The court process is very adversarial. Each side makes their arguments to the court, presents their evidence, and then the judge tells you what the result is going to be. That could be favorable to one side or the other, and you don’t know because most of the things in the divorce context are discretionary with the court. Mediation is a great tool. Mediation is where both parties meet with the mediator, which is an independent person who has nothing to do with the case. They keep the parties in separate rooms and go back and forth between the parties. Their goal is to try to find the common ground, to try to resolve as many issues as you can. The benefit of this is that the parties get to control the outcome.
The mediator can’t bind anybody to anything—they can only try to offer suggestions about where the middle ground is, and give them some realistic expectations of what a judge is likely to do. The parties may have heard the same advice from their attorney, but actually hearing it from an impartial third person often helps. If the parties can reach an agreement, they usually are happier with that agreement than going through the uncertainty of the court process—where you have to get up on a witness stand and testify in a somewhat public setting about the ins and outs of your marriage, why it’s broken up, what the assets and debts are, and why you think the other party’s a bad husband or a bad wife. Going through that is usually a very difficult, emotional process for most people to do.
The mediation process is much nicer—there’s no testifying, and you are just having conversations with your lawyer present, but neither the other spouse nor their attorney is there. You and the mediator go back and forth and try to find common ground. It’s usually faster and less expensive than the adversarial process. You have to agree with the result that the mediator works out. If you don’t agree, then you always have the court process to go through.
Why Do People Generally Seek Post-Divorce Modifications?
Modifications are other lawsuits that you file after a divorce case. What you’re seeking to do is go back and modify what the previous order is in the court. There are some things that you are allowed to modify if certain criteria are met, and there are some things that you’re not allowed to modify. The first thing is you can’t modify the divorce to undo the divorce. You can’t suddenly be married again. Additionally, you can’t go back and modify anything under the property settlement, in terms of how you divided assets, who got the house, and similar considerations. What you can modify are things involving alimony, if the court had ordered alimony, such as monthly support payments from one spouse to another. There are certain criteria that can cut-off alimony, such as the remarriage of one of the spouses, or you can go back and modify the amounts based upon the earning capacity of the parties.
You can also modify custody arrangements. If the parent who has custody of the children is no longer a fit parent, or it’s no longer in the best interest of the children to be with that parent, then the court can modify it and change custody. They can also just change visitation—in particular when you have situations as children getting older or changing schools, or parents moving. You can’t do visitation every other weekend if one of the parties has moved out of state—that’s no longer workable, so you can go back to the court to modify that. Oftentimes, if you modify custody or visitation, it is also going to change the amount of child support.
The non-custodial parent pays child support to the custodial parent. There’s one parent who has primary custody, and that parent has the children the majority of the year. The other parent is responsible for paying child support. During that process, if someone loses their job or someone gets a big raise, you can go back to modify the amount of child support and change it. Those are all the changes that allow you to go back to a divorce case that has already been decided.
Are There Different Types of Custody In Georgia?
There are two types of custody that we can talk about. One is the legal custody, and that’s whether a parent has any legal rights to the child. In almost all cases in which there’s a divorce, the parties are going to have joint legal custody, meaning they have the right to get medical records or seek medical care for the child, they have the right to have school records and visit with teachers regarding the children. That’s what happens in the majority of the cases. The only time you lose legal custody is in the situation where one parent is just so completely unfit that they shouldn’t be around the child, and the court can essentially extinguish their legal rights to the child.
The other type of custody is called physical custody, meaning who actually has the children. The most common method is where one party is the primary physical custodian of the children, and it can be mom or dad. That is the person who basically has the children during the week, during the school year, and maintains the residence for the child. The other parent in that situation would have visitation rights, and the court will order what’s called reasonable visitation. A lot of that is kind of individually fashioned based upon the two parents’ work schedules, how far apart they live, and what they can actually agree to and accomplish in there.
A typical situation would be one party has the kids during the week, the other party gets every other weekend visitation, and then they alternate Christmas breaks, school breaks, holidays, and then get a chunk of time in the summer when the kids are out of school. Of course, the custody situation or the visitation can change depending upon whether the child is of school age or is below school age. Those are the two types of custody—legal custody regarding who has rights to the children, and then the physical custody is more of like who has the possession of the kids and during what times.
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