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Samuel Jackson Siemon
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Samuel Siemon’s Answers

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  • My husband is in prison how do I go about obtaining a legal divorce?

    he was sentenced to 27 years in prison for being a repeated drug dealer, we don't have any children together no property together, I just want my last name back and be done with it.....we got married when he was in jail and he has been in and out ...

    Samuel’s Answer

    The good news is that your divorce should be very simple. The first thing you need to figure out is which county to file for divorce in. If you have lived together in the last 6 months, you can file for divorce in the county that you lived together in. If he has been out of your county for more than 6 months then you need to file in the county where he currently is. So, based on that, go to the clerk of superior court in the correct county and tell them that you need to file for divorce. They should have the paperwork for you to fill out. When your court date comes around, tell the judge you want to go back to your maiden name.

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  • Exclusive Use of Marital Home

    My ex was granted exclusive use of the martial home for two years per our mediate agreement. She stayed four years, did not maintain the house nor pay the mortgage which is in my name. She did not pay the HOA fees which are now $20k in-arrears. ...

    Samuel’s Answer

    The marital home can be a huge liability in a divorce these days, the housing market is recovering here in Georgia but many homes are still underwater. Your question also raises a very common issue, what happens when my ex-spouse is ordered to pay bills that are in my name and fails to do so. In a divorce the court must decide which spouse is going to continue to live in the marital residence, which spouse is going to pay the mortgage, how any equity or shortfall will be divided and how the title and mortgage are to be dealt with. To understand the implications of these decisions, I am going to explain some basic principles.
    When there is a mortgage on a home, one or both spouses have signed a contract with the bank promising to make the payment. We all know that if you are late on those payments or do not make them at all, the person or persons that signed that contract will face serious harm to their credit rating as well as potential legal action to collect the money that is owed. When the court orders one spouse to pay the mortgage, that order does not change the contract either spouse has with the bank. The court does not have the power to modify your mortgage contract. So, in a situation like the one here where both spouses have signed the mortgage contract and in a subsequent divorce the wife is allowed to remain in the home and also ordered to pay the mortgage, if she fails to do so, the husband’s credit will be harmed and the bank can come after the husband for any arrears. The only way to relieve one spouse from his or her obligation under the mortgage contract is to sell or refinance the home. Most court orders or settlement agreements make provisions to deal with this reality. The spouse that is allowed to remain in the home is generally given a deadline to either refinance the mortgage to remove the other spouse or list the home for sale.
    So, what is the other spouse’s recourse if the person in the home fails to pay the mortgage as ordered? Depending on the language in the order, there are different options. First, anytime a person is not complying with a court order, the person that is being harmed can sue them for contempt, that is to bring the situation to the courts attention so the court may force the person to comply or make changes to resolve the problem. In some orders or agreements there may be provisions that spell out what is to happen in such a situation. For example, it may say that if a payment is more than 10 days late the other spouse may make the payment and then that amount is deducted from alimony payments or deducted from the division of equity when the house is sold. In some cases the order says that if a payment is missed the other spouse has the right to retake possession of the home.
    With that explanation, the answer to your question is it depends on what your court order says. I believe that you should have sued her for contempt as soon as she was late on the first payment, that way the situation could have been dealt with before these large arrearages accrued. Now that they have your credit has been harmed and even if you sue her for contempt, if she has no money for the court to order her to pay you, the bank and the HOA are going to come after you and your assets. Depending on the language in the agreement and the status of the deed, you might be able to reoccupy the home and get it ready for sale.

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  • I have a 401k and pension. my husband doesn't but doesn't want part of mine in divorce. is this legal?

    We have been married for 6 years, no children and we want an uncontested divorce. He says he will sign the papers.

    Samuel’s Answer

    The quick and easy answer is YES, if your spouse agrees, you can keep your pension and your 401K all to yourself. As usual though, I am also going to give you the long answer.
    In Georgia, we divide marital property equitably. Marital property is any property that was acquired during the marriage with the most common exceptions being gifts or an inheritance received by one spouse individually. Although, those can also become marital if they are comingled. 401K accounts and pensions are almost certain to be marital property if they were earned during the marriage. This means that the court can and is likely to divide such assets pretty close to 50/50.
    However, the Judge only makes decisions concerning property division if the parties cannot agree how they want to divide their assets and debts. The courts are more than happy to allow spouses in a divorce action to come to a settlement agreement. If the parties can agree on all of the issues in a divorce, a settlement agreement can be drafted and can become the order of the court granting the divorce.
    If your spouse is currently willing to sign an agreement allowing you to keep all of your 401K and pension, I would suggest having an attorney quickly draft a complaint for divorce and a settlement agreement so you can get the divorce filed and the agreement signed before he changes his mind.

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  • What can I do legally if another woman keeps contacting my husband after I have told her not to?

    My husband and this woman are co workers and have become friends before our marriage. However, she continues to text him and call after work hours and sometimes really late at night. I have asked her to stop and she continues. Is there any legal a...

    Samuel’s Answer

    This is a question that comes up every once in a while and does on occasion lead to divorce. Phone calls, text messages and private messages on Facebook can be big problems in this modern time of easy instant communication. The simple answer is, if your husband does not want her to stop contacting him, she can continue to communicate with him and there is nothing you can do to stop her.
    In the past, you would have had two legal options and NO, I am not referring to a showdown at high noon. Georgia had a civil action called an action for alienation of affection and a criminal statute making adultery a crime. If you could prove that the women contacting your husband was intentionally breaking up your marriage, you could sue her for alienation of affection. If the state of Georgia could prove that the two of them were having sexual intercourse, they could be charged with the crime of adultery. Unfortunately for you, alienation of affection has been abolished as a cause of action and while still on the books, adultery is no longer prosecuted as a crime.
    IF, your husband does not want her to contact him and he makes his wishes clear to her and she continues to contact him, then your husband could pursue a stalking protective order against her. But, if your husband does want her to continue to contact him, they are both legally allowed to contact each other. As such, if you continually call, text or otherwise make unwanted contact with her, she could pursue a stalking protective order against you. So, you need to work this out with your husband, he is the one that has to decide whether or not he wants to have a relationship with this other woman. If he does, you can file for divorce and use his relationship with her to gain an upper hand.

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  • Can I file for a divorce without my husband knowing? If so, can I divorce him without his consent?

    We live together in Georgia.

    Samuel’s Answer

    This is a very common question. The answer is no, you cannot file without him getting notice and yes, you can divorce him without his consent.
    Ok, you knew I could not just leave it there, I’m a lawyer, I have way more to say than just a simple answer to your question.
    A Divorce is a civil action akin to most other civil actions from a procedural standpoint. As such, the Plaintiff (the party asking for the divorce) submits their complaint for divorce to the court asking for the relief they seek. Then, the defendant must be served with notice that the civil action has been filed against them. This “service” can be accomplished in a number of ways, the most common being service by the sheriff or if the parties are amicable, by having the defendant sign an acknowledgment of service in front of a notary. Without some type of service, the divorce will not go forward. So, as I said above, the answer is no, you cannot file for divorce without your husband knowing.
    Now, here comes a long answer to your second question. Georgia is a grounds state, meaning that you must have a ground (reason) to get divorced. The divorce statute lists a number of grounds such as adultery, cruel treatment and habitual drunkenness among others. In the 1970’s the legislature decided that it was not a good idea to make people stay married until they started drinking and hitting each other, so they added the ground of irreconcilable differences. If the plaintiff is willing to testify that the marriage is irretrievably broken and that there is no hope of reconciliation the court can grant a divorce even if the defendant does not want to be divorced.

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  • Can evidence that was discovered prior to a reconciliation be used after the fact in divorce?

    we both were talking to someone else in 2011, no divorce was filed we remained in same house until nov 2011 during months of march, august and september we lived together as husband and wife with full intamacy.

    Samuel’s Answer

    Georgia is a “grounds” state, meaning that you cannot get divorced for no reason, you must have a recognized reason for divorce. Georgia lists these grounds in the divorce statutes, and they include such conduct as adultery, cruel treatment, abandonment, physical violence, etc. In the 1970’s the Georgia legislator decided that it was bad policy to make people stay married until they started hitting or cheating on each other and added the ground of “irreconcilable differences” . Ever since, irreconcilable differences has become the most commonly used ground for divorce.
    However, if other grounds exist, they can be useful in obtaining a fair settlement or as evidence in a trial. Without going into a long discussion of division of property, evidence of the bad conduct of the other party can be relevant to division of property and the court can use such evidence to award one party more property than the other in the divorce. Georgia also has a statute that says that if one party’s adultery is the cause of the breakup of the marriage, then the party committing the adultery is not entitled to alimony.
    However, this conduct can be forgiven and if it is forgiven, the court can decide that it is not relevant to division of property or alimony. For example, if one spouse has an affair, the other spouse learns of that affair and then the couple reconciles and begins sleeping together and continues to live together as husband and wife, the court can consider the affair to be forgiven and that spouse may still be eligible for alimony in a subsequent divorce.

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  • Do have i to pay child support if child is 19 years old graduated high school and is attending college.

    still paying for child

    Samuel’s Answer

    In Georgia, child support is paid pursuant to statute until a child is 18 years of age or 20 years of age if the child is enrolled in secondary school (meaning high school) full time. So, child support stops at age 18 if the child has graduated from high school, dropped out of high school or is only attending high school part time. Once the child turns 20 years of age, child support stops regardless of whether they are going to high school or not.
    Of course, the parties can agree to extend this amount of time, the parties can agree that child support is to be paid through college or even beyond. If the parties agree to such a provision, that provision will be enforceable by the court. It is important to remember that once an agreement is signed to extend the term of child support, the term or number of years child support is to be paid is not modifiable by the court without agreement of the parties to do so. The Court only has the power to order child support until age 18 or 20 if enrolled in high school full time, but the court can and will enforce any agreement by the parties to pay for a longer period of time.

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  • Division of property in a divorce case

    In my marriage, we have been separated longer than we've been married. We got married in 2007 (but never lived together, because we were living in different countries). We moved in together in 2008. And we separated in end of 2009. The divorce ca...

    Samuel’s Answer

    In Georgia, the courts will divide marital property and debt equitably. Marital property and debts are everything that was acquired during the marriage, whether it is a toaster, a retirement account, a house or credit card debt. The name the account is in or the name in which the property is titled in is generally irrelevant when determining whether something is marital property. The exceptions to this rule are gifts or inheritances. Gifts or inheritances are separate property and not subject to equitable division if they are kept separate. If they are comingled, meaning deposited into a joint account or spent on marital assets such the marital residence, then they become marital property and may be divided by the court. Inter-marital gifts, a necklace for valentines’ day for example, can be considered marital property and may be divided by the court.
    This brings us to equitable division which is just a synonym for fair and I believe this gets to the heart of your question. The court will divide all marital assets and debts in a manner that it sees as fair. If you have been separated for a long period of time, the court might not believe that it is fair to make you split debts or savings that have accrued during that period of separation. Whether the court uses the date of separation or the date of divorce as the basis for dividing assets and debts is a decision the court will make based on what the court sees as fair.

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  • Can I get some alimony?

    My husband abaNdon his family, cheated on me, kick me off the insurance knowiing that I have health issues and had a baby with another. Pllus he is living with another woman while he's still married.

    Samuel’s Answer

    In Georgia, the award of alimony is very subjective. Unlike child support, which is based on a spreadsheet calculator, alimony is based on the subjective concept of need and ability to pay, as well as other factors such as length of marriage and conduct of the parties.
    Alimony in Georgia is usually considered to be rehabilitative, meaning that its purpose is to help support someone while they work towards becoming self supporting. Therefore, the length of time alimony payments are to continue will vary depending on the circumstances of the parties.
    The need for and the ability to pay alimony, will be determined by looking at the current incomes or income potential of the parties, their financial needs for food, housing and other basic expenses as well as any assets they will possess after the divorce. The money available to be paid in alimony (the ability to pay), is determined by looking at the amount of money the paying spouse would have available after his or her basic needs and obligations are met. Once this ability to pay is determined, the court will look for a need from the receiving spouse. If the receiving spouse has the ability to work and earn some income or if the receiving spouse has substantial separate assets or will be receiving substantial assets in the divorce then those resources may reduce that spouse’s need for alimony. Once all of these factors are considered the court will determine the amount of alimony that is appropriate.
    Alimony is not a punishment or a penalty for the paying spouse and the purpose of alimony is not to even up the incomes of the parties. The fact that the paying spouse has committed some sort of bad conduct is not generally considered to have a direct affect on the amount or term of alimony payments. That being said, if the paying spouse’s bad conduct was the cause of the breakup of the marriage, this can certainly be considered by the court.
    Georgia has some bars to alimony, the most common of which is adultery. Georgia law states that if a spouse commits adultery and the adultery is the cause of the breakup of the marriage, then that spouse is not entitled to receive alimony from the innocent spouse.
    Alimony can be awarded on a temporary basis, meaning, while the divorce is underway. This temporary alimony can be awarded for the purpose of paying one spouse’s living expenses during the divorce and can also be ordered to cover the receiving spouse’s legal expenses. Temporary alimony can be ordered after a temporary hearing in front of a judge or by agreement of the parties.

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  • Can i be held liable for my husband debt ,and can i get half his retirement and s s married for 30 yrs

    we have been separeted not legally 2 yrs he lives in Ga and I in illinos at the moment he just walked in one day and said he wants a divorcei moved to illinosto try to start over neither one has much money but can i go after him for half his retir...

    Samuel’s Answer

    In Georgia we divide marital assets and debts equitably. This raises two questions, what are marital assets and debts and what does the court view to be equitable.

    Anything acquired during the marriage, whether it be a retirement account or a toaster is marital property unless it was a gift or an inheritance to just one party. Gifts and inheritance can be made marital if they are commingled, meaning deposited into a joint account or spent on something else that is marital. The same applies to debts, if they were acquired during the marriage, they are most likely marital.

    So, if your husband's retirement accounts were built up during the marriage and the debt that he has was also acquired during the marriage, then they are most likely marital and subject to equitable division. this brings us to the second half of this issue. What is equitable division.

    Equitable division simply means a fair division in the eyes of the law and the court. The court will generally view both parties as one marital unit and believe that anything acquired by that marital unit belongs to both people equally, no matter who actually earned the money or ran up the debt. Thus, equitable division usually starts from a position of 50/50. To sway the court away from a 50/50 division of the assets and debts the court will look at the facts and circumstances surrounding the marriage. for example, if the source of the debt is one parties secret gambling addiction, then the court might not hold the other innocent party responsible for such debt. If the debt is for food and house repairs, it is likely to be divided equally.

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