Attorneys Boyd and Cidado have spent years guiding clients and families through the challenges of family law. We know that when it comes to family, the process is emotional and that every case is unique. At Boyd & Cidado Family Law Firm, our mission is to provide caring and exceptional representation that addresses your family’s individual goals and needs.
Divorce: Property Division
In a divorce, there are a plethora of issues that you may face. Most cases involve the division of marital property. What is considered marital property? Marital Property is property acquired during the marriage or premarital property that you contributed to with marital funds or improved during the marriage.
In Georgia, courts divide marital property based on a legal concept called ”Equitable Division.” Equitable division simply means fair division. This means the court in your case is looking for a fair way to divide up marital property between you and your spouse. You are probably thinking, “what is a fair division or how does the court determine what is fair?” To determine fairness, the court will consider a number of factors such as earning capacity of each party, work history, education, and conduct during the marriage.
While Georgia is not what is known as a “50/50 state,” when the court finds that the parties earn similar incomes, then generally the court will find that an equal (50/50) division is fair. On the other hand, when there is an income disparity between the parties, then you may see the marital estate divided in a 55/45 or 60/40 split in favor of the spouse that earns the lower income. The reasoning mostly deals with the lower earning spouse’s ability to recoup the divided property in the future. The factors may be weighed differently based on the unique facts of your case. This is why it is important that your attorney knows the law and how to effectively present your case.
Will the court divide up property I brought into the marriage? As a general rule, your premarital property is considered separate property and your spouse could not touch that property with a ten foot pole if they tried. However, there are a few exceptions. Let’s say on the day you got married you had a $100,00.00 in a 401k. This $100,000.00 and any interest it has gained during the marriage is considered your premarital separate property and will not be subject to equitable division. However, from the day you get married, any contributions you make to this 401k and any interest those contributions earn is subject to equitable division.
As an example, your $100,000.00 has earned $20,000.00 of interest. During your marriage, you contributed another $50,000.00 to the 401k, and that $50,000.00 has earned $10,000.00 in interest. This brings your 401k balance to $180,000.00. The $120,000 of the 401k balance is your pre marital separate property and is not subject to equitable division. On the other hand, the remaining $60,000.00 of marital contributions will be classified as marital property and subject to equitable division.
Does the court automatically know the marital versus the premarital portions of a specific part of the property? The short answer is no. Your lawyer’s job is to present what is called a Thomas Calculation to the court. The Thomas Calculation is how the marital versus and premarital portions of property are determined. Generally this requires hiring a forensic account as an expert witness to perform the calculation.
Equitable Caregiver Act
What is the Equitable Caregiver Act
The Equitable Caregiver Act of 2019 allows the Court to grant custody of a child or children to a person who is not related to the child by blood or who had not adopted the child. Before the Equitable Caregiver Act, Georgia law only identified a child’s biological relatives as caregivers, thus limiting who could be a caregiver under the law to parents, grandparents, siblings, aunts, uncles, and so forth. However, with the passing of the Equitable Caregiver Act, Courts now recognize extended family members, stepparents, and other non-relatives as possible caregivers for a child.
If a person is trying to petition for status as an equitable caregiver and thus gain legal custody of a child, said person must understand and fit the descriptions and criteria of a caregiver first. Georgia law defines a primary caregiver as a person who cares for the needs of someone who cannot care for themselves. In the state of Georgia, a child is considered a minor until they reach the age of 18 and therefore a child cannot legally care for themselves and requires a caregiver until they are no longer a minor.
Is it realistic to believe I could get custody under the Equitable Caregiver Act?
Yes, if you meet the criteria of a caregiver including being the caregiver to the child historically and on a daily basis, as well as have the evidence to back up your position, then yes it is very possible. When preparing your evidence and pursuing legal custody, keep in mind that the law still favors the biological parents to be the official custodians of a child as long as they are deemed fit to provide care.
It is also possible for the judge to rule against you, even if you consistently provide parent-like care to the child on a consistent, permanent basis. Circumstances could lead the judge not to grant custody if they feel that doing so goes against the child’s best interest, the standard Courts will use in all child custody cases. The judge’s ruling will always reflect whatever the judge believes will be in the child’s best interest, so you will need to provide enough quality evidence to prove that you are a crucial parenting figure for the child.
Additionally, it is also possible for multiple people to apply to be the child’s equitable caregiver and gain legal custody. It is crucial to provide the court with solid evidence that proves you are the parental figure who best serves the child and has built the strongest bond with them. You can file an opposition if someone else has petitioned to be the equitable caregiver. When pursuing equitable caregiver status, it is always wise to manage expectations.
Do Grandparents have special rights or additional remedies under the law when seeking custody or visitation of their grandchild?
The short answer is no, grandparents do not have additional rights to seek visitation or custody of their grandchild under Georgia Law outside of the Equitable Caregiver Act. Under O.C.G.A § 19-7-3, grandparents previously could pursue visitation under this statute, but the statue’s relevant parts were found to be unconstitutional in 2018 in Patten v. Ardis . Regarding custody, prior to 2019, grandparents who served as the primary caregivers of their grandchildren could not easily gain legal custody of their grandchildren. However, the Equitable Caregiver Act now allows grandparents with primary caregiving roles to pursue and obtain legal custody of a child if doing so is in the child’s best interest.
What do I need to do to show I am a caregiver under the Equitable Caregiver Act?
To successfully pursue custody under the Equitable Caregiver Act, there are certain criteria you must meet as a non-relative before the court can consider you an equitable caregiver:
- You have historically or are currently fulfilling the parenting duties and responsibilities expected of a biological parent without any expectation of reimbursement, financial benefits of any kind, or any other compensation for said duties and responsibilities.
- Your relationship and bond with the child are well-established to the degree that removing you as the caregiver would cause the child to have difficulty adjusting to life without you there as their caretaker. While there is no exact timeframe of how long one must be in a caregiver role of a child to qualify, relationships that have not yet established and developed a long-term relationship with the biological parent or child, such as a new significant other, will not count. The relationship between the caregiver and the child must be solidified and well established.
- You have a parental bond with the child that is approved by at least one of the child’s biological parents.
- You play a permanent, complete, and comprehensive parenting role in the child’s life. As stated above, this applies to stepparents, step-grandparents, or unmarried significant others who care for a child on a consistent, daily basis.
- At least one of the child’s parents accepts your parental role in the child’s life and confirms that your actions align with those expected from a parent. This can be difficult given the child’s parent might initially agree and then ultimately push back on your pursuit to be given custody and be recognized as a legal caregiver.
The expert attorneys at Boyd & Cidado understand the Equitable Caregiver Act and can help you pursue child custody in Georgia.
Family matters can be very complicated, especially if you are a non-relative with a strong parental bond to a child or family of children and feel helpless. Here at Boyd & Cidado we understand your circumstances and are here to help you achieve your goals of having legal custody of a child in your life. If you are finally ready to pursue custody and make your caregiver title official, we will gladly share more about the Equitable Caregiver Act and guide you toward establishing official caregiver status.