Divorce

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Divorce is a stressful time for the entire family and I am here to help. You may choose a traditional method such as litigation to resolve your issues of divorce or you may choose a less invasive approach such as mediation, arbitration, or collaborative law as a means of resolving the issues of divorce. I am professionally trained in all methods to assist you in choosing the method that may be most appropriate in your situation as well as assist you in implementing this method from the beginning to the end of your divorce. Please kindly contact me to discuss your options further at (813) 363-6664.

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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 the divorce (valid reasons prescribed by law).

What are the grounds for divorce in Georgia?

In Georgia there are 13 grounds for divorce (please kindly see my blog post for a list of the thirteen grounds for divorce in GA). One ground is that the marriage is irretrievably broken (sometimes referred to as the no-fault ground). The other 12 grounds for divorce in Georgia are fault grounds. All grounds for divorce, except for a no-fault divorce (the marriage is irretrievably broken ~ see the next paragraph) must be proven in court by the person alleging the ground (usually the Plaintiff, who filed the action for divorce, and, in some cases, the Defendant as well if the Defendant filed a counterclaim in the divorce action alleging grounds for divorce that are different from the Plaintiff’s allegations for divorce).

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 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 other than the spouse’s current spouse.

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 marriage (note, the pregnancy is from another person other than the husband, courts are reluctant to grant a divorce if the wife was pregnant with the husband’s child at the time of marriage), conviction and imprisonment for certain crimes, habitual intoxication or drug addiction and mental illness.

Important Note: Please kindly note that these fault grounds must be proven by the alleging party in court by a preponderance of the evidence.

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.

Practical Note: If you are still having sex with your spouse or you plan on having sex with your spouse, then do not file for a divorce as you will most likely have your case dismissed since you are not living in a bona fide state of separation if you are having sex with your spouse or have sex with your spouse after your divorce is filed.

How does one file for divorce?

The person seeking the divorce (the plaintiff) will file a document called a complaint with the appropriate superior court (usually, but not always, in the county where the defendant resides). 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 (or by a private process server that is duly appointed by the court and hired by the plaintiff), 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.

Practical Note: It is usually best to file the complaint for divorce in the superior court of the county where the defendant resides if the defendant resides in Georgia so that there is not a question of jurisdiction over the parties, and so there is no issue that either party was “forum shopping” for a county in which to file the divorce.

What should I do if I receive a complaint for divorce that my spouse has filed?

Practical Note: If you are served with any legal papers including, but not limited to, a complaint for divorce, you should immediately contact an Attorney.

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, and alimony or property division by filing an answer with 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 fraudently 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.

Practical Note # 1: Even if the parties resolve all issues of divorce via. a settlement agreement, the judge assigned to your case, or the protocol of the superior court in which you have filed the divorce, may require that one or both of the parties be present in court before the court will grant the final judgment and decree of divorce. In many cases in Georgia with the new divorce laws, especially if there are minor children of the marriage, the courts will require one or both of the parties to be present in court before the court will grant a final judgment and decree of divorce.

Practical Note # 2: Although technology has made filing for a divorce pro se (i.e. without the representation of an attorney) easier in terms of access to template forms, the new Georgia divorce laws and the number of and complexity of the forms required to be completed properly in the cases of minor children of the marriage (ex. The parenting plan and the child support worksheet) have made it more difficult to file and have a divorce granted in Georgia without the assistance of an attorney or some other person who is familiar with the Georgia divorce laws (such as a mediator or arbitrator). This is not to say that a person cannot file a divorce pro se and make it through the complicated court process without assistance. This is just to say that it can be a difficult undertaking without experience and detailed knowledge of the Georgia divorce laws.

How long does it take to get a divorce?

Practical Note # 1: Georgia has a cooling off period of 45 days from the filing of a divorce and, arguably, from the date of service on the defendant, with the idea that the parties should have 45 days from the date of filing the divorce, and from the date of service, to cool off before the divorce is granted.

Practical Note # 2: As noted earlier, if you and your spouse have sex during this cooling off period, then the court may deem that you are not living in a bona fide state of separation, and dismiss your complaint for divorce and/or elect not to grant you a divorce after the cooling off period.

If there is agreement between the parties, the divorce may be considered uncontested. An uncontested divorce may be granted 31 days after the defendant has been served with the complaint for divorce if all issues of the divorce have been resolved, all necessary paperwork to this effect has been filed and approved by the court, and if both parties agree that the divorce can be granted 31 days from the date of service on the defendant. If there is a disagreement as to any matter, the divorce will be obtained when the case reaches the court, which can take many months.

Practical Note # 3: In my 18 years of law practice, I have not met a truly uncontested divorce where the divorce was also granted 31 days from the date of service. Most divorces are more complicated than it may seem at first blush. It usually takes time to resolve all issues of divorce to the courts satisfaction in even the most uncomplicated of situations. This is why many courts now order that the parties attend mediation or some other form of alternative dispute resolution before the court (i.e. the judge) will hear the issues of divorce. The courts would like to see people resolve the issues of divorce and also understand that this is very difficult without the assistance of a third party who is familiar with Georgia divorce law. In most cases, some form of ADR (i.e. alternative dispute resolution) is very helpful in resolving the issues of divorce.

What happens while I wait to go to court?

Either of the spouses may request a temporary hearing (called a “Rule Nisi”). This hearing is not a final trial. A temporary hearing resolves the issue 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.

Practical Note # 1: Most, if not all, superior courts in Georgia will issue a Standing Order at the time that the divorce is filed that prohibits the parties from transferring assets, moving the children, harassing the other party, etc. The notion is that the court wants everything to remain in the status quo until the court has had the opportunity to hear the case whether on a temporary basis or a final basis. Any party filing for divorce should expect that there is a Standing Order that will be issued and if either party violates this Standing Order then the violating party could be held in contempt of court. Georgia takes divorce actions very seriously and rules must be followed.

Practical Note # 2: A temporary hearing, or any other court hearing, should not be taken lightly by either party. Once the court makes a ruling, then the parties have to live with the court’s decision until there is another ruling by the court. Unless you know what the court is going to order (and nobody does know for sure, not even seasoned attorneys) and/or you are prepared to honor whatever the court orders, then you should proceed with caution to a hearing with the court since, once the court issues a ruling, you and your spouse are obligated by law to follow the court’s order. If a party does not comply with the court’s order, then the non-complying party could be held in contempt of court where the court is authorized to put the party in contempt in jail. Again, the court takes divorce actions very seriously, and anytime a court has issued an order, the court’s order must be taken very seriously.

What is decided at a final trial for divorce?

Child custody, parenting time, child support, division of marital property and debts, and alimony are decided at a final trial for divorce. 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 a jury trial) 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 a 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 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.

Practical Note #1: If the court cannot determine what is in the best interest of child from a court hearing or other court process, then the court may order that a Guardian Ad Litem by appointed to investigate what is in the best interest of the child. A Guardian Ad Litem is, by definition, is a special guardian appointed by the court in which a particular litigation is pending to represent an infant, ward or unborn person in that particular litigation, and the status of the guardian ad litem exists only in that specific litigation in which the appointment occurs. The Guardian Ad Litem may interview caretakers, teachers, health care takers, pediatricians, psychologists and/or psychiatrists, neighbors, etc. and may also suggest evaluations of the minor child(ren) from specialists to determine what is in the best interests of the child. After investigation, the Guardian Ad Litem will then make a recommendation to the court based on the guardian’s investigation. The court may, or may not, in whole or in part, follow the recommendations of the Guardian Ad Litem. The fees for the Guardian Ad Litem are usually the responsibility of the parties and can range from a sliding scale of upwards of $ 250 per hour.

May a child choose where he or she wants to live?

A child more than 14 years of age may choose which parent will have custody upon consent of the court. The child’s choice shall be presumptive unless the parent so selected is determined not to be in the best interests of the child (for example, if the parent of the child’s choice is determined to be unfit). The court considers it important for a child to maintain relationships with both parents; therefore, parenting time rights (also known as visitation rights) are awarded to the parent who does not have legal custody of the child.

May the parents share custody?

Pursuant to Georgia law, both parents come before the court equally. The court, in its discretion, may award joint custody or sole custody. There are two types of custody. Legal custody is the right to make major decisions regarding the child. Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the child with one parent having final decision-making authority for each of the major decision areas: medical, educational, extracurricular and religion. Physical custody means the actual physical custody of the child by each parent. Joint physical custody is shared by the parents in such a way to assure the child substantially equal time and contact with both parents. In awarding joint custody, the court may order joint legal custody, joint physical custody or both.

How does the court determine parenting time?

Effective January 1, 2008, the law in Georgia requires all persons divorcing with children to have a parenting plan. Every parenting plan must include that it is important for both parents to continue a close relationship with the child; that both parents recognize that the child’s needs will change and grow as the child matures and take the child’s changes and growth into account; that a parent with physical custody will make the day-to-day decisions and emergency decisions while the child is residing with such parent; and that both parents will have access to all of the child’s records and information, including, but not limited to, education, health, extracurricular activities and religious communication.

Additionally, a parenting plan must include where and when a child will be in each parent’s physical care, designating where the child will spend each day of the year, including holidays, birthdays, vacations, school breaks and other special occasions and when each will begin and end; transportation arrangement and exchange locations and times and costs associated with transportation, and whether supervision will be needed for any parenting time and, if so, the particulars of supervision.

Finally, a parenting plan must include decision-making authority to one or both of the parents with regard to the child’s education, health, extracurricular activities and religious upbringing, and if the parents agree the matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution; and what, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child and the other parent’s right to access education, health, extracurricular activity and religious information regarding the child.