Divorce FAQs
General
What are the grounds for divorce in Georgia?
There are two types of divorce, no-fault divorce and fault-based divorce. No-fault divorce is a divorce based on an irretrievably broken marriage where there is no hope for reconciliation. A fault divorce is based on misconduct by one party, which must be proven to the court by the party seeking the divorce. The types of misconduct that qualify for a fault-based divorce are:
- Adultery
- Desertion for at least one year
- Mental or physical abuse
- Marriage between people who are too closely related
- Mental incapacity at the time of the marriage
- Force or fraud in attaining the marriage
- Impotency at the time of marriage
- Unbeknownst to the husband, the wife was pregnant at the time of the marriage
- Conviction and imprisonment for certain crimes
- Habitual drunkenness or drug use
- Mental illness
What is reconciliation?
Reconciliation is a defense to a fault-based divorce. It is the forgiveness of one spouse by the other for wrongful acts against the first spouse. The most common use of the reconciliation defense is when one spouse commits adultery and the other spouse forgives him/her. Forgiveness does not have to be given verbally but can be through actions.
Do I have to be a Georgia resident to file for divorce in Georgia?
At least one spouse must have lived in Georgia for at least six months, or be the last residence of one spouse, in order for a Georgia court to grant a divorce.
Do spouses have to live in separate homes in order to get a divorce?
No, but the spouses must living in a bona fide state of separation and cannot be having sexual relations with each other.
What should a person do when they receive a complaint about divorce from their spouse?
The spouse who receives the complaint should consult an attorney immediately. There are time limits on how fast the spouse must reply to the complaint and the failure to answer timely and appropriately may result in some very serious legal options and rights being lost.
How long does a divorce take?
If the divorce is contested by one of the spouses, it can take many months before it reaches the court and many months after before there is a ruling.
If the divorce is uncontested by both spouses, a divorce with a settlement agreement may be obtained after 31 days of the defendant’s spouse receiving the divorce complaint.
What is a settlement agreement?
A settlement agreement is a contract entered into by both spouses that resolves all issues arising from the marriage. This includes division of property, finances, custody of children, etc. The contract is then presented to the court, and upon its approval, a divorce decree is given according to the contract. If there are children from the marriage, the judge always has the final say-so over what is best for the child.
What happens if the spouses cannot reach a settlement agreement?
The case goes to trial where either a judge, or a 12 person jury if one of the spouses requests one, decides such issues as finances, division of property and debts, and alimony. However, only the judge will get to decide child custody, child support, and other issues concerning any children born from the marriage because the judge decides all issues regarding what is in the best interest of the children. At trial, both spouses will be able to present their evidence and then a formal judgment is made by the judge, or jury if requested, which is binding upon both spouses.
If both spouses agree to a divorce and all matters pertaining to it, do they really need to hire an attorney?
Each spouse should consult their own attorney. An attorney will make sure that all matters pertaining to the divorce will be resolved and nothing is forgotten. Also, an attorney is obligated by law to make sure his/her client’s interests are met, not what the other spouse wants. This is why it is best that each spouse have their own attorney. Trying to file for divorce without an attorney can be a costly mistake for everyone involved.
Annulment
What is an annulment?
An annulment is unlike a divorce, in that it voids the marriage from its inception. This legal decree can only be given if the marriage was entered into by one or both parties fraud through fraud, unwillingness to marry, or inability to marry.
Child Custody
How does a judge determine custody of children born from the marriage?
The judge looks at what will be in the best interest of the child. The judge will consider many factors such as love, affection, emotional ties between the child and each parent, the ties between siblings, home environment, the knowledge and familiarity of the child’s needs, the safety of the child, the child’s education and extracurricular activities, each parent’s involvedness with the child, as well as many other factors.
Does the child have a say in which parent he/she wants to live with?
The judge will take into consideration the wishes of the child as one factor in determining what is in the best interest of the child. If the child is 14 years of age or older, the judge will allow that child to choose which parent to live with as long as it is in the best interests of the child.
What are the different types of child custody?
There are two types of child custody, legal custody and physical custody. Legal custody is the right to make major decisions for the child. Such decisions include medical, religious, educational, and extracurricular activities. Legal custody may be given to either parent or both parents. If joint legal custody is decided by the judge, both parents are given the right to make decisions involving the above activities. Physical custody means the actual physical custody of the child. Like legal custody, physical custody may also be given to one or both parents. If joint physical custody is decided by the judge, the judge will make sure that the child will get to spend equal amounts of time with each parent.
Child Support
How is child support determined?
The court uses a special child support obligation calculator when deciding the amount of child support a spouse must pay. First, each person’s income is added up. This includes salary, asset appreciation, commissions, pensions, dividends, lottery winnings, and many other forms of income. This gives the court a Gross Income of each parent which is then added together and entered into the special Child Support Obligation Table. The outcome is a child support payment that is then apportioned to each parent depending on that parent’s Gross Income. If one parent pays for medical insurance or work-related childcare for the child, this amount will be credited towards that parent’s child support payment.
May the court award money for a child’s college education?
No, a court cannot order either spouse to pay for a child’s college expenses. Nevertheless, parents may agree to pay child support beyond the age of 18 which may include college expenses for the child.
Alimony
What is alimony?
Alimony is the payment of money from one spouse to the other for support and maintenance. Alimony may be granted to either spouse, and it may be awarded over time or with a lump sum payment. It may also only be provided for a specific amount of time or until the spouse remarries or dies.
Can you modify alimony?
Sometimes, yes. Alimony is modifiable if it is permanent alimony. Grounds for modification are either a substantial change in income and ability to pay or there were conditions on alimony in the final order or settlement agreement of the parties. Many times there is language in a settlement where the party waives modification in whole or in part. You should consult an attorney to see if you are eligible to a modification of alimony.
Division of Property
What is the equitable division of property?
Each spouse keeps the property they brought into the marriage, as well as any gifts given to either spouse by third parties. The rest of the property is called marital property, property acquired during the marriage shared by both spouses. The court will then decide how to split up the marital property equitably, not equally. There is no special equation the court will use to decide this, nor does it matter how the property is titled. The court will determine how the shared property will be dispersed through equitable means.
Resolving cases without a Trial or Hearing
What is a settlement agreement?
A settlement agreement is a contract entered into by parties that resolves all issues arising from the action before the court. This includes division of property, finances, custody of children, etc. The contract is then presented to the court, and upon its approval, the mediated agreement becomes binding upon the parties. Settlement can many times be reached between the parties or by way of the parties’ attorneys. Settlement agreements can also be limited in scope and the remainder of issues can be determined by traditional means or by mediation.
What is mediation?
Mediation is a meeting between the spouses in front of a neutral third party who helps to resolve issues so a settlement agreement may be reached. All issues may be addressed during mediation, such as child custody and support, alimony, division of debts and assets, division of property, or it can be limited to only specific issues. Most courts require that spouses go to mediation before a final or temporary hearing
The case goes to trial where either a judge, or a jury if one of the spouses requests one, decides such issues as finances, division of property and debts, and alimony. However, only the judge will get to decide child custody, child support, and other issues concerning any children because the judge decides all issues regarding what is in the best interest of the children. At trial, both parties will be able to present their evidence and then a formal judgment is made by the judge or jury, which is binding upon both spouses.
Legitimation
What is the difference between a legitimate child and a child “born out of wedlock?”
A child is considered by the courts to be “born out of wedlock” if the child is conceived before the parents are married, were not married when the child was born, and never got married since the child was born. A legitimate child is recognized by the courts as one who was born when the parents were married, the child was conceived during the marriage but the parents divorced before the child was born, or the parents marry after the child is born.
What is legitimation?
Legitimation is a legal procedure where fathers establish parental rights over their child who was born “out of wedlock.” Fathers of children “born out of wedlock” do not have any parental rights such as custody or visitation, even if they are required to pay child support. The mother has sole custody of the child. Legitimation bestows the same parental rights to the father that the mother has over the child. Also, once a child is legitimated he/she has the right to inherit money and property from the father.
How does one legitimate a child?
Other than marrying the mother, the father has two ways to legitimate a child. The father can file a petition with the courts to legitimate the child. The mother is then given notice and a hearing is scheduled where both spouses can present evidence as to whether the child should be legitimated. Then the judge decides if legitimation is in the best interest of the child. The other method is when both parents sign a contract that legitimates the child.
Does a judge decide any other matters in a legitimation action?
The judge can also order child support, and if the father requests, the judge can change the child’s name, add the father’s name to the birth certificate, and decide custody and visitation rights for the father.
Family Violence
What is family violence?
Georgia considers certain crimes between people with special connections to be family violence. The people must be connected by past or current marriage, parents of the same child, step-children or step-parents, or have lived or currently are living in the same household. The crimes that are included as family violence crimes include battery, assault, stalking, criminal trespass, unlawful restraint, criminal damage to property, or any other felony. The crime of stalking does not require a special connection between the people.
What is a Temporary Protective Order (TPO) and what does it do?
A TPO is a court order that requires a person who is abusing or harassing another to stay away from the person he/she is abusing or harassing. The abuser/harasser will be prohibited from contacting the other person in any way for a certain amount of time. The TPO does not send the abuser/harasser to jail, but it does make it easier for police to arrest the abuser/harasser if he/she contacts the person. The TPO can also order the abuser/harasser to stay away from the person’s children, as well as give temporary custody over children shared by the abuser/harasser and the person.
How does one get a TPO?
If there has been a recent threat of physical violence or actual physical violence, the victim needs to go to the Superior Clerk’s office in the county that the abuser/harasser lives and fills out a form. The victim will then speak with a judge and describe the violence and whether the victim thinks if it will continue. If the judge grants the TPO, the abuser/harasser will be served with an order to refrain from making contact with the victim and a hearing will be scheduled within thirty days to hear both sides. The judge may then decide to extinguish the order or extend it for up to twelve months. If the abuser/harasser threatens the victim with violence again while the TPO is in effect, the victim can return to the court and ask that the TPO be extended or even become permanent.
