Divorce Lawyers
- Frequently Asked Questions
Family
Law Attorneys
Meriwether & Tharp:
Information brought to you by the
Family Law
Section
of the State Bar of Georgia.
Foreword
The increase in divorce has its effect, directly or
indirectly, on virtually every family in the country. The following
information is designed to summarize briefly Georgia’s divorce laws.
Marriage is a civil contract which the state has an
interest in preserving. Accordingly, the marriage relationship can be
dissolved only as provided by law, by either a divorce or an annulment.
It also may be altered by a decree of separation granted by our courts.
In any case, there must be a proceeding in the Superior Court of the
county in which the person seeking the divorce, separation decree or
annulment must prove “grounds” or valid reasons prescribed by law.
If my spouse and I agree on all matters pertaining to
getting a divorce, do we still need a lawyer?
What do I do if I am the
victim of family violence?
What are the grounds for divorce in Georgia?
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.
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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.
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What are the
“fault” grounds?
To obtain a divorce on one of the 12 “fault” grounds,
one must prove that there was some wrongdoing by one of the parties to
the marriage.
As an example, one fault ground is adultery. Adultery
in Georgia includes heterosexual and homosexual relations between one
spouse and another individual.
Another “fault” ground for divorce
in Georgia is desertion. A divorce may be granted on the grounds that a
person has deserted his or her spouse willfully for at least a year. Other “fault” grounds include mental or physical cruel treatment,
marriage between persons who are too closely related, mental incapacity
at the time of marriage, impotency at the time of marriage, force or
fraud in obtaining the marriage, pregnancy of the wife unknown to the
husband at the time of the marriage, conviction and imprisonment for
certain crimes, habitual intoxication or drug addiction, and mental
illness.
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Is there a
residence requirement for getting a divorce in Georgia?
Yes, one spouse must have lived
in the state of Georgia for six months or Georgia must have been the
last domicile of the marriage.
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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.
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How does one
“file for a 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 and 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.
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Where does
one file for a divorce?
A complaint for divorce should be
filed in the Superior Court of the defendant’s county of residence or,
if the defendant has recently moved from the state of Georgia, in the
county of the plaintiff’s residence. This would be considered the
domicile of the marriage. Upon 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.
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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, however, an answer is not filed within 30 days, the right to
contest the complaint may be lost.
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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, 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.
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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.
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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, however, the parties cannot reach an agreement, the issues
will be resolved by the judge or the jury. However, a judge always
decides matters of child custody and visitation.
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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.
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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.
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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 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
re-established if she so desires.
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What about
the children?
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 in
determining the proper parent to have custody. The judge considers many
factors when deciding custody. Those factors include 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 over 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 a relationship with
both parents; therefore, visitation rights are awarded to the parent who
is not given legal custody of the child.
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May the
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.
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What are
child support obligations?
In Georgia, both parents can be required to support
their children until a child reaches the age of 20 years, dies,
graduates from high school, marries, is emancipated or joins the
military, whichever event occurs first. The non-custodial parent will be
required to pay a reasonable amount of child support to the custodial
parent towards the child’s living expenses. Child support, in addition
to a monthly or weekly sum, may also include such items as health
insurance and payment of medical and dental expenses.
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May I
receive money for the children’s college?
The court cannot order parents to
pay for college. However, parents may agree to pay child support beyond
the age of 18 or to pay for college expenses.
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What is
alimony?
Alimony is payment by one spouse
to the other for the other’s support and maintenance. The court may
grant alimony to either the husband or the wife. Alimony may be for a
limited period of time or until the spouse receiving alimony dies or
remarries. Alimony can be paid in one payment of money or property, or
it may be paid over a period of time.
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What happens
to “our” possessions in a divorce?
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 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. 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.
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How will the
court order be 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.
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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.
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What do I do
if I am the victim of family violence?
Georgia has a law protecting victims of family
domestic
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 domestic 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.
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This article has been prepared by the Family Law
Section of the State Bar of Georgia. Its purpose is to inform the public
and not to advise anyone on a specific legal problem. You should discuss
your situation with an attorney © State Bar of Georgia.
You can rely on Meriwether & Tharp
to guide you through difficult divorce and family law situations. To
speak to a member of our team, you can call our office or e-mail us
to schedule an appointment to meet with someone on our family law
team.
Meriwether & Tharp, LLC
11475 Great Oaks Way
Suite 125
Alpharetta, Georgia 30022
P: 678-879-9000 / F: 678-879-9001
Intake@mtlawoffice.com
Our lawyers are dedicated to providing excellent
legal services for divorce, child support and child custody issues
in the Atlanta, Georgia area, including: Acworth, Alpharetta,
Austell, Avondale Estates, Ball Ground, Buford, Canton, Chamblee,
Cherokee, Cobb, Cumming, Dacula, Decatur, DeKalb, Doraville, Duluth,
Dunwoody, Forsyth, Fulton, Gainesville, Gwinnett, Hall, Johns Creek,
Kennesaw, Lawrenceville, Lilburn, Lithonia, Marietta, Milton,
Norcross, Powder Springs, Roswell, Sandy Springs, Smyrna,
Snellville, Stone Mountain, Suwanee, and Woodstock.
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