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Frequently Asked Questions

Where is the Henry County Superior Courthouse located?

Henry County Georgia – Where do I file for divorce? Which county’s Superior County do I file the complaint? Which attorneys at SWWW handle divorce and child custody? How do I get to the Henry County Superior Court?

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Where is the Henry County Superior Court in Georgia located?
The historical Henry County Courthouse, built in 1897, is located on Highway 23/42 on the square in McDonough, Georgia. Parking is available for Courthouse business on Lawrenceville Street, 1/2 block off the Square.
For a Divorce in Georgia, what Superior Court will the “complaint” be filed?
The plaintiff is the person seeking a divorce. The defendant is their spouse. The complaint is filed in the Superior Court of the defendant.
Example: If you are living in Clayton County and your spouse, whom you wish to divorce resides in McDonough Georgia, which is in Henry County, the complaint would be filed in the Henry County Superior Court not the Clayton County Superior Court.
Links:
Divorce articles:
See our practice area for divorce for articles and view our divorce attorneys

Divorce in Georgia – Answers to Common Questions

In Georgia, where does one file for divorce? How do I file for divorce? Is there a way to live apart without getting a divorce? What should I do if I receive a complaint for divorce in Georgia that my spouse has filed?

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How does one file for Divorce in Georgia?
The person seeking the divorce (the plaintiff) will file a document called a “complaint” with the appropriate Superior Court. This complaint includes information on the marriage including present living arrangements, children of the marriage, assets and debts, and the specific reason claimed for seeking a divorce. A copy of the complaint will be served on the other spouse (the defendant) by the sheriff.

Where does one file for Divorce in Georgia?
A complaint for divorce should be filed in the Superior Court of the defendant’s county of residence or, if the defendant has recently moved from the state of Georgia, in the county of the plaintiff’s residence. This would be considered the domicile of the marriage. Upon the defendant’s consent, the complaint may be filed in the plaintiff’s county of residence regardless of whether the defendant has moved from the state of Georgia or not.

What should I do if I receive a complaint for divorce in Georgia that my spouse has filed?
The spouse who receives the complaint should promptly consult a lawyer. The spouse may contest the reason claimed for the divorce or contest the claims for child custody, child support, and alimony or property division by filing an answer with the court. However, if an answer is not filed within 30 days, the right to contest the complaint may be lost.

Is there a way to live apart without getting a divorce?
A party who wishes to live apart permanently, but who does not want to get a divorce, may file a “separate maintenance” action. The spouses will remain legally married although living apart. The court may order that alimony be paid by one spouse to the other, and the court may divide property between the parties.

What is an annulment?
Unlike a divorce, which dissolves a valid marriage, an annulment is a legal decree that the marriage is now void and was invalid from its inception. If there are children born of the marriage, an annulment may not be granted, and the marriage may only be dissolved by divorce.

Must I go to court to get a divorce?
Not necessarily. Spouses may be able to reach an agreement resolving all issues arising from the marriage, including finances, division of property and custody and visitation of children. The agreement is presented to the court as a settlement agreement and, upon approval, made an order of the court. The court’s order, called a final judgment and decree, concludes the lawsuit, If, however, the parties cannot reach an agreement, the issues will be resolved by the judge or the jury. However, a judge always decides matters of child custody and visitation.

How long does it take to get a divorce?
If there is an agreement between the parties, the divorce is considered uncontested. An uncontested divorce may be granted 31 days after the defendant has been served with the complaint for divorce. If there is a disagreement as to any matter, the divorce will be obtained when the case reaches the court, which can take up to several months.

What happens while I wait to go to court?
Either of the spouses may request a temporary hearing. However, in most jurisdictions this will not take place until mediation occurs. This hearing is not a final trial. A temporary hearing resolves the issues of child custody, visitation, child support, alimony, debts and possession of property on a temporary basis until the final trial. The judge will issues a temporary order that applies only until the time of the final trial. The temporary order may also prohibit one party from interfering with the other party or the children and prevent the transfer and selling of assets.

What Is mediation?
Mediation is a process in which a neutral third person or “mediator” works with the parties to settle the issues before the court. Mediation focuses on the needs and interest of both parties rather than on rights and positions. The mediator has no authority to make a decision or impose a settlement upon the parties. While the parties may be ordered to a mediation session, any agreement reached is entirely voluntary. If a settlement cannot be reached, the parties lose none of their rights to a hearing in the matter, and the case will be released from ADR for placement on the next available court calendar.

What Should I Do If I Have Been Involved In A Car Accident?

What should you do if you have been in a car accident in Georgia? Do I need a personal injury attorney? Who should pay for your medical bills resulting from the auto wreck? Who should talk to your insurance company when they start calling you? Should you talk with the other party involved in the accident if they call you?

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Hindsight is 20/20. All too often, by the time a lawyer gets involved in your personal injury case, a number of mistakes have already been made which can hinder your recovery. Because a claims adjuster, and ultimately, if necessary, a jury, will be looking at the totality of circumstances involved in your claim, it is important to act responsibly from the time of the accident forward. Here are some tips to follow.

1) First and foremost, obey the law. If you have been involved in an automobile accident, do not leave the scene of the accident. Dial 911 if you have that ability or ask someone else to do so;

By the time a lawyer gets involved in your personal injury case, a number of mistakes have already been made which can hinder your recovery

2) Document as much information as you can about the accident. Get the names of the parties involved in the accident. Get names, addresses and telephone numbers of witnesses. Get the name and badge number of the police officer involved. Get the name, address, telephone number, insurance provider and policy number of any other person involved in the accident. Obtain the vehicle identification information regarding all of the vehicles involved in the accident, such as make and model and tag number of the automobiles involved;

3) Make sure your treatment provider understands that your injury resulted from the automobile accident. If you are injured or think you may have been injured, inform the 911 dispatcher and law enforcement as soon as possible. If law enforcement asks whether or not you have been injured, do not rush to conclude that you have not. Often during an automobile accident, you will experience a rush of adrenaline which could mask the symptoms of your injury until hours and sometimes days afterwards. If you have been injured or think you may have been injured, seek medical attention immediately. Usually this means a trip to the emergency room. However, if you don’t begin experiencing pain until some time later, it may be appropriate to follow up with your primary treating physician. Either way, don’t delay;

4) Contact us as soon as possible. Do not contact the insurance company or talk to a claims adjuster until you have had the opportunity to speak with an attorney. Do not sign any documents or other paperwork presented to you by the insurance company or other persons involved in the automobile accident. After we have been contacted, we can guide you through the claims process as well as assist you in making sure that your medical bills are paid by the appropriate party, that your automobile is repaired, that you get the full value of the damage to your vehicle and that you get appropriate transportation pending the repair of your vehicle.

Divorce in Georgia – What About The Children?

In Georgia, how does child support work? With a divorce, can the parents share custody? Can payment for college be part of the divorce agreement? Does the age of the child matter when getting a divorce?

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The welfare of children is of major concern to the court. Neither parent is automatically entitled to custody. The judge looks at the best interests of the child in determining the proper parent to have custody. The judge considers many factors when deciding custody. Those factors include the age and sex of the child, compatibility with each parent and the ability of each parent to care for and nurture the child. A child currently over the age of 14 can choose which parent will have custody upon the consent of the court. However as of1/1/2008, the court considers it important for a child to maintain a relationship with both parents; therefore, visitation rights are awarded to the parent who is not given legal custody of the child.

MAY THE PARENTS SHARE CUSTODY?

The court, in its discretion, can award joint custody instead of sole custody. There are two types of joint custody. Joint legal custody means that both parents have equal rights and responsibilities for the major decisions concerning the child; joint physical custody means that physical custody is shared by the parents in such a way to assure the child substantially equal time and contact with both parents. In awarding joint custody, the court may order joint legal custody, joint physical custody or both.

WHAT ARE CHILD SUPPORT OBLIGATIONS?

In Georgia, both parents can be required to support their children until a child reaches the age of 20 years, dies, graduates from high school, marries, is emancipated or joins the military, whichever event occurs first. The non-custodial parent will be required to pay a reasonable amount of child support to the custodial parent towards the child’s living expenses. Child support, in addition to a monthly or weekly sum, may also include such items as health insurance and payment of medical and dental expenses.

The new Child Support Guidelines went into effect on January 1, 2007.  They will be applied to all child support decisions made after that date, even if the case was filed prior to that date. The new guidelines take into account the combined income of both parents to determine child support obligations. In addition to the combined income, the new guidelines consider other expenses, such as work related child care cost and health insurance.

MAY I RECEIVE MONEY FOR THE CHILDREN’S COLLEGE?

The court cannot order parents to pay for college. However, parents may agree to pay child support beyond the age of 18 or to pay for college expenses.

Who Should Pay For My Medical Bills, My Car Repair And A Rental Car?

You are involved in an auto accident or car wreck, who is going to pay for your hospital bills, car repair, and other damages? Should I accept my insurance company’s offer for damages to my car?

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There are a number of different potential sources of funding to resolve your property and injury claims. If either you or the at fault driver have med pay with your motor vehicle insurance, med pay is often the primary source of payment for medical treatment. Most people, however, do not have a large amount of med pay, if any, with their coverage. Often med pay caps out at $5,000.00 per person. If med pay is exhausted, or if med pay is not available, then your health insurance should pick up the cost of additional medical treatment. Sometimes the medical treatment provider will not accept your medical insurance when they find out that your injuries were the result of an automobile accident. If this occurs, contact us immediately.

There are a number of reasons your doctor, hospital or other treatment provider may not accept your insurance:

  • Fear of being involved in litigation
  • Desire to obtain more money from other sources, such as med pay
  • A general misunderstanding of the insurance payment process in cases involving third party liability.

An experienced attorney can often assist in getting your medical bills paid through the appropriate source. If you are unable to pay for the treatment you need through your health insurance or you have no personal health insurance or med pay available to pay your medical bills, we may be able to help you find medical providers who are willing to provide the treatment you need at no cost to you.

Often the medical treatment provider will not accept your medical insurance when they find out that your injuries were the result of an automobile accident.

You may be asking yourself, shouldn’t the other driver’s insurance be paying for my medical bills anyway? The answer to this question is of course, yes, if the other driver was at fault. However, typically, it is difficult to get the insurance company of the at fault driver to pay the full value of your medical bills as well as other related damages you are entitled to receive. Often the insurance company will attempt to negotiate a quick settlement, before your injuries have fully resolved. However, it would be a terrible mistake to settle your case before you have finished treatment, for a number of reasons. First and foremost, until you have completely recovered you won’t know what all of your medical bills will be as a result of the accident. You may also ask yourself the question, why should my insurance pay the medical bills when the other driver was at fault? The answer to this one is simple and two-fold. First, you paid for that insurance and it is obligated to pay for your medical bills. Second, your insurance company has the right of subrogation against the insurance company for the party at fault. Subrogation is an important issue in almost every personal injury claim and in almost every case you would benefit from the extensive experience our attorneys have gained in negotiating subrogation issues to maximize your recovery.

Typically, the insurance company for the party at fault will pay you directly for the damage to your motor vehicle. However, don’t just accept their offer. You should have your vehicle independently evaluated by a mechanic that you trust. Make sure your mechanic is familiar with warranty issues related to your vehicle and how they are affected by the accident. For instance, many vehicles will not warrant their seatbelts after an automobile has been involved in an accident. Therefore, replacement of your restraint system may be required. Furthermore, you should make sure that the insurance company for the at fault driver fully compensates you for the diminished value of the vehicle. Once again, you may wish to consult with an expert in this area to make sure that you maximize your recovery in this regard. Because we have extensive experience with automobile litigation, we will be more than happy to assist you in finding an expert who can make sure that you receive full and adequate compensation for the diminished value of your vehicle. Often this is the difference of thousands of dollars in your pocket. Likewise, the insurance company for the at fault driver should provide you with a rental car. If they do not, please contact us as soon as possible so that we can make sure you have the transportation you need pending the repair of your vehicle.

What Is Mediation?

Can the mediator make a decision? What does Mediation cost? How do I prepare for Mediation?

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Mediation is a process in which a neutral third person or “mediator” works with the parties to settle the issues before the court. Mediation focuses on the needs and interest of both parties rather than on rights and positions. The mediator has no authority to make a decision or impose a settlement upon the parties. While the parties may be ordered to a mediation session, any agreement reached is entirely voluntary. If a settlement cannot be reached, the parties lose none of their rights to a hearing in the matter, and the case will be released from ADR for placement on the next available court calendar.

WHO WILL ATTEND MEDIATION?
Mediation involves only the parties and when represented, their attorneys. Attorneys do not have to be present at the mediation but are encouraged to attend. If not present, your attorney will have ten days to review any written agreement reached before it can be enforced.

DOES MEDIATION COST?
Mediators are professionals who charge a fee for their service. Each party will be responsible for one half of the fee, to be paid directly to the mediator at the time of service. Persons qualifying as indigent will have their fees waived. Application for waiver of fees should be made in person at the ADR Office prior to the date of the mediation session. A cancellation fee may be assessed if the session is cancelled or rescheduled with less than forty-eight hours notice to the mediator. The parties are responsible for paying the mediator for a minimum of two hours at the beginning of the session. Mediator’s hourly fees vary and are available in the ADR Office. Parties in cases in which the mediator has been assigned by the ADR Office will pay $100.00 per hour.

HOW DO I SCHEDULE MEDIATION?
Both parties may mutually agree upon a mediator and the date and time for the session. If the parties cannot agree and the selection has not been made within ten days of the date an answer is due, the ADR Office will assign a mediator and set a date and time for the session. A list of mediators is provided to the party who filed the action.

HOW DO I PREPARE?
The mediation process is quicker and smoother for those who come prepared. First, determine your specific interests that need to be addressed. Outline the issues and bring any documents you believe to be relevant to your position. In domestic cases, a Financial Affidavit is required in all cases involving child support, alimony, division of property, modification of alimony or attorney’s fees. You should also bring any other information which will help settle the issues involved.

What Do I Do If I Am The Victim Of Family Violence?

Does family violence only apply to married couples? Who should I call? What is a Family Violence Petition?

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Georgia has a law protecting victims of family violence. The parties do not have to be married in order for a victim to ask the court for relief. However, the parties have to reside in the same household. A victim of family violence can file a petition with the Superior Court that family violence has occurred in the past and may occur in the future. The court can issue a temporary order granting a variety of remedies, including eviction of the offending party from the residence or providing suitablealternate housing for the victim and children, as well as financial relief.

The victim does not need a lawyer to file a Family Violence Petition. The clerk of the Superior Court in the victim’s residing county may provide forms for the Petition or be able to direct a victim to a family violence shelter or social service agency for further assistance.

What Is Alimony?

How much alimony will I receive? Can the husband or wife receive alimony? Will alimony by paid one time or over a period?

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Alimony is payment by one spouse to the other for the other’s support and maintenance. The court may grant alimony to either the husband or the wife. Alimony may be for a limited period of time or until the spouse receiving alimony dies or remarries. Alimony can be paid in one payment of money or property, or it may be paid over a period of time.

Factors in determining amount of alimony; effect of remarriage on obligations for alimony as described in O.C.G.A. section 19-6-5:

(A)The finder of fact may grant permanent alimony to either party, either from the corpus of the estate or otherwise. The following shall be considered in determining the amount of alimony, if any, to be awarded:

(1) The standard of living established during the marriage;

(2) The duration of the marriage;

(3) The age and the physical and emotional condition of both parties;

(4) The financial resources of each party;

(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;

(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, childcare, education, and career building of the other party;

(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and

(8) Such other relevant factors as the court deems equitable and proper.

(A) All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided. (Laws 1806, Cobb’s 1851 Digest, pp. 224, 225; Code 1863, 1676; Code 1868, 1719; Code 1873, 1720; Code 1882, 1720; Civil Code 1895, 2435; Civil Code 1910, 2954; Code 1933, 30-209; Ga, L. 1966, p. 160, 1; Ga. L. 1979, P. 466, 14; Ga. L. 1981,p. 615, 1; Ga. L. 1982, p.3,)

DUI in Georgia – What is the 10 Day Rule?

What happens if I refuse to take a breath test? What is the 10 day rule in Georgia for DUI? What is the legal limit in Georgia? If I am caught driving drunk, is there an appeal process?

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Georgia has a law protecting victims of family violence. The parties do not have to be married in order for a victim to ask the court for relief. However, the parties have to reside in the same household. A victim of family violence can file a petition with the Superior Court that family violence has occurred in the past and may occur in the future. The court can issue a temporary order granting a variety of remedies, including eviction of the offending party from the residence or providing suitablealternate housing for the victim and children, as well as financial relief.

The victim does not need a lawyer to file a Family Violence Petition. The clerk of the Superior Court in the victim’s residing county may provide forms for the Petition or be able to direct a victim to a family violence shelter or social service agency for further assistance.

Changes to Georgia’s Mechanics’ and Materialmen’s Lien Law

What is the deadline to file a lien? What is the deadline to file an action to perfect the lien?

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Effective March 31, 2009, several substantive changes to Georgia’s lien law went into effect.  These changes affect not only the lien claimant (the person filing the lien) but also the owner of the property subject to the lien.  Following is a brief summary of some of the changes:

  • The deadline to file the lien has been changed from 3 months to 90 days.  This should eliminate much of the confusion that the old deadline caused.
  • The deadline to file an action to perfect the lien has changed from 12 months to 365 days.  This, too, should eliminate much of the confusion practitioners encountered when calculating important deadlines.  Under the new law, a lien may be perfected by litigation, binding arbitration, or filing a proof of claim in a United States Bankruptcy Court.
  • The deadline to perfect the lien is now calculated from the date the lien is filed rather than the date the last work was performed or materials provided.
  • A notice of commencement must be filed with the Superior Court Clerk 30 days after the action is filed to perfect the lien rather than the previous 14 days.
  • The claim of lien form must contain a notice that the lien will expire and become void 395 days from filing if no notice of commencement is filed within the applicable time period.
  • The claim of lien must contain specific language notifying the owner that they have the right to contest the lien.
  • A copy of the lien must be sent to the owner or contractor no later than 2 business days after the claim of lien is filed via certified mail or statutory overnight delivery.  Previously, mailing had to occur at the time of filing.
  • Significantly, the property owner or contractor may file a Notice of Contest of the lien in the Superior Court to shorten the time within which a lien claimant must perfect the lien.  Prior to this, the property owner had little defense against a spurious lien other than to post a costly bond.  If filed, the lien claimant has a limited window within which to commence an action to perfect its lien.  Failure of the lien claimant to meet this deadline may result in the lien becoming unenforceable.
  • Several changes to lien waiver forms and affidavits of non-payment have been enacted.  Lien claimants should consult an attorney to assure that their current forms satisfy these new requirements, including certain mandatory notice requirements.
  • If a party files a bond to discharge a lien, notice and a copy of the bond must be sent to the lien claimant within 7 days after filing.

Considering that failure to follow these strict deadline and notice requirements may render a lien void, we suggest you speak with an attorney prior to filing a lien or filing an action to perfect a previously filed lien.  Or, if you are the property owner, please consult with an attorney to know your rights before a lien adversely affects your property or delays your financing.

Is Mediation A Way To Prevent Foreclosure For You?

Is your Mortgage company willing to work with you? Have you considered mortgage mediation as an option against foreclosure?

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Sometimes re-financing is an option to foreclosure, but may not be possible if you owe more on your home than a lender is willing to lend or if your credit score is too low. With the mortgage meltdown our nation has experienced and its impact on home values you may not be able to borrow as much as you need to pay off your first mortgage. Also, if your credit score has declined since you purchased the home, you may not be able to qualify for an interest rate that will truly improve your situation. So, how else can you possibly prevent foreclosure?

Have you considered mortgage mediation as an option?

According to Clark Howard, the FDIC has been working out mortgages with former IndyMac customers who owe more than their homes are currently worth.  “So far, the FDIC has lowered monthly mortgage payments for IndyMac customers by $430; they’re adhering to a flat 38% of the homeowner’s income. Meanwhile, other workouts are being orchestrated by Bank of America for their Countrywide division.” This information is posted on Clark’s website at the following link: http://clarkhoward.com/shownotes/category/4/125/131/

Is your Mortgage company willing to work with you? Do you know how to contact the right people who can commit to a binding decision? Will you understand the consequences of documents the lender will ask you to sign? If you would like to discuss a work out plan with your mortgage company and would like assistance during that process, consider using the services of a licensed Civil Mediator who is also experienced in handling Real Estate law issues.

Byrd Garland with SWWW in Jackson, Georgia is a licensed civil mediator with thirty-five years of experience handling Real Estate Law. Byrd will gladly assist residents of Bibb, Butts, Clayton, Fulton, Henry, Lamar, Rockdale, Spalding and other metro counties of Atlanta.

Please contact Byrd Garland at 770-775-3188 with questions or to make an appointment and discuss your situation.

Why Now is a Good Time to Buy Real Estate

Should I look into buying foreclosed property? Is now a good time to buy real estate in Georgia? Is buying land still a good bargain?

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One obvious sale item is a foreclosed property.

  • These properties are easy to identify. Every residential real estate agent in Georgia can identify the foreclosed property in your area.
  • Lenders holding property in their foreclosure portfolios are more than anxious to move the property and you can find good deals everywhere you look.
  • Be aware that you buy a foreclosed property at your own peril.
  • Prior to closing, it is imperative you go all out to accurately determine what you are buying.
  • As tools to safeguard your investment, I recommend:
    •  a home inspection
    •  a new survey
    •  an enhanced title insurance policy
    •  a termite inspection
    •  a homebuyer’s warranty
    •  a thorough personal inspection

While shopping, do not forget more traditional sellers are part of this giant sale as they compete against the foreclosure sellers.

  • The market pressure from foreclosed properties drives down the price of neighboring properties.
  • The price of labor and materials for building a new home or remodeling an existing one is at a record low.
  • I am finding bargains from builders and traditional sellers as they compete in today’s real estate market.
  • Typically, on these transactions, you are not totally buying at your own peril but I still recommend each buyer to exercise almost the same due diligence as suggested above for foreclosure properties so you are protected if your seller is unable to respond to problems you may discover after the sale.

Land is perhaps the best bargain in town. For a number of years, the price of land has escalated drastically. Land prices have, in the past, doubled almost overnight. The housing slow-down has caused land prices to go down. Land is a bargain right now but it will come back with a vengeance and today’s buyers will become tomorrow’s millionaire. The reason is simple: we cannot make more land.

Interest rates are at a record low at banks and mortgage companies so a buyer has a wide variety of borrowing options now that may not have been available in the past. Many buyers are discovering bank rates equal to and sometimes better than long-term mortgage rates. Banks are much more flexible than mortgage companies making the traditional bank vs. mortgage dilemma much easier now than ever before.

Congress already passed legislation designed to aid the housing market. For our purposes here, this means that NOW is the time to buy!

Do not miss this “once in a lifetime” opportunity. Get serious about this unusual opportunity and run tell your local real estate agent’s office: “I am here to buy”. You will not be disappointed.

If I Am Injured In A Car Accident, Do I Need An Attorney?

Do I need an attorney for a personal injury case? What are your rights under the law in Georgia? Should I accept a settlement from my insurance company? What should I do if I have damage to my car due to a wreck? Whom should I call if my automobile was hit by a tractor trailer?

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In most cases an attorney will maximize your recovery, putting more money in your pocket at the end of the day. First and foremost, a lawyer can advise you of your rights and obligations under the law. Make no mistake about it, insurance companies, hospitals, and most medical treatment providers are businesses first. They are concerned with the bottom line and are looking to maximize their profits and minimize their losses.

Unless you fully understand your rights and how to assert them, you will not receive the full value of your property loss, damage to your car, and the injuries you sustained. Worse, you may not receive the actual medical attention you need to be as healthy as possible again.

All too often injured persons are short-changed by quick settlement without fully understanding all that they are in need of and entitled to. If you have a skilled attorney representing you, the at fault party will recognize this and you will get better results more quickly.

All too often injured persons are short-changed by quick settlement without fully understanding all that they are in need of and entitled to.

Furthermore, a lawyer can help you negotiate complex issues such as determining which insurance policies may be applicable and how you can potentially stack those policies, negotiate medical liens and subrogation issues and ultimately settle your claim in a way that will maximize your recovery.  Most importantly, however, you need a lawyer with trial experience who can try your case to a jury if necessary in a professional way that is designed to achieve the best possible result. Hiring an attorney will usually get you the best possible result in and out of court.

If you have been injured in an automobile accident, a tractor trailer wreck, a slip and fall or an on the job injury, don’t hesitate. Contact the personal injury attorneys at SWWW today.

What should I do if I have been drinking and I’m pulled over by the police?

In Georgia, do I have the right to an attorney if I am pulled over for a dui? Do I have to take a breathalyzer? Should I admit to drinking? Should I take the eye test or the one leg test if I have been drinking?

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In Georgia, what should I do If I have been drinking and I am pulled over by the police?

  • The most important thing to remember is to be polite with the police officer. Acting rude or being confrontational the officer will only land you in jail more quickly.
  • You do not have the right to an attorney at the time of being pulled over, however, a simple request to speak to your attorney before answering questions would be an appropriate response.
  • You DO have the right to refuse all field sobriety tests – the one leg stand, the eye test (HGN test), touching your nose, walk and turn, and any other street evaluation is not required and is usually not a good. These tests simply help the officer build a stronger case against you. Do not help them with their job as they intend to use the results of any test against you in court.
  • You DO have the right to refuse the breathalyzer, blood, or urine tests. Remember however, if you do this, you face a one-year suspension of your driver’s license. It may be in your best interest, and it is your right, to request an INDEPENDENT blood or urine test. The officer is required to provide you with additional reasonable testing at your own expense.
  • You are probably being recorded. Watch how you act and what you say.
  • You do not have to answer an officer’s questions about whether you had anything to drink that night, where you were coming from, etc.

Why You Need A Will in Georgia

In Georgia, who needs a Will? What are the reasons to have a Will? What are the formal requirements for a Will?

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All adults, regardless of wealth, should have a properly drafted and executed will. A will is necessary for ensuring that your estate is distributed as you wish. A will can also save money and time in administering your estate once you are gone, which will lessen the burden on your beneficiaries and maximize the legacy left for distribution.

Who Needs a Will?

Every adult should have a will. Whether you have few assets, many assets, minor children, no children, or specific desires about who gets your property, you should have a will.

What are the Reasons to Have a Will?

  • In a will, parents can name whom they want to be the guardian over their minor children.
  • With the frequency of multiple marriages in today’s society, a will with appropriate trust provisions may be helpful in ensuring that your assets ultimately pass to your designated beneficiaries.
  • A will allows you to decide how your property will be distributed and it relieves others of that burden. It helps ensure your wishes will be honored.
  • A will may help you to lessen estate taxes imposed upon your death.
  • Your will can direct that your assets pass to a trust for your beneficiaries instead of outright distribution to a beneficiary. Trusts may assist in protecting assets from the claims of creditors, unwise choices made by beneficiaries, and provide for minor children. Trusts are very useful in estate tax planning.
  • A will lets you choose the individual or entity who will serve as executor of your estate. The executor will manage and settle your estate according to the law and your desires expressed in your will. Without a will, your beneficiaries would have to petition the court for an administrator to serve, which can be expensive and invite disagreement among heirs to whom you may not wish to inherit your property.
  • A will lets you grant your executor full power to sell your property and liquidate your assets without having to petition the court for permission.
  • A will enables you to eliminate unnecessary expenses and court costs involved in the administration of an estate without a will. For instance, bond premiums can be avoided by stating that you desire that the executor serve without a bond.
  • You can make gifts to charity through your will.

What are the Formal Requirements for a Will?

A will is the legal declaration of a person’s intention for the disposition of his or her property after his or her death. The laws of each state set forth the formal requirements for a legal will. In Georgia:

  • You, the maker of the will (called the testator), must be at least 14 years old.
  • You must be of sufficient mind and memory to realize you are making a will disposing of your property.
  • The will must be in writing.
  • The will must be signed by the testator and witnessed by at least two witnesses in the special manner provided by law. These witnesses should not be persons who are designated to take property under your will or a relative.
  • The execution of the will must obey certain technical formalities.

May a Person Dispose of His or Her Property in Any Way He or She Wishes by a Will?

A testator, by his or her will, may make any disposition of his or her property not inconsistent with the laws or contrary to the policy of the state of Georgia. A testator may bequeath his or her entire estate to charities, strangers or in trust for beloved pets, to the exclusion of his or her spouse and children. In such cases, however, the disinherited spouse or children could seek to challenge the will if appropriate grounds exist for a competency or undue influence claim, or petition the court for a limited distribution to them regardless of what the will provides.

Summary

Wills are not only for the well-to-do, they are important for all adults who are interested in ensuring that their wishes are respected upon death, and that their estates pass to their designated beneficiaries as quickly, as painlessly and as intact as possible. Wills are a component of successful estate planning, which seeks to transfer the individual’s estate as they desire, avoid unnecessary costs and minimize estate taxes.

What Are My Money Damages?

Can I get compensation for lost wages? Who pays for my medical expenses? I have a permanent injury from an accident, what should I do?

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If you have been injured as a result of the negligence or wrongdoing of someone else, you are entitled to the following money damages:

1. Medical Expenses: You are entitled to the actual medical expenses that were incurred as a result of the negligence or wrongdoing of another person. This includes doctors’ bills, emergency room bills, ambulance bills, bills for diagnostic tests such as X-RAYS, MRI’s, CT scans, etc., bills for medicine, bills for equipment such as cervical collars, braces, walking devices, etc., bills for physical therapy, home health care or any other cost associated with your medical treatment, including future medical bills.

2. Lost Wages: You are entitled to compensation for time that you have lost from work as a result of the accident (including future lost wages) for medical treatment, rest, physical therapy for other causes associated with the accident that may follow the accident.

3. Pain and Suffering and Lost Enjoyment of Life: How much would you pay if you no longer had to experience the pain associated with your injury? While there may be no scientifically based mathematical formula for computing this number, there is no doubt value associated with having to endure pain. No matter how great or how small the pain is, the truth is that it is there and it usually persists for some time, often a lifetime.

You are entitled to compensation for time that you have lost from work as a result of the accident (including future lost wages). In addition, you are entitled to compensation for those things that you can no longer do as a result of your injury that change your lifestyle such as recreational activities, gardening, golf, tennis, hiking, jogging, etc. Many people would gladly pay to play a round of golf or have someone to tend to their yard. Well, what if you can’t, certainly there is value in that loss. The bottom line is that pain and suffering is a very real injury that deserves real compensation.

4. Permanent Impairment: It may be that your injury has resulted in a permanent partial loss of your physical abilities. For instance, you may no longer be able to lift anything more than twenty pounds, perform household chores, laundry, cooking, cleaning, yard work, caring for your children or other loved ones, or run or walk the way you used to. This is a distinct and separate injury from pain and suffering and also has value for which you are entitled to recover.

5. Property Damage: Obviously you are entitled to have your car repaired or replaced if the loss was caused by the negligence of someone else. However, once a vehicle has been in an accident it loses value and you are also entitled to the diminished value of your vehicle. If your vehicle was damaged due to the negligence of another it is important to make sure your vehicle is properly repaired, that your warranty is not negatively impacted, that the repair shop uses the right replacement parts and that you get full compensation for the diminished value of your vehicle.

For negotiating your injury claim, it is important to have a lawyer who is knowledgeable and experienced enough to properly document and demand compensation for all of your damages.

Mediation – An Easy And Cost Effective Alternative To Litigation

Can a mediator impose a solution for a dispute? What types of disputes are good for mediation? Want to resolve a dispute without going to court?

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Our society is litigious and “I’ll see you in Court” is a familiar phrase. Unfortunately, litigation is very expensive, time consuming, and the system is sometimes ill-equipped to deal with important issues connected to everyday disagreements. The parties to a dispute are frequently in a much better position to reach a satisfactory resolution than a Judge, Jury or Arbitrator. After all, the parties have more personal knowledge of the issues than any Judge, Jury or Arbitrator and also a greater interest in the final outcome. In some cases our judicial system is simply not equipped to provide an outcome that is attractive to either party. Mediation is a simple, easy and cost-effective alternative dispute resolution method.

Let’s begin with the idea that any issue can be mediated. Mediation can be Court Ordered or mutually agreed upon. The issue to be mediated does not have to be currently pending in court. Some current uses of mediation include:

1.      A family deciding whether to  place a loved one in an assisted living setting

2.      A family deciding whether to terminate life support

3.      Insurance companies mediating accident claims

4.      Building and construction related disputes

5.      Many business contracts now require mediation before litigation is possible

6.      Employment issues

7.      Healthcare issues

8.      Student placement issues

9.      Homeowner’s association issues

10.    Code enforcement disputes

By far, the most successful mediations are those that are voluntarily entered into by the parties. When the parties to a dispute seek the help of a Mediator, they are, in effect, expressing an intent to resolve the matter through a settlement. Mediation is no more than the parties getting together with an impartial Mediator and discussing the various avenues of settlement with the Mediator acting as a neutral facilitator.

Typically, the parties meet with the Mediator and both sides explain their side of the case. From that point, the Mediator may caucus the parties individually to get a clearer picture of their wants and needs and what they expect from the mediation process. Many times, parties have different or ancillary needs that could never be properly addressed in the typical litigation setting.

For example, during a recent mediation, it was discovered that the defendant needed a strong confidentiality agreement which was more important to him than the amount of the settlement. Knowing this, the Mediator was able to help the parties craft an agreement that fully compensated the plaintiff, and protected the defendant’s reputation. This resulted in a win-win situation which could have only been possible through mediation. Remember, the very nature of adversarial litigation presupposes that one party wins and one party loses. Through mediation, it is possible for both parties to walk away as winners.

Usually, the parties split the cost of mediation. This feature gives each party some ownership in the process and dispels any notion that the Mediator may harbor a bias in favor of the person paying the bill. Additionally, all communications, documents, statements, etc. obtained through mediation are confidential and most mediation agreements prohibit any disclosure thereby assuring complete confidentiality.

The Georgia Office of Dispute Resolution (www.godr.org) maintains a list of all registered Mediators. While each Registered Mediator may have special gifts or areas of expertise, the official registry contains two basic classifications: General Civil and Domestic. A General Civil Mediator may conduct mediation sessions on all matters except Divorce Cases, and a Domestic Mediator has received all the General Civil training plus additional training specifically designed for Divorce related cases.

Experienced attorneys and former judges recognize the value of mediation and many are now choosing to become registered Mediators. In addition to thirty four years of law practice,  Byrd Garland, a partner with SWWW, has completed the necessary requirements to become a registered Civil Mediator. He understands the judicial system and knows what sort of remedies are available if you choose litigation. He can now also help you by combining his years of experience in a courtroom with mediation skills to help resolve disputes in a cost-effective and expeditious manner.

What Are Some Common Mistakes That Could Hurt My Case?

If I am in an auto accident, what happens if I say “I have no injuries”, but later I need medical treatment? Is it a mistake to wait months after the auto wreck before getting an attorney? What if I have gaps in my medical treatment?

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There are a number of potential pitfalls that well meaning persons fall into in the prosecution of their personal injury claim. One of the most common mistakes is telling the police officer at the scene that you have not been injured in the automobile accident. Due to the natural adrenaline rush that occurs when you have been involved in car wreck, it is not uncommon for your injuries to go unnoticed for several hours and sometimes even days following the accident. While not fatal to your claim by any means, stating to anyone that you were not injured in the auto accident will surely be raised by the insurance adjuster as a defense to your claim.

Another common mistake that can hurt your case is a delay in treatment or a gap in receiving medical treatment. The longer you wait to see a medical provider following an automobile accident, the greater the likelihood that the insurance adjuster for the at fault driver will claim the automobile accident is not the cause of your injury. Likewise, if you begin medical treatment but you do not continue the medical treatment, or there are gaps in the medical treatment for several weeks or months, the claims adjuster for the at fault driver will often raise that as a defense to the causation element of your claim.

One of the most common mistakes at the scene is telling the police officer at the scene that you have not been injured in the automobile accident.

Another common mistake you should avoid is failing to document all of your injuries. It is not uncommon for an injured person to tell treatment providers about the injury that is causing them the most pain at the time, to the exclusion of other injuries which are relevant to their claim. It is not at all uncommon for a car wreck to cause you to suffer multiple injuries which can affect you in varying degrees over the course of your treatment. For instance, your primary concern might be your neck and back while a secondary concern may be your knee, shoulder or some other part of your body. It is important that you make your treatment providers aware of all of your injuries on each and every visit. It is also important for your medical treatment provider to document as much as possible about your injuries, your limitations, and how they are related to the automobile accident.

However, the most common mistake we notice occurs when an injured person waits months or even years before contacting an attorney. An experienced attorney can help you negotiate the treatment and claims process from the beginning, minimizing potential pitfalls, gaining valuable information before it is lost and most importantly, protecting your right to receive the full value of your losses. If you have been injured in an automobile accident please contact one of our attorneys as soon as possible.

What Are The Legal Limits Regarding Alcohol In Georgia?

What is the blood alcohol concentration for Georgia? Can the state of Georgia attempt to convict a driver who may be drinking, but does not have a BAC on .08? What are the two ways for you to be convicted for DUI in Georgia?

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WHAT ARE THE LEGAL LIMITS REGARDING ALCOHOL IN GEORGIA?

That depends upon several factors.Georgia law allows two ways for you to be convicted for Driving Under the Influence of alcohol. These are often referred to as “per se” and “less safe”

  • If the state can show you had a blood alcohol concentration (BAC) of .08 grams or more while in control of a vehicle, this is considered DUI per se. This applies if the alcohol content reading is shown to be within three hours of driving. A BAC of .08 is “per se” DUI if you are over the age of 21.
  • If you are under the age of 21 the legal limit for your BAC within the three hour window is .02
    The “less safe” provision of Georgia DUI law is found when the state attempts to convict a driver who may have been drinking but does not have a BAC of .08 or higher. The state bears the burden of proving that the alcohol, or other intoxicants, caused you to be a less safe driver.
  • If you are a commercial driver in a commercial vehicle the per se limit is .04

What Are The Grounds For Divorce In Georgia?

What is no fault divorce in Georgia? Is Adultery grounds for divorce? My spouse is constantly using illegal drugs, is that a reason for divorce?

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In Georgia there are 13 grounds for divorce. One ground is “irretrievably broken” (sometimes referred to as the “no-fault ground”). The other 12 grounds for divorce in Georgia are “fault” grounds.

What is a “no-fault” divorce?

To obtain a divorce on the basis of (irretrievably broken), one party must establish that he or she refuses to live with the other spouse and that there is no hope of reconciliation. It is not necessary to show that there was any fault or wrongdoing by either party.

What are the “fault” grounds?

To obtain a divorce on one of the 12 “fault” grounds, one must prove that there was some wrongdoing by one of the parties to the marriage.

o.c.g.a. 19-5-3: grounds for total divorce

The following grounds shall be sufficient to authorize the granting of total divorce:

(1)   intermarriage by persons within the prohibited degrees of consanguinity or affinity;

(2)   Mental incapacity at the time of the marriage;

(3)   Impotency at the time of marriage;

(4)   Force menace, duress, or fraud in obtaining the marriage;

(5)   Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;

(6)   Adultery in either of the parties after marriage;

(7)   Willful and continued desertion by either of the parties for the term of one year;

(8)   The conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer;

(9)   Habitual intoxication the drunkenness must be habitual, but need not be constant and continuous, this ground does not include narcotics but only refers to alcoholic beverages;

(10) Cruel treatment which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb or health

(11) Incurable mental illness No divorce shall be granted upon this ground unless the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party; and he/she has been confined in an institution for the mentally ill or has been under continuance treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and the superintendent or the other chief executive officer of the institution and one competent physician appointed by the court, after a thorough examination make a certified statement under oath that it is their opinion that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party’s mental health cannot be expected at any time during his/her life. Notice of the action must be served upon the guardian of the person of the mentally ill person and upon the superintendent or other chief executive office of the institution in which the person is confined. In the event that there is no guardian of the person, then notice of the action shall be served upon the guardian ad litem, who shall be appointed by the court in which the person is confined. The guardian and superintendent shall be entitled to appear and be heard upon the issues. The status of the parties as to the support and maintenance of the mentally ill person shall not be altered in any way by the granting of the divorce;

(12) Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16;

As an example, one fault ground listed above is adultery. Adultery in Georgia includes heterosexual and homosexual relations between one spouse and another individual.

Another “fault” ground for divorce in Georgia is desertion. A divorce may be granted on the grounds that a person has deserted his or her spouse willfully for at least a year. Other “fault” grounds include mental or physical cruel treatment, marriage between persons who are too closely related, mental incapacity at the time of marriage, impotency at the time of marriage, force or fraud in obtaining the marriage, pregnancy of the wife unknown to the husband at the time of the marriage, conviction and imprisonment for certain crimes, habitual intoxication or drug addiction, and mental illness.

Georgia DUI Sentencing Requirements (Effective July 1, 2001)

Does Georgia DUI laws provide for a first offenders treatment? How much of a fine is my 2nd DUI in Georgia going to cost? How much jail time am I looking at for a DUI? Will I have to do community service?

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1st DUI CONVICTION IN 5 YEARS (No 1st offender treatment)

  • Up to a $1,000.00 fine.
  • Up to 10 days to 1 year in jail.
  • Risk Reduction/DUI School.
  • 40 hours of community service.
  • Up to 1 year of probation.
  • Up to 1 year on a driver’s license suspension.
  • Possible alcohol evaluation and/or treatment.

2nd DUI CONVICTION IN 5 YEARS

  • Up to a $1,000.00 fine.
  • Up to 90 days to 1 year in jail.
  • Risk Reduction/DUI School.
  • Up to 30 days of community service.
  • Mandatory alcohol evaluation and/or treatment.
  • Up to 1 year on probation.
  • A possible 3 year suspension of your driver’s license.
  • Reinstatement of your driver’s license after 12 month suspension with ignition interlock device.

3rd DUI CONVICTION IN 5 YEARS

  • Up to a $5,000.00 fine.
  • Up to 120 days to 1 year in jail.
  • Up to 30 days of community service.
  • Mandatory alcohol evaluation and/or treatment.
  • Up to 1 year on probation.
  • Up to a 5 year license revocation.
  • Probationary driver’s license after 24 month suspension with ignition interlock device for the remainder of the fiver year balance.

Child Endangerment:

  • If you had a child younger than 14 years of age in the car you may also be charged with Child Endangerment in addition to the offense of Driving Under the Influence. If you are charged with Child Endangerment you should immediately contact one of the DUI attorneys with SWWW.

No matter your law needs, Smith, Welch, Webb, & White is here to help. Contact us today for a legal consultation!

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