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Divorce FAQ
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Is my marriage valid?
If you meet the legal requirements of being able to form an enforceable
contract with someone (i.e. you are of age, you are not under the influence
of drugs, etc.), you enter into a contract to marry, and you consummate
the marriage, your marriage will likely be considered valid. Certain obvious
exceptions exist, of course, such as when an individual tries to enter
into an existing marriage while still married to another. A lawyer can
give you a more complete explanation if you are concerned that your marriage
may not be valid.
Is divorce easy?
The divorce process can be complicated or simple, based in large part
on how you and your spouse interact. The more the two of you can agree
upon, the easier (and less costly) it will be.
What is "Common Law Marriage"?
Common Law Marriage is a term which generally meant that if you lived
with someone, considered yourself married and held yourself out to the
world as a married couple, then you were considered married under the
concept of "Common Law Marriage". To be considered married under
this theory, you did not need to have gone through a wedding ceremony.
If you were indeed married under this theory, you remained married until
a court granted you a divorce. In Georgia, this concept was eliminated
as of January 1, 1997. However, if you were married under this theory
prior to January 1, 1997, you may still be considered married under Georgia
law.
Does the Court have or need to be involved
at all?
Yes. The Court will have to either determine the issues, or, if all issues
are agreed upon, the Court will need to approve the final result. More
importantly, only the Court (not the legislature or the mayor or governor)
has the authority to grant you a divorce and thereby free each party to
marry again.
What grounds do I need for a divorce?
In Georgia there are 13 grounds for divorce. One ground is "irretrievably
broken" (also known as the "no-fault" ground) which has
become the most common (and least contentious) ground for divorce. The
remaining 12 grounds for divorce are considered the "fault"
grounds.
Do I need to prove "fault"?
No. You may seek and obtain a "no-fault" divorce in Georgia.
What is a legal separation or separate maintenance?
In Georgia, you are legally separated if you are no longer engaging in
marital relations and you consider yourself to be in an actual state of
separation. You can be seprated even if you are living in the same household
as your spouse. To file a case for divorce, you must be in such a state
of separation. The court will not grant you a "legal separation".
Rather, you must swear that you are in an actual state of separation and
then the court can grant a divorce or an Order for "Separate Maintenance".
"Separate Maintenance" is a lawsuit which may be filed in Georgia
to address all issues which could be addressed in a divorce case except
for the granting of a divorce. Oftentimes people file a case for Separate
Maintenance instead of a Divorce for differing reasons. Some of those
reasons include religious or moral opposition to divorce or a desire to
remain maried for a legal benefit (to maintain insurance, social security,
etc.) or other various reasons which a lawyer can discuss with you in
detail.
What is a "no-fault" divorce?
To obtain a "no-fault" divorce (irretrievably broken), one party
must simply prove that, to them, the marriage is over. This can be proven
through sworn testimony of one party, even if none of the "fault"
grounds exist.
What is a "fault" divorce?
To obtain a "fault" divorce which is neither required, nor necessarily
advantageous, one must establish that there was some misconduct by one
of the parties which actually caused the divorce. An example of such misconduct
is adultery. Adultery in Georgia includes heterosexual and homosexual
relations between one spouse and another individual. Other "fault"
grounds include desertion; mental incapacity at the time of marriage;
impotency at the time of marriage; force or fraud in obtaining the marriage;
conviction and imprisonment for certain crimes; mental or physical cruel
treatment; habitual intoxication or drug addiction; and mental illness.
Do I need to live in the state of Georgia
to get a divorce here?
Yes, generally, at least one spouse must be living in Georgia and have
lived in Georgia for at least six months.
What if we still live together when
I file for divorce?
That is fine, but spouses must be considered "separated" in
a legal sense. Spouses may generally be considered separated even if they
live under the same roof as long as they are not having sexual relations.
How do I actually file for a divorce?
The person seeking the divorce (the "plaintiff" or "petitioner")
must file a document in the appropriate Superior Court. This document
is called the "complaint" or "petition." The complaint
contains information concerning the marriage such as current living arrangements,
children of the marriage, description of marital assets and debts, and
the specific reason(s) for seeking divorce. A copy of the complaint will
be served on the other spouse (the "defendant" or "respondent")
by a sheriff of the appropriate county, or that spouse may acknowledge
service by signing a specific document in the presence of a notary public.
Where do I file for divorce?
Generally, a complaint for divorce should be filed in the Superior Court
of the defendant's county of residence or, if the defendant no longer
resides in the state of Georgia, in the county of the plaintiff's residence.
With the defendant's consent, or if defendant had previously lived with
plaintiff and has been gone for less than 6 months, the complaint may
be filed in the plaintiff's county of residence.
I just received a complaint for divorce
from my spouse, now what?
Quickly contact and consult a family lawyer. You have 30 days to "answer"
the complaint in writing. The answer allows you to give "your side
of the story" and to admit or deny each claim in the complaint. You
may also file a "counterclaim" and seek a divorce in response
to your spouse seeking a divorce.
Can I get the court to help me immediately?
Either spouse may request a temporary hearing where issues of child custody,
visitation, child support, alimony, debts and possession of property may
be resolved on a temporary basis until final resolution. The judge will
issue a temporary order that applies only until the time of the final
trial. The temporary order may also prohibit the transfer or selling of
assets, or prevent one party from interfering with the other party, or
from interfering with the party's children.
What if there is violence?
Call the police. Additionally, either a lawyer, or a social agency can
assist a party in filing a lawsuit to prevent family violence. The court
can immediately address issues such as temporary use of a home and restraining
orders even if the parties are not married.
Will a judge or jury decide my case?
If parties are not able to resolve their issues by mutual agreement, questions
of child custody, visitation and attorney's fees can only be determined
by the judge (not a jury). However, the judge or, if one of the parties
requests, a jury, will resolve the financial issues of the marriage (i.e.,
division of property, division of debts, alimony and child support). Both
spouses may introduce evidence by their own testimony and may also summon
other witnesses to the final trial. The decision returned by a judge or
jury is written into a court order that is binding upon both parties.
At any temporary hearing, only the judge (not a jury) makes the decisions.
What about my children?
Typically, until a court ruling or agreement, married persons share custody.
The judge will try to fashion a custody plan which is in the "best
interests of the child." The judge will consider many factors including
the age and sex of the child, and the ability of each parent to care for
and nurture the child. A child who has reached 14 years of age may generally
choose which parent will have custody. A child who is age 11, 12, or 13
may speak to the judge, but the judge is not required to follow the child's
wishes.
Can I share custody?
Yes. The court can award joint custody instead of sole custody. There
are two types of joint custody: (i) Joint legal custody, where both parents
have equal rights and responsibilities for major decisions concerning
the child; and (ii) joint physical custody, where physical custody is
shared by the parents in such a way to assure the child substantially
equal time and contact with both parents. In awarding joint custody, the
court may order joint legal custody, joint physical custody or both. Regardless
of the label, the parties should attempt to agree upon (or the court will
decide) who has the right to make a decision affecting a child if the
parties cannot agree.
I have heard about "custody seminars."
What are they?
Many courts now require that parties to a case involving minor children
attend a seminar to help them cope with the ramifications of the case
for children. You should check with the court system in your county to
see if this applies to you.
What are my (or the other person's)
child support obligations?
In Georgia, both parents can be required to provide assistance to their
children until a child reaches the age of 18 years if not in high school,
graduates from high school if eighteen (18) years or older, reaches the
age of 20 years and is still in high school, dies, marries, is emancipated
or joins the military, whichever event occurs first. The non-custodial
parent will generally be required to provide a reasonable amount of child
support to the custodial parent to assist with living expenses. Child
support may also include health insurance, payment of medical and dental
expenses, and life insurance.
Child Support Guidelines are in effect in Georgia. The guidelines are located in the Official Code of Georgia in section 19-6-15. A calculation will need to be made to determine the appropriate amount of child support. The amount can vary based on various factors including time the non-custodial parent spends with the child(ren), the ages of the child(ren), day care costs, medical costs, education costs, significant income or debt of either party, and obligations to another household. Each year the legislature considers revising these guidelines, so check with a lawyer to be sure these guidelines are still in effect at the time your case is filed. There is a good chance these laws will change by the time your case begins.
Additionally, the court will look at the budget of each party. Each party is required to prepare a Domestic Relations Financial Affidavit (see sample on web site: www.kesslerschwarz.com). The court can then balance the income and expenses of each party when determining the appropriate level of child support (and/or alimony).
What about college?
The court cannot force parents to pay for college expenses. However, parents
can agree between themselves to pay support beyond the age of 18 and/or
to pay for college expenses.
What is alimony?
Alimony is a support payment by one spouse to another which, based upon various factors may be appropriate in a particular case. Alimony is generally not available to a spouse who caused the dissolution of the marriage by their adultery or desertion. Alimony may be for a limited time period or until the spouse receiving alimony dies or remarries, or may be paid in one lump sum. Again, the court will review the Domestic Relations Financial Affidavit (see sample on our web site under "client forms") when determining the issue of alimony. Factors the court will consider in determining alimony include the length of the marriage; health of each party; assets of each party; and the contributions of each party to homemaking, child raising, and career building of the other party.
What happens to "our" possessions
now?
Marital property is generally all property acquired during the marriage,
except for that property received by gift from a third party or by inheritance.
Each spouse is entitled to an "equitable" (which does not mean
equal) share of all marital property acquired during the marriage. There
is no set formula or percentage amount used to divide marital property;
however, credit may be given to a party who has contributed "separate"
or "premarital" property to the marriage. Georgia case law sets
forth a complicated formula to determine how the contribution of "separate"
property to the marriage is to be handled. Contact a lawyer to discuss
this matter if it is an issue in your situation.
How will the court orders be enforced?
Court orders for money can generally be enforced by garnishment, attachments
of property or by a contempt action. Custody and visitation orders may
be enforced in a variety of ways from contempt applications to warrants
for wrongfully taking or withholding a child.
How long will the whole process take?
It depends. If you reach an agreement on all issues, the divorce is considered
"uncontested," and may be granted 31 days after everything is
filed (barring a change in Georgia law; check with an attorney as laws
change and this time period is constantly subject to change). If disagreement
exists regarding any matter involved in the divorce, the divorce will
be obtained when the case reaches the court, which can take many months
or even years depending on the court's schedule. Of course, if you reach
an agreement while the case is pending, you can submit that to the court
almost immediately and the case will be over and the divorce will be granted.
My spouse and I agree on all matters concerning
the divorce, do we still need a lawyer?
Hiring a lawyer, even when parties are in agreement on all terms, will
ensure that all matters which should be covered in a divorce are addressed.
Acting without a lawyer could end up being a costly error, both to the
parties and to their children. Also, a lawyer may only represent one party,
so each party should consult with a lawyer of their own choosing. Even
if you agree on all issues, you may not recognize or realize potential,
even unintended pitfalls which a lawyer may help you avoid. However, Georgia
law does not require that you have a lawyer and if you can navigate the
legal system and file the appropriate documents while following the applicable
rules, it is possible to file and complete a divorce without lawyers involved.
This is known as proceeding "pro se."
How much do lawyers cost?
As is the case with any professional, cost varies from law firm to law
firm. Lawyers cannot charge a "contingency fee" in a divorce
case, so they charge either by the hour or a flat fee. Flat fees are rare,
except when the case is truly "uncontested" and all terms have
been agreed upon. In a flat fee case, the cost may range from a few hundred
dollars to a few thousand dollars, depending on the lawyer and the complexity
of the issues (transfers of real estate, retirement funds and the like).
For a contested case, most lawyers require a retainer which is an up-front
payment which may serve either or both of two purposes: to ensure the
lawyer is available and cannot accept employment by the opposing party
and to serve as an advance payment for services to be rendered. Most lawyers
then bill against that retainer and ask that it be replenished when it
runs low or is depleted. Retainers can range from $1,000.00 (or less)
to $25,000.00 (or more), depending on the complexity of the case and the
law firm's usual practice. Hourly rates charged by lawyers and paralegals
vary, but will usually be $100.00 per hour or more for paralegals and
from $150.00 to $500.00 per hour for lawyer time.
Where can I find more information about
divorce?
There are many resources available. You might consider visiting www.fultonfamilydivision.com
for information about the Fulton County Family Division Court. The best
way to learn more about divorce or family law is to arrange a consultation
with a family law attorney.
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