DIVORCE

 

 

 

Divorce \Di*vorce"\, n. [F. divorce, L. divortium, fr. divortere, divertere, to turn different ways, to separate.]

1. (Law)

(a) A legal dissolution of the marriage contract by a court or other body having competent authority. This is properly a divorce, and called, technically, divorce a vinculo matrimonii. ``from the bond of matrimony.''
(b) The separation of a married woman from the bed and board of her husband -- divorce a mensa et toro (or thoro), ``from bed board.''

2. The decree or writing by which marriage is dissolved.

3. Separation; disunion of things closely united.

4. That which separates. [Obs.]

 

Georgia and Filing for Divorce

 

Where do you file for divorce?

Georgia divorce cases are tried in the county where the defendant resides, if a resident of this state; if the defendant is not a resident of this state, then in the county in which the plaintiff resides; provided, however, a divorce case may be tried in the county of residence of the plaintiff if the defendant has moved from that same county within six months from the date of the filing of the divorce action and said county was the site of the marital domicile at the time of the separation of the parties, and provided, further, that any person who has been a resident of any United States army post or military reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States army post or military reservation.

How does one file for divorce?

The person seeking the divorce (the plaintiff) will file a document called a "complaint" with the appropriate Superior Court. This complaint includes information on the marriage including present living arrangements, children of the marriage, assets, debts, and the specific reason claimed for seeking a divorce. A copy of the complaint will be served on the other spouse (the defendant) by the sheriff.

 

Can we live apart without filing for divorce?

A party who wishes to live apart permanently, but who does not want to get a divorce, may file a "separate maintenance" action. The spouses will remain legally married although living apart. The court may order that alimony be paid by one spouse to the other and the court may divide property between the parties.


What should I do if I receive a complaint for divorce that my spouse has filed?

The spouse who receives the complaint should promptly consult a lawyer. The spouse may contest the reason claimed for the divorce or contest the claims for child custody, child support, alimony or property division by filing an answer with the court. If an answer is not filed within 30 days, the right to contest the complaint may be lost.

Which court will grant my divorce?

In most cases, total divorces may be granted in proper cases by the superior court.

 

When will the judge refer petitions for divorce or permanent alimony to alternative dispute resolution?

The judge may refer all contested petitions for divorce or permanent alimony to ADR.  In counties in which an alternative dispute resolution program has not been established, a judge may nonetheless refer any disputed divorce case to an appropriate alternative dispute resolution method if a method is reasonably available without additional cost to the parties.

 

Are there residence requirements for filing for divorce?

Yes. No court shall grant a divorce to any person who has not been a bona fide resident of this state for six months before the filing of the petition for divorce, provided that any person who has been a resident of any United States army post or military reservation within this state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the United States army post or military reservation; and provided, further, that a nonresident of this state may file a petition for divorce, in the county of residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.

 

What are sufficient grounds for divorce?

In Georgia there are 13 grounds for divorce. One ground is "irretrievably broken" (sometimes referred to as the "no-fault" ground). The other 12 grounds for divorce in Georgia are "fault" grounds.

 

The following grounds shall be sufficient to authorize the granting of a total divorce:

(1)               Intermarriage by persons within the prohibited degrees of consanguinity or affinity (from the same lineage as another person); 

(2)               Mental incapacity at the time of the marriage;

(3)               Impotency at the time of the marriage;

(4)               Force, menace, duress, or fraud in obtaining the marriage;

(5)               Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;

(6)               Adultery in either of the parties after marriage;

(7)               Willful and continued desertion by either of the parties for the term of one year;

(8)               The conviction of either party for an offense involving moral turpitude, under which he/she is sentenced to imprisonment in a penal institution for a term of two years or longer;

(9)               Habitual intoxication;

(10)          Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health;

(11)          Incurable mental illness. No divorce shall be granted upon this ground unless the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party; and he has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and the superintendent or other chief executive officer of the institution and one competent physician appointed by the court, after a thorough examination, make a certified statement under oath that it is their opinion that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party's mental health cannot be expected at any time during his life. Notice of the action must be served upon the guardian of the person of the mentally ill person and upon the superintendent or other chief executive officer of the institution in which the person is confined. In the event that there is no guardian of the person, then notice of the action shall be served upon a guardian ad litem, who shall be appointed by the court in which the divorce action is filed, and upon the superintendent or chief executive officer of the institution in which the person is confined. The guardian and superintendent shall be entitled to appear and be heard upon the issues. The status of the parties as to the support and maintenance of the mentally ill person shall not be altered in any way by the granting of the divorce;

(12)          Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16;

(13)          The marriage is irretrievably broken. Under no circumstances shall the court grant a divorce on this ground until not less than 30 days from the date of service on the respondent.

 

What is a “no-fault divorce?

To obtain a divorce on this basis (irretrievably broken), one party must establish that he or she refuses to live with the other spouse and that there is no hope of reconciliation. It is not necessary to show that there was any fault or wrongdoing by either party.


Must the 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 and/or not having a sexual relationship.


Under what circumstances would a divorce not be granted?

(1)               The adultery, desertion, cruel treatment, or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing a divorce;

(2)               The party complaining of the adultery, desertion, cruel treatment, or intoxication of the other party was consenting thereto;

(3)               Both parties are guilty of like conduct; or

(4)       There has been a voluntary condonation and cohabitation subsequent to the acts complained of, with notice thereof.

 

In all such cases, the respondent may plead in defense the conduct of the party bringing the action and the jury may, on examination of the whole case, refuse a divorce.

 

What is a final judgment and decree?

The final judgment and decree is a document prepared by the court conforming with the pleadings and evidence, which dissolves the marriage and may restore a maiden or prior name, if requested.                                        

What is my case involves the determination of child support?

In any case which involves the determination of child support, the form of the judgment shall also include provisions indicating both parents' income, the number of children for which support is being provided, the presumptive amount of child support award calculation, and, if the presumptive amount of child support is rebutted, the award amount and the basis for the rebuttal award. The final judgment shall have attached to it the child support worksheet containing the calculation of the final award of child support and Schedule E pertaining to deviations. The final judgment shall specify a sum certain amount of child support to be paid.
Where applicable, the court shall also include in the order the provisions of Code Section 19-6-30 concerning continuing garnishment for support and language in compliance with Code Section 19-6-32 concerning income deduction orders.

 

What effect does total divorce have?

A total divorce annuls a marriage from the time of the rendition of the decree, unless the divorce is granted for a cause rendering the marriage void originally, in which case the divorce serves to annul the marriage from its inception. However, the issue of the marriage shall not be rendered born out of wedlock by a divorce, except in cases of pregnancy of the wife by a man other than the husband at the time of the marriage, unknown to the husband.

 
What is an annulment?

Unlike a divorce, which dissolves a valid marriage, an annulment is a legal decree that the marriage is now void and was invalid from its inception. If there are children born of the marriage, an annulment may not be granted and the marriage may only be dissolved by divorce.


Must I go to court to get a divorce?

Not necessarily. Spouses may be able to reach an agreement resolving all issues arising from the marriage, including finances, division of property and custody and visitation of children. The agreement is presented to the court as a settlement agreement and, upon approval, made an order of the court. The court's order, called a final judgment and decree, concludes the lawsuit. If the parties cannot reach an agreement, a judge or jury will resolve the issues. However, a judge always decides matters of child custody and visitation.


How long does it take to get a divorce?

If there is agreement between the parties, the divorce is considered uncontested. An uncontested divorce may be granted 31 days after the defendant has been served with the complaint for divorce. If there is disagreement as to any matter, the divorce will be obtained when the case reaches the court, which can take many months.


What happens while I wait to go to court?

Either of the spouses may request a temporary hearing. This hearing is not a final trial. A temporary hearing resolves the issues of child custody, visitation, child support, alimony, debts and possession of property on a temporary basis until the final trial. The judge will issue a temporary order that applies only 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 final trial?

Questions of child custody and visitation are decided by the judge. 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 certain findings concerning child support (gross income of both parties and whether any deviations from teh presumptive amount of child support are in the best interests of the child, and if so, what those deviations should be). 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 re-established if she so desires.

 

What if there are children involved in the case?

The welfare of children is of major concern to the court. Neither parent is automatically entitled to custody. The judge looks at the best interests of the child when determining  custody. The judge considers many factors when deciding custody, including the age and sex of the child, compatibility with each parent and the ability of each parent to care for and nurture the child. A child more than 14 years of age can choose which parent will have custody upon the consent of the court. The court considers it important for a child to maintain relationships with both parents; therefore, visitation rights are awarded to the parent who is not given legal custody of the child.

 

Can parents share custody?

The court, in its discretion, can award joint custody instead of sole custody. There are two types of joint custody. Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the child; joint physical custody means that physical custody is shared by the parents in such a way to assure the child substantially equal time and contact with both parents. In awarding joint custody, the court may order joint legal custody, joint physical custody or both.

 

What is alimony?

Alimony is payment by one spouse to the other for support and maintenance. The court may grant alimony to either the husband or the wife. Alimony may be for a limited period or until the spouse receiving alimony dies or remarries. It may be paid in one payment of money or property, or it may be paid over a period of time.

 

What about our possessions?

One of the most difficult and complex areas of divorce is the division of marital property. Marital property is all property acquired during the marriage, except for 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. The judge or jury will decide on the division of marital property. Marital property will be divided equitably (not necessarily equally) between the parties regardless of how the title to the property is held. There is no set formula or percentage amount used to divide marital property.

 

How do I get a court order enforced?

The court order can be enforced by garnishment or a contempt action. A contempt action is filed in the same court that issued the divorce. In addition, support orders can be enforced through the district attorney's office if the non-paying spouse resides out of town.

 

If my spouse and I agree on all matters pertaining to getting a divorce, do we still need a lawyer?

A lawyer will ensure that all matters that should be resolved in a divorce are resolved. Acting without a lawyer could end up being a costly mistake both to the parties and to their children.

 

Victims of family violence?

Georgia has a law protecting victims of family violence. The parties do not have to be married in order for a victim to ask the court for relief. However, the parties have to reside in the same household. A victim of family violence can file a petition with the Superior Court that family violence has occurred in the past and may occur in the future. The court can issue a temporary order granting a variety of remedies, including eviction of the offending party from the residence or providing suitable alternate housing for the victim and children, as well as financial relief.

The victim does not need a lawyer to file a Family Violence Petition. The clerk of the Superior Court in the victim's residing county may provide forms for the Petition or be able to direct a victim to a family violence shelter or social service agency for direction.

 

 

Some information provided by State Bar of Georgia

 

 

Contact: Kathleen S. Grantham, Esq.

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The information obtained from this site is not, nor is it intended to be, legal advice. Always consult with an attorney for advice pertaining to your individualized case.

 

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