I can often be heard saying, “people spend more time doing research to buy a new car than then to hire a lawyer.”  Grant it, many people come to us as referrals; meaning we represented their friend or a family member and received high marks.  But, many of our clients come in cold from a Google search or some other random search or even the phone book.  In my 15 years of practice and fielding these calls, I note that potential clients sometimes jump at the first lawyer that will call them back – that includes me.  Perhaps this is because of the urgency to speak to someone, which is understandable.  Family law matters are emotional, hurtful and do often come with a sense of urgency to bring order back to a life turned upside down.  But, this can be a downfall if it means not considering all options for good representation for your particular situation.  This can also be costly, sometimes leaving the client with no funds to retain a new lawyer if the first one does not work out. 

 
What to do?  Approach hiring a lawyer with all the seriousness you do with any other major purchase.  Remember, you are paying for a service after all. 
 
Financial:  What and how are you paying?
 
The Cost  
 
You’ve heard the saying: you get what you pay for.  That can be true on both sides of the economic spectrum.  Be weary of low or flat rate fees for litigation matters.  But, be just as weary of high or inflated hourly rates.  Just because the rate is sky high doesn’t mean you are necessarily getting better representation.  Do your research.  Get quotes on the overall cost for your particular situation.  Compare the costs to discern what is commiserate and reasonable for your matter.  Lawyers will not be able to give you an exact figure as there may be variables, such as who the opposing counsel is, how much your spouse or significant other wants to fight, etc.  But, a good lawyer should be able to give you an estimate for what you can expect to pay for your type of case and should be able to explain the fee structure to you.  The fees should always be reasonable to your situation.  
 
Retainers and Billing Practices   
 
Ask about the firm’s policies on retainers and billing and get it in writing.  Be sure you fully understand the financial relationship you are about to undertake before signing a contract. 
 
According to Abraham Lincoln’s Notes on a Law Lecture accepting a fee paid in full and upfront could lead a lawyer to be disinterested in the matter, perhaps even negligent of his/her obligations to the matter.  Paying a small retainer up front – to be earned – or a small flat fee for limited work may be a better practice for both the client and the attorney.  It keeps both the lawyer and the client on a level field with each other and keeps the consideration ever constant.  Remember, you are paying for a service, so it is best to understand a firm’s billing so you can choose which method best fits your situation; even if that means going with a different firm.  
 
Traditional Retainer.  Some firms require a retainer that is then held and applied to the last billing; requiring you to pay monthly.  
 
Refundable Retainer.  Many firms, like our firm, have a refundable retainer.  We take an agreed upon sum up front and hold it in trust.  This retainer is then billed monthly with the client providing no additional funds unless the retainer is exhausted.  Any money remaining in the retainer is refunded to the client at the end of a case. 
 
Earned Retainers and Flat Fees.  An earned retainer is an arrangement where part of your upfront payment is earned immediately upon retaining the firm or upon some act.  This may mean the funds are not subject to any line item billing leaving the client with no visibility into the work being done by the firm.  Also, be weary of firms that charge a “fee” plus a retainer or an earned retainer as such may not be in line with ethical practices.  Ask what the “fee” is for and how it applies to the services you will receive. 
 
Flat fees are a growing new trend, geared to do away with the billable hour practice.  Our firm will use a flat for smaller ticket items, such as an uncontested divorce or limited work such as drafting a Will, name change or power of attorney.  However, be sure you have a good understanding with your lawyer about what you will get if you do pay a flat fee, especially if you hire a lawyer that uses this model for all services, including complex litigation.  This may require you to pay upwards of $25,000.00 up front therefore understanding the terms are critical. 
 
Contingency Fees.  This is when a lawyer is paid an agreed upon percentage of an award at the end of the case.  Do know that in Georgia it is unethical for a lawyer to negotiate a fee contingent upon the divorce or the award of alimony or support. 
 
Monthly billing.   Discuss monthly billing practices during the initial consultation.  Be sure you receive a statement each month.  When hiring a lawyer, ensure that there will be an open line of communication should you have any questions about billing. 
 
The Attorney-Client Relationship: What are you getting?
 
A good Fit  
 
We want your business, no doubt.  But, I find that the strongest attorney-client relationship is formed and works best (for both parties) when there is a good fit.  This is especially true with family law matters; matters that are emotional for the client.  You should also feel comfortable with the lawyer; feel as if you can tell him/her anything.  A good lawyer will know his/her limits of expertise on your case and should be honest with you about those limits. 
 
A Lawyer First 
 
The lawyer’s job is to advise, to give guidance and believe it or not, tell the client when they are wrong.  Your lawyer is not your friend and they should not just be a mouthpiece.  After all, you hire a lawyer for their legal experience, knowledge and to give you all possible solutions.  A lawyer should protect you even if this means telling you that what you want is not attainable.  We call that being ethical. 
 
You can certainly hire a lawyer to do what you want; however you may not be happy with the end results.  Use a lawyer for his/her skill set; let them advise you and guide you.  Do not be afraid to ask questions of your lawyer about the strategy.  Involve yourself in the process – after all this impacts your life.  My advice, hire a lawyer who is focused on your case and not one who is focused on your money.  
 

 
160 Clairemont Avenue – Suite 450 – Decatur, GA – 30030 
Tel. 404-373-9446
denise@vanlanduytlaw.com  

 

Over the years I have helped resolve numerous family law matters as the mediator.  In doing so, I’ve made a mental list of what works and what does not work in assisting two people (usually parents) resolve their differences without the need for a trial.   I have also observed how people (lawyers included) conduct themselves during mediation and what is helpful and was is not.  

Do be prepared.   Having updated financial information and parenting plans readily available is very important to discussing the terms of any settlement.  Too many meditations break down because of the lack of information. Remember, one cannot agree upon something if they have no way to verify exactly what he/she is agree to. Failure to provide information can also be a signal to one’s commitment to the mediation process. 

Do listen.  Many, including lawyers, come into mediation so focused on their end game that they fail to really hear the other side and consider options.  Put aside the emotions and the legal strategies and listen to what the other side has to proffer.  You may be surprised. 

Do consider options. Just because the other side or your soon to be ex-spouse proposes an idea doesn’t mean that it should be automatically dismissed.  A productive discussion of ideas is the best path to a resolution, especially where children are concerned.  

Do submit a proposal ahead of time.  Having an understanding of the other party’s position prior to the mediation can lead to a much more productive session.  This also helps the mediator structure the negotiations.  Having a point of discussion ahead of time also signals who is invested in the process and who is not.  

Don’t litigate.  This don’t is primarily for the lawyers.  Mediation is not just a cog in the litigation machine.  Rather mediation is like the off ramp from the hectic speeding highway of law.  It is a place to slow down and put fault and blame aside so the parties can really focus on solutions.  Lawyers, most often, have a hard time with this.  But, allowing the client to use this space to truly talk through the issues, without the distractions of legal strategies or what they may “win” in court, will promote a better discussion and ultimately a better outcome. 
  
Parties who are able to resolve their issues are often in a better position to mend the hurt and pain caused by divorce, especially with regard to their children.   

Denise D. VanLanduyt, Esq. is a certified mediator and arbitrator in the State of Georgia.  She is also registered with the Georgia Office of Dispute Resolution.  

 
160 Clairemont Avenue – Suite 450 – Decatur, GA – 30030 
Tel. 404-373-9446
denise@vanlanduytlaw.com  
The United States Supreme Court decision issued on June 26, 2015 in Obergefell v. Hodges once and for all gives same-sex couples the right to marry in any state.  The decision also requires all states to recognize those marriages lawfully performed in other jurisdictions.  Many are jubilant with the decision as they can now marry in their home state.  Others are simply relived because now they can seek a divorce.    
In 2003, Massachusetts led the way as the first state to recognize same-sex marriages.  Leading up to the latest decision, a total of 37 states and the District of Columbia allowed same-sex marriages.  This means, legal marriages have been available to same-sex couples for the past 12 years in the United States, not to mention in other countries such as Canada (2005) and Spain (2005).  This was great because couples could travel to any of these destinations, apply for a marriage license and voila, they were hitched!  Many couples in fact did travel in search of a legal marriage and have been wed for years. 
The problems started when couples traveled back their home states where the marriage was not recognized as legal.  Since the marriage was not recognized, there was no option to legally dissolve the union when marital troubles started.  To make matters worse, because divorce is based upon residency, same-sex couples truly found themselves wed-locked.  This was true even after the federal government recognized all marriages by virtue of decision in United States v. Windsor issued on June 26, 2013. 
But, now, since all states are required to recognize marriages, divorce is possible and is easily accessible in the state where you live.   This is a relief to many because the decision now allows same-sex couples to make use of all of the protections of a civil and orderly dissolution available with right of divorce recognized by their now legal marriage. 
If you are seeking relief from your legal marriage we can help.  Contactus at VanLanduyt Giles to set up a consultation with one of our family law attorneys to discuss your divorce.    
160 Clairemont Avenue – Suite 450 – Decatur, GA – 30030 
Tel. 404-373-9446
denise@vanlanduytlaw.com 
Marriage license, check.  Flowers, check.  Wedding cake, check.  Venue, check. Rings, check.  Food, music and lots of family and friends, check, check, check and check. 
Meeting with lawyer, wait, what?!  Why on earth would you meet with a lawyer before the happiest day of your life? 
Same-sex couples considering saying “I do” need to be aware of what that may or may not mean in Georgia with regard to ownership interest in real and personal property.  Even with the sweeping decision from the United States Supreme Court, the marriage itself will not be the magic wand that makes all things “ours.” 

So, add one more item to your to do list.  Consult with a lawyer to discuss how to navigate the various legal intricacies in Georgia law you both may face with regard to real and personal property ownership interests even with a legal marriage.  A simple pre-nuptial, post-nuptial or merger agreement may be all that is necessary.  Taking this extra step will give you both the peace of mind that what you intended is truly as you intended – yours together. 

Contact us today to schedule a consult.  
160 Clairemont Avenue – Suite 450 – Decatur, GA – 30030 
Tel. 404-373-9446
denise@vanlanduytlaw.com 

Not too long ago, I had the opportunity to address the women incarcerated at Arrendale Prison.  All 30 women in the classroom with me were Mothers.  All were serving sentences of five years or less.  They all were prepared to ask me questions about my area of expertise – family law.  Upon a show of hands, almost all had a pending legal issue; mostly dealing with custody or visitation.  Only two were represented by counsel. 

I am all too familiar with the unrepresented client, i.e., pro se.  Before going any further, and after a brief introduction to the State Court system in Georgia, I thought it was a perfect opportunity to discuss with my new students what to do in Court.  These simple guidelines easily to apply to all clients, perhaps some lawyers as well. 

1.   Dress appropriately.  I always tell my clients dress like you are going to Church.  No jeans, tennis shoes, or ball caps.  Men do not necessarily need to wear a tie, but wear nice slacks and a pressed shirt.  Women too should be appropriate.  Erring on the conservative side is best practice.  If you have to leave and go back to work, and you wear a uniform, that is fine.  Just be sure to let your counsel know in advance. 

2.  Be on time.  Be at least 15 minutes early to Court. When you enter the courtroom, sit down and be quiet.  Do not talk while waiting for your case to be called. Be patient.  This is not a time to play on your iPhone or read a book. 

3.  Leave your child at home.  There is no reason for a child to be in Court.  Unless the Judge or your attorney has instructed you to bring the child with you, make arrangements for their care or make sure that they get to school.

4.  Be sure your phone and/or pager is turned off before entering the Courtroom. Nothing irritates a Judge more than a phone ringing when he or she is trying to address cases.  If your phone rings in the courtroom be prepared to turn it over to the bailiff or even face paying a fine. 

5.  Stand when the Judge comes into the Courtroom.  Stand whenever you are addressed by the Judge.  Respond respectfully and answer his or her questions.  If you have an attorney, stand and let him or her speak for you.  The rule of speak only when spoken to is a good way to ensure you are honoring the respect of the Courtroom.  If you want the Judge’s attention or desire to convey additional information, ask permission, e.g. “Your, Honor, may I……?”

6.  When sitting at counsel’s table, avoid all urges to make noises, gestures or the like.  The Judge can hear every sigh, groan, grunt, sheesh, that comes out.  And, remember, even if you think the Judge is not watching, they are.  The Judge will see every move you make, every crossed arm, every eye roll, every jerking motion to talk to your lawyer and every haphazard movement to scribble a note to your lawyer.  Judge’s watch body language.  Leave the attitude and the ego outside the courtroom.  Remember to be respectful and you will be fine. 

7.  Be prepared.  Have all your documents with you in duplicate.  Have your facts ready and be clear and succinct.  Remember, the Judge can only consider what you present.

Denise D. VanLanduyt, Esq. is both a certified/registered Mediator and a certified/registered Arbitrator in the State of Georgia. She has been licensed to practice law in Georgia since 2000, Ms. VanLanduyt has over 12 years experience as a family law attorney in and out of the courtroom. She is a founding member of the Family Law Section of the DeKalb Bar Association. Ms. VanLanduyt is a frequent speaker on topics related to family law. 

What is mediation?  As explained by the Georgia Commission on Dispute Resolution (GODR):

Mediation is a process in which a mediator helps parties negotiate their differences with an eye toward resolution and settlement. The mediator has no authority to make a decision or impose a settlement upon the parties, but instead tries to empower the parties to make the decisions themselves. The mediator does that by focusing the parties on their needs and interests rather than on their rights and positions. Although in court, the parties may be ordered to attend a mediation session, they are not required to settle their case in mediation. If the parties are unable or unwilling to settle in mediation, their case returns to the court for trial; the parties lose none of their rights to a jury trial.

Who is the mediator?  The mediator is a trained individual who is able to fully implement the above guidelines; ensuring a self-determinative process. Training in Georgia is rigorous.  Trained mediators undergo 28 hours of General/Civil mediation training which includes practicums.  The General/Civil must be taken before taking the domestic mediation training.   Domestic mediation training is a 42 hour course and also includes a practicum component.  Then, there is a domestic violence component (separate from the domestic training) which qualifies a mediator to be involved in cases with domestic violence. This training certifies the individual as a mediator.  The mediator is encouraged then to register with the GODR, which requires continuing education credit in order to maintain the standing.  All court associated mediators must be certified and registered with the GODR.  Mediators are trained, educated and required to adhere to a strict guidelines of ethics which benefit all families they work with. 

What is a self-determinative process?  It is a process guided by a trained neutral who assists the parties in working through their issues and coming to their own decisions.  As I have italicized above, the mediator does this by focusing on the needs of the parties rather than on their rights and legal positions.  This can be difficult, especially when parties are represented by lawyers.  Using a trained mediator can ensure that the parties have the opportunity to focus on solutions rather than focusing on what a Judge may do or who may have the winning argument.  For many lawyers, this can be very difficult to understand and implement.  But for families, it can be a great venue to prevent further damage.

When selecting a mediator, many lawyers choose individuals who have years of experience in domestic matters, but are not trained mediators.  This is perfectly fine, so long as your client is made aware of the fact that the lawyer is not a trained mediator and that the mediation process may not be  as described above.  Having years of experience in domestic law may be great for a late case evaluation, but may miss the mark in giving the parties a true shot a finding their own resolution. 

All mediators who have undergone the intense training described in this blog and who are certified can be found at www.godr.org.

Denise D. VanLanduyt, Esq. is both a certified/registered Mediator and a certified/registered Arbitrator in the State of Georgia. She has been licensed to practice law in Georgia since 2000, Ms. VanLanduyt has almost 12 years experience as a family law attorney. She is a founding member of the Family Law Section of the DeKalb Bar Association. Ms. VanLanduyt is a frequent speaker on topics related to family law. 

I often wonder if any other family law practitioners find themselves in the same predicament as I – middle class family, small retainer with not much more to come, and some serious issues.  How can you most effectively represent your client when you simply do not have the funding to do so?  One option is to work for free.  That, I do not recommend as it will lead to other snarls and snares with the client that I will not venture into here.

A few quick ideas that I have employed when you client is not the CEO of a Fortune 500 Company with limitless resources:

1.  Give the client homework.  The best way to save some money and time is to have the client obtain all necessary records that may be relevant to the case.  This typically includes the educational and medical records of the children.  The chances that the doctor will charge the parent vs. the lawyer are far less.  Just be sure to instruct the client to obtain certified copies.  If your client cannot obtain the records, be sure to have him/her execute the HIPPA release directly with the provider.  Many healthcare providers have their own specific forms.  My advice, no matter how good you think your release may be, use the provider’s form release. This will save time.   

Bank Accounts are another source of information relevant to the divorce process that your client may already have access to.  Many divorcing couples have joint accounts. Simply have the client go on-line and down load to a zip drive as far back as the bank has stored.  This will avoid costs (and time) in sending the subpoena to the bank.  

2.  Use requests for admissions when you cannot use depositions.  Let’s face it, most divorce cases are he said, she said with no known “truth.”  So, instead of the costly deposition, use the tool of Requests for Admissions to at the very least nail down the facts you need for trial.  Yes, we have all be taught that we should not ask a question we do not know the answer to.  However, when you are working with a limited budget the Request for Admission may serve the same purpose as the deposition and cost far less.  Plus, this will ensure you know the facts of the case intimately as the requests should be tailored to the issue you desire to flesh out.   I find Request for Admission to be most effective after having already served one round of discovery (interrogatories and request for documents).

3.  Know the Facts of the case.  Knowing the facts of any case is (or should be) at the heart of what we do.  Sounds simple enough.  But, let’s be honest, sometimes we find ourselves not knowing the entire story.  My trial practice professor in law school at Syracuse used to say, you should make your closing to the jury without anything in your hand, including that yellow pad – it’s distracting to you and to them.  You should know your facts so well that you do not need it.  Knowing the facts of any case, intimately, will help you hone the questions for discovery or at trial.  This in turn saves time and money because that big fishing expedition has now become like a heat seeking missile.  Trust me, opposing counsel and his/her client will be caught off guard.  Do not be complacent with your cases.

4.  Social Media.  Who needs a private investigator when we have Facebook?  Don’t get me wrong, PI’s are invaluable.  However, when your client does not have the funds to pay someone to follow their spouse around; jump on the internet.  I highly advise doing this quickly as my first instruction to clients is always to shut the page down!  But, many do not give this advice or their clients simply do not follow it.  Scan Facebook, Twitter, MySpace and see what emerges.  You may be surprised. 

5.  Utilize Local On-Line Court Dockets.   Background checks may be expensive as well.  But, there are plenty of free resources available. I have found many TPO’s; misdemeanor cases and other family matters by simply having my paralegal search the local County online docket systems.  The Federal Court’s also have an on-line system: PACER.  This comes with a cost, which is nominal, but can be valuable to for searching for valuable information.  Bankruptcies are a good example. This is very helpful information when cross examining a parent who may not be entirely honest about their income or assets. Remember, people file bankruptcy for many reasons.  The Federal System uses efile and thus their sworn income is readily available for download in pdf form.  Should you need to use the information in Court, do not forget to obtain a certified copy from the clerk.  But, a good ole request for admission may clear that up.

Denise D. VanLanduyt, Esq. is both a certified Mediator and a certified Arbitrator. Licensed to practice law since 2000, Ms. VanLanduyt has almost 12 years experience as a family law attorney. She is a founding member of the Family Law Section of the DeKalb Bar Association. Ms. VanLanduyt is a frequent speaker on topics related to family law. 

 


by Denise VanLanduyt
President, DeKalb Bar Association

 
Every time I say the pledge of allegiance or sing the national anthem I feel a strong sense of pride coupled with a tinge of sadness. With the Pledge, it is the last line: “…with liberty and justice for all.”  The Star Spangled Banner in all its pride and glory makes my heart swell; yet again something always seems to be missing.

This year’s theme for Law Day is “Realizing the Dream: Equality for All,” seems appropriate. This year, we celebrate the 150th anniversary of the signing of the Emancipation Proclamation by President Abraham Lincoln, and the 50th anniversary of Dr. Martin Luther King Jr.’s “I Have A Dream” speech in front of the Lincoln Memorial. Both President Lincoln and Dr. King took a stance for the cause of liberty and freedom that in turn alienated many. Both men lost their lives for the cause of preserving the ideals set forth by our founders; the ideals that, “… that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  (Source: Declaration of Independence.)  They were courageous men.

Early this year, the United States Supreme Court heard oral arguments regarding equal treatment under the law as it relates specifically to marriage equality. The 14th Amendment very clearly tells us that:
“…[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The issue of marriage equality and equal treatment of same-sex couples has (like predecessor civil rights issues) caused a great debate in our Nation and has led many to question whether they should take an active stance on the issue. As a gay woman who has been legally married for eight wonderful years to my wife and as a lawyer who took an oath to uphold the Constitution of the United States, I can only hope that our great Nation will come back to the core principles recited in our founding documents as a guide. As citizens, we should all strive to uphold these principles. How each of us chooses to uphold those principles should not matter so long as we do not trample upon the rights and liberties of others. We are different, but what makes us the same is the brilliance of the Declaration of Independence and the 14th Amendment in that we all have the same unalienable rights that these rights shall not be intruded upon by the government, which includes protecting the minority from the tyranny of the majority. James Madison wrote of this inherent problem and it is one we struggle with to this day.

I do not pretend to think that all will agree with me whether it be my views on liberty or more importantly, how I choose to exercise my views in support of equality. In fact, our Nation has seen struggles with civil rights and equality from its very inception. Slavery, women’s suffrage, segregation, equal pay, voting rights, and the list goes on. Each of these movements had strong supporters and just as obstinate naysayers. But let us not forget that each movement also had (and has) their quiet supporters; people who worked behind the scenes or in their day to day lives to support equality and the liberty of their fellow citizens. An example is Elizabeth (“Lizzie”) McDuffie. Lizzie, formally a domestic staff member of the Inman’s at the Swan House, located here in Atlanta was one of FDR’s most trusted domestic staff members in the White House. So trusted, that this Morris Brown College graduate in her role as the Roosevelt’s family domestic soon became the liaison between the civil rights activists and Eleanor Roosevelt. Eleanor, in turn shared with the President the ideals of the cause. This quiet, but deliberate, work gave the activists the ear of the leader of the free world. She too, like President Lincoln and Dr. King, was courageous in her pursuance of liberty and equality for all.

The strength of our Nation is found in each citizen’s upholding of the principles of liberty and equality as so clearly set forth in our founding documents. All who uphold these principles are courageous. I will continue to uphold the principles of liberty and equality in hopes that one day the swell of pride I feel when I sing our National Anthem or recite the pledge is no longer burdened with sadness.

When I have the opportunity to guest lecture before the Family Law class at John Marshall law school, we typically discuss the benefits and protections of divorce.  After all, divorce is a benefit of marriage; it comes with protections – for spouses and children.  Because of my experience lecturing on the topic, we discuss this model in the context of a non-recognized same-sex marriage and tackle this issue by discussing the differences in how a legally married couple and a non-recognized same-sex married couple are treated under Georgia law when they separate. 
In my last blog entry, I discussed the option of utilizing Arbitration for dissolution of same-sex marriages.  Let me highlight a bit more the versatility of this option, rather than court, when you have a client who seeks to separate from his/her spouse (gay or straight) when they have not been married but have intermingled assets or chosen to have and raise children.
Some quick differences in benefits available to a divorcing (legally recognized as married) couple and a non-recognized married couple, i.e. same-sex marriage, in the State of Georgia:

 

Alimony

 

Retirement Accounts

  

Real Property

 

Personal Property 

Financial Accounts (checking, savings)

Recognized Marriage

 

Available.

 

Divisible and transferable under tax shelter of the divorce.

 

Divisible if purchased during the marriage, regardless of investment or on the title.

Divisible if purchased during the marriage, regardless of investment or if on the title. (e.g. vehicle) 

Divisible if established or invested into during the marriage regardless of  whether a joint account.

Non-Recognized Marriage

 

Not Available.

 

Not divisible or transferable.  If by agreement no tax shelter.

 

Not divisible unless ownership interest established or on the title.

Not divisible unless ownership interest established or on the title.

Not divisible unless ownership established by virtue of title/name on the account.

With a recognized marriage your client’s interests, in any property or benefits held by the other spouse, are defined by the marriage itself.  With a non-recognized marriage (such as a same-sex marriage from another state), the client’s interest in the property is not defined by their standing in the relationship, but rather by their standing in relation to the property or interest he/she seeks.  As you can imagine, the later presents a much higher burden of proof and can be sometimes difficult as married couples (recognized or not) do not have a tendency to keep an accounting of their marriage; especially in the good times.
In Georgia, Title 19 is a one-stop-shop for the dissolution of the marriage.  For the non-recognized couple, any one or all of the following code sections will/may apply depending on your theories for either establishment of ownership or recovery of the interest in any particular property: Title 7 Banking and Finance; Title 9 Civil Practice Code; Title Contracts; Title 23 Equity; Title 19 Divorce (if there are children); Title 44 Property; Title 51 Torts; and Title 53 Trusts.
If a couple were to opt for mediation or arbitration, they could agree to implement the rules that govern divorce and reap most of the benefits afforded under Title 19.  Regardless of what the law may say, the parties by agreement may themselves choose to treat their marriage as legally recognized for the purposes of the separation. 
By no means does this solve the over-arching problem with full recognition nor replace the fundamental rights that are denied which simply cannot be fixed by contractual agreements between the parties.  For example, the tax consequences cited above cannot be changed as such are governed by IRS Tax Code and the current legal definition of marriage.  But, it is an alternative solution to a very burdensome problem, which could save the parties thousands of dollars in litigation and discovery costs and leave both leaving the marriage as they entered – on more equal footing.    
Denise D. VanLanduyt, Esq. is both a certified Mediator and a certified Arbitrator. Licensed to practice law since 2000, Ms. VanLanduyt has almost 12 years experience as a family law attorney. She is a founding member of the Family Law Section of the DeKalb Bar Association. Ms. VanLanduyt is a frequent speaker on topics related to family law. 

A client walks into your office.  She and her partner have been together ten plus years.  She reports that they have purchased real property together, own vehicles together and have two children.  The relationship is coming to an end. They were legally married in a jurisdiction that recognizes same-sex marriage.  She is seeking legal counsel for her divorce. 

In Georgia, due to the lack of recognition of the marriage between persons of the same sex, how do you proceed?  There are two issues common in most divorces: child custody and support as well as property division. Typically, you file a Petition for Divorce which then encompasses all these issues.  But, since the legal union is not recognized, it cannot be treated as a divorce.  Thus, child custody and support is treated as a separate case from the property division.  Yes, procedurally, two separate actions must be filed; one to address the custody and support and a separate filing to address the property division. This is true even if all issues are properly in the same county.  To further complicate matters, the real and personal property will be divided in accordance with Title 44, the Property Section rather than under Title 19 the Divorce Section which covers equitable division of property in a divorce. These two codes sections also involve different legal standards for the determination and division of ownership interests.   However, the custody and support matters will still fall under Title 19.  Procedurally, you must advise your client of the legal hurdles she faces.

To make matters worse, if any of the real property (such as a vacation home) is located in a a different county from the primary residence and children, then a third suit will need to be filed.  Disputes over property must be filed where the property is situated.  If the matter is contested your client could be facing three separate lawsuits in two different jurisdictions, if handled correctly. The cost to the parties is great, not only emotionally, but financially as well.  Strategically, you cannot argue the case in total, which may lead to final rulings (in each jurisdiction) that have been issued after hearing and considering  limited evidence related only to the issue before that particular court.  Depending on the client’s circumstances, this may not be a good approach. 

Are there any other options?  Collaborative is very popular today and a great process.  However, this only works if the parties are both willing to fully engage and participate in working together.  So, how do you minimize cost and maximize legal arguments when the parties are not suited for collaboration or even mediation?  

Consider arbitration.

Arbitration is a process in which an arbitrator or panel of arbitrators renders a decision after hearing an abbreviated version of the evidence.  The process can be binding, meaning the decision of the Arbitrator is final.  The process may also be non-binding, meaning the decision of the Arbitrator is not final and may then serve as a case evaluation.  The parties may agree to adopt the non-binding decision as binding. 


Process.  The overall procedure of the hearing, including the rules of evidence, are relaxed allowing for a less stressful environment for the presentment of your case.  The parties may also agree upon the rules, i.e. which Code Section to apply.  You may present evidence in writing or by oral testimony.  All issues, regardless of jurisdiction, may be handled together.  After the hearing, the Arbitrator renders a decision in writing. 


Benefits.  The process can be more efficient and save parties money.  Litigation can be costly and getting before a Judge can often take longer than anticipated.  You can avoid filing in separate jurisdictions.  You can agree to utilize Title 19 for determination of all issues, rather than applying the differing legal standards that exist between Title 19 and Title 44.  Arbitration allows the parties to schedule a hearing that is convenient to them, their attorneys and the Arbitrator.  Since the hearing procedure itself may be relaxed, discovery can also be narrowed, saving the parties valuable time and money.  Finally, the process is confidential.  Your issues will not be open to the public consumption of the courtroom.  Georgia allows parties to arbitrate all property and financial matters ancillary to their divorce, separation or dissolution.  If the parties agree, the decision of the Arbitrator will be binding as if a Judge decided the matter. 


As of 2008, parties may also agree to binding arbitration on the issue of child custody as well as matters related to visitation, parenting time and the parenting plan.  The Arbitrator’s decision shall be incorporated into a final decree awarding child custody unless the Judge makes specific written factual findings that under the circumstances the award would not be in the best interest of the child or children.  O.C.G.A. §19-9-1.1   

When you are meeting with your client, discuss the option of arbitration and regarding some control over the outcome of her dissolution.  With the laws still in flux on the matter of marriage equality, it may be the next best option to having full access to the best resolution for the dissolution of the family and any property ownership issues.  

Denise D. VanLanduyt, Esq. is both a certified Mediator and a certified Arbitrator. Licensed to practice law since 2000, Ms. VanLanduyt has almost 12 years experience as a family law attorney. She is a founding member of the Family Law Section of the DeKalb Bar Association. Ms. VanLanduyt is a frequent speaker on topics related to family law.