Family Law Myths Debunked: Alimony, Divorce, Child Custody, Child Support
By Shari´ Morris
1. Child Support is a requirement by law. It cannot be waived by agreement of both parties. This statement is true if there is any type of court action (divorce, child support/custody alimony, legitimation, etc.) pending before the court. Basically, if a father is involved in any proceeding where a judge has to make a decision about his family, he will be required to address child support.
- In Georgia, child support is not automatically given to the mother. Child support is calculated based upon a worksheet which basically takes the income of both parents and decide what each parent’s share of expenses should be. The final computed number is the basis for the award of amount. Both judges and parents can adjust this number to agree to a higher number, but they cannot lower it. (there has to be a significant justification to change the amount that the worksheet provided).
- The custody of children is largely decided by the parents involved. When the custody of children are in issue, parents are required to create a parenting plan to submit to the judge in order to get a final order. The parenting plan should provide a specific, amicable plan for dividing time between the parents. If the father becomes a weekend dad, it is often times because he chooses to be or he does not live in close proximity to the child during the school months.
- In my experience, parents often confuse what custody is because they do not know the legal definitions of them.
- Joint legal custody: both parents have equal decision making authority when it comes to the care of the child.
- Joint physical custody: both parents share physical custody. This arrangement is awarded if both parents live in the same school district. The child will spend half the week with one parent and the other half with the other parent.
- Sole custody: only one parent has the decision making authority and has physical custody. The other parent only has visitation.
- Most custody arrangements comprise of both parents having joint legal custody and one parent having primary physical custody during the school year and the other having primary physical custody during the summer months.
- The typical custody arrangement, when the parents do not live in close proximity, comprises of one parent having physical custody of the child during the school year and the other having visitation on the weekends. This arrangement is not required. If a father, for instance, wants more time with his child during the week, that visitation can be included in the final custody agreement.
- Fathers should absolutely seek child support for absentee/non-custodial mothers. Child support is for the child, not the parent. Both parents are required to share expenses for the care and custody of their children. Fathers are not required to bear the burden alone; the same is said about mothers.
- An award of alimony after divorce in addition to child support is completely fair. Alimony is to compensate the injured spouse (or the non/less financial spouse) and/or provide enough income for the less financial spouse to be able to survive until he/she can do so on his/her own. There are multiple different types of alimony awarded, however, it is only for the spouse. Child support is for the child so it should not even be considered the same as alimony or similar to alimony.
In my experience, parents (especially those divorcing) often times use their emotions to guide their decision making process when it comes to deciding how to care for the children and what is a fair settlement in a divorce. It is best to consult or hire a lawyer before engaging in any type of family law matter, even if both parties agree.
When parties are divorcing, the number one comment I hear is “he/she didn’t pay/do anything while we were married. He/she doesn’t deserve anything.” Regardless if one spouse was unemployed during the marriage or barely contributed to the household, the employed/contributing spouse allowed that behavior to occur and agreed when he/she took their vows to support the other spouse. The law does not use the term “fair” when dealing with divorce settlements or awards; it is what is equitable.
Equitable division means what is the best method of dividing the property that would not leave one of the parties destitute and dependent upon the state. While one party may be paying more to the other party and it may seem (or even be) unfair, what is equitable is the deciding factor when determining awards/settlements.
BOTTOM LINE:
- The law does not favor mothers over fathers. Those days are long gone. The only time a mother may be preferred (and that may is a low threshold) is when the child is still in its infancy. However, infancy does not automatically mean the mother will be awarded custody.
- If a father wants more time with his child(ren), he has the right and ability to request more time and even negotiate more time in the parenting plan.
- Child support cannot be waived. It is a requirement for both parents, not just fathers. Mothers are required to pay child support and should be paying if they are the non-custodial parent.
- In Georgia, child support is calculated based upon a percentage of both parents’ income so if a mother is making more money than the father, it is a possibility that the mother will only get a nominal amount of child support from the father.
- Alimony is separate from child support. Alimony is awarded to the spouse it has nothing to do with the child and it is not always fair, but it may be what is equitable.
In my legal opinion, if parents are not married, they should have a legal custody and child support agreement on file. It keeps down confusion and future conflicts. It also prevents one parent from using the child as a pawn. Lastly, it allows the non-custodial/child support-paying parent to be able to keep a record of payments and expenses expended and in the event of a change in circumstance or income, they have that evidence to provide to the court.
The legal system does not have to be a burden or interference for unmarried parents. If the parents tackle the issues up-front and early on in the relationship (before things go bad), the legal system will be more of an asset.
The link below is a great resource for getting questions answered:
http://www.georgialegalaid.org/issues/family-law-and-domestic-violence/custody-and-visitation