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Brian E. Daughdrill's Answers
- 370 Legal Answers
- 1 Legal Guide
3
Attorney answers:
Waiting for new court date?
There are two things at play here: (1) a transfer, though it seems like it ought to be an easy process, can easily take the courts 4-6 weeks at a minimum to accomplish; and (2) once the case is brought into Cherokee, Cherokee assigns it a new number. From Cherokee's perspective, it is a 2011 case and they are waiting on the 6 month discovery period because they don't look at it as an existing, ready to try case, just looking for a hearing. Prepare a letter to the court notifying them when it...
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Attorney answers:
If a neighbor's tree falls in my yard and results in damage, who is responsible for repairs? Is it the neighbor or me?
This is one of the most commonly asked questions for neighbors. The answer depends on several factors. If you are in an urban area (neighborhood) versus a farm or rural area, Georgia law imposes upon the owning landowner the duty to inspect his property and protect others from dangers thereon. If the tree was dead or had visible rot, decay or disease, the landowner may be held responsible for the damage caused by the falling tree. If the decay or disease is not visible and inspection would not...
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3
Attorney answers:
Divorce - Life insurance must be left to my ex-spouse? Is this a legal mandate?
In Georgia, there is no "legal mandate" that you do anything of the sort unless a judge has ruled that you must maintain the life insurance to satisfy an alimony or child support obligation. Even if you are required to do that, however, you can set it up in a trust FOR THE BENEFIT OF the children, not leave it directly to your ex spouse. You will need an attorney to set up the trust and then designate the trust as the beneficiary under the policy. This response is for the purpose of...
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Attorney answers:
6 year old can choose who he can live with?
In Georgia, a 6 year old is not old enough to "elect" which parent they want to live with. It is not until the child is 14 that they may make a formal election which is, itself, a "major change in circumstances" authorizing a custody modification. So to that question, the answer is an unqualified no. Check the temporary order, there may be language relating to how the litigation is to be discussed (if at all) with the child. If she is in "contempt" of that order, you can bring it to the court'...
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3
Attorney answers:
Consent Judgment
Probably your husband agreed to a "settlement agreement" on some matter. The attorney now has reduced this to a "consent judgment" whereby the Court will take judicial notice of the settlement and retain the ability to enforce performance of the terms your husband agreed to. In Georgia, this is one way to resolve a case "amicably." If the terms of the Consent Judgment MATCH what your husband agreed to precisely, (be mindful of additional terms and terms, in particular, that make collection...
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Attorney answers:
I have been married for almost 7 years. Am I entitiled to any of his pension, when we divorce?
It is difficult to answer a specific question about your particular case without speaking with you. In general, Georgia is an equitable division state and, to the extent the pension was generated during the marriage and there are other factors, you may have a claim to a portion of the person's "pension" (it also depends on how you are actually using this term). You should discuss this with a family law attorney. This response is for informational purposes only.
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Attorney answers:
What if you get a judgment for past rent and dispossession but didn't get the additional fees and utilities? How do u get that $
It is likely that your dispossessory warrant (the form you filed with the court) was not filled out to include a claim for rent that continued to accrue through the date of judgment. If not, you didn't "ask" for it and the Court cannot award it. Same with the utilities and other charges. Indeed, the tenant now has an argument that you are estopped to raise these in any subsequent action because these claims arose out of the same transaction or occurence as your main claim and should have been...
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Attorney answers:
Emails as proof
If you are in the process of a divorce, you are entitled to conduct discovery. One of the more popular things to do discovery on is the hard-drive of your spouse's computer. Understand, the people who have the skill to review the hard-drives and to determine what has been erased are not inexpensive. Georgia is a no-fault state so you may want to consider whether the cost to obtain this information is off-set by the expected benefit. A family law attorney can help you make this decision. Other...
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Attorney answers:
How do I find out if my house is a legal part of an HOA?
It is part of your chain of title or you are not part of the HOA. Property is put into an association by the recordation of restrictive covenants which form part of your title on the property. This is obtained from the clerk of superior court in the county wherein you reside but it may require you digging back through the grantor/grantee index to when the subdivision was created. If you are not listed, then your property is not subject to the HOA. Separately, the HOA may allow "membership" (i.e....
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Attorney answers:
What is the difference in a judgement against a defendant in Magistrate Court and judgement in Superior Court?
The simple answer is there is no difference between a judgment obtained in Magistrate Court and one obtained in Superior Court. Magistrate Court is a court of limited jurisdiction which means it can hear only certain cases. In Georgia, their dollar limit is $15,000 unless there is another basis for the court to have the case (for instance, an eviction gives magistrate court unlimited jurisdiction to enter a money judgment). The only significant difference between the two courts is that a...
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