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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102584
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I filed uncontested divorce in Gwinnett County, GA. Since

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I filed uncontested divorce in Gwinnett County, GA. Since then my wife and I have a dispute and I want to change my filing to a contested divorce. Am I allowed to do this since we already have a signed document and a court date? What document is needed?

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You are absolutely allowed to do this. Except I need to know - when you say you "signed a document," which document did you mean?

Customer: replied 7 years ago.
complaint for divorce without minor children and settlement agreement, which I no longer wish to keep.
Has the settlement agreement already been put into the Court? And when is the hearing on the merits?
Customer: replied 7 years ago.

We went to court on Feb 22, 2010 to finalize the divorce but when we were called before the judge, my wife wanted to surprise me by pleading to the judge that the settlement agreement states that I would get my things by Jan 31st. She did not allow me to get my things and used the rational that I could come and get my items once the judge signed off on the divorce. Now she doesn't want me to have anything due to the date listed in the agreement. The judge said that calendar date was for uncontested divorce and that she would have to reshcedule us to hear arguments at another time. We are now rescheduled for mid April. She has clearly tried to trick me and since I am the Plaintiff I would like to completely drop that filing and pursue this as a contested divorce and let the judge split the assets. I hope this is good background for you.

Got it. You have to file a Motion to Rescind Agreement before the Court and set it for a hearing ASAP, and back out of it. The Judge WILL let you do that. Once you do this, set it for a hearing on the merits and GO. You live in a common law property state. Therefore, your marital property will be divided thusly --

Separate property and debt is property that is generally:

1. Only your name appears on the account, title, ownership, and or registration document; or

2. Acquired by gift or will or similar legal way by spouse during marriage; or

3. Declared as such by prenup or postup; or

4. Traceable property purchased by one spouse only; or

5. Tort Recovery for personal injury, but not medical expenses or loss of earning capacity.

If the property falls into separate property, it is the property of THAT party, but the other party is entitled to a “fair and equitable portion” of your separate property. “Fair and equitable portion” means generally that two-thirds go to the higher wage earning party and one-third to the other, lesser earning party.

Community Property and debt is everything else, including but not limited to:

1. Income from BOTH parties; or

2. Declared as such by prenup and postup; or

3. Gift from one spouse to another; or

4; All titled and non-titled property gathered during marriage.

Community property is AUTOMATICALLY ASSUMED unless proven to be separate property by a party “by a preponderance of the evidence.” Community property and debt is split 50/50. In case of titled assets such as homes, cars, etc., it usually is awarded to one party and that party is ordered to make an “equalizing payment” to the other party. For example, a car worth $10k will be given to the wife but the wife is ordered to make a payment of 5k to the husband. Time to make the payments or payment plans are a norm in such a situation. Equalizing payments can also be ordered if one party argues a “fault.” Generally, one party simply alleges irreconcilable differences. However, most states retain grounds for divorce where one party alleges fault when divorcing, such as neglect, assault, affair, etc, and because of this, the Court can award that party additional equalizing payments.

Accrued or vested retirement benefits are community property. This means they need to be divided in a divorce. Retirement benefits that fall under community property include military pensions, veteran's educational benefits, ERISA funds, IRAs, Keoghs, Employee Stock Option Plans (ESOPS), 401K and 403K plans, etc. Certain retirement benefits are not classified as community property. They include: Social Security payments, Compensation for military injuries, and Worker's compensation disability awards.

There are two options for dividing retirement benefits: (1) the present-day valuation buy-out, and (2) division into two accounts. In the former, the spouse without the retirement benefits takes the present-day value of his or her interest in the retirement benefit and trades it for something else of equal value, such as cash or other assets. Note - stock options and pension plans where a person must work for a certain number of years may be worth more than you think. A Qualified Domestic Relations Order (QDRO) will be required to transfer a share of retirement funds from the spouse participating in the retirement plan to the other spouse, and is usually included in the final divorce papers.

Of course, if both parties come to an agreement about marriage property regardless of the rules above, the Court will most likely endorse said agreement in interest of post-divorce harmony. The above rules only come into play if the parties cannot agree on splitting of assets.

It is also common for parties to agree to 95% of the split, but then ask the Court to make a decision in regards XXXXX XXXXX 5% that cannot be agreed upon.

Finally, in a hotly contested divorce, either party can request a jury. Although a lawsuit (and yes, divorce is a lawsuit) is automatically set up to be heard as a bench (Judge) trial, either party can request a jury trial. Your attorney can advise you on which is best in your case. For example, for a party whose arguments are based more on statute and case-law, a Judge is more preferable. A party who is using emotion heavily for their strategy, or is alleging fault, a jury can sometimes be more beneficial, since while jury is SUPPOSED to decide the matter by law only, many times jurors bend the law to come to their conclusions.

Best of luck in your matter. I'm here if you need any more clarification or follow up information.

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