Georgia Bar Journal – October : A Look at the Law
Georgia: Meretricious Relationship Results in Disqualification of Death Benefits. Citing a decision of the Supreme Court of Georgia. In Georgia, the cohabitation of the spouse receiving alimony with a romantic in a meretricious relationship shall also be grounds to modify provisions made for. The Georgia Supreme Court granted discretionary appeal to Lori Provenzano Wife had voluntarily cohabited in “a meretricious relationship with a third party.
Todd admitted that one child's grades in math and science had fallen off in the fall ofand that the child's teacher commented that the child was having difficulty focusing on classwork and homework. Ellis reported that one of the children said she "didn't like sharing her mother with her boyfriends and felt it was better if her mother did not have boyfriends.
Casciano also testified that only one month or so before the hearing, one of his children testified that she got a cut on her eyelid when Todd missed while trying to hit her sibling and hit her in the eye instead. There was evidence that Casciano is a fit person to have custody of the children and that he is able to provide a satisfactory home life for them. The evidence showed that he had stable employment, that his second wife had flexible hours and therefore could oversee the children, that he had an adequate home for raising the children, that he was involved in the children's activities, and that he attended church regularly.
Although some questions were raised about Casciano's personal behavior earlier in life and about his system of discipline, there was evidence to support the conclusion that he was fit to have custody.
The above evidence supports the trial court's findings and the conclusion that there were "new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child[ren].
As stated by the Supreme Court, "Because of [this Court's] inability to decide who should have custody of children, we apply the rule announced in And, [t]he "reasonable evidence" rule applicable in change of child custody cases is applicable even where the divorced custodial parent is charged with having sexual relations.
If the trial judge finds from the evidence that the welfare of children is affected and changes their custody, that decision will be affirmed on appeal where there is reasonable evidence to support it.
This rule has been followed in several cases where the only or primary allegation of a change of conditions was that the custodial parent was engaged in a sexual relationship to which the child was exposed. Ellis, because she needed more data, did not reach the conclusion that Todd's behavior had affected the children, the juvenile court could make that conclusion based on all the evidence before it. Therefore, we cannot find an abuse of discretion.
In Saxon, the trial court specifically found that the mother was an unfit parent because she was involved in a "meretricious" relationship, i. Accordingly, the court's finding was clearly erroneous. In addition, in Saxon, unlike here, there was no evidence that the relationship in question resulted in harm to the child.
Similarly, in Livesay, there was no evidence that the brief period of cohabitation by the custodial parent had any adverse effect on the child. Furthermore, we find no merit in Todd's argument that the court was clearly erroneous in connection with the change in custody when it found that she was "cohabiting" with her boyfriend.
Georgia Cohabitation Forms
She contends that cohabiting can only mean living together as spouses and that all she did was stay over on several occasions. Compare Saxon, Ga. But, cohabiting can also mean to "share the same place. The juvenile court was authorized to find a change in conditions based on the several overnight visits to Hall's house and was not required to find that Todd and Hall had effectively moved in together in order to do so.
With regard to the award of attorney fees, however, the use of the term "cohabiting" requires closer scrutiny. We first note that the attorney fee award can only be interpreted as being based on a finding of contempt. Although the juvenile court's order does not indicate whether the award was made in connection with the claim for contempt or the request for a modification of custody, the complaint indicates that Casciano sought attorney fees solely in connection with the count for contempt.
Laws of Divorced Living Arrangements in Georgia
Accordingly, we read the trial court's order as an award for contempt. The contempt award is based on an apparent finding that Todd violated the terms of the divorce agreement in that she "cohabitate[d] [sic] with a person of the opposite sex, not a relative, in the presence of the children. See Webster's New World Dictionary, p. Todd testified that she understood the word cohabit, as used in the divorce agreement, to mean actually move in with someone, rather than just spend a weekend or two with someone.
This appears to be the more common meaning.
- Georgia: Meretricious Relationship Results in Disqualification of Death Benefits
- Cohabitation Form Categories
- Modification of Alimony After Divorce
For example, Black's Law Dictionary defines "cohabitation" as follows: The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations. Indefiniteness and uncertainty in a judgment, decree, or order may constitute a good defense in proceedings for contempt based on the violation of such judgment, decree, or order. Citation and punctuation omitted.
Because the basis for the trial court's contempt order is uncertain and because there is no indication that the court followed the rules of construction with regard to the word "cohabit," we must reverse and remand the attorney fee award for further action consistent with this opinion. The trial court must construe the agreement first and then determine whether Todd violated it. Todd contends the trial court improperly considered her conduct prior to the most recent court order regarding custody of the children.
But, a trial judge is presumed to have considered only legally admissible evidence. City of Marietta, Ga. Further, the court itself noted that any evidence it received about events occurring before January would not be relevant to any alleged change in conditions except to show the status quo at that time.
Therefore, without some showing that the trial court considered Todd's conduct prior towe must presume it did not. That Code section provides that "the court shall consider the desires, if any, and educational needs of the child in determining which parent shall have custody.
But it also provides that desires of children that age are not controlling.
Laws of Divorced Living Arrangements in Georgia | LegalZoom Legal Info
The court interviewed the oldest three children, including the two oldest who were approximately twelve and eleven years old at the time of the hearing, and asked them many questions including whether they had anything else that they wished to say.
Further, another witness indicated that the children wanted things to stay as they were. Therefore, we cannot conclude that the court failed to follow the statute. Todd contends the court considered the findings and recommendation of the guardian ad litem without permitting an opportunity for her to respond or to cross-examine the witness.
But the court indicated that it was going to get the guardian's input after the close of evidence, and Todd's attorney did not object. Therefore, any possible error has been waived. See generally Spear v.
Judgment affirmed in part and reversed in part and case remanded. We remind the bar that citations must be made to the page numbers of the record itself"the volume or part of the record or transcript and the page numbers that appear on the appellate records or transcript as sent from the court below. Below are some additional considerations to be taken into account. Other Considerations Even if you are able to establish both prongs of the live-in lover law, there are some other things to consider before bringing an action to modify or terminate alimony under this statute.
The Court Has Discretion Courts are not required to terminate alimony even if a party proves all of the elements of the live-in lover statute by a preponderance of the evidence. Winona may become disabled and struggle financially, whereas Hubert is financially well heeled. Other family members may be financially dependent on Winona. Living in a meretricious relationship with another prior to entry of the final divorce decree will not serve to prove the elements of the live-in lover statute, unless of course one proves that the meretricious cohabitation started before entry of the divorce and continued after entry of the final divorce decree.
If Hubert were to find out that after he and Winona separated, but before they were divorced, Winona had been living with Beau and was also having sex or sharing living expenses with Beau, this would not be grounds to modify or terminate his alimony under O. No Recoupment of Alimony Already Paid In an action to terminate alimony under the live-in lover statute, a plaintiff may not recoup any alimony already paid even if the court finds that the defendant cohabited openly and continuously in a meretricious relationship.
The trial court found that she was not cohabitating openly, continuously and meretriciously at the time of the hearing, but imposed a self-executing termination of her alimony if at any time in the future she had male company past midnight more than four times per month.
The Court of Appeals of Georgia reversed, holding that the trial court could not retroactively terminate alimony during the four months that the wife was meretriciously cohabitating with the third party. The Court held that the self-executing four night per month limit was unauthorized and not in accordance with prior holdings that require that modification or termination under O.
Having occasional overnight guests is not sufficient proof of such a relationship. On remand, the trial court in Donaldson was not permitted to order disgorgement by the former wife of alimony she had received while meretriciously cohabitating because that would be an impermissible retroactive modification.
Because the trial court found that the wife was not currently in a relationship within the meaning of O.
Even if you can prove continuous cohabitation, unless you have an admission of sexual intercourse or a legally obtained video or photographs, you will need to focus on proof of shared expenses of cohabitation. Do not bring an action under O. Constitutionality of the Livein Lover Statute If you have proof of the necessary elements of an open and continuous meretricious relationship, a constitutional challenge to the live-in lover law is not likely to derail your case.
You should be prepared, however, to defend against such a challenge. Sims,15 the Supreme Court of Georgia held that O. The Supreme Court of Georgia reversed the trial court and held O.
Tips for Drafting Settlement Agreements If you represent the alimony payor spouse, there is really no need to add a provision in your termination of alimony section of a settlement agreement i. The law allows for such a claim to be filed anyway, regardless of whether the settlement agreement includes such language.
If you represent the alimony recipient, you will want to make sure that the settlement agreement provides that alimony may terminate only after a court of competent jurisdiction determines that the requirements of b have been met and that the court, in its discretion, finds that alimony should be either modified or terminated. In our hypothetical, if Hubert simply unilaterally stops paying alimony to Winona, Winona would have a successful contempt action; otherwise, the court would be validating an illegal unenforceable settlement provision.
Conclusion Once you have taken your client through the divorce process and obtained a final judgment and decree of divorce, be aware of the relationships that your client and his or her former spouse have with others. She started her family law practice, Ebel Family Law, in Ebel has been recognized as a Super Lawyer; as one of the top 50 women lawyers in Georgia; and by Georgia Trend and James magazines for her leadership in the legal community.
Ebel received her B. She attended college at the University of Montevallo majoring in political science with a minor in pre-law. After graduating magna cum laude inSimpson pursued her J.