Although it only took a moment to say, “I do,” it could take six months to a few years to undo a marriage through a divorce. Although you may be eager to split apart, careful consideration and planning is necessary to achieve a more favorable outcome for you.
1.File a Petition for Divorce – The first step is to talk with your attorney about the options that are available to you, depending on whether you have children, property, joint accounts and so on. Either spouse can file a petition for divorce to the court. Your attorney will handle all the paperwork and make sure that it meets all legal requirements. No allegations of wrongdoing will be made yet. The petition only alleges that the marriage is irretrievably broken.
The court will not favor one spouse over the other based on who filed first. However, it becomes a tactical advantage to be recognized as the plaintiff. In fact, this is such an advantage that the question of who files first must sometimes be litigated before proceeding.
The spouse will be served a copy of the petition according to law, which means that only a sheriff or an appointed process server may deliver it by hand, or the spouse can execute an Acknowledgement of Service.
2. Answering the Complaint – The spouse then has 30 days to respond to the Complaint by filing a formal (legally drafted) Answer and possibly a Counterclaim with the court. If the spouse fails to respond, they lose entitlement to any further notice, including the hearing date.
This is more common than you would imagine. In a recent matter, my client won custody of all four children and all the property because the spouse failed to respond. Filing a Motion to Set Aside is an effort to change the decision. Georgia law is not very generous in allowing such motions to succeed. If you are served with divorce papers, do not ignore them!
3. Standing Order – Once a complaint has been filed, the court will essentially freeze everything in place with a Standing Order regarding moving, selling anything, emptying bank accounts and so on. If something must be changed, the court or the spouse must approve it first, depending on the situation.
4. Discovery Period – You and your spouse will be required to disclose all your income and assets, expenses, and more. This is the Discovery period, in which further investigation may reveal hidden assets or assets that were moved elsewhere prior, in anticipation of the divorce.
5. Temporary Orders – During the months it takes to sort everything out, a judge may issue a Temporary Order based on the request of either spouse, to address issues such as custody, support and use of joint property, until the final decision is made. Many times the results of the temporary order sets the framework for the final result. But not always. This is an important proceeding.
6. Pretrial Negotiation – In most counties, Pretrial Negotiation or Mediation is required before either a temporary or final hearing, in an effort to resolve differences out of court. This pretrial negotiation is demanded in Forsyth, DeKalb and Henry counties. Fulton County is flexible, but will order mediation at some point. Gwinnett County does not require it, but in most cases, we will attempt some form of mediation, which can result in a faster decision with less expense involved.
7. Custody – Care of Children involved is the most important part of the divorce. It is not true that the mother always wins custody. Either party who goes into a custody case believing otherwise leaves themselves vulnerable to losing. The court decides what is in the best interest of the child, based on O.C.G.A. 19-9-3. When consulting with your attorney, focus on the criteria in this statute.
8. Late Case Attorney Evaluation – Unlike any other county in Georgia, the Fulton County court holds status conferences called 30, 60 and 120-day conferences. At 30 and 60 day interim hearings, they handle temporary issues. At the 120 day conference, the matter is set on the trial calendar. If mediation has not occurred or has failed, a Late Case Evaluation is recommended, where both sides present their case informally to an experienced divorce attorney. The attorney will give his opinion on what he thinks the court will decide if it heads to trial. This is not a mandatory process, and it is not widely used outside of Fulton, yet if we think it will be in our best interest, we will agree to a late case evaluation.
9. Divorce Trial – If negotiation does not work, the case is scheduled for a trial. During the Divorce Trial, the case may be heard by a jury, or solely by the judge. Each side presents their case, the divorce is granted, and the distribution of property, finances and custody is determined by the jury or the judge. Usually, this sends the case. However, there are some grounds for appeal on legal errors.
10. Post-Divorce Actions – After the divorce it may be necessary to return to the court to demand enforcement of the obligations of the divorce decree. If your ex-spouse does not comply with the divorce orders, do not wait. Hire an attorney and bring a contempt action. The court can enforce contempt, not only by ordering compliance and possible jail time, but awarding attorney’s fees.
Modifications are different. Property settlements and orders are usually not modified. However, child custody and alimony are modifiable, based on changes in circumstances.
In all, a typical Georgia divorce will take about six months to get to trial. Motions, discovery, requests for temporary orders, custody issues, mediation or late case evaluation and finding time to schedule on the court docket may extend this time period substantially. Take a deep breath and have patience. Caution, honesty and diligence will bring about a better outcome.
Scott Shaw is founder and principal of Shaw Law Firm PC, 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 has offices in Dunwoody/Sandy Springs and serves the greater Metro Atlanta area, particularly the counties of Fulton, DeKalb, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today or call us at 770-594-8309.