Child Support in Shared Custody

It is possible for the custodial parent to pay child support to the non-custodial parent.  A recent ruling by the Georgia Supreme Court confirmed that this highly unusual arrangement was possible under Georgia law.  The ruling also explained how calculations work for child support in shared custody.

First, in child support in shared custody cases one parent is designated the custodial parent and one parent is designated the non-custodial parent.  If one parent has more parenting time, then that parent is designated the custodial parent.  The other parent is designated the non-custodial parent.  If the parents have equal parenting time, then the parent with less income is designated the custodial parent and the parent with the greater income is designated the non-custodial parent.

When the parents have equal, or close to equal, parenting time, child support is first calculated in the normal way without regarding to parenting time.  The calculated amount will be the same as if the non-custodial parent visited with the child on alternating weekends, or had no parenting time at all.  Second, the court may then give a deviation from the calculated amount based on the non-custodial parent’s court ordered visitation with the child.  The deviation would reduce the non-custodial parent’s child support in shared custody obligation.

In the Georgia Supreme Court case, the father had 60% of the parenting time and the mother had 40% of the parenting time. The father is therefore the custodial parent and the mother is the non-custodial parent. Based on the parent’s respective incomes, the calculating amount of child support the mother would pay was $233.00 per month.  Because the mother had 40% percent of the parenting time, the court could allow a parenting time deviation, thereby reducing the mother’s child support obligation.

In its ruling, the Georgia Supreme Court made clear that the parenting time deviation could exceed the mother’s calculated child support obligation.  In other words, if the mother’s calculated child support obligation was $233.00 per month, the court could allow a $500.00 deviation, which would mean that the father had to pay child support to the mother in the amount of $267.00 per month.

The judge has broad discretion to make these deviation based on what is feels is best for the child.  Make sure that your financial statement is complete and accurate, so that the judge has reliable information.

Remedies for Contempt

If a party fails to do something the court has ordered them to do, the court can find them in contempt.  Contempt most often arises over a failure to pay child support, but it can involve a failure to do anything that the court has ordered.  Once a person is found in contempt they are ordered to jail for up to 20 days, but the court must set a purge.  A purge is something the person must do to avoid going to jail.  A purge can be payment of money, or it can be an action.  The court has many remedies for contempt. The person found in contempt can also be fined up to $1,000 and is also usually ordered to pay some or all of the other person’s attorney’s fees.

Two recent cases demonstrate the kinds of purges a court can fashion to remedy violations of its orders.  In one case, the Husband was ordered to turn over furniture to the wife.  When the Husbands failed to do so, and the furniture disappeared, the court found him in contempt and ordered him pay the fair market value of the furniture to the Wife.  But now the requirement to pay the money was not only an order; it was a purge that the Husband had to pay to avoid going to jail.  In the case, the Husband claimed that the court was not enforcing its order, it was modifying its order by requiring the Husband to pay money instead of turn over furniture.  But while the court cannot modify the order in a contempt action, it has broad discretion to craft a remedy.

In another case the Husband was awarded a jointly titled house and was ordered to refinance the joint mortgage in his own name within six months, or sell the property.  When the Husband did neither, the Wife sought contempt.  The court found the Husband in contempt.  To purge the contempt and avoid going to jail, the Husband was required to put the house up for sale immediately.  Again, he had to put the house up for sale and proceed with the sale, or go to jail.

Visitation can also be enforced by contempt.  If a parent fails to allow visitation or fails to return the child after visitation as required by the court order, that parent can be found in contempt and sent to jail.

Court orders must be followed.  Courts in Georgia require compliance with their orders and will not hesitate to send the disobedient party to jail.  If you are ever in a situation where you cannot comply with an order, or you have good reason for believing that compliance would be harmful to a child, seek the guidance of an experience family law lawyer immediately.


Jurisdiction and Venue

“Jurisdiction” involves placing a case in the correct state.  Should the case be in Georgia or another state?  “Venue” involves placing the case in the correct county in Georgia.  Should the case be in Glynn County or Camden County?

There are two types of jurisdiction: subject matter jurisdiction and personal jurisdiction.  In Georgia, the superior courts will generally have subject matter jurisdiction over family law matters.  For the court to have jurisdiction over a divorce there must a valid marriage and the person who files the case, the “Plaintiff,” must have been a resident of Georgia for six months.  For the court to have jurisdiction over a child custody matter, the child must have been a resident of Georgia for six months.

Jurisdiction and Venue are important threshold considerations when initiating any legal action.  Getting them wrong can lead to wasted time and money.

The court must have personal jurisdiction over the person against whom the case is filed, the “Defendant.”  For a Georgia court to have jurisdiction over a Defendant, the Defendant must reside in the state or have significant connections to the state, such as having recently lived in the state, owning a business in the state, or owning land in the state.  If you lived with your spouse in another state, the two of you separated, and you moved here but your spouse has never been to Georgia, the Georgia court may not have personal jurisdiction over your spouse.  If so, you will not be able to proceed with your divorce in Georgia.  You may have to seek your divorce in the state where your spouse is living.

The Defendant must object to personal jurisdiction at the time they file an answer to the complaint of the Plaintiff.  If the Defendant does not object to personal jurisdiction, then the Defendant has consented to personal jurisdiction and the case can go forward.

Problems with subject matter jurisdiction cannot be waived.  Subject matter jurisdiction is given by law and cannot be changed by anything the parties do or don’t do.

Venue is generally correct wherever the Defendant is living.  It is really just a matter of fairness and convenience.  If you want to sue them for a divorce, you have to go to where they are.

As with everything in the law, there are always exceptions and technicalities.  Be sure to consult with an experienced divorce attorney when contemplating any action.


Brunswick, Georgia, Divorce Lawyers

Lee S. Ashmore specializes in divorce and family law.  He has twenty years of experience in divorce practice.  He has litigated over five hundred family law cases and negotiated and drafted hundreds of settlement agreements.

Mr. Ashmore has extensive experience in divorce mediation.  He has completed training programs in both general mediation and divorce mediation. He has represented clients in hundreds of mediations and settlement conferences.

Mr. Ashmore has long been active in bar associations at the local, state, and national level.  He has been chair of the American Bar Association’s Family Law Litigation Committee.  He has been editor of the Committee’s newsletter.  He is currently a member of the American Bar Association’s Marital Property Committee.  Mr. Ashmore is a member of the Georgia Bar’s Family Law Section, and a member of the Glynn County Bar Association.

Brunswick, Georgia, divorce lawyers routinely travel a circuit, practicing family law in the Superior Courts of Glynn County, Camden County, Charlton County, Ware County, Pierce County, and McIntosh County.  These courts do not issue scheduling orders, or normally schedule mediation or settlement conferences in divorce and family law cases.  In difficult cases, lawyers can arrange mediation by choosing from a list of court approved mediators.

Divorce lawyers in Brunswick, Georgia, must also be ready to quickly prepare for hearings.  Courts in more congested areas of the county often take months to hold hearings, but courts in Southeast Georgia set in requested hearings quickly, usually within 45 days.  That means divorce lawyers must be on top of their cases and begin preparing for hearings as soon as they are retained.

Because hearings come up quickly and courts do not require mediation or settlement conferences, settlement discussions are often conducted in the hallway of the courthouse prior to the hearing.  Brunswick, Georgia, divorce lawyers must be prepared to negotiate settlement as well as to try the case before the judge.

Finding Hidden Income in Divorce

Usually, income in divorce is simple to establish.  We look at a person’s paystubs, W-2’s, and tax returns to determine income.  But sometimes a person’s income can be more difficult to determine.  If someone has their own business, is receiving income “under the table,” or has complicated financial arrangements that allow for hiding income we will need to do some forensic accounting to determine their income.

The Internal Revenue Service deals with this problem a lot.  A lot of people try to avoid paying taxes by hiding income.  Additionally, income derived from criminal enterprises is taxable and the IRS is often able to put criminals in jail to convicting them of tax evasion.  To establish hidden income, the IRS as developed three methods of calculating hidden.  These methods are useful in divorce cases.

When the person’s income leaves a definite paper trail, the “Specific Items Method” can be used.  With this method we examine business records, tax documents, and bank and investment statements.  We then add up the deposits.  The problem with this method is that these documents are either not available or the income does not appear in the documents. This method works when someone has their own business.  But if someone is dealing in cash and putting the money in their pockets, it will not show up in documents.

The Expenditure Method takes the opposite approach.  Instead of looking for deposits, we look for money spent.  Often the person will be magically spending far more than their claimed income.  Also, expenditures can be established by examining third party records.  If the person is paying by cash, sometimes the records can be subpoenaed from the third party who keeps records of payments received from the person.

If documents are not available, or do not adequately show income, we can try the Net Worth Method. We identify the person’s assets and subtract the person’s liabilities.  If the net worth has increased, say, $100,000 in one year, we can conclude that they had at least $100,000 of income that year.  This method can work for higher levels of hidden income.  Poor people who deal in cash spend it on consumables like food and gas without accumulating assets.

Identifying hidden income in divorce is often difficult and expensive.  It requires a lot of attorney time and often requires a forensic accounting.


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