Domestic Relations
| Publication year | 2020 |
Domestic Relations
Barry B. McGough
Elinor H. Hitt
Andrew B. McClintock
Allison C. Kessler
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This Article addresses significant case law and legislative updates to Georgia domestic relations law that arose during the survey period from June 1, 2018 through May 31, 2019.1
A series of amendments to O.C.G.A. §§ 19-3-60 through 662 went into effect during the survey period. Effective July 1, 2018, the amendments statutorily define "antenuptial agreement"3 and require that such agreements be "in writing, signed by both parties who agree to be bound, and attested by at least two witnesses, one of whom shall be a notary public."4 However, the statute provides "[a]ntenuptial agreements shall be liberally construed to carry into effect the intention
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of the parties, and no want of form or technical expression shall invalidate such agreements."5
The Georgia Supreme Court faced a question concerning the effect of a divorce decree on a joint tenancy with the right of survivorship in Cahill v. United States,6 which was certified to Georgia's high court by the United States District Court for the Northern District of Georgia. Cathleen M. Cahill and her then-husband Robert A.E. Hall, Jr., owned real property as joint tenants with the right of survivorship. They divorced, and their settlement agreement provided that as part of the division of property, Cahill would have exclusive use and possession of the property until age sixty-six, at which time it would be placed on the market for sale. Both parties would remain on the title until sale and would equally share the net proceeds thereafter.7
The former husband failed to pay federal taxes and the IRS placed a lien on the jointly-titled property. Subsequently, Cahill turned sixty-six but passed away before the residence was placed on the market for sale. Cahill's estate filed a quiet title action against the United States, seeking to clear title to its one-half interest in the residence.8 The district court certified the case to the Georgia Supreme Court to determine whether the parties' settlement agreement, as incorporated into the final judgment and decree, had severed the right of survivorship from the joint tenancy.9 The Georgia Supreme Court interpreted the language in question to be ambiguous, and applied "well-settled rules of contract construction" to ascertain the intent of the parties.10 Applying the well-settled rules in the context of the decree as a whole, the court determined that the parties intended to sever the right of survivorship along with their marriage.11 The court did not directly declare that divorce severs the right of survivorship as a matter of law, but as a practical matter, parties wishing to retain such a right in real property through a divorce would do well to clearly state such in settlement agreements and divorce decrees.12
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Perhaps the most important legislative action during the survey period is a matter of federal law. The Tax Cuts and Jobs Act of 2017 (TCJA)13 eliminated the alimony deduction from the Internal Revenue Code.14 Previously, alimony payments were deductible from the payor's income and taxed as income to the recipient under 26 U.S.C. §§ 71 and 215.15 Effective January 1, 2019, however, Internal Revenue Code sections 71 and 215 were repealed in their entirety.16 As a result, alimony payments are no longer tax deductible by the paying spouse and are no longer treated as income taxable to the recipient.17 The changes are not retroactive and apply only to divorce decrees or separation instruments executed after December 31, 2018.18 If a decree or instrument establishing an alimony obligation executed prior to January 1, 2019, is modified after that date, it will be "grandfathered" in, and the pre-amendment tax treatment will continue to apply unless the modification expressly provides that the amended rules will take effect.19
The legislature made a series of revisions during the survey period aimed at clarifying the child support guidelines.20 As amended and effective July 1, 2018, O.C.G.A. § 19-6-15(b)(12)21 provides that when a child is likely to become ineligible for support within two years of the date of the final order, the court may permit separate worksheets to be filed for each child showing the adjusted amount to be paid as each child becomes ineligible.22 The statute now requires that "[a] court's final determination of child support shall take into account the obligor's earnings, income, and other evidence of the obligor's ability to pay[,]" and that "[t]he court or the jury shall also consider the basic subsistence needs of the parents and the child for whom support is to be provided."23 The legislature further clarified the guidelines for determining imputed
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income by adding a non-exhaustive list of fifteen factors courts may consider in determining how much income to impute.24 When one parent is incarcerated, the court is directed not to assume earning capacity based on pre-incarceration wages or income, but instead to consider only the income and assets actually available to that parent,25 and not to consider a parent willfully or voluntarily unemployed or underemployed when that employment status is a result of the parent's incarceration.26
The Living Infants Fairness and Equality Act (LIFE Act)27 was signed into law during the survey period and is scheduled to go into effect on January 1, 2020. A full discussion of the LIFE Act is outside the scope of this Article, but in brief, the Act revises various provisions of the Official Code of Georgia, Annotated, to include unborn children within the definition of a "natural person"28 and to provide further that unborn children with a "detectable human heartbeat" as defined therein "shall be included in population based determinations."29 In addition to sweeping revisions to the portions of the Code regulating abortion, the LIFE Act amends O.C.G.A. § 19-6-15(a)(4)(a.1)30 to include unborn children within the definition of "child" such that unborn children with a detectable human heartbeat shall be eligible for child support; additionally, "the maximum amount of support which the court may impose on the father of an unborn child . . . shall be the amount of direct medical and pregnancy related expenses of the mother of the unborn child."31 After the child is born, the Act provides that "the provisions of this Code section shall apply in full."32 It is unclear at this time how the courts will approach calculating "direct medical and pregnancy-related expenses[,]"33 whether revisions will be made to the Georgia Child Support Calculator, or whether a modification action will need to be filed upon the child's birth. Additionally, once the LIFE Act goes into effect, Georgia will consider an unborn child with a detectable
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human heartbeat to qualify as a dependent minor for purposes of Georgia state income tax calculations.34
A. Paternity and Legitimation
In Brumbelow v. Mathenia,35 a biological father sought to legitimate his child after the biological mother voluntarily relinquished her parental rights on the day following the child's birth and decided to put the child up for adoption. During the pregnancy, the mother was admittedly hostile towards the father and ceased all communication with him. Accordingly, the father provided no support for the mother during the pregnancy. The father filed his legitimation petition shortly after the child's birth, upon learning that the child had been placed with a third-party family for adoption.36 The Georgia Court of Appeals determined that the correct standard when evaluating an unwed father's potential abandonment of his opportunity interest is not whether he could have done more for the child, but whether he "has done so little as to constitute abandonment."37 It follows that a biological father who has not abandoned his opportunity interest and is seeking a relationship with his biological child should typically prevail over strangers who seek to adopt the child.38 Once a biological father is found to have retained his opportunity interest in a child, the standard that should be used is the parental fitness standard.39 If the father is found to be a fit parent, "he must prevail."40
In Hill v. Burnett,41 the petitioner wished to legitimate the biological children of her former same-sex partner, as well as to establish custody and parenting time.42 The trial court denied both requests, and under O.C.G.A. § 9-15-14,43 awarded the respondent all attorney's fees incurred in defending the action.44 The court of appeals reversed the fee award for the request for custody and parenting time because the
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petitioner cited various precedents from other states granting custody and parenting time to the non-biological parent in a former same-sex couple.45 Accordingly, the petitioner's argument fell under the statutory exception for "a good faith attempt to establish a new theory of law in Georgia . . . based on some recognized precedential or persuasive authority."46 The merits of the petitioner's lawsuit were not reviewed by the court of appeals.47 In contrast, the petitioner's legitimation claim wholly lacked merit because, statutorily, "biological father" is defined as "the male who impregnated the biological mother resulting in the birth of a child[,]"48 and "only a biological father may bring a legitimation action."49 The court of appeals remanded the attorney's fees issue regarding custody and parenting time but affirmed the award of attorney's fees for the legitimation claim.50
B. Modification
Plummer v. Plummer,51 discussed in 2018s case update,52 was reversed by the Georgia Supreme Court during this year's survey period.53 The court of appeals previously ruled that in a...
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