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Family disputes can be very challenging. Not only are property and finances involved, but emotions and the well-being of children can be involved as well. We handle divorces, child support matters, visitation, paternity, and child custody cases. As our client's counselor and advocate, we make it our duty to make this process as smooth and stress-free as possible.
Divorce affects, directly or indirectly, virtually every family in the country. The following information is designed to briefly summarize Georgia's divorce laws.
Marriage is a civil contract that the state has an interest in preserving. Accordingly, the marriage relationship may be dissolved only as provided by law through (1) a divorce or (2) an annulment; or altered by (3) a decree of separate maintenance granted by our courts. In any case, there must be a proceeding in the superior court of the county in which the defendant resides (or the county where the parties resided during the marriage if the defendant left the county within six months before filing) and the person seeking the divorce must prove grounds for divorce (valid reasons prescribed by law).
What are the grounds for divorce in Georgia?
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 this basis (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 for both parties to agree the marriage is irretrievably broken. Also, 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.
As an example, one fault ground 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 one year. Other fault grounds include mental or physical abuse, 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.
Is there a residence requirement for getting a divorce in Georgia?
Yes, one spouse must have lived in the state of Georgia for 6 months or Georgia must have been the last domicile of the marriage.
Must the husband and wife live apart when a divorce complaint is filed?
No, but the spouses must be considered separated in a legal sense before one can file for a divorce. Spouses may be considered separated even if they are living in the same house if they are not sharing the same room and/or not having a sexual relationship.
How does one file for a divorce?
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, debts and the specific grounds on which he or she is seeking the divorce. A copy of the complaint will be served on the other spouse (the defendant) by the sheriff, unless the defendant chooses to acknowledge service by law.
Where does one file for a divorce?
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 or not the defendant has moved from the state of Georgia.
What should I do if I receive a complaint for divorce that my spouse has filed?
The spouse who receives the complaint should promptly consult an attorney. The spouse may contest the reason claimed for the divorce or contest the claims for child custody, child support, alimony or property division by filing an answer with the court.
Is there a way to live apart without divorcing?
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 due to one or both parties being unable, unwilling or fraudulently induced into contracting marriage. 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 the parties cannot reach an agreement, a judge or jury will resolve the issues. However, a judge always decides matters of child custody and parenting time.
How long does it take to get a divorce?
If there is 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 disagreement as to any matter, the divorce will be obtained when the case reaches the court, which can take many months.
What happens while I wait to go to court?
Either of the spouses may request a temporary hearing. This hearing is not a final trial. A temporary hearing resolves the issues of child custody, parenting time, child support, alimony, debts and possession of property on a temporary basis until the final trial. The judge will issue 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 decided at final trial?
Child custody, parenting time, child support, division of marital property and debts, and alimony are decided at final trial. Questions of child custody and parenting time are decided by the judge. The judge alone or a 12-person jury (if one of the parties has requested) will resolve all of the financial issues of the marriage, such as division of property, division of debts, alimony and certain findings concerning child support (gross income of both parties and whether any deviations from the presumptive amount of child support are in the best interests of the child, and if so, what those deviations should be). At the final trial, both spouses present evidence by his or her own testimony and may call other witnesses. The decision rendered by a judge or jury is written into a court order that is binding upon both parties. The wife's maiden or former name can be re-established if she so desires.
What about the children?
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 when determining custody and what will best promote the child's welfare and happiness. The judge considers many factors when deciding custody, including but not limited to: the love, affection, bonding and emotional ties existing between each parent and the child, the child and his or her siblings, half siblings and step siblings and the residence of such other children; the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child; each parent's knowledge and familiarity of the child and the child's needs; the home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors; each parent's involvement, or lack thereof, in the child's educational, social and extracurricular activities; and each parent's past performance and relative abilities for future performance of parenting responsibilities.