1. Nature of Divorce Proceedings in the State of Georgia:
The general policy in the State of Georgia has always been that the marriage contract is one of the most important transactions in human nature and is the basis of the whole underlying fabric of our civilized society. Marriage is a matter in which the public has a vital interest and therefore a marriage contract cannot be dissolved by mutual consent of the parties. Because of the unique nature of marriage, the State of Georgia has attempted to protect the status marriage and place restrictions on the termination of the marital relationship. Previously, the grounds for divorce were subjected to close traditional scrutiny because of the vital importance to the public at large. This traditional policy has changed with the adoption of the 13th ground for divorce: “marriage is irretrievably broken” (it is common referred to as the no fault ground). The proceedings for divorce and alimony has always been regarded as equitable in nature and in character and design to afford full and complete relief to all the parties under the facts and circumstances of each case.
2. Grounds for Divorce:
The statutory law of the State of Georgia provides 13 grounds for divorce:
1. Enter marriage by persons within the prohibited degrees on consanguinity and affinity.
2. Mental incompetency at the time of the marriage.
3. Impotency at the time of the marriage.
4. Force, menace, duress, or fraud in obtaining the marriage.
5. Pregnancy of the wife at the time of the marriage unknown by the husband.
6. Adultery of either of the parties after marriage.
7. Willful and continued desertion by either of the parties for the term of one year.
8. The conviction of either party for offense involving moral turpitude in under which he or she is in sentenced imprisonment in the penitentiary for a term of two years or longer.
9. Habitual intoxication.
10. Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justified apprehension of danger to life, limb, or health.
11. Incurable insanity.
12. Habitual drug addiction.
13. The marriage is irretrievably broken.
Whether or not a divorce will be granted in Georgia will be determined by Georgia law and the grounds must be recognized as such in the State of Georgia, not withstanding the fact that the parties may have been married elsewhere and also the conduct complained about may have occurred in another state.
3. Marriage is Irretrievably Broken:
In 1973, the Georgia General Assembly added a 13th ground for divorce, “The marriage is irretrievably broken.” This language and the statute is unique amongst several states, and this new ground raised speculation as to whether this ground for divorce retained the concept of “fault” in granting or denying a divorce.
Recent Georgia cases have held that “proof of fault is not required to show that a marriage is irretrievably broken.” They merely state that their marital differences are insolvable and request a divorce. The only question is whether there are prospects of reconciliation.
The case law has also made clear that an irretrievably broken marriage is one where “either or both parties are enabled or refuse to co-habitate, and there are no prospects for reconciliation.”
This 13th ground is also unique in that where both parties have claimed or alleged facts showing that the “marriage is irretrievably broken,” the Court may grant a divorce by Judgement on the Pleadings, regardless of whether grounds have been alleged.
There are other grounds for divorce but because of the limited space for explanation of each grounds for divorce it will be omitted at the present time. If you have any other questions, regarding the grounds for divorce and their application please call our office (770) 477-7878.
4. Jurisdiction and Venue
A. Generally:
The Superior Courts for the State of Georgia have exclusive jurisdiction over the granting of divorce, alimony, and child support. Before a Superior Court may grant a decree of divorce or alimony, three elements of jurisdiction must be establised:
1. “Jurisdiction over the subject matter of the action”,
2. “Jurisdicition over the parties to the action”,
3. “Proper venue.”
Jurisdiction over the subject matter in a divorce and alimony case requires a valid marriage and residence (domicile) within the state for six months prior to filing the action. Jurisdiction over the parties to the action is generally concerned with the acquiring jurisdiction of the defendant. The questions of how and in what manner jurisdiction is acquired over the defendant is determined by the location of his residence, whether he can be found within the state or the existence of his property within the state. Selection for the proper venue for the action again depends upon the residence (or domicile) of the defendant. Each of the three elements of subject matter, parties, and venue must be met before the Court is vested with authority and power to render a Judgement. Once the Court acquires jurisdiction, it retains it regardless of whether the defendant removes himself from the territorial jurisdiction of the Court.
B. Courts Having Jurisdiction:
The Georgia Constitution provides that the Superior Courts of the State of Georgia shall have exclusive jurisdiction in divorce and equity cases. Since alimony is incidental to the granting of divorces and equitable in nature, it has accordingly been recognized that the Superior Courts have exclusive jurisdiction to grant alimony or child support.
C. Jurisdiction Over Subject Matter: Valid Marriage:
Subject matter of divorce and alimony actions is the dissolution of marriages and a granting of alimony for the support and maintenance of the wife and minor children. Therefore, if grounds for a divorce can be granted, there must be a valid existing marriage before the Court, whether by ceremony or by common law (common law divorces have been abolished in the State of Georgia). If the marriage of the parties is invalid, whether because of a prior undissolved marriage, or because either spouse was under a disability to remarry at the time of the purported marriage, or for any other reason, the Court would not have jurisdiction to grant a divorce. Any divorce granted under such circumstances will be void and subject to direct or collateral attack.
D. Jurisdiction Over Subject Matter: Six Month Residency:
The second element of subject matter jurisdiction is that the plaintiff shall have been a “bonified” resident of the State of Georgia for six months before the filing of action for divorce. If the plaintiff is a non-resident, Georgia requires that the defendant shall have been a resident in the state and county in which suit is brought for six months prior to filing the divorce action. There is no time period of residency required in the case of an action strictly for alimony or separate maintenance.
E. Jurisdiction Over the Parties:
The jurisdiction over the parties to an action for divorce, or divorce and alimony, is mandatory. Judgement in such action without jurisdiction of the parties is void and may be set aside at any time.
By filing the complaint, the plaintiff submits himself personally to the jurisdiction of the Court for the purposes of granting a divorce and settling any issue raised as to alimony or child support. The defendant may also voluntarily submit his person to the jurisdiction of the Court by acknowledgment and waiver of personal service, or by failing to object to personal service and pleading to the merits of the case.
F. Venue:
In addition to acquiring jurisdiction of the subject matter and parties to a divorce and alimony action, the trial court must meet the venue requirements of the Georgia Constitution. The requirements are that all actions for divorce shall be brought in the county where the defendant resides, if a resident of Georgia, and if the defendant is not a resident of Georgia, the action must be brought in the county where plaintiff resides. As in the case of the six month residency requirements, residence for the purpose of determining venue means domicile.
5. Pleadings and Procedure in Divorce Case
A. Parties:
Normally the parties to a divorce and alimony action are the husband and wife, if there were fraudulent conveyances involved, third party grantees may be joined. Minor children of the husband and wife are not proper parties, even though custody is an issue.
Minors who are old enough to contract for marriage may be sued for divorce and alimony without the appointment of a guardian-ad-litem.
B. The Complaint:
The proceedings of a divorce and alimony action are begun by a filing of a complaint, although for purposes of form it doesn’t whether the initial pleading is designated as a complaint or a petition. Generally the complaint in the divorce and alimony action must follow the same form as the complaint in any other civil action. It must show all the specific elements required by Georgia law. The complaint is the starting point of filing a divorce and must be handled by an experienced divorce lawyer. Please contact us if you have any questions regarding the filing of a divorce complaint.
C. Service of Process of a Divorce Complaint:
Process consists of the complaint and summons which are required to be served upon the defendant in divorce and alimony action as in other civil actions.
If the defendant is a known resident, process must be served personally as required by the Civil Practice Act.
If the defendant is a non-resident but found sojourning within the state, he may be personally served with process, and the Court will acquire jurisdiction to render a Judgement for alimony or child support.
If the defendant is a non-resident or otherwise cannot be found within the state, service may be accomplished by publication pursuant to the Civil Practice Act.
Frequently, and especially in uncontested divorce cases service of process may be accomplished by having the defendant sign a written acknowledgment that a copy of the complaint has been received and that all other and further services is waived. Such waiver, in the absence of fraud, will subject the defendant to the jurisdiction of the Court for the purposes of rendering a Judgement.
D. Defensive Pleadings:
The provisions of the Civil Practice Act provide that the defendant may file defensive pleadings in a divorce and alimony action, with one important distinction, default Judgements cannot be entered in divorce and alimony cases. A defendant in a divorce or alimony action may, any time before Judgement without paying costs, file defensive pleadings to the main action, including a counter-claim for divorce or alimony.
E. Default:
The failure of the defendant to file defensive pleadings within 30 days as required by the Civil Practice Act deprives him of the right to all further notices to time or place of trial but does not deprive him of the right to demand a jury trial nor to resist fully the claims of the plaintiff for divorce and alimony.
F. Discovery:
The provisions for discovery under the Civil Practice Act are applied to actions for divorce, alimony and custody of minor children.
G. Judgement on the Pleadings:
Where both parties have alleged as a ground for divorce that the “marriage is irretrievably broken,” the Court may grant a divorce on this ground by Judgement on the Pleadings.
H. Time Limitations:
In all civil cases, including divorce and other domestic relation cases, the Court may try the case at any time after the last day in which defensive pleadings were required to be filed.
This means that a Final Decree of Divorce may be taken at any time after 30 days from the date of service, therefore, it is clear that a Final Judgement and Decree may not be entered under any circumstances prior to the expiration of 30 days from the date of service.
I. Agreement to Try Without a Jury:
The Civil Practice Act provides that the Superior Court judges in divorce cases may, upon reasonable notice to the parties, in at any time, either in term or vacation, and in chambers, in any county in the circuit, herein determine all matters and issues where a jury trial is not required or has been waived.
J. Jury Demand:
Georgia code provides that unless “issuable defense” is filed, and a jury trial demand is in writing by either party on or before the case is called for trial, the trial judge sitting without a jury shall hear and determine all issues of law and fact.
K. Selection of a Jury:
Jurors are selected in divorce and alimony cases as in other civil actions.
L. Effective Co-habitation:
If the parties unconditionally resume co-habitation after the petition for divorce is filed, the grounds for divorce are considered to be condoned or forgiven, the petition may be dismissed upon motion by either party. Also, voluntary co-habitation of the husband and wife after separation shall annul all provisions made by deed or agreement for alimony.
6. Temporary Alimony and Child Support
A. Generally:
Temporary alimony and child support is awarded to the wife for the purposes of allowing her to contest the issues in the pending divorce and alimony case. Normally, alimony is paid to the wife in cash but may be paid in kind, or to third-party providers. The time period covered by any award is from the date of separation to the date of final determination regarding the divorce.
In order for the wife to be awarded temporary alimony she must show that there is a marriage, bonified separation and a pending divorce for permanent alimony with contested issues. To obtain temporary child support, the wife must show that there are minor children in the marriage who have a legal claim against the husband for support.
The amount of temporary alimony and child support is determined by the needs of the wife and the minor children and also the ability of the husband to pay. The trier of fact may consider many factors in determining the amount of child support and/or alimony.
Although the trial judge has a broad discretion in awarding temporary alimony and child support, he must base his decision on the evidence presented at the temporary hearing. Therefore, you must be prepared to present any evidence showing that you are entitled to receive child support and alimony.
The merits of the case are not at issue in a temporary hearing but the wife could be denied temporary alimony if she is found guilty of adultery or abandonment.
If an order is made at a temporary hearing either granting or denying temporary alimony or child support it may be appealed directly to the Georgia Supreme Court. Even though you have a right to appeal this decision, the finder of fact will not be reversed if there is evidence to support the judge’s decision.
B. Nature and Purpose of Temporary Alimony and Support:
After the parties separate and pending an action for divorce, the wife and children are usually dependant upon the husband for their support. During this interm period, the husband is liable for the support and maintenance and the minor children. To ensure that the support will continue, the Superior Court judge is authorized to substitute for the general obligation a specific order commanding the husband to provide temporary support to the wife and minor children in the form of alimony.
“Alimony” is derived from a latin term meaning “to nourish” or to supply the necessities of life. Temporary alimony was a right first established by the Ecclesiastical Courts of England, later recognized by the common law, now enforced by statute.
Temporary alimony is different from permanent alimony, because temporary alimony is designed to meet the special circumstances resulting from the domestic crisis of separation and the pending divorce. Specifically, temporary alimony, includes attorney’s fees, expense of litigation and child support, and is designed to allow the wife to effectively contest any issues and to protect her interest while the divorce is pending.
Any alimony awarded for the support and maintenance of the minor child or children is paid to the wife as a trustee for the use and benefit of the children.
C. Form of Alimony:
Typically, the Court will award temporary alimony in the form of a cash payment by the husband to the wife, however, the Court may order temporary alimony in any form it deems reasonable. Temporary alimony may be awarded in a form of a use and possession of the party’s property. The judge may decide all issues on a temporary basis.
The husband may be ordered to pay various debts incurred by either party including house payments, expenses of maintenance of the house and premises, utility bills, taxes, insurance and all other normally and customary expenses. Basically, any expense that is necessary for the support and maintenance for the wife and the minor children is allowable and there is no exact form of support that is required by law.
D. Criteria for Determining Amount of Alimony and Child Support:
Once the wife’s right to temporary alimony and child support has been established, the next issue that the Court should determine is the amount to be awarded. The trial Court shall consider the evidence and enter an order allowing such temporary alimony, including attorney’s fees and expenses of litigation “as the conditions of the husband and the facts of the case may justify.” Generally speaking the needs of the wife and the minor children and the husband’s ability to pay are the criteria often employed by trial judges in determining the amount to be awarded on a temporary basis.
E. Attorney’s Fees:
Attorney’s fees and the expense of litigation are part of temporary alimony and are awarded to the wife for the purposes of her contesting all issues regarding the pending divorce action.
The amount to be awarded as attorney’s fees is within the discretion of the trial judge and only in the case where the husband is not able to pay, the amount should be sufficient to allow the wife to obtain adequate representation.
Attorney’s fees and the expense of litigation are awarded after notice and opportunity for a hearing.
The award of temporary alimony, attorney’s fees, expense of litigation is a matter for the trial judge to determine, sitting without a jury. The trial judge will determine any conflicts in the evidence as to the wife’s right to temporary alimony, her needs and the husband’s ability to pay. The trial judge is granted broad discretion and his decision will not be overturned unless he abuses his discretion.
F. Defenses to Alimony:
At a temporary hearing the merits of divorce are not at issue. However, the trial judge will consider the facts and circumstances around the separation when it comes to determination of temporary alimony for the wife.
1. Adultery
Where the evidence shows that the separation is caused by the adultery of the wife the judge can deny her temporary alimony.
2. Abandonment
Where the uncontroverted evidence shows that the wife has willfully abandoned her husband, she also forfeits her right to temporary alimony.
G. Agreement of the Parties:
After the separation of the parties, the parties may enter into an agreement settling all issues of alimony, child support and division of property. Generally speaking, if the parties can enter into agreement a divorce can be granted in 30 days after filing the proper documentation with the Court.
H. Modification of the Temporary Order:
Georgia law provides that an order for temporary alimony and child support shall be subject to revision by the Court at any time. The temporary award is merely a preliminary investigation into the merits of the case and because other facts and circumstances may be brought to the Court’s attention the temporary order may be modified at any time.
Any temporary award of alimony, including attorney’s fees and child support, may be reviewed by the trial judge at any time prior to the final trial and case.
Any order modifying the previous award must be preceded by notice and opportunity for hearing.
I. Enforcement of the Court’s Order:
Georgia law provides that any order allowing for temporary alimony, attorney’s fees and child support may be enforced either by contempt action or by an execution (writ of fifa). An order of temporary may also be enforced by an action for garnishment. The right to enforce an order allowing temporary child support is in the wife.
J. The Affect of the Temporary Order:
Georgia law provides that after separation and until provision is made for the support and maintenance of the wife and the minor children, the husband is liable to third-parties for necessaries furnished to the wife and the minor child or children. If on the other hand after a temporary alimony or child support award is made by the Court, the husband ceases to be liable for such necessaries furnished by third-parties.
7. Equitable Relief to the Parties
A. Generally:
The Civil Practice Act has a larger scope of authority for issuing injunctions in divorce and alimony cases. The petition in any divorce case must be prepared to show the necessity for any equitable relief. The trial Court is authorized to adjourn either party from interfering with the person or property of the other and in certain cases may prevent the husband from using the home place of the parties pending the divorce action.
The writ of ne exeat is still available to prevent the husband from leaving the jurisdiction of the Court and upon a clear showing of imminent destruction, waste or mismanagement a receiver may be appointed to manage the husband’s property.
Probably the most important equitable restraint in a divorce action is the probation on transfers of property by the husband after the divorce action has been filed. The property subject to the restraint must be scheduled in the petition. If the husband has fraudently transferred property subject to the wife’s claim for alimony or child support, even prior to the separation, the wife may join the grantee as a third-party defendant and set aside the transfer.
B. Injunctions:
The trial Court has considerable authority to issue injunctions in divorce and alimony cases. The Civil Practice Act provides generally that the issues of restraining orders and temporary and permanent injunctions are obtainable in these type of cases. Each case is different and the Court must examine the facts and determine if injunctive relief is appropriate. Any injunctive relief must be definite, reasonable and otherwise necessitated by each individual case.
If cause is shown it is proper for the Court to prevent the parties from communicating with or harassing and molesting each other or from interfering with the personal property held by the other party.
In most jurisdictions there is a standing order when a divorce case is filed providing for certain injunctive relief.
Typically, the Court will issue a restraining order to both parties preventing them from selling, transferring, alienating or encumbering any property pending the divorce action in order to maintain the status quo.
C. Fraudulent Transfers:
A divorce action creates a potential debtor/creditor relationship between the husband and wife. The husband or wife may join a third-party defendant to whom property has be conveyed in a fraudulent attempt to defeat any claim in the divorce case. Upon proof of fraud, the transfer will be set aside in favor of the innocent spouse.
8. Trial and Verdict
A. The issues in a divorce case may be tried before a jury or a trial judge if a
demand for a jury trial is not filed. A jury trial may be expressly waived orally or in writing or implicitly by agreement between the parties. The Superior Courts are also authorized to refer any pending divorce case to the Juvenile Courts of the county for investigation and report regarding any issues involving custody and visitation. Generally, the issues in a divorce case center around alimony, child support and whose entitled to custody of the minor children, and upon what terms and conditions shall the support and alimony may be awarded. There is also a claim between the parties as to the division of property and all issues incidental to the foregoing.
Generally, rules of evidence applied in other civil actions are applicable to divorce and alimony cases.
Issues involving divorce, alimony and child support are tried in the Superior Courts by the trial judge or before a jury. A jury trial is available as a matter of right if a issuable defense is filed and a jury trial is demanded in writing on or before the case is called for trial. The rules of evidence applicable to ordinary civil trials are also applicable to divorce and alimony cases including the right to evoke the Fifth Amendment privilege not to incriminate oneself.
B. Verdict and Decree:
It is the function of the jury or the trial judge where a jury trial has been waived to determine the disputed facts and which party should prevail. The issues to be determined include but are not limited to the amounts and manner of payment of alimony and child support, division of property and all other issues ancillary to the divorce. The trial judge alone determines the issues of child custody and visitation.
C. Restoration of the Wife’s Maiden Name:
In all actions for divorce, the wife may demand the restoration of the name that she used at the time of her last marriage or maiden name. If a divorce is granted, the final Judgement and decree shall specify her name change.
9. Permanent Alimony and Child Support
A. The Reason for Permanent Alimony:
A husband is legally obligated to support his wife. If the parties separate, the husband liability continues for the support and maintenance of his wife and minor children according to his ability to provide support and the standard of living of the parties when they were together. Alimony may be either temporary or permanent and permanent alimony may continue indefinitely during the separation or after the Final Judgement and Decree.
B. The Criteria for Determining the Amount of Permanent Alimony:
The trier of fact whether it be a judge or a jury is granted a wide latitude in evaluating the evidence and determining the amount of permanent alimony. The Courts have arrived at this rationale because each case is based upon the facts and circumstances and is impossible to fix a hardened mathematical rule regarding the amount of permanent alimony to be rewarded.
The primary criteria used in determining permanent alimony are the needs of the wife and the husband’s ability to pay. In making this determination the trier of fact should consider everything in reference to both parties.
C. The Time, Manner and Form of Payment Regarding Permanent Alimony:
Once the right of alimony is determined the trier of fact will determine in what form permanent alimony is to be paid, including the manner and the terms of the payment.
Generally speaking permanent alimony may be awarded in cash, either from the husband’s earnings or from the corpus of his estate, paid in a lump sum or periodic payments of any time period or both lump sum and periodic payment. Permanent alimony may include the use, ownership or possession of any property owned by the husband real, personal or otherwise including income therefrom.
D. The Duration of Permanent Alimony:
Permanent alimony to the wife normally ceases upon her remarriage, unless otherwise provided by the decree. “Lump sum” alimony to the wife or “property settlement,” will not terminate upon the wife’s remarriage.
Generally, the award of permanent alimony terminates automatically upon the spouse’s death and may not be collected from the estate. There are exceptions to this rule. Call our office for advise at (770) 477-7878.
E. Enforcement of Permanent Alimony:
A Final Judgement and Decree of Divorce providing for permanent alimony is enforceable by an action for contempt.
F. Permanent Child Support:
A father is obligated by law to provide to support his minor child or children. The purpose of child support in a divorce case is to substitute the Court’s order for the common law obligations to support a person’s child or children.
G. The Criteria in Determining the Amount of Permanent Child Support:
As is the case with permanent alimony, the trier of fact has broad discretion in determining what amount of child support, if any should be awarded to either spouse as trustee for the minor child or children. The trier of fact must take into consideration the needs of the minor child and the spouse’s ability to pay in each case.
H. The Time, Method and Manner of Payment Regarding Permanent Child Support:
Once determining that either spouse is entitled to child support, then it is up to the trier of fact to specify, in what manner, and until what time child support shall be paid. The award may be paid in periodic payments or in a lump sum payment. The legislature has enacted child support guidelines which now provides certain percentages of the spouse’s earnings to be paid for child support. Child support is paid directly to the spouse to provide food, utilities, medical, dental, clothing, shelter, education and all other necessaries for the benefit and support of the minor child or children.
I. The Spouse as Custodian of the Permanent Child Support:
Where either spouse is ordered to pay child support, the spouse receiving child support is the custodian of the funds for the benefit of the minor child or children and has no interest in the funds except as a trustee charged with the duty of applying these funds exclusively for the benefit of the child or children.
J. Enforcement of Permanent Child Support:
A Final Judgement of Decree of Divorce providing for child support is enforceable by an action for contempt against the spouse required to pay child support.
10. Division of Property
A. Generally:
Either spouse may claim an interest in property owned by the other on equitable grounds as well as principles governing an award of alimony. The equitable claims of either party may be tried in a divorce case.
The theories of recovery based upon equitable claim generally involve an implied or resulting trust.
Although an award for alimony generally ceases upon the death of either party or remarriage of the wife, a decree for a property settlement is final not withstanding these events.
B. Nature of a Claim for Division of Property:
In a divorce action the Court has jurisdiction to determine the equitable interest of either spouse and the real or personal property owned either in whole or part by the other spouse.
A claim for a division of property will be tried before the trier of fact. If the parties can agree upon a property settlement, an agreement may be incorporated into the Final Judgement and Decree of Divorce.
11. Post Judgement Relief
A. Direct Attack:
A Judgement void on its face may be attacked in any Court, by any person, at any time.
B. Motion for New Trial:
A motion for new trial or extraordinary motion for new trial must be predicated upon an extrigent defect not on the face of the record or pleading, within the time prescribed by law.
A trial judge sitting without a jury has control over his Judgements, orders and decrees during the term of court which they were rendered. Just cause must be proven in order to set aside a decree within the same term which may include a failure to accurately serve a defendant or a Judgement that is void for any other reason.
C. Appeals of Final Judgement and Decree:
Final Judgement and Decree of Divorce in Superior Courts for divorce and alimony may be appealed on the same terms and conditions as prescribed for other civil cases.
D. Motion to Set Aside:
A motion to set aside a Final Judgement and Decree may be brought based upon a non-amendable defect.
E. Complaint in Equity:
A complaint in equity may be brought to se aside a Final Judgement and Decree for fraud, accident or mistake unmixed with the negligence or fault of the complaining party. The action may be brought in Superior Court but, must be brought within three years from the date of the Judgement.
12. Enforcement of Child Support and Alimony
A. Enforcement by Contempt:
In all orders, Judgements and Decrees commanding the payment of temporary alimony, attorney’s fees and expense of litigation, permanent alimony, child support or transfers of property including visitation may be enforced by an action for contempt against the offending party. The Judgement is equally enforceable whether it was based upon the verdict of the judge or the jury or by agreement of the parties incorporated into a Final Judgement and Decree.
An action for contempt is in the nature of a civil proceeding and its purpose is to compel the obedience of the order of the Court. It is the willful refusal of the party to comply with the Court’s order rather than the party’s inability to comply that is the focus of the contempt proceedings.
The basis for a contempt action is the willful refusal to comply with the Judgement or order of the Court. An award of alimony or child support is considered an order of the Court and is enforceable by an action for contempt.
An action for contempt must be brought in the same Court which rendered the decree. The Court has continuing control and jurisdiction over the subject matter.
B. Sanctions for Contempt:
If the responding party is found in contempt for failure to pay alimony and/or child support, the Court will consider how the offending party may purge himself regarding the violation of the Court’s order. The respondent may perjure himself by immediately paying all amounts due under the Judgement. If the respondent is found in contempt and refuses or fails without justification to pay the arrearage as required by the Court, he may be fined or imprisoned.
If a party is found in contempt for failure to abide by the Court’s order, the Court also may order additional attorney’s fees and expense of litigation incurred in prosecuting this action. The amount of the award is within the discretion of the trial judge and will not be modified unless clearly excessive.
C. Appeal of a Contempt Action:
An appeal lies in the appellate courts from a Judgement holding the respondent in contempt of court
The wages of a spouse are subject to garnishment in satisfaction of Judgement for alimony and child support.
D. Bankruptcy:
Judgements for alimony and child support are not dischargeable in bankruptcy, the trustee in bankruptcy takes the spouse’s property subject to any lien on behalf of the custodial parent and the minor children for alimony and child support.
13. Modification of Alimony and Child Support:
A. Generally:
The general rule is that after a Final Judgement and Decree of Divorce and the term of Court has expired, neither the parties nor the Court has the authority to modify the terms of the Decree. However, there are many exceptions to this rule.
Some of the exceptions to the rule are outlined as follows:
1. With regard to child support and visitation, if there is a change in condition
2. Where the Final Judgement and Decree did not provide for child support, the Court may entertain a petition for child support
3. In a change of custody case where the terms of the custody are changed, the Court may also modify the provisions regarding payment of the child support
4. Where the agreement incorporated in the Final Decree, the parties have reserved jurisdiction to the Court to modify the terms
5. By Petition for Modification regarding payments of alimony and child support, based on either increase or decrease in the income or financial circumstances of the paying spouse
6. To amend a clerical error or correct a mistake
7. By direct or collateral attack upon grounds as provided by the law
B. Change of Custody:
In an action to change custody, the Order may provide that child support shall thereafter be paid by the non-custodial parent.
C. Filing an Action for Modification:
An action for modification is not part of the original divorce action but is a new action for purposes of establishing jurisdiction over the parties and venue for the case. The financial status of the parties will be considered in determining whether to modify the award.
D. Requirements to File a Modification:
In order to file a claim for modification some of the requirements are as follows:
1. A Final Decree awarding alimony or child support
2. That the payment is made in weekly, monthly, or annual installments
3. That there has been a substantial change either upward or downward in the financial circumstances of the parties
4. That the change occurred between the date of the Final Judgement and Decree and the Petition for Modification
5. That there has been no previous Petition for Modification filed within two years of the current petition
6. That the judgement establishing the permanent alimony or child support was entered after March 9, 1955.
E. Procedures to File a Modification:
An action for modification is required to be filed and tried under the same rules of pleading and procedure applicable to divorce proceedings. A petition must be filed as a new action and served with process upon the defendant in the same manner as in the divorce action. The action is strictly in personam and must be in the county of residence of the defendant.
The critical issue in any action for modification is whether there has been a substantial change in the income or financial status of the paying spouse so as to warrant an upward or downward revision of alimony or child support.
F. Appeals of Modification:
A final decision revising a previous award of alimony or child support is appealable to the Appellate Courts.
G. Waiver of Rights Regarding Modification:
A modification action may be waived by either or both parties. Child support, is a right which inures to the benefit of minor child and cannot be waived by the mother or other custodian. The husband may waive his rights to seek a reduction in child support payments.