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Comparing the Due Process Provided Students for MIP/UPA/DUI/Academic Dishonesty to the Lack of Due Process Provided to Students Charged With Sexual Misconduct

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sitting-in-jail-slideComparing the Due Process Provided Students for MIP/UPA/DUI/Academic Dishonesty to the Lack of Due Process Provided to Students Charged With Sexual Misconduct

At the University of Georgia, a student charged with a violation of the UGA’s Code of Conduct for things like Underage Possession of Alcohol (MIP), hazing, theft, selling illegal drugs on campus, and damaging UGA property are entitled to a relatively high level of due process.  Specifically, an accused student must be

(1) given formal notice of the charges against them;

(2) advised that no inference of responsibility will be drawn if they remain silent;

(3) advised of the procedures that will be used to decide the charges;

(4) advised that they may have an advisor;

(5) informed of all “potential witnesses and any information that may be presented against” them including a list of witnesses and a chance to view the evidence to be presented;

(6) presumed innocent;

(7) given a live hearing before three neutral decision makers (two University Student Judiciary Members and one Administrative Panel/Faculty/Staff member);

(8) given a recorded or transcribed copy of any hearing; and,

(9) permitted to question his or her accuser and other witnesses involved in the hearing.

The accused student in these Student Conduct hearings is allowed to have an advisor that can be an attorney, a member of the Student Judiciary, or any other person.  The advisor, attorney or otherwise, may not speak for the accused student, something attorney Kim Stephens believes violates the accused student’s United States and Georgia Constitutional rights to due process, but can provide preparation, guidance and support throughout the hearing.

Similarly, at the University of Georgia, a student accused of violating the Honor Code, A Culture of Honor, by plagiarizing, copying a classmates test answers, lying to a professor, or even trying his or her best to submit responses or prove attendance via apps like TopHat that suffer frequent technical problems, is entitled to due process.  Accused students in academic dishonesty hearings are

(1) allowed to complete all required academic work, have the work evaluated and graded;

(2) given formal notice of the complaint(s) that have been made against them;

(3) allowed to participate in a facilitated discussion, i.e. a mediation, which includes the instructor who filed the complaint, the student, and a Facilitator.  The purpose of the of the “facilitated discussion” is to provide a fair and focused discussion between all parties involved about what may have occurred. The instructor(s) who reported the matter, the student(s) believed to have violated the policy, and the Facilitator are the only participants in a Facilitated Discussion. These Discussions may not be recorded.  The instructor and student may reach an agreement about the matter and, if dishonesty is involved, may determine the appropriate consequence(s);

(4) if no resolution is agreed upon, the matter will be forwarded to a Continued Discussion with an Academic Honesty Panel that will determine the outcome of the allegation. The Academic Honesty Panel is, at its heart, a hearing on the merits of the instructor’s complaint.  The Panel is comprised of two faculty members and three student members who decide whether the instructor can prove by a preponderance of the evidence that the conduct alleged in the complaint is true and is a violation of the Honor Code, and, if a violation is found, determines the appropriate punishment;

(5) written notice of the allegations being made against them;

(6) copies of all evidence to be used by the accusing instructors against the students including the instructor(s)’ statement and supporting documents and witnesses;

(7) a chance to provide a written statement and provide supporting evidence and documents to the Panel before and during the Continued Discussion;

(8) a chance to question the accusing instructor and all other witnesses and evidence being used during the Continued Discussion to show the accused student violated the Honor Code.

The accused students in these Continued Discussion hearings are allowed to have an advisor that can be an attorney or any other person.  The advisor, attorney or otherwise, may not speak for the accused student, again something attorney Kim Stephens believes violates the accused student’s United States and Georgia Constitutional rights to due process, but can provide guidance and support throughout the Continued Discussion.

Now, compare these relatively high levels of due process provided to accused student’s cases to cases involving allegations of sexual misconduct, a political “hot button” issue:

(1) The accused student will be provided with notice of the existence of a complaint being filed against him or her but is not told the identity of the person filing the complaint or the specific accusations made by the accuser;

(2) The accused student may be immediately suspended from the University and barred from campus while the investigation is ongoing;

(3) The accused student may be removed from UGA’s student housing and dormitories immediately and, thus, forfeiting all moneys paid for housing and dining;

(4) The accuser and the accused student are provided with a copy of the EOO “non-discrimination” policy which allows the student to “blindly” provide information to an EOO investigator, provide evidence to the investigator that may or may not apply to the accusations being made, and submit himself or herself to questioning by the investigator;

(5) The accused student is NEVER provided with the identity of witnesses against him or statements made by such witnesses;

(6) The accused student is NEVER provided with the identity of favorable, i.e. exculpatory, witnesses or statements made by them;

(7) The EOO investigator only discloses information to others involved in the case on a “need to know basis;”

(8) The EOO procedures now state that the investigator’s interviews “constitute the hearing.”

So, prior to being expelled from the University of Georgia for alleged sexual misconduct, an accused student NEVER receives a formal charging document expressly telling him what offense he or she is charged with committing, NEVER receives a list of witnesses for or against him, is NEVER allowed to review statements or evidence used to determine his guilt or violation of the EOO policies, is NEVER allowed a hearing before a panel of three or more hearing panelists to determine his culpability, is NEVER allowed to question the accuser in his or her case, is NEVER allowed to question other witnesses or evidence used against him or her to show guilt or a violation of the EOO policies, is NEVER allowed to present evidence in his or her defense to a panel of impartial panelists rather than just to the investigating EOO officer, and is NEVER allowed to provide a statement to an impartial hearing panel.  Apparently, the University of Georgia believes that students charged with Underage Possession of Alcohol/MIP deserve greater due process than students charged with serious offenses like rape.

UGA expels students, usually young men, through a process that provides absolutely no due process at all.  Does that sound fair?  Is that due process?

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DUI: Choose Your Attorney Wisely

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DUI/DWI MUCH MORE EXPENSIVE THAN ADVERTISED

 

I was speaking to a friend recently when he unexpectedly told me that, before we met, he was arrested and convicted of DUI/DWI several years ago. After some discussion, my friend shared with me that in his case the DUI/DWI conviction was far more costly than the estimates of $10 – $15,000 typically seen in articles and online for the “cost of a DUI/DWI.”  My interest was piqued, so he explained:

 

“I accept full responsibility for my actions.  I drove when I had been drinking more than I should and knew better. . . .  I was driving home when I came up to a roadblock. . . . I knew I was screwed.  I cooperated, took all the Field Sobriety Tests, and took the breathalyzer.  I was arrested and taken to jail.  I posted bond, paid a towing fee, hired an attorney, went to court several times, and was ultimately convicted.

 

The cost of posting bond, paying the towing fee, hiring an attorney, going to court, and paying fines, surcharges, taxes, probation fees, and other direct costs of the DUI/DWI was very expensive.  The estimates I saw before and since I was arrested, though, don’t come close to the actual cost to my family and me.

 

I lost my job.  I lost benefits for my family.  It took more than a year for me to get another job that was anywhere close to my qualifications.  My car insurance skyrocketed.  I can’t afford to get life insurance because it is so expensive.  I still am not making as much money as I would be making if I had not gotten the DUI.  So, my estimate of the cost of a DUI/DWI is much different than what I see online.”

 

Upon further questioning and after reviewing online articles and data, my friend provided me with his estimate of the cost of his DUI/DWI arrest and conviction:

 

Bond/Bail                                                                   $         2,500.00

Tow/Storage Charge for car                                               185.00

Increase in Car Insurance Premiums                               7,500.00

Attorney Fees                                                                        5,000.00

Court Imposed Fines/Surcharges/Fees                          1,730.00

DUI/Risk Reduction School                                              287.00

License Reinstatement Fees                                              210.00

Increase in Life Insurance Premiums                             10,000.00

Lost Income, Wages and Benefits             $ 330,000.00 – 370,000.00

(Caused by DUI/DWI and since my arrest)

________________________________________________

Actual and True Cost of DUI/DWI           $357,412.00 – 407,412.00

 

I know my friend’s story is personal and anecdotal but a DUI/DWI arrest in anyone’s situation is expensive and costly, especially if you hire the wrong attorney. If you are arrested for DUI/DWI, don’t take it lightly or assume the best. Call attorney Kim Stephens at 706-548-3933 so that we can begin to aggressively defend your case.

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Changes in DUI Law

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dui-badges-3Attorneys Kim Stephens and Michael Brown applaud the Georgia Supreme Court for its well-reasoned opinion upholding every person’s right to be free from unlawful searches of his or her body and bodily substances.  In the three weeks since the Court’s ruling in Williams v. State, attorney Kim Stephens successfully convinced prosecutors in Elbert County and Madison County, Georgia to dismiss DUI cases against his clients based on this change in Georgia law.  When choosing a DUI lawyer, it is critical that you hire a criminal defense attorney who specializes in DUI and other criminal law, knows current DUI law, and keeps up with changes in DUI law that will help win your case.

 

Blood Tests Taken Pursuant to Georgia Implied Consent Law May Not Be Voluntary According to Supreme Court
Georgia’s implied consent law may not be around much longer. On March 31, 2015, the Georgia Supreme Court unanimously laid the groundwork for a future ruling that could effectively nullify the statute that imposes automatic punishment on motorists who refuse to provide a blood or breath sample upon demand. The implied consent law helps police investigate drunk driving (DUI) cases by allowing what are considered searches under the Fourth Amendment to take place without a search warrant. John Williams learned about this after a Gwinnett County police officer pulled him over for swerving on September 22, 2012.  “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs,” the officer told Williams. “If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year.” Williams agreed to the blood draw, thinking he had no choice. The officer called the incident an ordinary DUI and admitted there were no unusual or exigent circumstances with the case. A county judge convicted Williams based on the blood evidence, saying the implied consent law rendered Fourth Amendment concerns irrelevant. The Georgia Supreme Court disagreed. “The state court’s analysis is flawed,” Justice P. Harris Hines wrote for the court. “A suspect’s right under the Fourth Amendment to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution.”  In Missouri v. McNeely (S.Ct., 4/17/2013), the U.S. Supreme Court held that the natural dissipation of alcohol in the bloodstream did not automatically create “exigent circumstances” that absolve police of their duty to obtain a search warrant before drawing a suspect’s blood. The justices required police to either get a warrant or cite a legitimate emergency justification for not doing so. There were no exigent circumstances in the Williams case, so the Georgia high court was left to rule on whether Williams voluntarily consented to having his blood drawn after being read the implied consent notice that told him that he had no choice. The justices said they needed more information. “In considering Williams’s motion to suppress, the state court failed to address whether Williams gave actual consent to the procuring and testing of his blood, which would require the determination of the voluntariness of the consent under the totality of the circumstances,” Justice Hines concluded. “Consequently, the judgments of the state court are vacated and the case is remanded to that court for proceedings consistent with this opinion.”

If you have been charged with DUI, call Stephens and Brown today at 706-548-3933 for a free consultation.

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Kim Stephens Discusses Jonathon Taylor on Paul Finebaum Show

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Paul Finebaum interviewed me on Thursday on his ESPN show regarding the Jonathon Taylor case. Since Jon’s arrest in Tuscaloosa, Alabama, the female who made the allegations has recanted her story, stating that she lied to the police. You can listen to my complete interview with Paul Finebaum about Jon’s case and the impact of false allegations here, beginning about 11:3o minutes into the show:

 

 

      Listen to the interview
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Inspiration from To Kill a Mockingbird

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“You never really understand a person until you consider things from his point of view … until you climb into his skin and walk around in it.”  Atticus Finch—To Kill a Mockingbird

As the publication date for Harper Lee’s sequel to her Pulitzer prize winning novel, To Kill a Mockingbird, approaches, people are digging out and rereading their copies of Lee’s classic tale. Today, the Athens Barnes and Noble will read the novel aloud in its entirety throughout the day to celebrate both the recent fiftieth anniversary of the novel and the upcoming sequel. My wife, a writer herself, is one of the guest readers and will read the novel’s final chapter at the close of the bookstore’s celebration. This event has reminded me both of my love for Lee’s novel and my admiration for one of its principal characters—father and defense attorney Atticus Finch.

For those who might have missed To Kill a Mockingbird, Atticus agrees to represent a black man accused of raping a white woman in the fictional town of Maycomb, Alabama in the 1930s. The racism and inequality prevalent at the time means that the residents of Maycomb are both outraged and shocked that Atticus would take the case. Atticus, however, ignores popular opinion and considerable intimidation, believing in Tom Robinson’s innocence and zealously representing him, stating famously that “the one thing that doesn’t abide by majority rule is a person’s conscience.” Atticus battles not only the prejudice of the day but also the justice system, which at the time prevented African Americans and women from serving on a jury.

Atticus provides a model of integrity and courage for criminal defense attorneys because he chooses to do what’s right in the face of insurmountable odds. Convincing an all-white male jury to find Tom Robinson not guilty in 1930s Alabama is an impossible task, but Atticus chooses to fight the good fight: “Simply because we were licked a hundred years before we started is no reason for us not to try to win.”

I am as inspired by Harper Lee’s story today as I was thirty or more years ago when I first discovered the tale, and if you’re in the Athens area today and have some time, I hope you’ll take a trip to the bookstore and maybe listen to a chapter of To Kill a Mockingbird.

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Jonathon Taylor and the Presumption of Innocence

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Jonathon Taylor’s second arrest for domestic violence made headline news over the last several days, sparking a public outcry that questioned Alabama’s decision to give Taylor a second chance and even criticized Taylor’s continued freedom. The controversy over Taylor sparks an interesting question: In light of mass media coverage of crime, particularly crime that arouses public sentiment or involves celebrities or sports figures, does the presumption of innocence still exist in America?

When approached by the media about Jonathon Taylor’s arrest in Alabama, I expressed my concerns about the new allegations and fervently hoped that a thorough investigation be conducted prior to any action being taken against Jon. The rationale behind my concerns was twenty-two years of experience in defense work during which I have seen a repeated trend of false accusations in high-profile cases involving athletes, politicians, or celebrities. Because any criminal allegations made against a well-known person are so widely publicized, they are particularly vulnerable to secondary allegations made by individuals trying to leverage the circumstances.

On the Monday after Jon was arrested in Alabama, the female who made the allegations in Tuscaloosa recanted her accusation stating that she had lied about the incident. She told the police that she was angry because Jon had been unfaithful to her, and she was hurt that their relationship was not as exclusive as she wanted it to be. She was consequently arrested for making false statements to the police.

I have heard advocates claim that people do not make false accusations of violent or sexual crime. I wish this were true, but my experience has led me to the perhaps unpopular but still verifiable opinion that it is not. I once represented an eighteen year old boy who spent thirteen months in jail (prior to his parents retaining my services) for rape. After his parents retained me, I sent my female investigator out to interview the alleged victim. The girl told my investigator after just minutes of chatting that the boy had not in fact raped her. They had dated for a while, and when he broke up with her, after repeatedly being unfaithful to her with other girls, she could not bear the thought of him being with someone else. The young man in question had a lot to learn about morality, about how a good man should treat a woman, but he was not a criminal. This is not just one exception to the rule, rather it is one of many cases of this nature that I have witnessed during my time as a lawyer. False allegations do happen, a truth that our founding fathers must have anticipated when they included the presumption of innocence in the list of rights that we as citizens of the United States of America are afforded.

I am a defense attorney, but I am also a husband and a father, and when I read a newspaper article or watch a headline report depicting, often in gruesome detail, crimes against women and children, I am seared, inflamed by the seemingly casual disregard for the sanctity of human life displayed by the perpetrators of these acts. I am the father of daughters, and my worst fear is that someone might harm my girls, steal their innocence, their irreplaceable life. I am also the father of a son, and I have identical worries for him, but because of my experiences as a defense attorney, I have this additional fear for my son: that he might be wrongly accused, falsely defamed, ruined because of a crime he did not commit.

In my time as a defense attorney, I have seen a wide spectrum of human behavior, and perhaps the lesson I have learned best, internalized, is the power of a lie. When we hear charges of domestic violence, assault, rape, molestation, murder, our anger is rightfully roused. We want immediate action, justice. The problem is that these two terms are too often incongruent. Justice is not, as the cliché would indicate, swift. Justice takes time— a thorough investigation and an objective examination of the facts.

Jonathon Taylor has been charged with domestic violence in Athens and now Tuscaloosa, Alabama. The alleged victim in Alabama has recanted her accusation and consequently been charged with a crime herself. The investigation in the Athens case is ongoing. Neither case has gone to trial. However, since Jon’s initial arrest, he has, without due process, been dismissed from the University of Georgia’s football team, suspended from the University of Georgia, dismissed from the University of Alabama’s football team and expelled from the University of Alabama. Regardless of the ultimate outcome of Jon’s case, it would seem, based on these facts, that far from being presumed innocent as the constitution demands, Jon has in fact been presumed guilty from the time of his initial arrest.

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Alimony in a Georgia Divorce

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In Georgia, a judge may order one spouse to pay alimony to the other spouse on a temporary or permanent basis. The court has great discretion and uses a range of factors in deciding how much alimony to award. A Georgia family lawyer can review your situation and advise you about your alimony rights.

Under what circumstances can a Georgia court award alimony?

Alimony is generally paid periodically and can be awarded in case of divorce, voluntary separation, agreement between the parties or desertion of one of the spouses by the other. A Georgia judge may order one of the spouses to pay alimony on a temporary or permanent basis.

The court examines the needs of the parties and their respective ability to pay spousal support. If one party proves by clear and convincing evidence that adultery or desertion of the other party caused the divorce, that party is not required to pay alimony.

Elements considered in the determination of Georgia alimony awards

A judge has great discretion and considers several factors in determining the amount of alimony payments such as:

  • The standard of living of the couple during their marriage and the duration of the marriage
  • The age, physical and emotional conditions of both parties
  • The contributions both spouses made to the marriage (which may include home-making and care of children)
  • The financial position of both parties and their future earning capacity as well as their costs
  • Anything else the court finds relevant in its determination

Termination and modification of Georgia alimony awards

In most cases, a party is required to pay alimony until a date or event specified in the award, which is often the death of either party or the remarriage of the receiving spouse. A court may also order the termination or modification of alimony payments if the receiving spouse lives with another partner but are not officially married.

Under Georgia law, a court may modify its order in case of a substantial change in financial status of one or both of the former spouses, unless one or both of the former spouses specifically waived their right to modify the award.

An Athens, GA family lawyer can assist you with your spousal support case, whether you are going through a divorce or would like to modify an existing Georgia alimony award.

Michael S. Brown and Kim T. Stephens have almost four decades of combined experience in Georgia family law and draw upon this experience to make sure you reach the best possible solution in your alimony case.

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What is a District Attorney?

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Georgia’s District Attorneys Offices regularly appear in the news. Recently, the Fulton County District Attorney featured prominently in the news about the Atlanta school cheating scandal, in which he charged 35 school officials, including Superintendent Hall for crimes related to overseeing a corrupt system, encouraging cheating and silencing people who attempted to speak out against them.

The function of the District Attorney
The District Attorney (“DA”) is the chief prosecuting officer in the State of Georgia. A District Attorney is elected every four years for each of the 49 judicial districts. The DA oversees the work of the Assistant District Attorneys working in his office who prosecute most cases.

The kind of cases prosecuted by the District Attorney’s office
The DA’s office represents the State in criminal cases and appeal procedures in the Georgia Superior Court. The prosecution of delinquency cases in the juvenile court system also falls within its ambit. The Solicitor-General prosecutes criminal misdemeanor cases in trial and appeal procedures in Georgia’s State courts in 61 of the 159 counties in Georgia.

The steps taken by the DA’s office before charging you with a crime
Once law enforcement officials suspect you of a crime and think they have enough evidence to charge you, they bring their case to the District Attorney’s office. An Assistant District Attorney examines the evidence before you are charged. If this prosecutor finds the evidence sufficiently convincing, he or she determines with which crimes to charge you and compiles an accusation. You may be arrested during this first stage.

After the DA’s office charges you with a crime
Unless you are indicted by a Georgia grand jury, the DA’s office charges you with a crime by accusation. After you are charged, an arraignment hearing may be set. At the arraignment hearing, you are informed of the charges against you, the judge requests you to enter a plea and will set a time schedule for your case. Depending on the crime with which you are charged and certain other factors, a judge may set bail. After your arraignment, your attorney may try to negotiate a plea bargain and preliminary motions and hearings may be held to resolve certain legal issues before the trial can take place.

Your criminal trial
During the trial, both sides are heard, the Assistant District Attorney and your lawyer may make opening statements, examine and cross-examine witnesses, file motions and make closing arguments. Finally,  the jury may come out with a verdict finding the defendant guilty or not guilty, or state that they were unable to agree. In a non-jury trial, the judge makes this decision.

Any criminal process is complicated and the steps in your criminal process may differ from the general procedure described above. Only an experienced Athens criminal defense attorney has the skills to protect your rights and get you the best possible outcome in your case.

Michael S. Brown and Kim T. Stephens have almost four decades of combined experience in criminal defense law. By drawing on their experience and skills, they work to ensure you get the best possible result in your criminal case.

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What You Need to Know About DUI in Georgia

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Driving under the influence of alcohol (DUI) can lead to serious consequences for the driver and anyone else in the vicinity. According to statistics from the Century Council, more than 30,000 arrests for DUI occurred throughout Georgia in 2011. There were also 277 alcohol-related roadway fatalities.

Simply having been arrested for DUI isn’t definitive proof that you are guilty. Many drivers are falsely accused of DUI every year, especially when the police depend solely on faulty Breathalyzer® tests as evidence. However, a DUI arrest can result in irreversible personal and professional damage. It is critical to hire an experienced defense lawyer to mount a strong defense as soon as possible after a DUI incident.

Blood alcohol concentration

In Georgia, a DUI is determined by testing the driver’s blood alcohol concentration (BAC). Different BAC levels are allowable for different classes of drivers. Driving with a BAC of .02 percent or more is considered  DUI for a driver under the age of 21. For a commercial driver, the required BAC is only .04 percent. General drivers aged 21 or older can be charged with DUI with a BAC of .08 percent or higher.

Potential penalties

The penalties involved in a DUI case depend on various factors. For refusing to submit to testing under the implied consent law, a driver is subject to license suspension of one year or more, depending on the driver’s history of refusal. If you submit to testing and your BAC is above .08 percent, you will spend at least 24 hours in jail and pay a minimum fine of $300. A second offense results in at least 72 hours in jail and a minimum fine of $600. As a driver charged with DUI, you are also subject to varying lengths and degrees of license suspension.

If you or a loved one is charged with DUI, contact attorneys Michael S. Brown and Kim Stephens as soon as possible to receive comprehensive DUI defense services.

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When to Modify Your Child Support Agreement

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In October 2013, Georgia’s unemployment rate was 8.1 percent, significantly higher than the national average of 7.3 percent. With unemployment rates in the state that high, there will probably be more people heading back to family law court to have their child support amounts modified to reflect their current income.

While parents usually have to wait at least two years before asking for a modification of the previous support plan, you are allowed to modify child support right away in Georgia if you experience a loss of 25 percent or more of your normal salary.

What other changes can lead to modification?

It’s not just parents who lose their job that need to modify their child support agreements. If the individual who is currently sending you payments has just received a large raise or obtained a higher-paying job, you may be entitled to more child support. Also, if the other parent remarries and shares a larger income with his/her new spouse, you may be able to obtain a larger child support amount for you. In any case, it’s important to prove to the court that the other parent’s financial situation has changed substantially and that you need more money to be able to properly raise your child.

Why you need a lawyer

Whether you are seeking or opposing a modification of the support order, you need an advocate who will frame your position in the most favorable light, assemble evidence to support your position, and present it to the court in a persuasive manner. With so much at stake, you want an experienced child support attorney on your side.

Attorney Michael S. Brown understands that your financial situation can change, and he is ready to help you recalculate your and your ex-spouse’s proper child support obligations based on current income. This may allow you to obtain fair modification of your monthly payments.

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