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Divorce FAQs

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What is a divorce?

Many people have questions about divoce and how to proceed with a divorce in Georgia through the legal system. Technically speaking, a divorce is the judicial termination of the marriage by two people.

What is a legal separation?

Technically, there is no such thing in Georgia as a legal separation. Instead, there is a separate maintenance action. Which is a judicial determination to separate spouses and provide support without a judicial termination of the marriage. The court makes the same decisions about child support, child custody and alimony as in a divorce. However, separate maintenance means the married parties are legally separated but not divorced. That means they are still technically married but not responsible for one another.

Why would you request a separate maintenance action?

  • Jurisdictional Limitations- For instance, if you have not been a resident of the state of Georgia for 6 months then you cannot file a divorce action but may still need court intervention to provide support.
  • Personal choice- You may not be ready for a divorce but need financial support.
  • Religious reasons- Your religious beliefs may prevent you from requesting a divorce yet you are in need of financial support or a judicial determination of custody and visitation issues.

What is a "no-fault divorce?"

No-fault divorce is a term meaning that the court does not get involved in the reasons for the divorce. According to older law and regulations, the party who started the divorce process had to prove reasons for getting the divorce, such as adultery or abuse. This required difficult, often embarrassing, questions about the couple's private lives. No-fault divorce laws changed this drastically. Now the divorce law in most states allow one of the parties to get a divorce if he or she states in court that the marriage is irretrievably broken.

What is the difference between a divorce and an annulment?

A divorce is the termination of a marriage that did exist.  An annulment is the undoing of a marriage as if it never existed.  An annulment is only available under limited circumstances.

What are some of the grounds for an annulment?

  1. The Marriage was never consummated. In other words the spouses never had sexual relations after the intended marriage.
  2. Fraud.  One of the parties was fraudulently mislead by the other party.
  3. Capacity.  One of the parties was not of age to consent to the marriage or did not have the mental ability to understand they were entering into a marriage.

How much will a divorce cost?

There is no set fee.  Each case is factually different.

Is there an advantage to being the plaintiff in a divorce?

  • If there is a trial there is a technical difference in that you get to speak first and speak last through each phase of the trial.
  • The Plaintiff usually gets to drive the process.
  • For some there is an emotional significance to being the plaintiff or the person having to request relief versus the defendant

Is it better to settle the divorce or go to trial?

It is always better to settle your case. Litigation should always be used as a last resort as it is usually time consuming, costly and emotionally draining.  The judicial system encourages settlement and often requires attempts to settle.  Statics show 95% of cases settle. Moreover, you maintain more control over your circumstances as the attorneys can be much more creative in resolutions than a judge can.  Proceed with caution however as there are definitely circumstances in which it may be best to go to trial.

If reconciliation is not possible and divorce is necessary are there alternatives to a court trial?

  1. Mediation
  2. Arbitration
  3. Independent settlement
  4. Collaboration

What if my spouse doesn't want a divorce, or won't sign the papers?

With divorce in Georgia no fault divorce is available, so only one party need convince a court that their marriage is beyond repair and there is no chance of reconciliation.

I had an affair. How will that impact the outcome of the divorce?

Any claim of adultery must be substantiated.  If you suspect infidelitiy, with the aid of effective counsel, it may have significant impact on the outcome of the case making it essential and of vital importance to the overall case strategy.

If you are requesting alimony, adultery bars alimony.

The law also provides that fault can be a factor in deciding what is fair for the final property distribution.

Why do I need an attorney?

The legal system is complex.  If you are not aware of certain deadlines and sophisticated rules you may give up certain rights.  For some having an attorney is peace of mind.

Is divorce right for me?

This is a question better suited for your family counselor.

When do I know I am ready to proceed with a divorce?

Being prepared is essential in deciding to proceed with a divorce.  The following items should have been properly addressed before proceeding:

  •  You have been well informed of your legal rights
  •  You have a good overall view of your financial position
  •  Your emotional and psychological needs have been addressed
  •  If children are involved that their future needs have been carefully considered and addressed

What are the grounds for a divorce in Georgia?

There are thirteen statutory grounds for a divorce in Georgia. The grounds include adultery, desertion, cruel treatment, habitual intoxication and habitual drug addiction.

Does there have to be a reason for the divorce?

No, The statutory ground most commonly used for a divorce is that the "marriage is irretrievably broken," commonly called a "no fault divorce". For this ground, the parties do not specifically complain of misconduct but state that their marital differences cannot be resolved, and there is no chance of reconciliation.

What are the residency requirements for filing a divorce in Georgia?

The party filing for a divorce, known as the plaintiff or petitioner, must be a resident of Georgia for at least six months before filing a petition for divorce. A nonresident plaintiff may file a petition for divorce if the spouse, the defendant, has been a resident for six months.

How does one file for a divorce?

The plaintiff files a document called a "complaint" with the appropriate jurisdictional superior court for a fee. This complaint includes information to establish the proper jurisdiction and venue. Also, the complaint includes information on the marriage regarding present living arrangements, children of the marriage, assets and debts, and grounds sought for divorce. The sheriff serves a copy of the complaint to the other party known as the defendant or respondent.

Where does one file for a divorce (What is the proper venue)?

A complaint for divorce must be filed in the superior court of the defendant's county of residency, although there may be some exceptions to this rule. For instance, if the defendant has recently moved to another county within Georgia or out of the state of Georgia, the plaintiff may proceed in his or her own county of residency if that county was also the domicile of the marriage prior to the defendant moving. Additionally, with the defendant's consent, the complaint may be filed in the plaintiff's county of residence regardless of whether the defendant has moved from the state of Georgia or not.

Must a husband and wife live apart when a divorce complaint is filed?

No, but the spouses must be considered separated in a legal sense before one can file for a divorce. Spouses may be considered separated even if they are living in the same house if they are not sharing the same room, not having a sexual relationship, and essentially not intending to continue a marital relationship.

Is there a way to live apart without getting a divorce?

A party who wishes to live apart permanently but who does not want to get a divorce can file a "separate maintenance" action. The spouses will remain legally married although they are living apart. The court may order that alimony or child support be paid by one spouse to the other.

What is the processing time for a divorce?

1. If both sides can agree on the terms of the divorce, including division of property, child custody and visitation, the amount of child support, and entitlement to alimony, the length of time to get a divorce and the expense of the divorce is considerably lessened. The divorce may be granted any time after 31 days have passed since service of the petition on the defendant (or signing the acknowledgement of service). If the parties have not gone so far as to provide a written agreement on everything, but the divorce is uncontested, the divorce may be granted any time 46 days after service on the defendant (unless the time for response has been extended by court order).

2. When a matter cannot be resolved prior to filing a divorce, the action is considered to be contested. The cost of a contested divorce is usually much higher and normally takes a lot longer. Often, the process is slowed down because of property division, alimony, custody of children and child support.

What happens to "our" property in a divorce?

Marital property is all property acquired during the marriage, except for that property received by gift from a third party or by inheritance. Each spouse is entitled to an equitable share of all marital property acquired during the marriage. A claim for division of property can be tried before a court, or the parties may agree upon a property settlement and have it incorporated into the decree. Once a division of property is made part of the judgment, it may be enforced just as any other part of the judgment may be enforced.

What is alimony?

Alimony is payment by one spouse to the other for the other's support and maintenance. Alimony payments may be temporary or permanent. Alimony may be awarded to either spouse based upon the need of the spouse and the ability of the other to pay. Temporary alimony includes an award necessary to meet the financial crisis that may result during a separation and a pending divorce proceeding. If alimony is granted, it is enforceable by either an action for contempt, or by garnishment and execution on property.

What happens while I wait to go to a final hearing?

Either of the spouses may request a temporary hearing. A temporary hearing resolves the issues of child custody, visitation, child support, alimony, debts and possession of real and personal property on a temporary basis until the final decision can be made. The judge will issue a temporary order that applies until the time of the final trial. The temporary order may also prohibit one party from interfering with the other party or the children and prevent the transfer and selling of assets.

What is decided at the final trial?

The judge at the final trial decides questions of child custody and visitation. The judge alone or a 12-person jury (if one of the parties has requested) will resolve all of the financial issues of the marriage, such as division of property, division of debts, alimony and child support. At the final trial, both spouses present evidence by their own testimony and may call other witnesses. The decision rendered by a judge or jury is written into a court order that is binding upon both parties. The wife's maiden or former name can be reestablished if she so desires.

Do I have to disclose all information concerning assets and debts?

Yes, because if you do not disclose all the information concerning assets and debts, the final award or agreement may be subject to an action to have it set aside. All assets acquired during the marriage are usually divided equally between the two parties. Also, all debts acquired together or separately may be divided equally between the two parties.

Who gets to stay in the marital residence during a divorce?

It is based upon the needs of the family or the potential for family violence. However, as a general rule the custodial parent stays with the children in the marital residence.

Speak with a caring attorney:

Call Stearns-Montgomery & Proctor today at (678) 905-8492 or fill out our simple contact form. We have law offices in Alpharetta, Buckhead, Dunwoody, and Marietta.