The Court Order You Will Never Get

In my divorce practice, I sometimes find that my clients have unrealistic expectations about what the law can and cannot do for them. Generally, the law does not favor self-help. This means that even if you get a court order, the court and the police must be the ones to enforce it.

Divorce and custody cases are filed in Georgia in superior court, which is a court of equity. Custody cases are decided based on a "best interest of the child" standard, and in assessing this standard, the courts are permitted to consider factors such as the character of the parents, which is otherwise impermissible under the Federal Rules of Evidence and Georgia law.

That said, however, there's a difference between what is evidence of bad character vs. what is a difference of opinion on parenting style. A person can be a terrible spouse, but an excellent parent.

If you are wanting "justice" (with you doing the defining of what is just), you are not likely to get it from a court. But, just for fun, I've created a fill-in-the-blank form for you to fill out as a venting exercise. Please don't take this to Court -- it would be embarrassing.

Final note if you are looking for help in how to draft a contract: note that for each of the major things the Ex is required to do, there's a consequence if it is not done. These particular consequences are insane, of course (and the examples of bad behavior not all frivolous, and taken from my actual cases over the years), but generally, you want to build in consequences for each action in your contracts.

Link to download: The Order You Will Never Get

Non-Sceney Social Opportunity Post-Break-up: Square Dancing

How do you meet people following a break-up, without the pressure to immediately start dating again? Square dancing! New classes started on August 8 for the Hotlanta Squares, an LGBT square-dancing group that dances each Monday night from 7-9 p.m. at the First Metropolitan Community Church located at I-85/N. Druid Hills Rd in Atlanta. All are welcome (including allies). No special skill required.

Square dancing is a good old-fashioned drug/alcohol-free fun way to meet people, get a little exercise and have a very good time. Dress is utterly casual (most people wear shorts & t-shirts in the summer), and the Squares change up dance positions all night long, so you do not need to bring a partner. (In fact, most people do not come with a partner, so it is a perfect activity for single (or newly-single) people!)

Classes are FREE for the first three weeks of the open house (August 8, 15 & 22) and only $5 each week thereafter.

TIME Magazine: Men & Women Do About the Same Amount of Housework

This week's issue of TIME has an interesting article about new research revealing that men and women do about equal amounts of housework.

I was initially skeptical, but the researcher's larger point -- that more of today's fathers expect to -- and do -- take an active, equal role in parenting their children echoes what I have seen in my divorce practice. Many of my male clients have begun custody discussions by stating, "I want to have my children with me 50% of the time and I will not accept anything less." It is always admirable and encouraging to see parents committed to equal parenting of their children, even when they cannot live together anymore.

Playlist: Empowering Break-up Songs

Wallowing in power ballads is never a good idea, post-break-up. Ok, a little wallowing is ok -- but when you are ready to start moving on, you need a kick-butt set of empowering songs on your playlist. What would be on such a playlist though? Here are some of my initial thoughts:

• I WILL SURVIVE by Gloria Gaynor (or Cake)
• F* YOU by Cee-Lo Green
• STRONGER by Sara Evans
• SO WHAT by Pink
• YOU'LL THINK OF ME by Keith Urban
• FIGHTER by Christina Aguilera
• IRREPLACEABLE by Beyoncé
• SINCE U BEEN GONE by Kelly Clarkson
• PICTURE TO BURN by Taylor Swift
• CRY ME A RIVER by Justin Timberlake
• BELIEVE by Cher
• SURVIVOR by Destiny's Child

What else would you add? Feel free to comment.

The worst interest of the child

From Saturday's New York Times, a case that illustrates the exact opposite of what is meant by the "best interest of the child" standard used in child custody cases in Georgia: a lesbian couple splits, and the biological mother treats the couple's child like a piece of property, dragging the child from Vermont to Virginia to Nicaragua, while bad-mouthing her ex, in violation of a whole slew of state, federal, and international laws.

OCGA 19-9-3(a)(3) sets out 17 factors that courts consider when determining what the best interest of the child is. One of those factors is "(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child."

You don't need to go to law school to think about how this looks from this poor kid's perspective, and to know that this high-conflict litigation, secrecy, media attention, and surreptitious moves are NOT in the best interest of the child.

How to Get a Gay Divorce in Georgia

How to divide children, property, and pets if you are part of a same-sex couple in Georgia -- and what to do if you actually got legally married, civil unioned, or domestic partnered somewhere else.

1.   This Is Not A Divorce. Don't Treat It Like One.

If you are looking for yet more examples of how the law discriminates against gay and lesbian couples, you found it. Straight couples who divorce in Georgia are eligible to receive an equitable portion of: the marital residence, their ex's retirement, investments, businesses, and checking accounts. In some cases, one spouse can get alimony. 

In contrast, there's no alimony in gay break-ups -- even if you were a stay-at-home who cared for your ex's mom until the day she died, and single-handedly raised the children. 

Sometimes, LGBT people hire the only gay-friendly attorney they know, who wants to treat the dissolution of the relationship like a divorce. This is a bad idea because while it may make you feel affirmed (after all -- you went through so much effort to legitimize your relationship in the first place!), it does not comport with Georgia law. Find a gay or gay-friendly attorney by checking out the Stonewall Bar Association - www.stonewallbar.org. 

2.  You May Need to File More Than One Case At A Time.

If you own property together and can agree who gets what, you may just need some quit claims drawn up. If you renovated property together, you may need to file a petition for equitable division and ask the court to decide what should happen with the property. 

If you have children together and have equal rights to the children (i.e., you both went through the formal, legal process of adoption), and can't agree on custody and child support, you may need to file a petition for child custody. If your ex had the child, and you never adopted the child, you are a legal stranger to the child -- even if you helped raise the child for x years. In this situation, you will probably want an attorney to help you negotiate a private agreement with your ex where s/he voluntarily gives you visitation in exchange for child support.

3.   Pets Are Considered Property.
Your dog might be your baby, but in the eyes of the court, a dog is the equivalent of a piece of artwork. It doesn't matter who the better dog/kitty-parent is or will be -- it's just a matter of who paid for the pet, and whether it was a gift. If you really want to go there, you can sue your ex to get possession of the animal, but usually couples simply enter into an agreement outlining some minimal visitation and veterinarian expense reimbursement. That's a simple contract -- no family law experience required. (And not just a gay issue, by the way -- it's part of many divorce settlement agreements.) 

4.  You May Need to Move to Get Legally Divorced.  

If you went to Massachusetts, Iowa, Connecticut, New Hampshire, Vermont, or DC (or abroad) to get married, you are in a situation known as a "novelty in the law". (No, that's not good.) Your quandry is that Georgia will not recognize your marriage, so it will not give you a divorce. 

Most states have residency periods that must be fulfilled before its courts will grant you a divorce. Georgia's residency period, for example, is six months. Therefore, to legally get a divorce, you will need to find a state that (1) recognizes same-sex marriages when they are validly-performed elsewhere (this list changes fairly frequently), where (2) you or your ex (or both) would be willing to live long enough to fulfill the residency period. Which means you may need to work together with your ex for your shared goal of getting divorced. It CAN be done -- and should be done before you look to marry again, to avoid the prospect of bigamy charges. 

Additional Resources

For a (usually) up-to-date list of states which grant same-sex marriages or recognize valid same-sex marriages performed elsewhere, see the National Conference of State Legislatures' research guide to same-sex marriages:  Nat'l Conference of State Legislatures - Same-Sex Marriage

To find a LGBT or LGBT-friendly attorney in metro Atlanta, search the Stonewall Bar Association Directory (and if you live far outside metro Atlanta, call me -- I can probably give you a referral to someone in your part of the state):   Atlanta's Stonewall Bar Association 

For more on how this issue is playing out across the country, see Newsweek's 2010 article on the subject:

Newsweek: "Gay Divorce: The Next Big Legal Challenge"