsher treatment merely because the actions arose between individuals who had been living in the same house.
Most troubling is the Court's apparent sanction of legislative efforts to strike at some of the most fundamental rights we have to protection against abusive government action. We can only hope that the Court will readdress this issue in the near future, and provide a curb against the tide of abusive prosecutions that is occuring under the banner of "domestic violence".
This cert denial allows the Court of Appeals and trial court rulings to stand. Those rulings had allowed the former girlfriend to sue her former boyfriend in criminal contempt, thereby adding three consecutive 180 day jail stays on top of an existing multi-year sentence - even though a duly-empowered prosecutor for the state agreed that no charges would be brought as part of a plea bargain in a subsequent case.
This dangerous ruling allows to continue the dangerous trend of mixing civil and criminal remedies together, under the umbrella justification of addressing "domestic violence". This author believes the laws empowering civil courts to impose criminal sanctions is not only dangerous, but a breach of our fundamental constitutional rights to confront our accusers and receive a fair and impartial trial, and the rights against double jeopardy.
Too many states now rely upon the federal dollars attached to so-called domestic violence cases. Too many prosecutors are being constrained from making common-sense decisions. The lure of federal funding for such cases, in a time of tight state budgets, creates near-irresistable pressure to take domestic violence cases to the mat, wastes important state resource, and causes defendants in domestic violence cases to be singled out for harsher treatment merely because the actions arose between individuals who had been living in the same house.
Most troubling is the Court's apparent sanction of legislative efforts to strike at some of the most fundamental rights we have to protection against abusive government action. We can only hope that the Court will readdress this issue in the near future, and provide a curb against the tide of abusive prosecutions that is occuring under the banner of "domestic violence".
Wednesday, March 31, 2010
Watch for Robertson v. U.S. ex rel. Watson
Proponents of domestic violence victimes are raising alarms over this case pending before the United States Supreme Court. At issue in Robertson is whether states are entitled to deputize "private attorneys general" to prosecute criminal cases on behalf of the state in domestic violence actions.
In Georgia, individuals are entitled to seek family violence and stalking protective orders under a Georgia law permitting issuance of such orders on the mere claims of the alleged victim, followed by a hearing. If the court finds that it more likely than not that some kind of domestic violence occurred, it can issue a variety of relief, including excluding the accused immediately from the home and cutting off all contact with the children. See O.C.G.A. § 19-13-3, et seq.
Violations of protective orders are crimes, and second violations of protective orders can be punishable as a felony, including substantial jail time. Unlike other criminal cases, which are brought by the government using government prosecutors, protective order cases are brought as civil cases by private litigants. The state in effect "deputizes" a private party (the accused) to prosecute the criminal action on its behalf. This is dangerous to the rights of the accused since the standard of proof is lower under this statute, a mere "preponderance of the evidence" rather the higher "guilt beyond a reasonable doubt" standard. Under our federal constitution, individuals charged with a crime cannot be convicted unless their guilt is proven beyond a reasonable doubt, and this lowering of the standard has been problematic across the board. Further danger for the alleged abuser exists since the private party accuser, who may be a party in a contested divorce proceeding, has different motives than a prosecutor representing the state. Litigants in divorce cases may be motivated to manufacture or embellish false claims of violence to obtain a better divorce decision.
In Robertson, the appellant argues that it is unconstitutional for a state to deputize a private attorney general in this way, and that the actions should be brought by government prosecutors who may be expected to screen such actions for legitimacy and sufficiency. If the court finds such action unconstitutional, it could roll back Georgia's statute, restoring the fundamental right to proof of guilt beyond a reasonable doubt for those accused of violence in the future.
No one can question the serious risk that domestic violence presents to members of a household. Our society cannot tolerate unjustified violence against individuals, male or female, and the use of violence to intimidate and control individuals. However, there is a real threat to our protection against criminal sanctions posed by the flood of domestic violence claims. We need to restore protection from the abusive power of the state being wielded by private biased parties.
In Georgia, individuals are entitled to seek family violence and stalking protective orders under a Georgia law permitting issuance of such orders on the mere claims of the alleged victim, followed by a hearing. If the court finds that it more likely than not that some kind of domestic violence occurred, it can issue a variety of relief, including excluding the accused immediately from the home and cutting off all contact with the children. See O.C.G.A. § 19-13-3, et seq.
Violations of protective orders are crimes, and second violations of protective orders can be punishable as a felony, including substantial jail time. Unlike other criminal cases, which are brought by the government using government prosecutors, protective order cases are brought as civil cases by private litigants. The state in effect "deputizes" a private party (the accused) to prosecute the criminal action on its behalf. This is dangerous to the rights of the accused since the standard of proof is lower under this statute, a mere "preponderance of the evidence" rather the higher "guilt beyond a reasonable doubt" standard. Under our federal constitution, individuals charged with a crime cannot be convicted unless their guilt is proven beyond a reasonable doubt, and this lowering of the standard has been problematic across the board. Further danger for the alleged abuser exists since the private party accuser, who may be a party in a contested divorce proceeding, has different motives than a prosecutor representing the state. Litigants in divorce cases may be motivated to manufacture or embellish false claims of violence to obtain a better divorce decision.
In Robertson, the appellant argues that it is unconstitutional for a state to deputize a private attorney general in this way, and that the actions should be brought by government prosecutors who may be expected to screen such actions for legitimacy and sufficiency. If the court finds such action unconstitutional, it could roll back Georgia's statute, restoring the fundamental right to proof of guilt beyond a reasonable doubt for those accused of violence in the future.
No one can question the serious risk that domestic violence presents to members of a household. Our society cannot tolerate unjustified violence against individuals, male or female, and the use of violence to intimidate and control individuals. However, there is a real threat to our protection against criminal sanctions posed by the flood of domestic violence claims. We need to restore protection from the abusive power of the state being wielded by private biased parties.
Thursday, June 18, 2009
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???
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???
Tuesday, June 16, 2009
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.
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.
Subscribe to:
Posts (Atom)