A Reputable Alpharetta Divorce Lawyer Serving Atlanta and the Surrounding Communities
Stephen Land's overview of divorce in Georgia
It would not be possible, short of writing a book, to summarize all the aspects of the law relating to divorce. It is possible, however, to provide you an outline of some basic information that answers your questions on divorce in Georgia.
Cold hard truth about divorce
Divorce affects nearly every family in this country, one way or another. Although hard numbers are hard to come by, approximately fifty percent of marriages end in a divorce. Of the remaining marriages we can only guess at how many of them are happy.
It is important to understand that a marriage is a contract between two parties (so far, in Georgia, a man and woman) but not an ordinary contract like a lease. It is a contract that the State has an interest in preserving. Therefore, to terminate that contract a marriage may be dissolved only as required by law through a divorce or an annulment.
13 Grounds for divorce in Georgia
The 13th ground for divorce in Georgia is "Irretrievably Broken" and is usually referred to as the no fault ground.
Additional grounds of divorce, so-called fault grounds:
- Habitual intoxication or drug addiction
- Mental or physical cruelty
- Marriage between two parties that are too closely related
- Mental incapacity at the time of marriage
- Force or fraud at the time of the marriage
- Pregnancy of the wife unknown to the husband at the time of the marriage
- Impotency at the time of the marriage
- Conviction and imprisonment for certain crimes and mental illness
Filing a divorce in Georgia
Despite the fact that the parties have alleged the no fault ground for divorce, evidence of fault or misconduct during the marriage is admissible on the issues of alimony, child custody, and division of property.
It is not required to show fault or misconduct in Georgia in order to secure a divorce. It is also not necessary for both parties to a marriage to agree that the marriage is irretrievable broken. All it takes is for one party to swear that the marriage is irretrievably broken, that he or she does not want to live with the other, and that there is no chance of reconciliation. If that happens, the Court will grant a divorce. Before filing for a divorce, the parties must be living in a bona fide state of separation. That does not require that they live in a separate house or apartment. It means they are no longer acting as husband and wife and are not having sexual relations.
Residency and jurisdiction requirements in Georgia
Georgia requires that a party be a resident of Georgia for more than six months before being allowed to file for a divorce. If a non-resident files for divorce, the defendant must have been a resident of Georgia for more than six months at the time of filing. If a defendant has recently moved from the state of Georgia the petition for divorce can be filed in the superior court of the plaintiff's residence.
The superior courts of Georgia have jurisdiction of all divorce cases.
How long does it take to get a divorce?
- If the parties have reached an agreement the divorce is called uncontested. In such a case, the divorce may be granted 31 days after the defendant has been served with the petition for divorce.
- If there is an issue not reached by agreement, the divorce will have to wait for a decision by a judge or jury to resolve the issue. In such cases you will have to wait for the case to be put on a court calendar and then heard. This can take many months or over a year.
What is a temporary hearing?
Divorces are different in many respects from other civil cases, like personal injury cases or suits for breaches of contracts. There is often a need for speedy action on custody and visitation, child support, alimony, attorney's fees or use of the home where the parties are living. The court has the authority to issue a temporary order on these issues that lasts until there is a final resolution of a case. Often, temporary hearings are necessary in the following circumstances:
- The husband and wife are fighting and cannot control their tempers, requiring a physical separation. In such cases a judge might give exclusive use of the home place to one or the other parties.
- The parties refuse to agree on custody and visitation with minor children. The court will enter a temporary order deciding custody. Proper preparation for a temporary custody hearing is crucial a judge has the sole authority to decide custody issues and a temporary order can easily become permanent.
- One party has limited financial resources and cannot survive without support from the other, or cannot afford an attorney. In such a case the judge may award alimony, child support or temporary attorney's fees or all of the above and also set forth who is to pay the debts.
- A party may be planning to hide or waste marital assets. Although many courts issue what is called a Standing Order of the Court prohibiting transfer or sale of marital assets except in the ordinary course of business, it may be prudent obtain a more specific order.
Children and custody
The single issue that is often the most important and also vexing in divorce cases is custody of minor children. The welfare of children is a major concern to a court and neither parent has an automatic right to custody. It is infinitely better for parents to reach an agreement on custody. If they cannot, the judge will consider, among other things:
- The love, affection and bonding the children have with the parents.
- The ability and willingness of each parent to take care of the children. If a parent's job requires constant travel, this might be an important factor.
- Each parent's past involvement with the children's education, health, extracurricular activities, and the like.
A child more than 14 years of age may choose which parent will have custody with the consent of the court. The child's decision is ordinarily followed unless the parent selected is not considered by the court to be in the best interest of the child.
What kind of custody is right for me?
- Shared custody: The court, in its discretion, may award joint custody or sole custody. There are two types of custody - legal custody and physical custody.
- Legal custody: Legal custody is the right to make major decisions in the life of a child. Joint legal custody means both parents have equal rights and responsibilities for major decisions with one or the other parent having final decision-making authority on those issues which are medical, educational, extracurricular and religion.
- Physical custody: Physical custody means the actual physical custody of the child. Joint physical custody means the parents share the child in such a way that each parent has roughly equal time with the child. A judge may order joint physical and legal custody. It is more common for one party or the other to be awarded what is called primary physical custody.
- Parenting time: Since January 1, 2008 Georgia requires all persons divorcing with children to prepare and file a parenting plan. There are forms online that can be used.
- Child support: Issues involving child support are dealt with in other sections of this web page.
Enforcement of divorce decrees
Contrary to most other civil cases, the violation of the orders of a court in a divorce case may be enforced by a contempt action. A court has the power to put a violator in jail for not complying with the divorce judgment, in addition to the usual remedies of a money judgment or garnishment.
Do I need an attorney?
You have the right to represent yourself in a divorce case. You will do so at your peril. Not using an attorney could lead to making mistakes that in the long run will cost far more than the attorney's fees. Divorces can be very complicated, and even if you reach an agreement with your spouse, you will not know whether you have made informed decisions that will affect your children or estate in a positive or negative way.
Contact a skilled Fulton County divorce attorney to get started
When you need sound legal advice for a divorce, make an appointment with the experienced team at the law firm of Stephen A. Land LLC by calling 404-550-1498 or contacting the firm online. The Alpharetta office keeps flexible office hours for your convenience.