Divorce – a guide through the process
It is estimated that over one-third of marriages end in divorce. As a result, whether directly or indirectly, divorce affects nearly every family in the country. The law firm of Hedgepeth & Heredia, LLC has prepared this guide to briefly summarize Georgia's laws on divorce. We hope that by answering many of the common questions people typically have concerning the divorce process, we can help guide you through this critical time.
Marriage – a civil contract
Marriage is a civil contract. As such, the contract can only be broken as provided by law. Georgia law provides that the contract of marriage may be terminated either by a divorce or an annulment. In addition, the marriage may also be altered, that is, the contractual terms of the contract may be modified, by a Decree of Separate Maintenance granted by Georgia courts. In all of the three manners in which the contract may be terminated or modified, one must usually file a petition or complaint in the Superior Court of the county where the Defendant resides.
Annulment
In contrast to a divorce, an annulment does not dissolve the marriage. An annulment is a legal decree that the marriage is now void and was invalid from its inception. An annulment may only be granted when the marriage has been entered into under fraud, duress, or mistake. These reasons can be extremely difficult to prove. If there are children born of the marriage, an annulment may not be granted, and the marriage may only be dissolved by divorce.
The grounds for divorce in Georgia
Georgia law provides 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.
"No fault" divorce
One of the 13 grounds for divorce is to show that the marriage in irretrievably broken. To obtain a divorce on this ground, one party and only one party, must show that he or she cannot reside with the other spouse and also show no hope of reconciliation. This ground is considered the "no fault" ground as it is not necessary to show that there was any fault or wrongdoing by either party to obtain a divorce on this ground.
The "fault" grounds
For the remaining 12 "fault" grounds, one must prove that there was some form of misconduct by one of the parties. For example, one fault ground is adultery. In Georgia one party would have to show that the other spouse was involved in a heterosexual or homosexual sexual relationship with a third party, that this relationship was the cause of the parties separation, and that the relationship prevented a reconciliation of the married couple. Another fault ground for divorce is desertion. A divorce may be granted on the grounds that a person has deserted his or her spouse willfully for at least a year. Other fault grounds include mental or physical cruel treatment, 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.
Georgia residency
One spouse must have lived in the state of Georgia for at least six months prior to the filing of the divorce or the state of Georgia must have been the last domicile of the marriage.
Separation before the filing of the divorce
While Georgia law requires that the spouse be separated before a party may file a divorce, the law does not actually require that the spouses live part in separate households. As a result, spouses may be considered separated even if still cohabitating. For example, spouses living together, though not sharing the same room and/or not having a sexual relationship will still be considered legally separated.
Filing for a divorce
Either spouse may file for a divorce without seeking the permission or the approval of the other party. The spouse that files becomes the Plaintiff. The actual filing consists of filing a document with the appropriate Superior Court. This document is called the "Complaint". The complaint will outline certain information on the marriage: residency of the plaintiff, present living arrangements, names and dates of birth of any children of the marriage, a summary of the marital assets and debts, and the grounds (fault or no fault for seeking divorce. A copy of the complaint then has to be served to the other spouse (the Defendant) by one of the manners accepted by law. The manners accepted methods are by a sheriff of the appropriate county, by a specially appointed process server, or the other spouse may acknowledge service by signing a specific document in the presence of a notary public. The complaint for divorce should be filed in the Superior Court of the Defendant's county of residence. If the Defendant no longer resides in the state of Georgia, and under specific circumstances, the divorce may be filed in the county of the Plaintiff's residence. This residence would be considered the domicile of the marriage. However, with the Defendant's consent, the complaint may be filed in the Plaintiff's county of residence regardless if the Defendant no longer resides in the state of Georgia.
What to do if you receive a complaint for divorce that your spouse has filed?
If you receive a Complaint for Divorce, you should consult a family lawyer. However if you are served by one of the means described above then it is imperative that you contact a family lawyer as quickly as possible. The spouse who has been served with a Complaint has 30 days to file a response. In the response (the Answer) the spouse may contest the reasons alleged for the divorce or contest the claims for child custody, child support, alimony, or property division. If, however, an Answer is not filed within 30 days, the right to contest the complaint may be lost.
Can spouses live apart without getting a divorce?
Parties who wish to live apart permanently, but who do not want to get a divorce, may file a Complaint for Separate Maintenance. While the actual procedure of the filing is nearly identical to a Complaint for Divorce, the end result is that the spouses will remain legally married (although living apart). The court may still order that alimony be paid by one spouse to the other, as well as divide property between the parties.
"Uncontested" Divorce — reaching an agreement
Often one will hear about an uncontested divorce. While some people may use the term when they believe the divorce will be amicable or when there are few issues, the term is most often used when spouses are able to reach an agreement resolving all issues arising from the divorce, 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; the terms of the agreement are incorporated into an order of the court known as the Final Judgment and Decree. This Decree concludes the lawsuit.
What if I don't reach an agreement with my spouse?
If the parties cannot reach an agreement, the issues will be resolved by the judge or the jury. However, a judge always decides matters of child custody and visitation.
How long will it take to get a divorce?
An uncontested divorce may be granted 31 days after the defendant has been served with the complaint for divorce. If there is disagreement to any issue, the divorce will be obtained when the case finally reaches the court. This process may take many months to finally resolve. While the issue of a waiting period has been addressed by the Georgia legislature, no waiting period currently exists in Georgia.
Relief before the final hearing
Either spouse may request a Temporary Hearing. At this hearing the Court will attempt to set guidelines for the parties to live under until there is a final hearing. Therefore, the temporary hearing may resolve issues of child custody, visitation, child support, alimony, debts, and possession of property on a temporary basis until the final trial. The Court will issue a temporary order that applies only until the time of the final trial. In addition, the temporary order may also prohibit one party from harassing or interfering with the other party, or the party's children, and may also prevent the transfer or selling of assets.
What is decided at final trial?
The final trial will be heard either by the judge alone or a 12-person jury. Either party may request that a jury preside over the final trial. However, the issues of child custody and visitation may only be decided by the judge. Either the judge or the jury will resolve all of the financial issues of the marriage, such as division of property, division of debts, alimony, and child support. Like all other civil trials at the final hearing, both spouses introduce evidence by their own testimony and may call witnesses. The decision reached by the judge or jury is written into a court order that is binding upon both parties. This Order may restore the wife's name to her maiden or former name if she so desires.
Custody of the children
Neither parent is automatically entitled to custody. In a divorce the welfare of the children is of the utmost importance to the Court. When making the decision on what parent will have custody of the child, the judge uses the legal standard of what is in the best interest of the child. In deciding what is in the best interest, the judge will consider the following factors when deciding custody: the age and sex of the child, compatibility with each parent, and the ability of each parent to care for and nurture the child. When a child reaches 14 years of age, they can elect which parent he or she wants to live with and the Court will, in nearly all circumstances, assign custody to that parent. Because the court considers it important for a child to maintain a relationship with both parents, visitation rights are awarded to the parent who is not given legal custody of the child. The court, in its discretion, can award joint custody instead of sole custody. Two types of joint custody exist. Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the child, which includes access to medical and school records. Joint physical custody means that physical custody (who the child actually lives with) is shared by the parents in such a manner that the end result is that both parents have equal time with the child. In awarding joint custody, the court may order joint legal custody, joint physical custody or both.
Child support
Both parents can be required to support their children until a child reaches the age of 18 years, dies, marries, is emancipated, or joins the military, whichever event occurs first. However, if the child is still enrolled in high school, child support shall continue until the child graduates from high school, but support shall not continue past the age of 20. The non-custodial parent will be required to pay a reasonable amount of child support to the custodial parent towards the child's living expenses. In addition to these expenses, child support may also include such items as health insurance and payment of medical and dental expenses. On January 1, 2007, Georgia Child Support Laws changed. The new law is based on an “income shares” model. This model looks at the gross income of both the husband and the wife. “Gross income” includes salary, commissions, self-employment income, bonuses, overtime, severance pay, pension income that is recurring, interest income, dividend income, trust income, capital gains, gifts, prizes, lottery winnings, and income from a variety of other sources. After the gross income of both the husband and wife is determined, both gross incomes are added together. The statute provides the Georgia Child Support Obligation Table, which determines the Basic Child Support Obligation for a family whose income results from combined gross income of Husband and Wife. In other words – the costs to a family income of “X” to raise their child/children. The child support amount from the table is then applied to each parent’s proportionate share of the combined adjusted income. Additionally, child support can be modified based on the costs of medical insurance, as well as costs related to childcare. A credit is made to the child support payments assesed to the spouse that is directly incurring these expenses. Other “deviations” from the basic child support obligation exist. Therefore, we recomened that you contact Hedgepeth & Heredia LLC to to help you better understand the Georgia Child Support Guidelines.
Does child support include children's college?
Because Georgia child support laws are specific on when child support ends, the court cannot order parents to pay for college. However, parents may agree to pay child support beyond the age of 18 or to pay for college expenses.
Alimony?
Alimony is payment by one spouse to the other for support and maintenance of that spouse. The court may grant alimony to either spouse. Alimony may be for a limited period of time or until the spouse receiving alimony dies, remarries or cohabitates. Alimony can be paid in one payment of money or property, or it may be paid over a period of time.
Division of marital property
Georgia law provides that each spouse is entitled to an equitable share of all marital property acquired during the marriage regardless how the property is titled. Marital property is all property acquired during the marriage, except for that property received by gift from a third party or by inheritance. The laws prescribing this equitable division of property does not provide a set formula or percentage amount to divide marital property. The Judge or Jury is to determine what is fair and equitable under the circumstances.
Enforcement of the court's order
The court's order can be enforced by garnishment or a contempt action. A contempt action is filed in the same court that issued the divorce. In essence, one party is taking the breaching party back to the Court that issued the order to state that the breaching party is now not following the court order.
If my spouse and I can reach an agreement on all issues should we still retain an attorney?
Yes. It's an attorney's job to ensure that all matters are properly presented to the Court and that all issues that should be resolved by the divorce are resolved. The Superior Court judges will hold any person coming before the Court to the same standards as a practicing attorney, and in fact a Judge cannot give any advice whatsoever. Therefore, filing a divorce without a lawyer even when an agreement has been reached can end up being frustrating, time consuming, and eventually costly both to the parties and to their children.
Victim of family violence?
Georgia has specific laws that protect victims of family violence. A petitioner must meet a relationship test and an act of family violence test. For the relationship test, the parties do not have to be married in order for a victim to ask the court for relief. However, the parties have to reside or have resided in the same household. For the act of family violence test, the petitioner must show the Superior Court that family violence has occurred in the past and may occur in the future. Both tests have specific definitions in the Georgia Code. The court can issue a temporary order granting a variety of remedies, including eviction of the offending party from the residence, as well as financial relief to the plaintiff. The law provides that a victim does not need a lawyer to file a Family Violence Petition. The Clerk of the Superior Court in the victim's residing county can provide forms for the Petitioner to fill out, or could direct a victim to a family violence shelter or social service agency for direction. These materials do not constitute legal advice and serve only as an educational outline of applicable Georgia law regarding divorce at the time these materials were written. No attorney/client relationship exists between the reader and Hedgepeth & Heredia, LLC until a retainer agreement is signed and a retainer is paid to said law firm.