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The Miranda Right of Family Law

Wait, everything you say or do will be used against you in a court of law? This concept traces to Miranda rights which are read to a suspect during an arrest and before questioning. Miranda rights are based on the Sixth Amendment right to counsel and the Fifth amendment right to remain silent. So, what does this have to with family law? Well, your statements and your actions during your marriage can be used against you in a divorce proceeding (and they will be).

Georgia is an equitable distribution state. Thus, the disposition of property is executed in accordance with the equitable powers of the court. O.C.G.A. § 19-5-13. Equitable division of property occurs when the court evaluates all assets and classifies the property as martial, separate, or a blend of the two. Marital property is defined as property that was acquired as a direct result of marital investments and labor. The purpose of equitably dividing marital property is to ensure that such is divided fairly, not necessarily equally, between the parties. Courts are given broad discretion in the equitable division process. The court considers all relevant factors, including, but not limited to, monetary contributions, property maintenance and most importantly here, the cause of divorce and the parties conduct during the marriage. You should also know that equitable division of property has reviving powers.

What does reviving powers mean?  It means that conduct that was previously condoned can be revived by new acts of the same. Therefore, adultery and acts of cruelty can impact the equitable division of property during a divorce. Now, think of the worse day of your marriage. Think of the most heinous act you have ever committed in your marriage.  Your spouse will likely use that act against you in court and it just may cost you the family car, family house, or several thousands in marital funds. Why? Well, because a judge decided that is fair. It’s a form of punishment for a bad day.

So think about what you have done, what you have said and even more importantly, what you are about to say and what you are about to do.  It could cost you.  Don’t let it.

Essie Ndem