General

Who can file a divorce in Georgia?

Any person who has resided in Georgia for six months, or a non-resident who is filing a divorce against a spouse who has been a resident of Georgia for six months.

Where is the proper place to file the divorce?

The divorce is filed in the county in which the defendant (person against whom the lawsuit is filed) resides. If the defendant/spouse has left Georgia, a divorce may be filed in the county where the married couple lives, as long as the defendant/spouse has not been gone for more than six months.

How long does is take to get a divorce?

There is a thirty day waiting period from the time that the defendant is properly served with a copy of the divorce petition.

What constitutes proper service?

Personal service by either a Sheriff or a person specially appointed by the court to perfect service. A person may also sign a document called an acknowledgment of service which avoids the requirement of having someone personally serve the papers.

Can a divorce be obtained from someone whose whereabouts are unknown?

If the person filing a divorce petition can swear under oath that they do not know the current whereabouts of their spouse and are unable to locate them through family or friends, the service on the defendant spouse can be made through publication in the local newspaper. However, the court can only award a divorce and will not be able to divide property or award support for children or spouse.

What are the grounds for divorce?

There are 13 grounds for divorce in Georgia. They are:

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intermarriage between related persons;

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mental incapacity at the time of the marriage;

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impotency at the time of the marriage;

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force, menace, duress, or fraud in obtaining the marriage;

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pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown by the husband;

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adultery;

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willful and continued desertion of either of the parties for the term of one year;

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conviction of certain crimes and imprisonment for two years or more;

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habitual intoxication;

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cruel treatment, either bodily or mental;

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incurable mental illness;

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habitual drug addition; and the most used ground,

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irretrievably broken (no fault).

What constitutes a legal ground of separation?

Marital separation means a suspension of marital relations between a husband and wife without the marriage being dissolved. This involves an intentional cessation of consortium or conjugal rights and does not necessarily require that either spouse move out of the marital home.

How is a divorce started?

The person seeking the divorce (plaintiff) files a divorce petition that contains certain legally required information in the county of residence of the defendant/spouse or other county which can properly exercise venue over the action.

What filing fees are involved?

Each county in Georgia sets its own fees for the filing of various legal documents, however, divorce complaints are typically in the $65 range. If a Sheriff has to serve the defendant with the complaint, there is also a fee for that service which is typically $25.

How is the divorce finalized?

If the parties are in agreement on all issues, then a settlement agreement is also prepared and filed with the court. Once the thirty day waiting period is over, the court grants a final decree terminating the marriage.

What if the spouses cannot agree?

The judge, without a jury, will then decide the issue of custody of the children. If the parties agree, then the judge can also make all decisions regarding division of property, child support and alimony. However, either party can request a jury trial on the property and support issues.

Are there any books I can read to help me understand the divorce process?

Yes. Here is a short list of some of the books you can read:

Georgia Divorce by Barry B. McGough, Lawyer's Cooperative Pub.
KFG 100 .M37 1981 (Forms 3, 5, 34, 25-27)

Georgia Divorce, Alimony and Child Custody by Dan McConaughey, Harrison
KFG 100 .M3 1993 (Refer to Chapter 27 which contains the forms)

Georgia Pleading, Practice and Legal Forms, Harrison
KFG 535 .A65 B7 1989- v.5 (Refer to the topic Divorce in the index)

Georgia Domestic Relations Forms by Edward Bates, Butterworth
KFG 94 .A65 B38 1988- (Refer to the index)

How to File for Divorce in Georgia, Sphinx
KFG 100 .Z9 H36 1993 (Reserve)

Official Code of Georgia Annotated, Title 19 (especially 19-5-5 etal)

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Child Custody

How is child custody determined?

The court, without a jury, determines the issue of custody of the children. The court will look to the parenting contributions of both parents in determining custody. In a contested custody fight, there is generally testimony from a mental health professional regarding factors such as the parent to whom the children are more closely bonded and which parent is more psychologically suited to full time parenting.

What types of custody arrangements are there?

There is joint legal custody, which means that both parents have equal rights and responsibilities from a legal standpoint. Legal custody is not to be confused with physical custody, which is the parent with whom the children reside at various times. Although many times divorcing parents want to have "equal" time with the children, that type of arrangement is not generally in the best interest of the children because it requires a great deal of shuffling around of the children, not allowing the children to have a balanced routine. The main consideration of any custody arrangement must consider first and foremost what is in the best interests of the children.

Child Support

How is child support computed?

In Georgia, there are child support guidelines which are based upon the gross income of the parent responsible for payment of child support. The applicable percentages are:

1 child:

17 - 23 %

2 children:

23 - 28%

3 children:

25 - 32%

4 children:

29 - 35 %

5 or more:

31 - 37%

What special circumstances my apply that would modify the percentages in the guidelines?

If the parties have considered that there special circumstances which require that the parties deviate from the child support guidelines, they need to list these circumstances. The special circumstances to be considered include:

• Ages of the children;

• A child’s extraordinary medical costs or needs in addition to accident and sickness insurance, provided that all such costs or needs shall be considered if no insurance is available.

• Educational costs;

• Day-care costs;

• Shared physical custody arrangements, including extended visitation;

• A party’s other support obligations to another household

• Income that should be imputed to a party because of suppression of income;

• In-kind income for the self-employed, such as reimbursed meals or a company car;

• Other support a party is providing or will be providing, such as payment of a mortgage;

• A party’s own extraordinary needs, such as medical expenses;

• Extreme economic circumstances including, but not limited to:

• unusually high debt structure; OR

• unusually high income of either party or both parties, which shall be construed as individual gross income of over $75,000 per annum.

• Historical spending in the family for children which varies significantly from the percentage table;

• Considerations of the economic cost-of-living facts or the community of each party, as determined by the judge presiding over the case;

• In-kind contribution of either parent;

• The income of the custodial parent;

• The cost of accident and sickness insurance coverage for dependent children included in the order;

• Extraordinary travel expenses to exercise visitation or shared physical custody;

• Any other factor which would be deemed to be required by the ends of justice, and which must be described in detail.

What other financial matters are considered in child support?

There should be some determination as to who is going to provide and/or pay for the health insurance coverage for the children, as well as what will be done to pay for uncovered medical, dental or psychological expenses.

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Alimony

What about alimony?

A spouse can still make a claim for alimony for their support and maintenance after the divorce. However, in these days when both spouse usually are working, awards of alimony tend to be smaller and for shorter periods of time.

What types of alimony are there?

Lump sum alimony means that a spouse is awarded either an asset or a specific sum of money which is paid either all at once or over a period of years until that sum is paid in full. Periodic alimony is generally awarded until the happening of a specific event, such as death, remarriage, until the spouse sells the marital home, or some other identifiable event.

Which type of alimony is best?

It completely depends upon the financial circumstances of the parties getting the divorce. Lump sum alimony is generally not subject to being modified either up or down and may have certain advantages for those reasons. However, if the purpose is to provide permanent support, then an award until death or remarriage may be the better choice.

What facts are considered in awarding alimony?

Alimony is awarded to either spouse in accordance with the needs of the spouse and the ability of the other spouse to pay. Factors often considered are amount of separate assets, earning capacity and fixed liabilities. The trier of fact is granted wide latitude in determining the amount of alimony based upon the wide variations of facts and circumstances which occurs in each marriage and divorce

What defeats a claim for alimony?

Adultery which is the cause of the separation of the parties. However, all other facts such as ability to earn, high marital debts or other factors regarding cash flow may all make an award of alimony not realistic under the circumstances.

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Financial Issues

What do the parties do about financial issues while the divorce is pending?

If it appears that the parties will not agree, then the judge will conduct a temporary hearing which will decide strictly on a temporary basis the issues of child custody, visitation, temporary possession of the marital home and temporary use of automobiles and other property. Usually, the judge will order that neither party sell or dispose of any marital assets unless the spouses agree. The judge will also set temporary child support payments and order either spouse to make monthly payments on marital debts.

Does it matter whose name is on the marital assets?

Generally, no. Any property which has been acquired during the term of a marriage is subject to being divided in a divorce action, regardless of who holds title.

How can a spouse find out all the financial information if they have been kept in the dark as to financial matters?

During the divorce action, there are available several methods to discover all assets, the values and obtain copies of relevant documents. This can be done through written questions (interrogatories), oral questions under oath (depositions) and by requiring the other party to produce copies of relevant documents.

Is there property which is not subject to being divided in a divorce?

Property which was owned prior to the marriage, property which was acquired by inheritance during the marriage and separate gifts are not subject to being divided during a divorce. However, if these assets have been so co-mingled with the marital assets that it is almost impossible to separate them, then they could be lost. Tip: If you have any of these assets, keep them in separate bank accounts or, if you have used separate monies as a down payment on real estate, make sure that you have a very definite paper trail showing your separate contribution. There are situations where the increase in value of a separate asset which occurs during a marriage can be considered a marital asset, even if the original investment is considered separate.

How does the court divide the marital assets?

The term is "equitable division" which basically means whatever is fair under the circumstances. Although spouses often believe that their spouse's conduct will get them a much larger share of the marital assets, there is a growing trend to simply divide the assets down the middle.

What about marital debts?

Marital debts should also be specifically dealt with during the divorce process so that each spouse will know exactly who is to pay which debts. However, the creditor is not bound by any division of debts in the divorce but will be guided by what obligations were undertaken pursuant to the contract signed with the creditor. If your spouse is to pay a certain debt either by agreement or by the court, make sure that you still undertake whatever is necessary with that creditor to get relieved of liability. Sometimes this may not be possible because the creditor may refuse to release either spouse from liability until the debt is paid in full. Once each spouse has gotten separate credit card accounts established, make sure that all joint credit accounts are closed.

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Modifications

What can be modified after the divorce is over?

Child support can be modified up or down based upon a change in financial circumstances. Child custody can be modified based upon a change in circumstances that affects the best interests of the children, or upon a child reaching the age of 14 and choosing to live with a parent that is not considered unfit. Permanent alimony can be modified up or down based upon a change in financial circumstances or if the person receiving alimony becomes involved in a live-in-lover situation. Property division and lump sum alimony are generally not subject to being modified.

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Forms

My spouse and I have no children, and don't own any property. What forms do I need to file for an uncontested divorce?

If you are the Plaintiff (the person filing for divorce), you should complete the following forms:

1. Complaint or Petition for Divorce;
2. Verification;
3. Service (choose one):

a. Sheriff's Entry of Service;
b. Acknowledgment of Service (where the defendant will execute), or;
c. Service by Publication (where the defendant cannot be located), including:

4. Consent to Trial or Consent to Hearing 31 Days After Service;
5. Final Judgment and Decree Form;
6. Civil Case Initiation Form (in some counties)
7. Summons Form
8. Report of Divorce, Annulment or Dissolution of Marriage Statistics Form 3907

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