CONTACT US TODAY

404.805.1803

Choosing the Best
Divorce Process
Happy Family

Divorce


 

Divorce

The first step in the divorce process is the filing of the complaint, also called the petition. The complaint establishes venue and jurisdiction, it outlines the desired outcome of the divorce, and states the grounds for divorce. The most common ground for divorce in Georgia is that the marriage is irretrievably broken. Other grounds can include adultery, cruel treatment, habitual drug addiction, and habitual intoxication, among others. Following the initial step, the divorce process varies depending on what issues are present in your individual case and whether you and your spouse agree or disagree on those issues.

 

 Common Issues That Arise During a Divorce

Division of Marital Assets and Debts - All property acquired by either spouse during the marriage and the increase in value of any non-marital property is presumed marital property regardless of title with some exceptions. Marital assets can include but is not limited to physical property, real estate, investment accounts, retirement and pension plans, and ownership interests in businesses. In Georgia, marital assets are divided equitably, meaning fairly, which is not necessarily equally.

 

Alimony - Alimony refers to payment from one spouse to another for the purpose of providing financial support. Alimony is typically paid periodically but can also be paid as a lump sum or through a transfer of property, often referred to as in kind alimony. The court will consider a number of factors when deciding whether to award alimony and the amount of alimony including the parties' financial resources, the time and money that may be required to 'rehabilitate' one spouse's employment ability, the standard of living during the marriage, and the duration of the marriage. Please note that alimony is not available to a spouse who commits adultery. Also, there may be serious tax considerations involved in an award of alimony.

 

Other common divorce issues include child custody, child support, and nuptial agreements.

 

 Uncontested Divorce

An uncontested divorce, sometimes called a divorce by agreement, is available when you and your spouse agree on all issues. There are many benefits to an uncontested divorce. The costs are much lower than a contested divorce. They are resolved quicker than a contested divorce. They are typically less emotionally draining, and often foster a better working relationship with the ex-spouse. In an uncontested divorce, typically one attorney is retained to draft all legal paperwork including a settlement agreement. The other spouse is encouraged to read the settlement agreement carefully and have an attorney review it. If everyone agrees on the paperwork, the attorney submits it to the court. If the judge approves of the settlement terms, he or she then grants the divorce. Depending on your county, the entire process can be completed by mail. However, some courts may require that a short hearing be held.

 

 Contested Divorce

Unfortunately, an uncontested divorce is simply not available to everyone. Sometimes, people cannot agree on all of the issues and there may be good reasons for the disagreement. When the parties do not agree, one spouse files the complaint for divorce. The other spouse, often through an attorney, then responds to the complaint. A temporary hearing before a judge may be held when there are issues that need immediate attention such as temporary alimony, child support, or child custody. Afterwards, each side begins the process of sharing information and documentation relevant to the divorce process. The attorneys will attempt to resolve the contentious issues and enter into a settlement agreement. To that end, alternative dispute resolution professionals such as mediators are often employed. Most divorce cases are settled without the need for a final hearing. If the sides still cannot agree, a final hearing, or trial, is held typically before a judge. Please note that the divorce process can vary depending on the issues present in your specific case and in what county the case is heard.

 

Child Custody


 

Child Custody

Child custody can be the most contentious part of a divorce. Emotions are strained while each side struggles to determine and advocate for custody, decision making authority, and parenting time. A court action to determine custody can be filed as part of a divorce or it can be filed separately where no marriage existed. However, a Legitimation proceeding may be required in conjunction with the Petition for Child Custody where there is no marriage.

 

In Georgia, custody of a child is determined by the judge, not the jury and the judge will seek to determine what custody and visitation arrangement is in the best interest of the child. According to Georgia law, O.C.G.A. 19-9-3, a judge may look any relevant factors. An online listing of Georgia statutes can be found here.

 

These factors include:

  • The love, affection, bonding, and emotional ties existing between each parent and the child;
  • The love, affection, bonding, and emotional ties existing between the child and each of his or her siblings;
  • The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
  • Each parent's knowledge and familiarity of the child and the child's needs;
  • The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
  • The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
  • The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
  • The stability of the family unit of each of the parents and the presence or absence of each parent's support systems;
  • The mental and physical health of each parent;
  • Each parent's involvement or lack thereof in the child's education, social, and extracurricular activities;
  • Each parent's employment schedule and the related flexibility or limitations, if nay, of a parent's care for the child;
  • The home, school, and community record and history of the child as well as any health or education special needs of the child;
  • Each parent's past performance and relative abilities for suture performance of parenting responsibilities;
  • The willingness and ability of each parent to facilitate and encourage a close continuing parent-child relationship between the child and the other parent, consistent wit the best interests of the child;
  • Any recommendation by a court appointed custody evaluator or guardian ad litem;
  • Any evidence of family violence or sexual mental or physical child abuse or criminal history of either parent;
  • Any evidence of substance abuse by either parent;

 

Custody of a minor child is typically divided between legal and physical custody.

 

 Legal Custody

Legal Custody refers to the allocation of decision making authority between the parents regarding the important decisions related to education, health, extracurricular, and religious upbringing of the child. Decision making authority can be given to one parent, divided among the parents, or shared among the parents. When decision making authority is shared, often referred to as joint legal custody, some tie breaking mechanism is included to prevent deadlock if the parents cannot agree.

 

 Physical Custody

Physical custody refers to under whose physical care the child is placed in. Traditionally, sole custody was granted to one parent while the other parent received visiting time with the child. In many places, the language of Georgia statutes and processes still reflects this approach. Today however, many people are exploring varying degrees of joint physical custody where the child is ensured more equal time with both parents. Sometimes this refers to complete 50/50 custody. Other times, it refers to having a primary and secondary physical custodian where liberal time is given to the secondary custodial parent. The parties should realistically look that their situation and determine what arrangements are in the best interests of their child.

 

 Visitation

An archaic and somewhat outdated term, visitation refers to the time the child spends with the non-custodial or secondary-custodial parent. Not only must the parties, or the judge, determine the week to week schedule, but also holidays, birthdays, vacations, and school breaks.

 

 Modification

When a change of circumstances necessitates it, a child custody order can be changed by filing a Petition for Modification. In a modification, the party can request a full change in custody or a change in visitation. A modification most commonly arises when one party is relocating, the needs of the child changes, substance abuse from one parent, or when violence or criminal activity is involved. The judge will again examine what is in the best interests of the child.

 

Child Support


 

Mother's Hands

In 2007, Georgia overhauled its child support laws. Instead of determining child support based solely on a percentage of the non-custodial parent's income, Georgia now looks to guidelines that consider both parents' income. The court examines the income of both parents and pursuant to the Child Support Guidelines, O.C.G.A. 19-6-15, it determines the combined joint income of the parents and the percentage of income each parent should contribute to raising the child. The non-custodial parent is then required to pay his or her allocation as child support. The final determination of the child support can be increased or decreased by a number of factors including child care costs, special education costs, medical costs and the availability and cost of health insurance.

 

 Modification

A party may request that a child support be increased or decreased by filing a Petition to Modify Child Support if there was a substantial change in income of either parent or the needs of the child. Subject to a few exceptions, a party cannot file a Modification within two years of the final order or within two years of the previous Modification.

 

Paternity & Legitimation


 

While often combined into a single legal action, paternity and legitimation are not the same. Each has different purposes and different effects on a purported father and the child.

 

 Paternity

A paternity test establishes who is the biological father of the child. It is usually conducted using a simple DNA test. When the identity of the father is uncertain or upon the purported father request, a paternity test is conducted in connection with establishing child support. Paternity alone does not place the father in a position to seek custody of the child.

 

 Legitimation

Legitimation secures the biological father's legal rights to a child, including the right to seek custody. A child is considered legitimate if:

 

  • The child is born in wedlock;
  • The mother marries reputed father and father accepts child as his own;
  • When the child is conceived in wedlock by artificial insemination and   there is a writing;
  • When father petitions for and court grants legitimation.

 

Prior to legitimation, the mother holds all parental power over the child. After the court grants legitimation, the father stands on equal ground with the mother in determining physical and legal custody. Additionally, after legitimation the child can inherit from the biological father's estate and the child's last name can be changed to recognize the father's surname.

 

GUARDIAN AD LITEM


A Guardian Ad Litem (GAL) is an advocate, usually an attorney, who is appointed to represent the best interests of a child during a contested divorce process. A GAL is appointed by a judge typically after a request, or motion, is presented by the attorney for either parent. A GAL is not appointed in every divorce case but will probably be appointed if custody is especially contentious or if serious questions arise regarding the well-being of a child.

 

Often, the term GAL is construed as someone who represents a child – someone who is an attorney acting on behalf of a child. This is not the case in Georgia. The GAL is not an attorney for the child. Instead, he or she acts as part investigator and part advisor and assists the court in determining what custody and visitation arrangements will be in the best interests of the child. The GAL has broad flexibility to speak with each parent, the child, family members, and even school officials and counselors. After conducting a thorough investigation, the GAL will submit a report and issue a formal recommendation to the judge.

 

If a GAL is appointed to your case, it is vitally important that you work with your attorney and work with the GAL to make sure that he or she has all of the information and tools necessary to complete a thorough investigation and to draft a fair and accurate report for the judge.

 

Separation Agreements


A Separation agreement, also called separate maintenance, is used when parties wish to live separately and have the legal issues of their marriage resolved while not actually dissolving the marriage.  There are several reasons why some people may prefer a separation as opposed to a divorce. They may not want a divorce for personal or religious reasons, they may want to stay on a family health insurance plan, they may want to keep marital membership in civic or community organizations, or they may not meet Georgia's jurisdiction requirements to obtain a divorce.

 

A separation action requires that a valid marriage exists and a bonafide state of separation. The separation acts like a divorce in many ways and it can resolve many of the same issues including division of property, alimony, child custody, and child support.

 

Nuptial Agreements


 

Divorce Papers

Also called ante-nuptial and pre-nuptial agreements, nuptial agreements govern specific issues in the event that a marriage is dissolved. There are several benefits to entering into a nuptial agreement. It provides certainty in the outcome of a divorce. It can streamline the divorce process saving time and money. It can ensure that separate property is protected and determine rights to alimony. A nuptial agreement can also provide for specific penalties for misconduct.

 

To be enforceable, a nuptial agreement must conform with Georgia contract law. It must be entered into absent fraud, duress, mistake, misrepresentation, and non-disclosure of material facts. It must not be unconscionable and facts and circumstances must not have changed to such a degree as to make enforcement unreasonable. Full disclosure of assets is the most common issue in validating a nuptial agreement.

 

Enforcement - Contempt


A person is in contempt of court when he or she willfully fails to abide by a court order. When one party willfully fails to comply with a divorce decree, custody order, or fails to pay child support, that person can be held in contempt of court pursuant to a Petition for Contempt. If a judge finds that the party is in contempt, he or she is then subject to civil and criminal sanctions that can include fines, attorney's fees, and even imprisonment.

 

ALTERNATIVE DIVORCE


Alternative Divorce is a catch-all phrase that encompasses several divorce related services that fall outside the traditional divorce process. The goal of these alternatives is to lessen the combative nature of divorce, and to guide spouses through the legal processes in the most time and cost efficient manner possible. These alternative services include:

 

  • Uncontested Divorce;
  • Pre-Divorce Mediation;
  • Collaborative Divorce;
  • Do It Yourself Divorce;
  • Mediate to Stay Married.

 

These alternatives to the traditional divorce process can potentially save everyone thousands of dollars in legal fees as well as cut down on the time, energy, and stress of getting a divorce. However, these alternatives may not be right for everyone and their availability can vary from county to county. Therefore it is very important to consult an attorney if you are considering any of the above options. You can also learn more about these services by visiting our Mediation section as well as our Pre-Divorce Mediation and New Divorce Options for the New Year articles found in the Articles section of this website.

 

Back to top