How to file a divorce in Georgia
MUST KNOW TIPS
- If you have any additional questions, you can always join the discussion at Avvo.com. At Avvo.com, you will find qualified attorneys who can answer your question or concern free of charge!
- It is in your best interests to discuss the divorce prior to filing. While your spouse may agree with you, it is often difficult not to feel resentful about a surprise divorce.
- If you and your spouse have children from the marriage, it is helpful that the two of you discuss the situation with them directly. That way, they know that the divorce is not about them but a personal issue between parents.
REQUIREMENTS FOR A GA DIVORCE
- You or your spouse must have resided in Georgia for at least six continuous months prior to filing for divorce
- The Petition for Divorce and Final Judgment and Decree of Divorce must be filed in the Superior Court of the county where one or both spouses reside
- You must provide information about living arrangements, assets, debts, children of the marriage and the reason for seeking divorce in the Petition.
- You and your spouse must be separated prior to the divorce; this can mean separate living arrangements, living in separate rooms in the same domicile or a non-sexual relationship
- In some cases, a judge can grant a divorce in as little as 30 days
GROUNDS FOR DIVORCE
The State of Georgia recognizes the following bases for a divorce:
- Marriage between close blood relatives
- Mental incompetence at the time of marriage
- Force, duress or fraud in securing the marriage
- Hidden pregnancy by a man other than the husband at the time of marriage
- Desertion for at least one year
- Felony conviction
- Habitual intoxication or drug addiction
- Emotional, physical or psychological cruelty
- Mental illness
- Irretrievably broken marriage, i.e. no fault [Based on Georgia Code – Section: 19-5-3]
STEP 1: FILING FOR DIVORCE
In Georgia, the document requesting a divorce is a Petition for Divorce and Final Judgment and Decree of Divorce. As the filer, you are called the Petitioner and your spouse is the Respondent.
- You should file the Petition with the Clerk’s Office of the Superior Court of the Georgia county in which your spouse resides. If he/she has moved out of Georgia, you may file it in your county.
- You should detail the major reasons you are seeking a divorce in the Petition.
- You must pay filing fee when submitting the Petition for Divorce and Final Judgment and Decree of Divorce.
- You will receive a case number which should accompany any questions about your case in the future.
STEP 2: LEGAL NOTICE
In order to provide both parties an equal opportunity to present their position in the case, your spouse must be legally notified about the divorce. This is called Service of Process and in Georgia this legal notice may be fulfilled by
- Personal service
- Sheriff’s or Marshal’s office
- Process server
- Certified mail
- Publication—If you cannot locate your spouse, the court may allow you to publish notice in the newspaper
Once you have served your spouse with the divorce petition, they will have 30 days to respond.
Waiver of Service
If your spouse does not file an Answer within the allotted period, they effectively relinquish their right to be heard in court. The judge may award you all of the concessions you seek in the Petition by reason of Default. To complete the divorce in this case, you must file
- Disclosure Statement
- Domestic Relations Case Filing Information Form
- Report of Divorce, Annulment, or Dissolution of Marriage
- Acknowledgment of Service and Consent to Jurisdiction or a Sheriff’s Entry of Service
At a final hearing, the judge will sign a Final Judgment and Decree.
If the respondent files an Answer in which he or she agrees to all of the points in the Petition, then you may proceed through an uncontested divorce process. You and your spouse will be called to a final hearing after the appropriate documents are submitted, where the judge will sign and issue the Final Judgment and Decree
Your spouse may wish to contest the original petition by submitting an Answer which denies certain claims. You spouse also has the option of filing a Counter Claim which provides additional reasons for seeking a divorce.
STEP 3: CONTESTED OR UNCONTESTED
A divorce is rarely an easy procedure, but actively engaging in combative discourse with your spouse can make it considerably more difficult. To limit cost, investment of time and difficulty, you are strongly advised to treat your spouse with as much dignity and courtesy as possible. The more amicably the divorce is handled, the sooner you can both move on with your lives.
Contested Divorce (High Cost)
- In Georgia, you or your spouse may request a jury trial, but most divorce cases are adjudicated by a judge. A judge will also exclusively rule on issues of child custody and visitation.
- In cases where the spouses cannot agree on certain issues like asset division, child custody or spousal support, a judge will make the final determination.
- A trial may last only a few hours or several days
- You and your spouse will almost certainly require legal representation to manage a contested divorce
- Your and your spouse’s attorney could require months of preparation for a trial
- In a contested divorce, both parties have the right to conduct discovery, which is investigate the claims of each spouse. This may require interviews with the spouses and other witnesses, as well as document searches and subpoenas
- In most cases, the cost of contested divorces is in the thousands or tens of thousands of dollars.
Uncontested Divorce (Low Cost)
- It serves you and your spouse as well as the trial system if you can come to an agreement without a trial.
- If you and your spouse can produce a signed written agreement detailing asset division, spousal support and child custody, you can quickly complete the divorce. In some cases, in as little as a month.
- You and your spouse must attend a final hearing where you will both confirm your support of the Petition. The judge will then finalize the divorce by signing the Final Judgment and Decree
- In many cases, you do not need an attorney if you are in an uncontested divorce. The entire process may cost you only a few hundred dollars.
STEP 4: CHOOSING THE RIGHT METHOD FOR YOU
Self-representation (Lowest Cost)
The state of Georgia permits you to represent yourself in all legal matters including a divorce. This is called pro se. If you are involved in an uncontested divorce, you may be able to manage the case to completion without the services of a divorce lawyer, saving yourself hundreds or thousands of dollars in legal fees.
Many Georgia residents have been able to complete their divorce with the assistance of the tools at MyDivorcePapers.com. By following the step-by-step guide, you can be confident that you have all of your bases covered and that your divorce will be completed without difficulty.
Mediation (Mid-range Cost)
Georgia, like most states, encourages the use of mediators which are neutral third parties. Mediators are not attorneys or officers of the court, but provide useful advice and strategies for sparring spouses to come to an agreement. In many cases, mediators can offer solutions that are much faster and cheaper than hiring attorneys and going to trial.
Divorce Attorneys (Highest Cost)
If you and your spouse cannot resolve your differences independently or with the aid of a mediator, you will need to go to trial where the judge will determine an equitable solution. To best protect your interests in a trial, you will need to hire an experienced divorce lawyer.
- If a trial is necessary, you should hire an attorney, as your spouse is likely to hire one.
- An attorney provides the greatest likelihood that the case will produce a favorable outcome.
- In preparation for a trial, you and your spouse’s attorney will engage in discovery, which is an investigation into the facts of any allegations in the Petition or Counter Claim.
- If negotiations are required, your attorney is most qualified to conduct them.
- Both attorneys will attempt to attribute fault to the other party, in order to secure a favorable ruling on issues of asset division, child custody and alimony
- Divorce attorneys typically bill you by the hour.
- A contested divorce may run into the thousands or tens of thousands of dollars.
STEP 5: ASSET DIVISION, CHILD CUSTODY AND SPOUSAL SUPPORT
When there is a contested divorce, it almost always involves at least one of the following issues: Child custody, spousal support or property distribution.
In Georgia, the divorce courts adhere to the principle of “equitable distribution” which divides marital property in a fair way. Marital property is distinct from non-marital property, which is
- Acquired before the marriage; or
- Received through inheritance or gift
- Excluded due to a prenuptial agreement
A judge will use the following factors determine how to distribute assets and liabilities:
- The financial circumstances of each spouse
- Contributions made to the marriage, including non-monetary ones
- Wrongdoing which engendered the divorce, i.e. desertion, adultery
- Length of marriage
- Age and health of both parties
- The circumstances surrounding the acquisition of the property
- Welfare of the children
An independent evaluator may determine the value of assets, or you and your spouse may agree to a fair amount. If no consensus can be reached, the judge may make a ruling on the value. A judge may award any property to one party or split it among the spouses. If a property cannot be split, a judge may award it to one spouse while awarding financial compensation to the other.
In order to receive spousal support, a spouse must meet certain eligibility requirements.
- No or lesser fault in the divorce. In other words, a spouse who commits adultery or other wrongdoing may be barred from receiving alimony.
- Each spouse’s earning capacity.
- The standard of living during the marriage
- Contributions to the marriage
- Age and health of each spouse
- Length of marriage.
This spousal support may award temporary or permanent alimony in divorce cases (permanent does not mean indefinite but rather ongoing following the divorce). In many cases, permanent spousal support is reserved for longtime spouses in poor health or advanced age. A judge has wide latitude in determining this amount which may involve periodic payments, a lump sum, or both.
The welfare of any minor children from the marriage are the paramount concern in any child custody ruling. In making his determination, a judge may consider the following factors:
- If the child is 14 or older, they may decide who to live with. Between 11 and 14, a judge will consider their wishes.
- Parent-child relationships
- Sibling relationships
- The parent’s ability to financially provide for the child
- Safety of the child
- Physical and mental health of parents
- Parent’s professional responsibilities and work hours
- Domestic abuse or violence
- Criminal activities
Georgia law requires that each parent submit a parenting plan which determines the parenting schedule and where the child would reside throughout the year. This plan should also include how major child rearing decisions are made.
Following consideration of parenting plans and other factors, a judge may award sole or joint custody. Joint custody in Georgia often reduces financial support or eliminates entirely because both parents are actively involved in upbringing.
STEP 6: FINALIZING THE DIVORCE
If you and your spouse are involved in a contested divorce, you must attend a trial which may last a morning or several days. Following the trial, you and your spouse must attend a hearing where the judge will issue a Final Judgment and Decree of Divorce which officially finalizes the divorce.
In some uncontested divorces where there are no children involved, you may not be required to attend a hearing to finalize the procedure. This is also dependent upon the county and judge. You must have a lawyer file a Motion for Judgment on the Pleadings to avoid a final hearing. You will be issued a Final Judgment and Decree of Divorce through your attorney.
If there are children involved or you are representing yourselves, you must attend a final hearing, where the judge will confirm your support of the final divorce disposition. The judge will then sign and issue the Final Judgment and Decree of Divorce to both parties.
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