Divorce and other family law related issues can be some of the most difficult life events a person will ever face. The outcome, even the process itself, can change the entire course of a person’s life. Often, much of the emotional stress and concern surrounding these events arises from fear of the unknown. Naturally, anyone facing the prospect of a divorce or other family law related issue is confronted with endless doubts and questions. The following section is designed to answer some of the questions you may have concerning the legal aspects of divorce or other family law related issues in Georgia. Because every case is unique, the answers provided are general. This information is not a substitute for competent legal representation.
- What are the Grounds for Divorce in Georgia?
- How Long Will It Take To Get Divorced?
- How Long Do I Need To Be Separated To Get A Divorce?
- Can I Date While I Am Separated?
- Who Will Pay The Family Expenses Until The Divorce Becomes Final?
- Do I Have To Go To Court?
- How Will Custody Of The Children Be Determined?
- How Will Child Support Be Determined?
- How Will Our Property Be Divided?
- Will I (Or My Spouse) Be Awarded Alimony?
- How Is The Amount Of Alimony Determined?
- What Are The Consequences Of Alimony & Child Support?
- Who Claims The Tax Exemption For The Children?
- How Much Will It Cost To Get Divorced?
- Who Will Pay The Legal Fees?
- Can I Get A Divorce In Georgia If I Just Moved Here?
- What Can I Do To Protect My Children During A Divorce?
- What Can I Do To Prepare For A Divorce?
- Can I Modify The Terms Of My Divorce Decree?
- What Recourse Do I Have When My Ex-Spouse Will Not Abide By Our Divorc Decree?
- What Are The Rights Of Parents Of A Child Born Out Of Wedlock?
- If I Am Dissatisfied With The Outcome Of My Divorce Or Other Family Law Case, Can I File An Appeal?
- Do I Need A Prenuptial or Postnuptial Agreement?
- What Are Grandparent’s Rights With Respect To Custody And/Or Visitation Of Their Grandchildren?
- What Is Alternative Dispute Resolution (ADR)?
- What Is Collaborative Family Law?
What are the Grounds for Divorce in Georgia?
There are many personal reasons for seeking a divorce. However, for legal purposes, most of these reasons fall under certain standardized categories or conditions. There are 13 conditions which constitute grounds, or justification, for divorce in Georgia. Some are more common than other, but all are recognized by law.
- The marriage is irretrievably broken
- Cruel treatment consisting of willful infliction of pain, bodily or emotional, by one party upon the other, which reasonably justifies fear or danger to life, limb or health.
- Adultery by either of the parties after marriage
- Habitual intoxication
- Habitual mental illness
- The conviction of either party for an offense involving moral turpitude, for which he or she is sentenced to imprisonment for two years or longer.
- Willful and continued desertion by either of the parties for a period of one year.
- Intermarriage by persons within the prohibited degrees of relationship
- Mental incapacity at the time of the marriage.
- Impotency at the time of marriage
- Force, menace, duress or fraud in obtaining the marriage
- Pregnancy of the wife by a man other than her husband at the time of marriage, unknown to the husband. Back to top.
Divorce is a civil lawsuit which begins with the filing of a complaint by either spouse. Getting divorced could take as few as 31 days after the complaint is served, if you and your spouse agree within that time on all terms of settlement, which may include alimony, child support, property division, child custody and visitation, and other issues. Otherwise, it could take quite a bit longer depending upon your individual situation.
There is no requirement that you must be separated for any particular amount of time, but, before a complaint is filed, you and your spouse must be separated. Separation requires a termination of marital relations between a husband and wife. It does not require the husband and wife live in separate residences.
Generally, no. Your spouse might have an investigator watching you, and you do not want to provide any “ammunition” which can be used against you. Further, your date could be put in the embarrassing position of being called as a witness in the divorce action. In addition, if you have children living with you, it may have a adverse effect on them.
You and your spouse may agree upon how to handle on-going family expenses until the divorce is final. Otherwise, the court may hold a hearing to determine what the temporary financial needs of each party are and how they will be met. At the temporary hearing, which both parties attend, the court may award one party temporary alimony and/or child support as well as other expenses.
If you and your spouse are able to reach an agreement on division of property, child support, payment of debts, alimony and other relevant issues, your agreement will be presented to a judge at the time your divorce becomes final. Only the party who files the complaint will have to be present in court. If you and your spouse are unable to each an agreement, a trial will be held before a judge, or if either party requests it, before a jury, and both parties should be present in court. Your lawyer will advise you prior to this appearance date in court and will work with you to make it as comfortable as possible for you.
Custody of the minor children will be determined according to the children’s best interest. The court may award custody to either parent, both parents or to a third party. Generally, the non-custodial parent will be awarded rights of visitation. Once a child reaches 11 years of age, the court may consider the child’s preference as to the parent with whom he or she wishes to live, and upon the child reaching 14 years of age, such election becomes presumptive, subject to the court’s determination as to the best interest of the child.
Effective January 1, 2007, Georgia adopted new statutory guidelines for determining child support. The general concept of the guidelines is that parents have a shared responsibility to support their children until each child is eighteen (18) years old, graduates from high school, dies, marries or is otherwise emancipated. The guidelines require a calculation of child support based on the number of children for whom support is being paid and the income of both parents. Generally, each parent’s child support obligation is based upon their pro rata share of the parties’ combined income taking into account certain expenses related to the children and which parent pays them, including health insurance, child care necessary for a parent’s employment, extraordinary medical expenses, private school and others which vary on a case by case basis.
Property acquired by you and your spouse during the marriage, whether titled in the name of one or both of you, is marital property and is subject to equitable division by the court. For the most part, property acquired by either party before the marriage or by gift or inheritance before or during the marriage will remain the separate property of that spouse. In deciding how to equitably divide marital property, a court may take into account the separate estate of each party, the contribution of each party to the marriage, the practice and custom of the parties with reference to their individual incomes and other relevant factors which the court regards as fair and proper to consider. Equitable division does not necessarily divide the property equally between the parties.
Alimony may be awarded to either spouse in accordance with the needs of that spouse and ability of the other spouse to pay. In deciding whether to award alimony, a court will consider the cause of separation and each party’s conduct toward the other prior to separation.
If the court decides to award alimony, the amount awarded will take into account the standard of living during the marriage, the duration of the marriage, the age and health of each party, the financial resources of each party, the contribution of each party to the marriage (including homemaking and child care), the separate estate and earning capacity of each party, the time needed for either party to acquire education or training to enable him or her to find employment, and any other relevant factors the court regards as fair and proper to consider. Alimony may be awarded in cash or in property, and it may be payable periodically or in a lump sum.
Generally speaking, if certain conditions are satisfied, alimony is deductible from the income of the payor spouse and includable in the income of the recipient spouse. Child support is neither deductible from the income of the payor spouse nor includable in the income of the recipient spouse.
The parent who has physical custody of the children for the greater part of the calendar year receives the dependency exemption unless he or she releases to the other parent, in writing, his or her right to the exemption.
Your legal fees and costs incurred in connection with a divorce (or any other family law case) will generally depend upon the complexity of the issues involved and the extent to which the issues are contested or litigated. In most cases, a retainer or fee deposit will be necessary. Retainers can range from $2,500.00 (or less) to $25,000.00 (or more) depending upon the case. You will be charged for the services of attorneys and legal assistants at hourly rates which, for attorneys, range from $225.00 to $450.00 per hour, and for paralegals, range from $110.00 to $175.00 per hour. You will also be charged for all expenses incurred by the law firm on your behalf, such as court costs and fees, costs for depositions, travel, copying, long distance telephone calls, facsimile transmissions, and investigation. The firm will bill these costs against the retainer on a monthly basis and will ask that the retainer be replenished when it runs low or is depleted.
You will be responsible for your own attorney’s fees. Sometimes, upon consideration of the financial circumstances of both parties, the court will require one spouse to pay all or part of the attorneys’ fees and expenses of litigation of the other spouse. Generally speaking, these fees and expenses are awarded on the same basis as alimony and for the purpose of enabling a spouse to contest all issues raised in the pending divorce action.
In order to file for divorce in Georgia, you or your spouse must have been a Georgia resident for at least six months prior to the date of filing the complaint for divorce. There is no time period of residency required in an action strictly for alimony or separate maintenance.
The suggestions listed below are made for the present and future benefit of your children. Even under the best circumstances, all children suffer in a divorce. Everything you do or do not do as a parent affects your children and their future. Always try to act in your children’s best interest.
- Really get to know your children. Study their real needs. Listen carefully to what they say, and equally important, to what they do not say.
- Determine how you will provide care, love, guidance, and meet the needs of your children after divorce.
- Determine which relatives, close friends and neighbors can actively assist you in providing for the needs of your children. Establish and nourish a meaningful relationship between these people, the children and yourself.
- Think first of your children’s present and future emotional well being before acting. This will be difficult, because of your own feelings, needs and emotions, but you owe it to your children to try as hard as you can.
- Maintain your own composure and good emotional balance as much as possible. Laugh when you can and try to keep a sense of humor. What your children see in your attitude is in large measure reflected in theirs.
- Allow yourself and your children time for readjustment. Convalescence from an emotional operation, such as dissolution of a marriage, is essential.
- Remember the best parts of your marriage. Share them with your children and use them constructively.
- Assure your children that they are not to blame for the breakup and that they are not being rejected or abandoned. Children, especially the young ones, often mistakenly feel that they have done something wrong and believe that the problems in the family are the result of their own misdeeds. Small children may feel that some action or secret wish or theirs has caused the trouble between their parents. Explain to them that there are other children whose parents have been divorced and that they are not going to lose either mom or dad.
- Continuing anger or bitterness toward your former partner can injure your children far more than the dissolution itself. The feelings you show are as important as the words you use. Refrain from voicing criticism of the other parent. This is difficult, but absolutely necessary. For the children’s health development, it is important for him or her to respect both parents.
- Do not force, encourage or ask your children to take sides. To do so causes frustration, guilt and resentment for all concerned.
- Try not to upset the children’s routine too abruptly. Children need a sense of continuity, and it is disturbing to them if they must cope with too many changes at once.
- Dissolution of marriage often leads to financial pressure on both parents. When there is a financial crisis, the parent’s first impulse may be to keep the children from realizing it. Often, they would rather make sacrifices themselves than ask the children to do so. The atmosphere is healthier when there is open frankness and when children are expected to help.
- Marriage breakdown is always hard on the children. They may not show their distress or realize at first what this will mean to them. Parents should be direct and simple in telling children what is happening and why, in a way, which a child can grasp. This will vary with the circumstances and with each child’s age and comprehension. The worst course is to try to hush things up and make a child feel he must not talk or even thing about what is going on. Unpleasant events need explanations, which should be brief, prompt, direct and honest.
- The guilt parents may feel about the marriage breakdown may interfere in their discipline of the children. A child needs consistent control and direction. Over permissive or indecisive parents, who leave a child at the mercy of every passing whim and impulse, interfere with a child’s healthy development. Children need and want to know quite clearly what is expected of them. Children need leadership and sometimes authority. Parents must be ready to say “No” when necessary.
- Do not overlook the fact that you are only human. You will not be able to make a 100% score on being a perfect parent. When you fail in your attempts, acknowledge your limitations and resolve to improve day by day.
- Read and reread these basic guidelines. Add to them by writing down your own constructive approaches to handling your new way of life. Discuss your thoughts and feelings with others and trust and benefit by sharing their positive attitudes. Back to top.
From a financial standpoint, it is necessary for your attorneys to have a complete picture of the assets, debts and income of both spouses. By providing your attorneys with the information and documents listed below, you will assist them in preparing the pleadings and documents required in your case and help prevent your spouse from dissipating or secreting any assets. As soon as possible, gather as many of the documents which relate to the period of your marriage for both you and your spouse and have them available for review and copying.
Income Tax Returns & Forms — State & Federal
- Joint Ventures
- Estimated Tax
- Intangible Property
Banking Information — Personal & Business
- Monthly Bank Statements
- Deposit Slips
- Canceled Checks
- Bank Charge Notices
- Certificates of Deposit
- Money Management Accounts
- Retirement Accounts
- Financial statements or loan applications submitted to banks, lending institutions or any other persons or entities, which were prepared by you and your spouse.
Stocks, Bonds, Mutual Funds & Brokerage Accounts
- All certificates and statements of account pertaining to stocks, bonds, mutual funds and brokerage accounts, held individually, jointly or as a trustee or guardian.
- All records pertaining to stock options held in any corporation or other entity, whether exercised or not.
Deferred Compensation Plans
- Profit Sharing
- 401 K Plans
Wills & Trust Agreements
- Wills and trust agreements, signed by you or in which you have a present or contingent interest.
- Life Insurance Policies
- Motor Vehicles
- Documents reflecting all debts owned to you or by you, secured or unsecured, including personal loans.
- All deeds, closing statements, appraisals, mortgages, security agreements, leases and any other evidence of any real property interest including options to buy property.
- Bills of sale, invoices, contracts and appraisals on all personal property, including furniture, fixtures, furnishings, motor vehicles, equipment, antiques or collections owned by you or your spouse.
- All records indicating any kind of personal interest in any corporation (foreign or domestic)
Partnership & Joint Venture
- Partnership and joint venture agreements to which you or your spouse are or have been a party.
- All records showing evidence of wages, salaries, bonuses, commissions, raises, promotions, expenses accounts and other benefits and deductions of any kind which were, are or may be paid, available credited or withheld.
- Employment contracts under which you are providing services or materials, or under which someone is indebted to you for services or materials already provided, including a list or description or any oral contracts.
- All records evidencing any benefits (auto, travel, entertainment) available to you or your spouse from any business entity in which you have a legal or equitable ownership interest.
- Financial statements, broker’s statements, life insurance, general insurance, outstanding debts and fringe benefits relating to any business in which you are either a sole proprietor or partner, or any corporation of which you own more than 10% of the outstanding capital stock.
- Records of all charge or credit accounts used by you or your spouse.
- Cards or documents identifying participation rights in any country clubs, key clubs, private clubs, associations or fraternal organizations, together with all monthly dues statements.
- Judgments and pleadings in lawsuits in which you have been either a plaintiff or defendant.
- All records pertaining to significant gifts made to you or by you to any person or entity.
- Documents evidencing medical expenses and anticipated or ongoing treatment of any physical or mental condition of you, your spouse or children.
- Telephone and long distance charges received by you in the form of monthly telephone statements (including mobile phones) for telephone numbers which have been in your name or the name of any corporation, partnership, or other entity, in which you are a major shareholder, officer or director.
Tapes & Photographs
- All audio or video recordings, photographs or other documents which you believe may relate to your case.
Possibly. Although a division of property is not modifiable, alimony and child support may be modifiable, either upward or downward, provided there has been a substantial change in income or financial status of either party, since the date of the original support order. Once this threshold requirement is met, the payor’s alimony and/or child support obligation may be reconsidered under the appropriate standards. Custody may also be modified subject to a threshold showing that there has been a material change of condition substantially affecting the interests and welfare of the child and that the proposed change is in the best interests of the child. Visitation rights can also be modified upon showing that the proposed change is in the best interests of the child whether or not there has been a material change of condition substantially affecting the interests and welfare of the child.
When a party willfully fails to comply with an Order requiring payment of alimony or child support payments, or to follow an Order relating to custody or visitation, the law authorizes the filing of a contempt action to enforce the Court Order. Upon a finding of contempt, the offender can be ordered to cooperate or face incarceration. The court can also order the offender to pay the other side’s attorneys fees. A party can also enforce a Court Order by collecting past due support through garnishment of bank accounts, wages and other assets. Property of the payor can also be attached.
Prior to legitimation of a child born out of wedlock, the mother is entitled to custody of the child, and she exercises all parental power over the child. The father may seek custody and/or visitation of the child through a legitimation suit. In such case, the court can declare the child legitimate, specify the child’s name, and order the child and father capable of inheriting from each other. The mother may obtain child support from the father through a paternity suit. Upon a finding or acknowledgment that the alleged father is the biological father of the child, the court may issue an order designating him as the father of the child, and imposing a child support obligation upon him.
Possibly. Your ability to file an appeal depends upon the nature of your case. Certain domestic cases are subject to discretionary appeal procedures, which means that you must request and be given permission to file an appeal with the Georgia Supreme Court or the Georgia Court of Appeals. Other cases are subject to direct appeal procedures, which means that Georgia law grants you the right to appeal. Be advised that there are strict time requirements for the filing of an appeal, and that within the filing deadline your attorneys must have an adequate opportunity to review your case and to prepare and timely file the appeal.
Before or after the wedding, Georgia law allows a couple to enter into their own contract setting forth their financial obligations during the marriage. With or without considerable assets, every couple should consider whether a prenuptial or postnuptial agreement is appropriate for them. Such an agreement is commonly used to protect property that one or both parties owned prior to the marriage from becoming divided upon divorce, but it can also be effectively used to protect gifts from family members or to guard a personal interest in a family business. Prenuptial agreements are also being used increasingly as estate planning vehicles to protect future inheritances of adult children in the event of remarriage later in life. A properly drafted prenuptial or postnuptial agreement may allow a couple to separate and divorce promptly and amicably without a costly legal battle.
Georgia acknowledges that grandparents have rights with respect to their grandchildren; however, there is no presumption in favor of visitation rights for grandparents. The rights of grandparents can vary based upon the marital status of the children’s parents and other circumstances surrounding the children, including the pendency of an action for custody and/or divorce, termination of parental rights or adoption.
Alternative Dispute Resolution (ADR) is a process that enables parties to resolve their domestic matter outside of the courtroom in what is often a more efficient and cost-effective manner. There are several types of Alternative Dispute Resolution, including the following:
- Mediation. Parties and counsel attend an informal and confidential mediation session with an independent, neutral third party, who may be an attorney, to discuss settlement. While agreements reached at mediation are generally binding, the mediator does not have the authority to make a binding decision of the issues raised in the litigation and cannot testify if the matter reaches trial. Parties can agree to attend mediation or it can be ordered by the Court. Many Courts require the parties to participate in mediation prior to final hearing of their case.
- Arbitration. Parties and counsel attend an arbitration session ssion with an independent, neutral third party who is not the judge presiding over the parties’ case, but whom the parties agree will have binding authority to make decisions concerning the parties’ case.
- Late Case Evaluation. The parties and counsel attend a confidential ntial session with an independent, neutral third party who is an experienced domestic relations attorney and/or judge, who is not assigned to the case in question. The late case evaluator hears the arguments and concerns of both parties and makes non-binding recommendations concerning settlement based on his or her experience. Back to top.
Collaborative Family Law is a structured, non-adversarial process in which parties and their lawyers endeavor to resolve their domestic relations matter without litigation. Parties, with the support of their respective counsel in the role of “coaches,” work together to reach an amicable settlement. It should be noted, if one of the parties decides to discontinue participation in the collaborative process, then the collaborative lawyers withdraw and the parties retain other counsel to litigate the matter.