Frequently Asked Questions about Divorce and Family Law
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The firm invites you to scroll below to find answers to some of your most commonly-asked questions.
- What are the most common grounds for divorce?
- What is a no-fault divorce and is Georgia a no-fault state?
- What are the legal requirements to file for a divorce?
- What are the jurisdictional requirements to file for a divorce?
- Do you need a lawyer to obtain a divorce?
- What is an uncontested divorce?
- Can you have a jury trial?
- How long does it take to obtain a divorce?
- Can one spouse sue the other for personal injury or damages?
- Is mediation helpful?
What relief can I get from a divorce court?
- What is alimony and when can I get it?
- What is equitable distribution of property?
- What is a custody determination?
- Who has custody of a child born out of wedlock?
- What is child support, when can I get it, and how is the amount determined?
- Can I modify alimony, child support or custody?
- If there is domestic violence, what can the Court do about it?
- What are the most common grounds for divorce? In Georgia there are thirteen grounds for divorce, but the ground used in the overwhelming majority of cases is the thirteenth ground, styled as a marriage that is "irretrievably broken." Before the 1970's, mental or physical cruelty, adultery, abandonment, or habitual intoxication were often alleged, and in many cases the facts were "embroidered" to make out a case. It was possible for a divorce to be denied, although this did not happen often. With the advent of so-called no-fault divorces, if one spouse or the other wants a divorce he or she will get it.
- What is a no-fault divorce and is Georgia a no-fault state? Georgia is, in the narrow sense, a no-fault state as far as obtaining a divorce. It is decidedly not a no-fault state in the sense that issue of fault is not important. On the contrary, all issues relevant to the divorce, such as family violence, infidelity, lack of financial support, and the like are admissible on all issues, including alimony, equitable division of property, custody, and an award of attorney's fees.
- What are the legal requirements to file for a divorce? You must be a resident of Georgia for more than six months before filing for a divorce. If you live in another State or country, and the spouse lives in Georgia, the spouse living in Georgia must be a bona fide resident for more than six months.
- What are the jurisdictional requirements to file for a divorce? You must file suit for divorce in the superior court of the county in which the defendant resides.
- Do you need a lawyer to obtain a divorce? You do not have to employ a lawyer to file for a divorce. However, if there are minor children, custody issues, or issues involving equitable distribution of property the need for a lawyer increases dramatically. A judge is not in a position to help you or give you legal advice, nor are the clerks. In some counties there are offices to help you with a "pro se" divorce, but they are rare.
- What is an uncontested divorce? An uncontested divorce means that both parties have agreed on all the issues between them and are ready and willing to sign the documents necessary for a judge to enter a decree. If all the required legal documents are signed and properly filed a decree of divorce can be granted 31 days after filing. In many courts an attorney can obtain a divorce without an appearance by the parties before the judge. Other courts require an appearance at least by one party, and sometimes both, when minor children are involved.
- Can you have a jury trial? Georgia is the only State that gives a party in a divorce case the right to a jury trial. This right is used sparingly, as it increases the expense of a trial enormously and often causes delay because a jury trial case must take its place on a judge's jury trial calendar. In many courts, if not all, those calendars are long.
- How long does it take to obtain a divorce? An uncontested divorce takes thirty-one days from the date all the necessary documents are filed. It is more difficult to say how long a contested divorce will take. Much depends upon the trial calendar of the judge assigned to the case. Also, a complex case with lots of document production and depositions will prolong the exercise. If a jury trial is requested it could take as long as two years. If a judge sitting without a jury is requested it can take twelve to eighteen months.
- Can one spouse sue the other for personal injury or damages? A short answer to a complicated question is yes. A spouse can be liable to the other for what the law calls negligence, either intentional or unintentional. Traditional negligence law applies and a spouse may be awarded compensatory or punitive damages. One example is in the case of a spouse infecting the other with a sexually transmitted disease. Georgia and the courts of a number of other states have upheld the right of a spouse to sue the other for personal injury in such circumstances. The details of such a proceeding are too complicated to set forth here. There are some blogs on the subject, including mine.
- Is mediation helpful? Mediation is more than helpful. Also known as Alternative Dispute Resolution, it is a cheaper and infinitely quicker way of resolving a divorce dispute than litigation. Many courts make mediation mandatory before they will hear a case. I now settle more than 90% of my cases through mediation.
What relief can i get from a divorce court?
1) What is alimony and when can I get it? Alimony is also called spousal support or maintenance. It is a court-ordered allowance paid by one former spouse to the other. Alimony can be temporary or permanent. Temporary alimony is typically given to enable a spouse who has a need during the divorce proceedings to receive financial support until the case is resolved. Attorney's fees are a form of temporary alimony. Permanent alimony is for a fixed period of time or lifetime. In Georgia the factors a court will usually consider are as follows:
- The standard of living established during the marriage;
- The age, physical and emotional condition of the parties;
- The financial resources of each party, including marital and non-marital property;
- The contribution of each party to the marriage including, but not limited, to child care, contribution to the education or career building of a party, all sources of income available to either party. More controversially, factors that may be considered are the negative contributions of a party, although strictly speaking alimony is not supposed to be punitive.
Alimony may be granted for the time needed for a party to obtain or finish education or training to find employment.
The length of a marriage is a significant factor. The shorter the marriage, the less likely it is that permanent alimony will be awarded. Additionally, it is true that alimony is not as favored as it once was before the 1970's and the advent of the women's movement for equality in the workplace and elsewhere. Nevertheless, in appropriate cases alimony is awarded, although it is not likely to be permanent unless a party is suffering from a disability that prevents employment or advanced age. Many permanent alimony awards terminate when a spouse will be eligible for retirement benefits or Social Security.
Alimony can be what is known as lump sum or periodic. Lump sum alimony can be paid periodically (monthly) or in a literal lump sum. As such, it is not taxable income or deductible. Periodic alimony is typically paid monthly and subject to some exceptions is deductible to the payor and reportable as income by the payee.
2) What is equitable distribution of property? Equitable division of property is the method by which marital property is divided in Georgia. Some states have what is known as community property. In those states marital property is usually divided equally between the parties. Although that is often the case in Georgia, it is not required by law and one or the other spouse may receive more than half of the marital property. The reasons for the divorce (fault issues) may cause the balance to be weighted in favor of a party. If one party has custody of the children and the other a substantially larger income, those facts may cause a court to give a spouse a larger share of the property. The various facts situations are too numerous to list. Included in equitable division are all assets, including but not limited to retirement plans, stock accounts, real estate, bank accounts of all kinds, automobiles, household goods, clothing and art. Some refer to this facetiously as dividing the pots and pans. Sometimes spouses spend so much time fighting over the property the attorney's fees exceed the value of the property.
3) What is a custody determination? Either by agreement or court order custody of minor children is determined as part of a divorce. In Georgia there is no right to a jury determination of custody. This is an issue solely for a judge. There is legal custody and physical custody. Joint Legal Custody means both parents have equal rights and responsibilities for major decisions concerning the child, including education, health care, religious training, and extracurricular activities. This can be changed by a judge or by agreement dividing those responsibilities. Joint physical custody means that physical custody is shared by both parents in order to assure the child of substantially equal time and contact with both parents. Georgia requires each party to fill out a parenting plan form that sets out the terms of custody and the specific times the child will be with each parent. Child custody is a huge topic and this is not the place for a book. Suffice it to say, the guiding principle in all custody decisions is what is best for the child, i.e., the best interest of the child – not the parent. Using a child or children for advantage in a divorce case is never in the best interest of a child and is decidedly frowned upon by the courts. Assuming both parents are fit, they ought to reach an agreement on custody without asking a judge to do it for them. If there are issues of unfitness, such as alcoholism or abuse of drugs, it may be necessary for judicial intervention.
4) Who has custody of a child born out of wedlock? The mother of a child born in Georgia out of wedlock has sole custody of the child unless the father takes action to legitimate the child by filing such an action in a superior court having jurisdiction of child custody. He can, at the same time, file for whatever kind of custody he feels is in the best interest of the child. Unless and until he receives a decree of legitimation the mother will have sole control over the child.
5) What is Child support, when can I get it, and how is the amount determined? Child support, sometimes confusingly termed alimony for the support of a child, should be a part of every custody determination, whether in a divorce case, a modification action, legitimation action, or even a parental termination proceeding. Child support is determined in accordance with the "Georgia Child Support Guidelines." These are published on-line and available to anyone who can access the internet. To determine the amount of child support, you will need Microsoft Excel and the responses required to fill out the form. As is true in the case of alimony, a jury trial is available to determine child support. You will pardon me for saying that submitting the determination of child support to a jury is right on the edge of demented, although there are litigants and lawyers that cannot resolve the issue in any other way.
6) Can I modify alimony, child support or custody? Yes, you can file an action to modify either child support or alimony. No such action can be filed more often than every two years. The test for an upward or downward modification is whether there is evidence of a substantial change of income or financial status (upward or downward, depending upon the relief requested) since the previous determination of alimony or child support. A petition to modify custody is also permitted without the two year limitation. To modify custody, the test is whether there has been a substantial change in condition that would warrant a modification, either to expand or limit visitation, or to change legal or physical custody. Just a few changes of condition are immoral or unlawful behavior by a parent; parental neglect of a child; a criminal act such as molestation of a child; moving to another location that would limit or impede a parent's time with the child. Assuming there is evidence of a change in condition, the guiding test for a custody decision is what is best for the child.
7) If there is domestic violence, what can the court do about it? There is a procedure for obtaining what is known as a protective order, either temporary or permanent, in every state including Georgia. Jurisdiction is in the superior courts of Georgia, and usually the staffs at the various clerks' offices are very helpful to an applicant. It is best to remember, however, that a protective order is only a piece of paper, and an abused person needs to use every bit of his or her common sense and consult agencies that exist to help with this unfortunately all too common problem. Assuming the abuse is serious, a police report should be made.