Georgia Divorce Procedures

Posted by DivorceLine in Divorce Procedures in Your State on 03 31st, 2010 | no responses

Georgia Divorce Procedures

Complete overview of Georgia divorce laws for people considering a Georgia divorce or filing a Georgia divorce with issues to be resolved about child custody, child support, visitation and alimony.

Georgia Divorce Residency Requirements

In order to file your Petition for Divorce in Georgia, you must make sure the Superior Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Georgia residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

No court shall grant a divorce to any person who has not been a bona fide resident of this state for six months before the filing of the petition for divorce, provided that any person who has been a resident of any United States army post or military reservation within this state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the United States army post or military reservation; and provided, further, that a nonresident of this state may file a petition for divorce, in the county of residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.

The divorce is typically filed with in county in which the filing spouse lives.

(Georgia Code – Sections: 19-5-5)

Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Georgia. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the Georgia residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

Georgia Grounds for Divorce

The Petition for Divorce is the initial document filed with the Georgia court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

The granting of a divorce shall be according to one of the following grounds:

No Fault Based Grounds:
The marriage is irretrievably broken. Under this ground the parties will not be granted a divorce until 30 days have lapsed from the time of filing.

Fault Based Grounds:
a) Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
b) Mental incapacitation;
c) Impotence at the time of getting married;
d) Force, duress and fraud;
e) Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;
f) Adultery by either spouse;
g) Willful and continued desertion by either of the spouses for the term of 1 year;
h) Conviction of a felony and imprisoned for a term of 2 years or longer;
i) Habitual drunkenness;
j) Cruel treatment;
k) Incurable mental illness;
l) Habitual drug addiction.

(Georgia Code – Sections: 19-5-3)

Every divorce case that is filed in the state of Georgia must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

Georgia Uncontested Divorce

This information is an overview of the uncontested Georgia divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Georgia.

In Georgia, the filing spouse must be a resident for at least six months and file for the action in the county of residence. A nonresident may file against a spouse who has been a resident of Georgia for six months, but the action must be filed in the county of residence of Respondent.

In Georgia, the person who files for divorce is called the Petitioner, and the person who responds is called the Respondent. Divorce actions are filed in the Superior Court of one of Georgia’s more than 150 counties.

Legal grounds for divorce include No-fault, which means an “irretrievable breakdown of the marriage,” and 13 fault grounds, including 1) impotence, 2) adultery, 3) conviction and imprisonment for more than two years for an offense involving moral turpitude, 4) alcoholism and/or drug addiction, 5) confinement for incurable insanity, 6) separation caused by mental illness, 7) willful desertion, cruel and inhuman treatment which endangers the life of the other spouse, 9) habitual intemperance (drunkenness), 10) consent to marriage obtained by fraud, duress or force, 11) spouse lacked mental capacity (including temporary incapacity as a result of alcohol or drugs), 12) wife pregnant by another man at the time of the marriage, unknown to the husband, and 13) incest.

All divorces begin with the filing of the Petition for Divorce, when the clerk of the court assigns a docket number to case. Unlike many states, George does not have a simplified or summary divorce; however, if both parties agree to the terms and conditions of the divorce, they can sign and file an Agreement. This form stipulates the terms and conditions of spousal and child support and visitation as well as the division and distribution of the marital estate. In this routine, the respondent normally signs Acknowledgment of Service and Consent to Jurisdiction, by which the Respondent waives further notice. These forms are then joined with the Petition and the divorce proceeds to a Final Judgment and Decree. This can happen 31 days after the filing. In this routine, the Agreement becomes a court order, and neither spouse needs appear in court. Some of additional forms listed below for an uncontested divorce may be required, however.

When the parties have not reached agreement, the Respondent must be given notice of service. In these cases, where an agreement is not reached when the Petition is filed, the Respondent must be sent a Summons, which informs him or her that the Petition has been filed and gives the party 30 days to respond. The Summons is accompanied by a Sheriff’s Entry of Service, which certifies delivery of the Petition and the Summons. In Georgia, service is done by the sheriff.

If a hearing in the action is required, the Petitioner must inform the Respondent with a Rule Nisi, a form which informs him or her of the hearing. If the party has already completed an Acknowledgment of Service and Consent to Jurisdiction, or if he or she has answered the Petition, the Rule Nisi form can simply be mailed to the Respondent with an attached Certificate of Service, which he or she returns. If he or she has not signed an Acknowledgment or answered, then the Rule Nisi must be served in the same manner as the Service of Process.

At the time of the filing, almost every Superior court in George also issues a Domestic Standing Order, which requires that the parties behave civilly toward one another, not remove children from the state or dissipate assets.

A divorce is uncontested in one of two ways: one, when the Respondent does not respond and defaults, and the other is when the parties reach an agreement on every issue, including asset and liability division and distribution, child custody and visitation, child support and alimony (how much and how long).

To begin an uncontested divorce, a Petitioner files the following forms at the time he or she files the Petition for Divorce:

a) A Disclosure Statement, which is a kind of cover sheeting identifying the parties, stipulates the court action — divorce or annulment.
b) A Domestic Relations Case Filing Information Form, which identifies the parties, identifies the type of court case, including modification and contempt proceedings.
c) Report of Divorce, Annulment, or Dissolution of Marriage, which is a state form for statistical purposes, reports the particulars of the marriage.
d) Acknowledgment of Service and Consent to Jurisdiction or Sheriff’s Entry of Service.

By the final hearing, which is scheduled when the divorce papers have been served, the following forms are prepared:

a) A Final Judgement and Decree, which is a court order, ends the marriage.
b) Domestic Relations Case Final Disposition Form, which is similar to the Domestic Relations Case Filing Information Form, reports the outcome of the action.
c) Agreement, which is negotiated, spells out the terms and conditions of custody and visitation, support and the division and distribution of marital property.

When the couple have minor children, they must complete an Affidavit Regarding Custody, by which the Plaintiff identifies them, their addresses and reports any custody issues involving them.

In an uncontested divorce, the Defendant may file an Answer and Counterclaim if

a) the wife is the Defendant;
b) both she and her husband agree on everything;
c) both sign and file an agreement;
d) she wants her maiden name restored.

This form is not used in a contested divorce. When the wife is the Plaintiff in an uncontested divorce, she normally asks for a restoration of her maiden name in the petition.

The route of a contested divorce is difficult to predict because very often both the Petitioner and Respondent continue to negotiate after the action begins. In an uncontested divorce, the court approves what the parties have agreed to provided it is fair and reasonable; in a contested divorce, the parties must prove what they are asking for and the court divides property under the laws of Georgia, which provide for an equitable division.

A contested divorce begins when the Respondent files an Answer to the Petition that may include a Counterclaim. He or she has 30 days to do this upon receipt of the Petition.

A contested divorce begins with the Petition, Summons, Sheriff’s Entry of Service or Acknowledgment of Service and Consent to Jurisdiction, and it includes all of the forms used in an uncontested divorce, including a Domestic Relations Case Filing Information Form. Disclosure Statement, Report of Divorce, Annulment, or Dissolution of Marriage. In addition both the Petitioner and the Respondent must file a Domestic Relations Financial Affidavit, which profiles the income and expenses of the party as well as his or her assets and liabilities.

The purpose of the Domestic Relations Financial Affidavit is to give the court an understanding of the financial position of each spouse, and together the forms and affidavits give the court an idea of what the Petitioner seeks.

When the Respondent fails to file a Domestic Relations Financial Affidavit, the Petitioner first must try to obtain the information by filing a Request for Production of Documents, which gives the party 30 days to comply and produce the requested information. If this does not produce results, it may be necessary to subpoena the spouse’s employer, bank, or accountant.

In a contested divorce, a temporary hearing may be held prior to the final judgment at which the judge may issue a Temporary Order regarding spousal and child support, house and living expenses.

When the Respondent cannot or will not be found to receive divorce papers, the Petitioner must conduct what is term a “diligent search” followed by service by publication. Courts require a good faith effort by the Petitioner to prove that he or she has search for his or her missing spouse. This search entails:

a) checking the telephone book and directory assistance in the area where the Petitioner lives;
b) checking the telephone book and directory assistance in the area where the Respondent is last known to have lived;
c) asking friends and relatives who might know the location of the missing spouse;
d) checking with the post office for any forwarding address of the missing party;
e) checking records of the tax collector and property assessor to see if the missing spouse owns property;
f) contracting the department of motor vehicles for registrations in the name of the missing spouse;
g) checking with any other possible sources that might lead to a current address, such as landlords, prior employers.

If a good faith search is barren, the Petitioner may file an Affidavit of Publication and Diligent Search. This form gives the affiant (the Petitioner) permission to publish the Summons in a newspaper after the court issues an Order of Publication and a Notice of Publication. The order and notice are prepared by Petitioner. Publication must be done four times over a 60-day period, with publication at at least seven day intervals in a newspaper in the county where the divorce is filed.

If the missing spouse still fails to appear, the divorce action continues as an uncontested default divorce.

Georgia Simplified Divorce Procedures

There are no legal provisions in Georgia for simplified divorce.

Each state has its own unique filing procedure. When filing for divorce in Georgia, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Georgia Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Georgia Laws and the filing requirements.

Georgia Property Division Factors

In Georgia, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Superior Court within the Decree of Divorce.

Georgia is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Superior Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Superior Court to be fair.

There are no factors listed in the statutes regarding what is considered by the court when distributing the property upon divorce.

The verdict of the jury disposing of the property in a divorce case shall be carried into effect by the court by entering such judgment or decree or taking such other steps as are usual in the exercise of the court´s equitable powers to execute effectually and fully the jury’s verdict.

(Georgia Code – Sections: 19-5-13)

Since Georgia is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

Georgia Spousal Support/Maintenance/Alimony Factors

In Georgia the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Superior Court will order support from one spouse to the other on a case-by-case basis as follows:

Any spouse may be awarded alimony as long as he or she is not guilty of desertion or adultery. These other factors are also considered when the parties are not able to agree on an amount:

a) the participation each party had to the marital estate;
b) the duration of the marriage;
c) the future earning capacity and financial resources of each party;
d) the age and medical condition of each party;
e) the future earning capacity of each party;
f) the value of each party’s separate property;
g) the standard of living sustained during the marriage;
h) rehabilitative time one party may need to gain employment.

(Georgia Code – Sections: 19-5-5)

Georgia Child Custody Factors

In Georgia, the court may look into all the circumstances of the parties, including but not limited to; the parental suitability of each parent, the needs of the child, the prior role of each parent, the wishes of the child, the location of the residences of each parent, and any agreement between the parents.

The court may consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of family violence.

If the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child´s selection shall be controlling, unless the parent so selected is determined not to be a fit and proper person to have the custody of the child.

If the child has reached the age of at least 11 but not 14 years, the court shall consider the desires, if any, and educational needs of the child in determining which parent shall have custody.

(Georgia Code – Sections: 19-9-1 and 19-9-51)

In Georgia, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Georgia Child Support Factors

Both parents are liable for the support of minor children. The court may award child support from either parent, based on their customary needs and the parents’ ability to pay. There are no specific factors for consideration set out in the statute. However, there are official child support guidelines set out in the statute that are to be followed in all cases in which the parents are not able to reach an agreement. In such cases there are factors which will be followed in special circumstances. The special circumstances include:

a) the age of the children;
b) a child’s medical costs or extraordinary needs;
c) educational costs;
d) daycare costs;
e) shared physical custody arrangements;
f) a parent’s support obligations to another household;
g) hidden income of a parent;
h) the income of the parent with custody;
i) contributions of the parents;
j) extreme economic circumstances;
k) a parent’s own extraordinary needs;
l) historic spending levels of the family;
m) the cost of health and accident insurance coverage for the child; and
n) any extraordinary visitation travel expenses.

[Code of Georgia Annotated; 19-5-12, 19-6-14, and 19-6-15.]

Georgia child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Georgia child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Georgia child support deviation factors that may be applicable to the situation.

Georgia Grandparent’s Rights

Grandparent Rights to Visitation: Grandparent may intervene in any action in which a question concerning custody of minor child, divorce of parents, termination of the parental rights, or visitation rights is before the court, or whenever there has been an adoption by the child’s blood relative or a stepparent. Title 19, Chapter 9, Section 3 (C.G.A. §19-9-3).

When Adoption Occurs: Rights do not terminate as long as the adoption is by a blood relative of the child or by the child’s stepparent.

Child Custody Statutes: No specific factors. Child may choose if at least 14 years of age, unless parent determined to be unfit. C.G.A. §19-9 et seq.

Parents May Choose: Yes

Georgia Military Divorce Laws

A Georgia military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Georgia Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Georgia court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Georgia court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in Georgia
b) You or your spouse must be stationed in Georgia

Grounds for Georgia Military Divorce

The grounds for a military divorce in Georgia are the same as a civilian divorce.

Dividing the Property

Along with the normal Georgia property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Georgia, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Georgia child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Georgia Child Support Guidelines

The Georgia child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Georgia child support order.

Georgia Child Support Guidelines

> Income Share Model *: NO
> Percent of Income Model *: YES
> Worksheets Available: YES
> Extraordinary Medical Expenses Add on: YES
> Childcare Add on: YES
> Secondary Education Support: NO
> UIFSA: YES

* Percent of Income Model: Georgia utilizes the percentage of income formula which determines the amount of child support as a percentage of the income of the parent obligated to pay the child support. This percentage is determined by factoring the number of children requiring support. This is the most basic or primitive method for calculating support. Many people believe that it does not take into consideration many important details, which makes this model of support calculation the least exact.

Georgia Child Support Definitions

If the Gross Income of the Non-Custodial Parent is greater than $75,000 per year the court may reduce the amount of child support as determined by the applicable percentages.

In addition, the court will vary the final award of child support, up or down, from the range enumerated above upon a written finding that the presence of one or more of the following special circumstances makes the presumptive amount of support either excessive or inadequate:

1. Ages of the children;
2. A child’s extraordinary medical costs or needs in addition to accident and sickness insurance, provided that all such costs or needs shall be considered if no insurance is available;
3. Educational costs;
4. Day-care costs;
5. Shared physical custody arrangements, including extended visitation;
6. A party’s other support obligations to another household;
7. Income that should be imputed to a party because of suppression of income;
8. In-kind income for the self-employed, such as reimbursed meals or a company car;
9. Other support a party is providing or will be providing, such as payment of a mortgage;
10. A party’s own extraordinary needs, such as medical expenses;
11. Extreme economic circumstances including but not limited to:
a) Unusually high debt structure; or
b) Unusually high income of either party or both parties, which shall be construed as individual gross income of over $75,000.00 per annum;
12. Historical spending in the family for children which varies significantly from the percentage table;
13. Considerations of the economic cost-of-living factors of the community of each party, as determined by the trier of fact;
14. In-kind contribution of either parent;
15. The income of the custodial parent;
16. The cost of accident and sickness insurance coverage for dependent children included in the order;
17. Extraordinary travel expenses to exercise visitation or shared physical custody; and
18. Any other factor which the trier of fact deems to be required by the ends of justice.

DEFINITIONS:

Gross Monthly Income

a) Computation of child support shall be based upon gross income;

b) For the purpose of determining the obligor’s child support obligation, gross income shall include 100 percent of wage and
salary income and other compensation for personal services, interest, dividends, net rental income, self-employment income,
and all other income, except need-based public assistance;

c) The earning capacity of an asset of a party available for child support may be used in determining gross income. The
reasonable earning potential of an asset may be determined by multiplying its equity by a reasonable rate of interest. The
amount generated by that calculation should be added to the obligor’s gross monthly income;

d) Allowable expenses deducted to calculate self-employment income that personally benefit the obligor, or economic in-kind
benefits received by an employed obligor, may be included in calculating the obligor’s gross monthly income.

Georgia Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Georgia Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Petitioner

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Respondent

The spouse who does not initiate the Divorce with the court.

Court Name:
In the Superior Court of _____________ County, Georgia

The proper name of the court in which a Divorce is filed in the state of Georgia. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Petition for Divorce

The title and name of the legal document that will initiate the Georgia Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Final Judgment and Decree

The title and name of the legal document that will finalize the Georgia Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
County Clerk’s Office of the Superior Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

There are legal provisions in Georgia for an action for separate maintenance for spouses who are living separately, but not divorcing. The factors and conditions are the same as those listed below under Alimony/Maintenance/Spousal Support. [Code of Georgia Annotated; 19-6-10].

Property Distribution:
Equitable Distribution

The applicable Georgia law that will dictate how property and debt is to be divided upon Divorce.

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