Legal Assistance Overview For Georgia Residents

This should serve as a quick reference about the types of problems that Northwest Georgia Residents often encounter on a day—to—day basis. It is not a substitute for the professional legal advice.

ADOPTION

Adoption requires you to go to a civilian court. You will need to hire a private attorney. The court order granting the adoption changes the child’s last name to that of the adopting parent (s). You will also need to get a new birth certificate from the state Vital Records office. The adoption process itself is controlled by individual state law.

The Army may pay for certain adoption expenses. AR 608-12 gives that decision to the finance office.

Taxpayers who paid expenses to adopt a child after 1996 may be able to take an adoption credit. (See IRS Form 8839).

Once an adoption proceeding is pending, it may be possible to qualify the child for dependent medical care at a military facility (if the child is placed in the home of a military sponsor). Consult the Patient Administration Division of the hospital for assistance/information. Also see the ID Card Section.

ATTORNEYS

The best way to find an attorney is to get a personal recommendation from someone who has used the attorney in the past. Less effective is simply taking any name from an advertisement or out of the phone book. Attorneys are allowed to advertise. But the best lawyer is not always the one with the biggest or fanciest ad. And the best attorney is not necessarily the most expensive. The Legal Assistance office can assist with referrals for both local and out-of-town attorneys.

Bear in mind that fees vary from one attorney to the next, just like fees for any other product or service. It pays to shop around. Don’t be afraid to ask the lawyer about his/her fees. Most attorneys are pleased to discuss their fees with prospective clients.

BANKRUPTCY

Bankruptcy is the last resort for people with debt problems that are so severe that there is no other solution. Bankruptcy may protect a person from having wages, a home, and other property seized. But it is a harsh remedy, one that no one should take lightly.

There are two kinds of bankruptcy. The first is called a straight bankruptcy and is referred to as a Chapter 7. Under this process, the debtor goes through the following procedures:

First, the bankruptcy court stops all pending creditor actions against the debtor, such as lawsuits, garnishment of wages, mortgage foreclosures, repossessions and debt collector calls.

The court then determines what property the debtor owns that may be available to a creditor.

Then it determines which of the claims of indebtedness are valid.

Then it determines what property the debtor owns is exempt, that is, what property the debtor is allowed to keep.

Finally, the non-exempt property is put up for sale to pay some portion of the creditors’ claims.

All debts remaining after the sale of the non-exempt property are discharged forever.

The second Bankruptcy procedure is called a Wage Earner’s Bankruptcy or a Chapter 13. It follows these procedures:

First, the court stops all pending creditor actions against an individual, including lawsuits, garnishments of wages, foreclosures, repossessions and debt collector calls.

It then determines the wage earner’s total income.

Then it determines which of the claims of indebtedness are valid.

Finally, it sets aside a portion of the debtor’s income to pay the debts, which may be significantly, less than what the debtor has been paying before. As long as the debtor promptly pays the amount set by the court for the period of time required, the remainder of the valid debts are discharged. But during the time that the debtor is making payments, he or she is subject to supervision by the bankruptcy court, and there are strict financial limits on what the debtor may do, like incurring additional debts.

Both kinds of bankruptcy have an adverse impact on the debtor’s credit reputation. They remain on the credit report for ten years (a bad debt can remain for only seven years). The Department of Defense views filing for bankruptcy as an indication of financial irresponsibility when it evaluates soldiers for a security clearance. So, if you are thinking about bankruptcy as a solution for your problems, be very careful. Come in to legal assistance for specific guidance and help.

CHILD SUPPORT

Child support must be court-ordered. The amount to be paid is determined by a judge who applies the applicable state law. Each state has its own child support guidelines. Thus, the amount of child support varies not only state to state, but also from case to case, depending upon the circumstances.

One source of assistance in obtaining court-ordered child support is the local child support enforcement agency. In Augusta, Georgia, this agency is called Maximus Child Support Services. It is located at 2525-P Washington Road in Augusta. The phone number is 733-0791.

Maximus provides its services at very low cost. However, its case load is enormous. This means that you will have to wait a significant period of time for results. An alternative is to hire a private lawyer at your own expense. Usually, a private lawyer can get results more quickly.

The Army has a temporary, short term solution for child support until the party requesting it can get to court. AR 608-99 generally requires payment by the soldier of his/her BAQ to family members. This regulation requires commanders to enforce this family support requirement. But each situation is different and has its own facts. The Legal Assistance office can help.

CONSUMER PROTECTION

Consumer Protection laws are designed to protect people from the harsh results that sometimes come from the application of traditional commercial law. Despite these protections, the general rule of consumer protection is still: LET THE BUYER BEWARE.

Generally, an individual who signs a contract is strictly obligated by the contract. The contract is not invalid simply because the person did not read it before he signed it. And if the written contract says something different than what the salesman promised, the consumer still has an uphill battle in any effort to get out of the agreement. The best thing you can do to protect yourself is to read what you sign, and if a salesman makes a promise that you think is important, have him show it to you in the contract.

USED CARS

You must be careful when you buy a used car. When the car has posted in the window the words “AS IS” that generally means…as is. There is no three-day period in which you can return the car. If the car falls apart after you drive it off the lot, generally speaking the dealer is not responsible.

In order to minimize the risk inherent in a used car purchase, here are a few simple suggestions:

Take your time when car shopping. If you are in a hurry, you will be more susceptible to the “high pressure” sales tactics.

Avoid making snap decisions.

Test-drive the car to see how it drives.

Ask if you can take the car to your mechanic to inspect. Be suspicious of anyone who will not allow you to have a used car inspected.

Know what you can afford before you sign the contract. If the car will be financed, make sure you know and understand the contract terms. Make sure you know how much interest you are paying. Make sure you can afford the payments.

Read the entire contract before you sign it. Take your time.

Do not be afraid to walk away from that “dream car” if it doesn’t measure up mechanically or financially.

Go to more than one dealer. Comparison shopping should help you find the best deal.

DEBT COLLECTION

The Fair Debt Collection Practices Act protects consumers from certain abusive practices popular among debt collectors. It does not apply to creditors. A debt collector is an independent agent hired by the creditor to collect the debt. Here is a list of things debt collectors cannot do:

If you tell them they cannot call you at home or work, then they cannot call you.

They cannot call your commander or supervisor and tell them about your debt situation (but remember the creditor can).

They cannot call you late at night or early in the morning.

They cannot threaten you with criminal prosecution (generally speaking, it is not a crime to owe money).

They cannot call your family or friends to tell them about your debt situation.

They may be unpleasant, but this is not a crime. Threats, however may be against the law.

If your lawyer (including your legal assistance lawyer) writes them a letter telling them they can only contact your lawyer, then they cannot contact you at all.

Debt Collectors prefer the phone over written correspondence because it is difficult to prove misconduct over the phone. If you do nothing else with debt collectors, insist that they limit their communication to writing.

CREDIT REPORTS

Many creditors no longer rely on courts or even debt collectors to enforce their claims. Most consumers are so dependent on credit that tarnishing their Credit Report gets them to pay. The problem is that not all claims of indebtedness are fair, and not all of the information in a credit report are accurate. For that reason Congress passed the Fair Credit Reporting Act (FCRA).

The FCRA sets up a process that allows you to complain first to the creditor, and then to the Credit Reporting Agency if there is a mistake or a dispute about a claim. The problem with the system is that it takes time for mistakes and disputes to be investigated and resolved. Most mistakes are not discovered until you are trying to buy a car or a home, and the last thing you want to do is spend three to nine months trying to resolve a $500 charge that you never made. The best thing you can do is order a copy of your own credit report now, before you need any credit.

There are only three Credit Reporting Agencies in the United States. The law requires these companies to show you your credit report. They are allowed to charge you a small fee. To get your report, contact any one of these three agencies. The agencies are Equifax, Experian, and TransUnion. Links to their websites are provided at the bottom of the page.

If you find either a mistake or a disputed claim on your report, you should write the creditor first and tell them of the mistake and ask them to correct it. If they refuse or do not even respond, then you can write the credit reporting agency. The Legal Assistance office is available to help.

If you are on active duty, do not underestimate the importance of keeping your credit report clean. The Department of Defense relies very heavily on your credit report as a simple and easy way to determine if you are responsible enough for a security clearance. If you need a security clearance to do your job, which is a very strong incentive to make sure your credit report is accurate.

You should call one of these agencies now and check your credit report. And then remember to do it from time to time. We recommend that you check once a year to make sure your credit report is accurate.

CREDIT CARD DISPUTES

People often find charges on their credit card statement that they did not make. When that occurs, the law gives the consumer some very specific rights. Those rights are set out in the fine print of your credit card statement. Very often those statements give a telephone number to call to resolve those disputes. DO NOT USE THE TELEPHONE TO RESOLVE ANY MISTAKES OR DISPUTES! The law says that the only way to protect your rights is to write a letter to the billing dispute address set out in the fine print of your billing statements. That address is usually a different address than where you send your bill payments, so read the fine print carefully. A telephone call does nothing. The law limits the time you have from when the mistake first appears. So when you discover a mistake, take pen and paper and get busy.

This also works if you purchase something with your credit card and it turns out to be defective or something other than what you ordered. But again, the law strictly limits the time you have to make a complaint, and the complaint must be in writing. If you have any questions, come to Legal Assistance.

BUYING CLUBS

Soldiers and their family members can easily get wrapped up in a variety of marketing gimmicks. Some companies will promise wonderful savings if only you join their club. For example, photo-processing clubs will promise to sell you almost unlimited film and film processing at very low prices. A Buying Club will promise to get you anything you want at wholesale prices. These companies contact customers by telemarketing calls or by paying other soldiers to make referrals. Often the process involves a high-pressure sales presentation that promises (or at least appears to promise) tremendous savings to those who join the club. If the pitch seems too good to be true, that is because it is. There are seldom real savings for soldiers in these types of clubs. Once you sign up, you cannot resign from the club. The contract you sign requires you to pay even if you cannot use its services. If you don’t pay, the companies may sue you in court, or simply report you to a credit reporting agency in an effort to ruin your credit. The best thing to do when someone tries to sell you something that you “cannot afford not to buy” is to refuse.

DOOR TO DOOR SALES

Under federal law, retail sales that take place outside of the seller’s usual place of business (door to door sales or a telemarketing calls) the buyer may have the right cancel the transaction within three days of signing the contract. There are plenty of exceptions to this rule. There is also one very specific requirement: the cancellation notice must be in writing. Don’t assume that you have a right to a three-day cancellation period when you sign a contract. If you have questions, bring the contract into Legal Assistance BEFORE YOU SIGN.

DIVORCE

Divorce is governed by state law, and each state is different. Military Servicemembers seeking a divorce can file in one of two places—their home state or the state in which they are living, provided that they have met that state’s residency requirement.

In Georgia, the person filing for divorce must have lived in the state for at least six months immediately prior to filing for divorce if he or she lives off-post. Those who live on post must be a resident of the installation for at least a year prior to filing.

Most divorces in Georgia are filed on the basis of irretrievable breakdown of the marriage. This is a “no-fault” ground.

While some states can require a waiting period as long as a year before the divorce becomes final, Georgia has no waiting period. There is no waiting period after the divorce becomes final, either. The divorced parties can remarry immediately after the divorce is final.

An “uncontested” divorce can be heard by a judge without a court appearance by either party, and can be completed in as little as two months.

SEPARATION AGREEMENTS

A separation agreement can make the divorce process cheaper, easier, and quicker. The parties must agree on all of the issues. These issues include child custody, support, and visitation, division of property and debts. The separation agreement is usually made part of the divorce decree in uncontested divorce cases. While the Legal Assistance office cannot represent people in court, we can prepare separation agreements free of charge when the parties agree on all of the issues.

DIVISION OF MILITARY RETIRED PAY

In marriages of substantial length, the individual state courts have the authority to award non-military spouses a portion of the military member’s retired pay. This is a property division. It is a complex issue. You may wish to consult the Legal Assistance office for more information. Many civilian attorneys are unfamiliar with this unique area of the law. If you are facing this problem, let your attorney contact the Legal Assistance office for guidance.

Divorce in Georgia is not a do-it-yourself project. The services of a private attorney are required. Whether or not we prepare a separation agreement, the Legal Assistance office can assist clients with referrals to attorneys who handle divorce cases.

CONTEMPLATING MARRIAGE TO A NON-CITIZEN

For citizens of the United States, the Immigration and Nationality Act (INA) rarely has any direct impact on their daily lives. For the non-citizen, however, the INA is an extremely important piece of legislation that controls every aspect of whether, how, and when the non-citizen will be allowed to legally reside and work in the United States. If a member of the armed services is contemplating marriage to a foreign national, it is imperative that the service member and the intended spouse are familiar with these sections of the INA that address adjustment and change of status relating to non-citizens.

There are several steps in the adjustment process for a non-citizen spouse. The first step is for the citizen spouse to file an Immediate Relative Visa Petition (Form I-130). Essentially, this allows the Immigration and Naturalization Service (INS) to investigate the marriage to determine whether the union is a true and bona fide marriage. The INS must closely investigate all I-130 applications to ensure that the marriage is bona fide and not an illegal attempt to subvert the immigration laws of the United States.

After the bona fides of the marriage are investigated by the INS and the Immediate Relative Visa Petition is approved, the non-citizen spouse must then file an Application to Adjust Status (Form I-485) along with supporting documentation showing eligibility for adjustment. Supporting documentation includes biographical data on the applicant for adjustment, fingerprints for a criminal background investigation, the results of a physical examination conducted by an approved civilian doctor, and a financial affidavit which is completed by the sponsor and evidences that the applicant for adjustment will not require public financial assistance.

Once the INS receives a completed application for adjustment of status, including the required application and processing fees, an examiner will be assigned to adjudicate the application. Although the adjudication process does take quite a while, eventually the spouses will be required to appear for a personal interview before the examiner. Once the examiner is convinced that all the required documents are in order, the non-citizen spouse will be granted the status of a “conditional” lawful permanent resident or conditional resident. As a conditional resident the non-citizen spouse will be allowed to reside and work in the United States; however, both spouses will be required to again appear for an interview before an INS examiner within two years of becoming a conditional resident in order for the non-citizen spouse’s status to finally be changed to that of a lawful permanent resident.

A non-citizen spouse may ultimately desire to become a citizen of the United States. Generally, a lawful permanent resident may apply to naturalize as a United States citizen after five years and upon meeting certain other requirements such as proving good moral character, an understanding of the English language, basic knowledge of United States history, and an understanding of the fundamental principles of our democratic form of government. For the non-citizen spouse, the five-year period begins to accrue once conditional status is granted.

The information provided here is only a very brief overview of some of the basic requirements in the adjustment process of a non-citizen spouse. There are many other factors or circumstances which may affect the overall process. An example includes a non-citizen spouse with a child from a prior marriage. Immigration law is highly technical and it is very important that the soldier who is contemplating marriage to a non-citizen consult with a competent immigration attorney for professional advice. If you have questions or need a referral to an attorney who practices immigration law, contact Legal Assistance.

LANDLORD AND TENANT

Before signing a lease to rent any living quarters (such as an apartment, house, condominium, trailer, town-home or room), you need to understand some very basic rules of landlord-tenant law.

By signing a lease for a specified period of time (a “Term”), a tenant is committed to pay rent for the entire Term, whether or not he or she resides lives there. Georgia law allows an exception to this rule in the event of mobilization or a permanent change in station (“PCS”). This is known as the military clause. The tenant can invoke the military clause provided that he or she gives the landlord a 30-day written notice.

A lease need not be in writing. But if the landlord makes any special promises, then the tenant should obtain these promises in writing.

A lease that does not specify a term may be terminated by the landlord on sixty (60) days notice, or the tenant on (30) days notice.

We highly recommend that you inspect the quarters that you will be renting before you sign the lease. It is much easier to walk away from a lease that hasn’t been signed. Also, if the landlord promises to repair something in the quarters, make sure that you do not sign the lease until the repairs have been made to your satisfaction.

SECURITY DEPOSITS

The Security deposit laws in the State of Georgia are fairly strict, and they are also fairly pro-tenant. But they are not self—enforcing. Some landlords may ignore the law without penalty. Your best protection against losing your security deposit is to know what the law provides, and then promptly notify the landlord, the Legal Assistance office or the Fort Gordon Housing Office of any violation by the landlord.

There are two different sets of rules on security deposits depending on whether your landlord is a commercial company (like a real estate agent or an apartment complex of ten or more units) or just a private person. The rules for the commercial companies are much stricter.

Within three days after the tenant turns over the rental property to a commercial landlord, that landlord must prepare a list of all the defects he discovered on the property, together with the estimated cost of repair. He then has to give the list to the tenant. The tenant then has the right to reinspect the property and then either sign the landlord’s list agreeing that he is responsible for the defects, or give the landlord a written objection. If the landlord does not provide the list within the three days, he forfeits his right to claim the security deposit. If the tenant does not reinspect the property after the landlord gives him the three-day notice of defects, and does not provide a written description of his objections to the landlord’s list, the tenant loses the right to sue for his security deposit.

Frequently, the landlord fails to provide the three-day notice of defects. What the tenant should do on leaving is to make sure that the landlord is given a written forwarding address. The landlord is excused from performing within the three-day limit if he does not have a forwarding address.

If the landlord does not give a written statement of defects within the three-day period, then he has to return the security deposit within thirty days. If the landlord fails, the tenant can go to the Magistrate Court and ask for three times the security deposit.

If the landlord is a private person, the law only requires a written statement within thirty days explaining why the security deposit is being withheld in whole or in part. There are no triple damages for wrongfully withholding the security deposit.

MARRIAGE IN THE STATE OF GEORGIA

In the State of Georgia, a man and woman may lawfully marry, without the consent of a third party, if each person is:

At least eighteen (18) years old,

Unmarried, and

Unrelated (within a degree defined by Georgia law).

A man and a woman may be married if they are under eighteen (18), where:

The female is pregnant,

The couple are the parents of a child born out of wedlock, or

Both the male and the female are at least sixteen and have the consent of all parents.

Those who meet the above criteria and seek to be married must take the following steps:

Obtain a blood test,

Within thirty (30) days of the blood test, appear before a probate judge with a completed marriage license application,

Ultimately participate in a valid marriage ceremony performed by a judge, city recorder, magistrate, minister or other person authorized to perform the wedding ceremony, and

Insure that the person who performed the marriage ceremony returns the license to the probate judge who granted the license (the license must be properly recorded in the issuing court).

MOTOR VEHICLES

MOTOR VEHICLE TAXES – If you are on active duty and newly assigned to Georgia, you have two choices for motor vehicle registration. You can always keep your car registered in your home state, or you may register your car in Georgia. If you register your car in Georgia, you will be required to pay a registration fee, but you will be exempt from the more costly ad valorem tax that Georgia places on the value of vehicle.

Since the exemption from the ad valorem tax applies only to the soldier, the local tax authorities will charge the full tax against a non-military spouse if the spouse’s name appears on the title as a co-owner. They will not reduce the tax by half because the other owner is exempt from the tax. If your car is owned with a non-military spouse, you have only two choices: register your car in your home state (where you will pay your home state taxes on the car), or pay the Georgia tax.

If you are buying a car in Georgia, consider registering the car in the name of the active duty member only.

CAR LEASES

Generally speaking, it is not in a soldier’s best interest to lease a car in Georgia. Active duty members of the Armed Forces who lease a car instead of purchasing it will lose the tax exemption discussed above. Georgia will charge you the full ad valorem tax even though you are a non-resident. Furthermore, the Government Transportation Office will require your lease company to give you written permission in order to ship your vehicle overseas (even to Hawaii), and almost all lease companies refuse to give that permission.

There is only one advantage to leasing a car instead of purchasing it: the monthly payment is a little lower. That’s because you forfeit the resale value of the car at the end of the lease. So what happens when you get orders for a three-year overseas assignment which allows you to ship your POV? If you are leasing a car, very often your car stays here, but your obligation to continue to make the lease payments follows you to Europe.

NOTARIZATIONS

The services of a notary public (acknowledgment of signature, certification of copies, and administration of oaths or affirmations) are often required by military personnel and their family members. These services are available free of charge at the Legal Assistance office during duty hours. You can also find notaries at banks, real estate brokerage offices, or at the county courthouse.

POWERS OF ATTORNEY

With a power of attorney, you may appoint another person as your agent to conduct your business for you in your absence, or in the event of your incapacitation. Acts performed by your agent are binding upon you. Consequently, it is extremely important that you give a power of attorney only to someone you trust. You should limit the power of attorney to only the duration and purpose for which it is needed; you should revoke it when it is no longer needed.

There are two types of power of attorneys: General and Special

General power of attorney – A general power of attorney is like a blank check. It authorizes the agent to do anything the grantor could do: i.e., buy or sell a house; buy or sell a car; enter into contracts; cash checks, etc. Because of this, it must be given with extreme caution, and only to someone you trust.

Special power of attorney – A special power of attorney is given to the agent for a specific purpose. The agent cannot do anything more than what the power of attorney authorizes him/her to do, i.e., cash checks only; sell a car only; buy a car only.

While business organizations will usually accept powers of attorney, they are not required by law to accept them in every case. Sometimes the organization will have its own power of attorney and require you to use its form. Examples are the Internal Revenue Service and certain businesses involved in real estate transactions, such as banks or title insurance companies.

Expiration of power of attorneys – Powers of attorney expire when you die; when the expiration date arrives; or when you revoke them.

Powers of Attorney are available free of charge at the Legal Assistance office on a walk-in basis, during all hours of operation.

SMALL CLAIMS COURT

Small Claims Court (also known as Magistrate Court) allows you to sue for money claims up to $15,000 and to get back personal property. A magistrate, who is like a judge, decides the case. There is no jury, and you do not need a lawyer.

When you go to Magistrate Court to file your lawsuit, the court clerk will give you instructions and forms such as the “statement of claim” (“complaint”). In the statement of claim, you must give the defendant’s address and explain why you are suing.

A lawsuit against a person must be filed in the county where that person lives. If you are suing a corporation, you must file in the county where the corporation does business, where it’s incorporated, or where the registered office is located.

A filing fee is required to file the case. In each county this fee is different. The fee in both Richmond and Columbia County is $40.00.

To win your case, you must prove what the defendant owes you. You will need to bring with you all documentary evidence to support your claim (for example, receipts, bills of sale, warranties, contracts, etc.). You should also bring live witnesses who have first-hand knowledge about your case. Written statements from witnesses are not acceptable. The time to prove your case is at the trial.

If you win your case (known as obtaining a judgment), you must then collect the money or property that the defendant owes you. If the defendant does not pay you immediately, then you may have to collect by either a garnishment or an attachment. In a garnishment, the defendant’s employer is required to pay for your judgment out of the defendant’s wages. In an attachment, the judgment is collected out of property owned by the defendant, such as business equipment, a car, or a building. The collection process is not simple.

The Legal Assistance office can answer your questions concerning the Small Claims Court.

WILLS

A major part of the business of legal assistance is wills. This is a core area of practice, and it is also a reminder to all of us that the ultimate mission of the Armed Forces involves risk to life.

Get your affairs squared away before you deploy. Frequently, military attorneys are present at times of deployment to help soldiers prepare their wills, but this is usually a rushed affair, and not one that lends itself to the creation of an instrument that reflects serious and mature thought. For that reason, deal with your will as soon as possible so that you can give it the thought it deserves.

The principal function of a will is to direct where your property goes in the event of death. If you do not have a will, your property will go to your next of kin as defined by state law. Some states will divide your property between your spouse and your children if you don’t have a will. But having a will tells everyone exactly where your property goes. And it lets you, not the government, control your property after your death.

Wills may involve more than just property. It is also a reliable means of suggesting to the court who it is you would want to take care of your children. In almost every case the court will honor the request of a child’s parents found in a will. For most soldiers with families, this is the most important function of a will.

Having a will does not mean your family will avoid going to probate. On the contrary, a will is your instruction to the court. There are sometimes ways of avoiding probate that you may want to discuss with your Legal Assistance Attorney.

HELPFUL TELEPHONE NUMBERS

Army Community Services (ACS): (706) 791-3579

Better Business Bureau: (706) 722-1574

Consumer Credit Counseling Services: (706) 736-2090

Consumer Affairs Office (State of Georgia): 1-800-869-1123; (404) 651-8600

Congressman (Charlie Norwood): (706) 733-7066

Immigration and Naturalization Service (INS): 1-800-375-5283

Internal Revenue Service (IRS) (Information and Assistance): 1-800-829-1040

Maximus Child Support Service: (706) 733-0791

Motor Vehicle License Plate Department (Columbia County): (706) 541-1808 (Appling); (706) 868-6884 (Evans)

Motor Vehicle Tag Department (Richmond County): (706) 821-2476

South Augusta Tag Office: (706) 796-5022