Litigation

Support and Non-Marital Property

A wife may be awarded lump sum spousal support from the sale of the marital home, even if it is established that the marital home was the non-marital property of the husband. Smelser v. Smelser, S05F1490, Supreme Court of Georgia, Dec. 1, 2005.

The parties were divorced, and the wife was awarded spousal support partially from the sale of the marital residence, which was deemed to be the husband's non-marital asset. The court awarded the wife sole possession for 20 years, ordered the husband to pay the mortgage, taxes and insurance on the property as spousal support to the wife, and further awarded the wife part of the proceeds upon its sale. The husband appealed, and the appellate court affirmed. It held that in this case, the marital home was the only non- liquid asset from which an award of spousal support could be made. It further held that even though the payment to the wife would be a lump sum payment in 20 years, it did not preclude the award from being spousal support rather than a property settlement as characterized by the husband.

Chapter 7 Bankruptcy Petition

Where one spouse fails to show cause why a Chapter 7 bankruptcy petition by the other spouse should be dismissed, the motion must be denied. In re Georges, No. 05-2252, United States Court of Appeals for the Third Circuit, Nov. 16, 2005.

The parties were married in 1988 and separated in 1996. In 1998, the wife filed a Chapter 7 bankruptcy petition. The husband moved to dismiss the petition, claiming that the wife committed fraud by failing to list all of her assets and income on the petition. The bankruptcy court denied the husband's motion. The husband then filed a second motion to dismiss the wife's bankruptcy petition. He argued that any discharge in bankruptcy received by the wife would interfere with his own bankruptcy case and that the wife was merely seeking to take property belonging to him. The husband's second motion was denied, and the husband appealed to the Third Circuit. It held that a Chapter 7 bankruptcy petition may only be dismissed for cause. Since the husband was unable to establish cause, his motion must be denied.

Support and Non-Marital Property

A wife may be awarded lump sum spousal support from the sale of the marital home, even if it is established that the marital home was the non-marital property of the husband. Smelser v. Smelser, S05F1490, Supreme Court of Georgia, Dec. 1, 2005.

The parties were divorced, and the wife was awarded spousal support partially from the sale of the marital residence, which was deemed to be the husband's non-marital asset. The court awarded the wife sole possession for 20 years, ordered the husband to pay the mortgage, taxes and insurance on the property as spousal support to the wife, and further awarded the wife part of the proceeds upon its sale. The husband appealed, and the appellate court affirmed. It held that in this case, the marital home was the only non- liquid asset from which an award of spousal support could be made. It further held that even though the payment to the wife would be a lump sum payment in 20 years, it did not preclude the award from being spousal support rather than a property settlement as characterized by the husband.