Divorce

We all pretty much know what a divorce is, it is the dissolving of a marital partnership between a man and a woman (gay marriages are not presently recognized in the State of Georgia and therefore no divorce can be granted pursuant to a gay partnership). What we do not all know is what is involved in getting divorce. Below are some of the basics from common questions and issues that arise, please refer to other articles on this web-site that explore many of these topics in more detail:

1. BONA FIDE STATE OF SEPARATION IS ALL THAT IS REQUIRED IN GEORGIA. THERE IS NO WAITING PERIOD.

   Unlike in many other states, in the State of Georgia there is no requirement that you need to be separated, or in some cool down or waiting period before filing for divorce. All that needs to exist in the State of Georgia before filing for divorce is that the spouses be living in what is called a “bona fide state of separation”. To be living in this bona fide state of separation you do not even need to be living in different homes. You can actually still be sleeping in the same bed. The key however is that you are no longer living as man and wife. One essential element is that you are no longer having sex together. This aside, it is primarily a mental state in which the spouses no longer think or act as if they are still together. It is not a difficult element to satisfy for spouses going through a divorce.

2. REQUIREMENTS FOR OBTAINING A DIVORCE IN GEORGIA.

   The following are pre-requisites for obtaining a divorce in the state of Georgia:

   1. Bona fide state of separation.

      As described above, there is no waiting period in Georgia, all that must exist is that you are living in a bona fide state of separation as explained above. All it takes is one day of bona fide separation to enable you to file for divorce.

   2. Residency Requirement.

      For most people this rule is sufficient: Either you, or your spouse, have resided in Georgia for the last 6 months as your primary residence. You can travel around, live elsewhere for a bit, but as long as Georgia has been your primary residence for the past 6 months, you have met the residency requirement.

      1. Domicile.

         The law however is broader than just residency, it actually allows any person who has been “domiciled” in the State of Georgia for the last 6 months to file for divorce. Domicile includes primarily residing in Georgia, but it also includes people who have temporarily left the State of Georgia for example to pursue a military career and have been deployed, or who have left the state to pursue a college education, that sort of thing. Basically, if you leave the state with no intention of changing the state of your primary residence and intend to return, you may qualify as being “domiciled” in the State of Georgia.

   3. Legal Marriage

      To obtain a divorce you have had to have been lawfully married to your spouse.

In sum:

If you are lawfully married to your spouse, and if you are living in a bona fide state of separation from your spouse, and either you or your spouse has resided or been domiciled in the State of Georgia for at least the last 6 months you can file for divorce in Georgia. The divorce will need to be filed in one of three places: (1) the county where the defendant spouse lives, or (2) the county where the marital residence is, if the defendant spouse resided in the marital residence within the last 6 months, or (3) if the defendant no longer resides in the State of Georgia, then in the county where the Plaintiff spouse resides.

3. What are the grounds for divorce?

   There are 13 grounds for divorce. The most common ground is irretrievably broken. Irretrievably broken means that the parties cannot get along, because of this the marriage is broken, and there is no hope in trying to patch things up and get them to get along. The next most common ground is Adultery which means that one spouse has had an affair and this has caused the marital break down. Three other grounds that are frequently seen as grounds for divorce are habitual intoxication/habitual drug addiction, abandonment (means having abandoned the marriage for 1 year), and cruelty. Feel free to contact us with questions for any particular ground for divorce. In general irretrievably broken is pursued in almost every divorce, and the other grounds are added on when they exist and will help in pursuing the client’s case. But the facts and circumstances of each case are different and which grounds should be pursued in a divorce will vary from case to case in order to obtain the best results possible for the client.

4. What is an uncontested divorce

   Some people think this refers to a “no-fault” divorce. Georgia does have no-fault divorces under the irretrievably broken ground for divorce. But that only goes to the divorce itself which is usually the easiest issue, as in most cases the parties will both agree that they want a divorce (although, surprising to some, that is not always the case). It is the other issues such as child custody, child support, division of assets, division of debts, and attorney’s fees that are more difficult to resolve. An uncontested divorce is when every single issue has been resolved and settled by the parties before filing the case. If this is not the case, if even one contested issues remains, the divorce is a contested divorce. This is because a divorce cannot be granted in Georgia until either ALL issues are settled or the case is tried. So even one small issue unresolved makes for a contested divorce.

5. What if I cannot find my spouse and I want a divorce?

   In order to obtain a divorce in the State of Georgia it is not required that your spouse consent to it, or that you even know where your spouse is. All that is required is that you meet the requirements in paragraph 2. If you do, service of process can be perfected by publication and you can obtain a divorce from your spouse even if you do not know where he or she is, and even if your spouse never even discovers that they have actually been divorced.

6. Does my spouse need to consent to a divorce?

   No. If you want a divorce your spouse can make things more difficult, but in the end, if your spouse will not cooperate, you will still be able to obtain a divorce as long as the requirements in paragraph 2 are satisfied at the time you file your complaint for divorce. A spouse can slow the proceedings down, but a spouse cannot stop the divorce from occurring.

7. What if our children have not lived in the State of Georgia for 6 months

   ? The jurisdictional issue regarding children is separate from that for divorce. It is not uncommon for jurisdiction for divorce to be in one state and for child custody to be in another. It is a complicated issue. Feel free to call us to discuss the issue. Also review the article on Custody that is on this web-site.

8. Legal Separation.

   There are instances in which the parties need to separate and resolve issues between them but do not desire a divorce. In order to do so Georgia has available in the law a Suit for Separate Maintenance (and if applicable) you can add a complaint for child custody and visitation. All the requirements in paragraph 2 are needed to obtain a legal separation except the 6 month residency requirement does not exist. Technically all you need to do is live in the State of Georgia for 1 day to be able to file for separation. The issues to be decided in a legal separation and a divorce are almost identical. The primary difference is that at the end of the day you are still married to the other person but all the other issues but the actual divorce have been resolved. The parties can later reconcile their differences and resume the marriage, even after the parties have gone through a Separate Maintenance suit. Property that was awarded to each party in a Separate Maintenance suit, should the parties later reconcile and decide to resume their marriage, usually remains the separate property of the party to whom the property was awarded, even if the parties later reconcile. What this means is that if you divide the assets pursuant to a Separate Maintenance suit, and later get back together with your spouse, the property you were awarded during the separate maintenance suit will often become your non-marital property should you ever get divorced from your spouse later on (see article on Division of Assets). It is therefore very important to get what you want in a Separate Maintenance suit, even if you later intend to reconcile.

9. How is a divorce filed and what happens when I file for divorce? How long will it take?

   Filing a divorce is just like filing any other lawsuit. The case is filed in Superior Court. Based upon detailed information that we will gather from you on the issues relating to your marriage, the property, and the children, a Complaint for Divorce will be drafted along with an assortment of supporting documents, the primary supporting documents will be the Financial Affidavit and the Child Support Worksheet (if minor children are involved). After filing for divorce service of process must be perfected on your spouse. This can be done either by (1) having the sheriff serve the Summons and Complaint on your spouse, (2) having a specially appointed process server do this, or (3) having your spouse voluntarily Acknowledge Service (which is the nice way to do things, but not always practical and not always advisable depending on the circumstances). Thereafter your spouse will file an Answer and Counterclaim to your complaint. He or she will have 30 days to do so. The case will thereafter go through a discovery phase (meaning the parties will take steps to discover from the other documents and information that they need to either settle or later try the case), mediation (which is a formal negotiation process to try to reach settlement), and then a trial if it does not settle before hand. Along the way there may be emergency motions, temporary hearings, and a host of procedural things. We discuss some of these issues in more detail on this site (see articles on Temporary Hearings and on Mediation).

   1. A divorce can be done in as quickly as 31 days, but some divorces can stretch out to 6 months to a year and even longer, just depends on the case and which county the case is in. The majority of divorces take less than a year, and probably a majority of those are finished in less than 6 months. The duration your case will take will depend not only on the county, but the difficulty of the issues, who opposing attorney is, and what actions the other side may take to stretch out and try to delay the proceedings.

10. I have just been served with divorce papers from my spouse, now what?

    You have 30 days to respond to the Complaint for Divorce by filing what is called your Answer and Counterclaim. Do not ignore the documents you were served with. Ignoring them will not make them go away, and your spouse does not need your consent, or your participation to obtain a divorce and get awarded custody, support, property, and everything else that can be awarded in a divorce. There is time to respond to the Complaint for Divorce that you have been served with (30 days from date of service of it on you) so do not panic in that regard. Just make sure your Answer and Counterclaim is filed within 30 days. However, there is another issue that often pops up and that is your spouse may have also scheduled what is called a “Temporary Hearing” in the divorce case (see article elsewhere on this web-site regarding Temporary Hearings). Although it may seem unfair (and often is) a temporary hearing can be heard even before the 30 day period expires for your Answer and Counterclaim. This does not happen in every case, but it happens in enough cases that you need to contact the court to determine if any hearing dates have been scheduled in your matter. Consulting with an experienced attorney soon after being served with papers is usually the most prudent thing that you can do.

11. What if emergency issues are involved in the divorce? Can I get immediate help from the court?

    Yes, in the right circumstances. But contact an experienced attorney immediately. Dealing with emergency issues can be very challenging and you often get only one chance at it if it gets screwed up.

12. What if there is violence?

    Call the police immediately. Take immediate steps. You may be able to file a Temporary Protective Order that will remove the violent spouse from the home immediately. Violence is committed by both men and women and Temporary Protective Orders are obtained by both men and women. It is not just an issue for women. But take steps immediately to first protect yourself and the children, even if it means leaving the house, and then contacting the police, and filing for a Temporary Protective Order. These orders are very powerful. As with everything that is legally complex, contacting an attorney for a consultation is advisable.

13. ISSUES TO BE DECIDED IN A DIVORCE.

    No divorce can be finalized until EACH AND EVERY issue (and I mean each and every issue) that can be resolved in the divorce, is resolved. This can happen in one of three ways: (1) a settlement agreement resolving all issue is reached, (2) trial, (3) both parties dismiss their suits for divorce. There is no other way to resolve a divorce case. The issues to be resolved are the matter of the divorce itself are as follows:

    1. child custody and visitation (if applicable),
    2. child support (if applicable),
    3. alimony (if applicable),
    4. distribution of property,
    5. division of debts, and
    6. attorney’s fees claims that one party may make against the other.

Please see the related articles on these topics elsewhere on this web-site.

14. I am living in a state of bona fide separation, may I now date?

    This is a question that I get a lot from my clients, and the answer is that technically it won’t be used against you in a divorce as long as your dating did not prevent reconciliation between you and your spouse, and you are dating after the state of bona fide separation with your spouse began. Practically speaking there may be real implications in regard to issues of child custody, and dating may infuriate your spouse and make it more difficult to settle the case. Also, it is usually harmful to the case if you spend lots of money dating. A host of issues may also arise on a practical basis. Best to discuss this issue with your attorney first. Legally speaking, however, it will not be held against you as an adulterous affair, and it will usually be irrelevant in regard to the division of assets, division of debts, alimony, etc.

15. Does a divorce case need to go to trial?

    No. The vast majority of divorce cases settle well before trial. Negotiations go on constantly through the divorce process, and formal mediation is utilized in almost every case to try and settle cases well before trial. Not every case can settle, not every case should settle, but most cases can be and are reasonably settled before trial. We try to find a way to settle every case we handle. We view our job as solving problems, and we like to amicably solve problems for our clients. Resolving cases outside of court happens in the majority of our cases, and it is our preferred way to handle cases.

16. Do some divorces go to trial?

    Yes. In some divorce cases the issues involved do not settle and need to be tried. We try to settle every case, but you know what, some cases, no matter what the politically correct pamphlets may tell you are not conducive to settling. One cannot split a child in half, one cannot settle for support that is outrageously low or outrageously high, one cannot allow themselves to be taken to the cleaners. The worse thing that can be done in a divorce case is to enter into a settlement to be “nice” to the other party or to just get the matter done with. I am sorry, but bad settlements breed future litigation that is both more expensive, and more difficult to resolve after the divorce than if the issues were properly resolved before the divorce. I can share war stories with you if you want, but that is the truth. Being “nice” gets you no respect from your spouse and no benefit from the court. What you need to be is cordial and business like. I cannot recall a single case where a client being “nice” has caused that client anything but pain, grief and money. And more times than not that client is back having to litigate the case not long after the divorce to try and fix the horrible settlement that they gave in an effort to be nice. That does not mean that you need to be mean, nasty, etc., but you must be business like in how you approach the matter. Cases need to settle in a business like fashion. Cases that do not, and one party concedes out of “niceness” often turn into living nightmares after the divorce is done, because the other spouse never appreciates that you were nice to give them such a great settlement. Sometimes there are issues that just need to be tried, or at a minimum the threat of trial has to be there in order to get the other party to sufficiently compromise so settlement can be reached. I am not going to sugar coat it for you, as much as I prefer to amicably settle every case, some cases come down to a fight in the courtroom. And sometimes this produces better results then wasting money and spinning wheels in the mud trying to settle with an unreasonable spouse. So yes, some divorces go to trial, and yes, some divorces belong in trial. And sometimes just the threat of trial will cause the other side to settle amicably.

17. Will your spouse try to defeat you psychologically?

    In many cases, yes. We have seen this tactic employed so often that we have named it, and we call it “bluster”. It is sometimes comical the tactics the other spouse will use to try to intimidate and demoralize their spouse. The problem is that often the spouse will come to believe and actually be intimidated by this bluster, no matter how outrageous it is. One rule of thumb: Do not listen to the threats and outrageous comments from your spouse in a divorce. They do not have your best interest at heart, and most of what they say has no basis in fact. I have seen it time and time and time again. Listen to your attorney, ignore your spouse. Do not let this psychological intimidation succeed.

18. Will I be awarded attorney’s fees from my spouse?

    That issue varies from case to case. There are multiple statutory grounds for obtaining attorney’s fees from the opposing party in Georgia in family law matters. The primary statute involves disparity in income between the spouses. That is if one party makes substantially more money then the other, then the lessor earning spouse may be entitled to an award of some or all of her attorney’s fees at the discretion of the court. These awards are variable from court to court and case to case. In general if one party is a stay at home parent and the other makes a good living as a professional, entrepreneur or executive, an award of attorney’s fees is likely (although not guaranteed) from the greater earning spouse. Basically the court wants to insure that both spouses have sufficient resources to adequately represent their legal interests in the divorce matter.

Although these issues are easy to summarize, the issues themselves can be extremely complicated, and have many layers of nuance. The issues surrounding divorce and child custody law can be some of the most complex and nuanced in the entire field of law. Please take the information on this web-site as a summary of issues to aide your understanding, but please speak with an experienced and competent attorney about how any of these issues may specifically apply to your case.

Contact us or call today to learn how Shaw Law can work with you to achieve the best outcome possible for you and your children.

Scott Shaw is founder and principle of Shaw Law Firm LLC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm serves the greater Metro Atlanta area, particularly the counties of Fulton, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today at 770-594-8309.