Basic Marriage and Divorce Law: Ending Marriages
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BASIC MARRIAGE AND DIVORCE LAW: ENDING MARRIAGES
This document tells you the following:
- What is an annulment?
- What are the differences between a legal separation and a divorce?
- What are the grounds for divorce in Georgia?
- How do you file for a divorce?
- What are the personal rights and obligations arising from the divorce that must be settled for each spouse?
Sometimes marriages don't work out. Others may be void (that is, the marriage is said never to have existed because one of the parties lacked the capacity to enter into a marriage). One or both partners may not want to live together anymore. They may want to end the marriage. Because marriages are legal contracts, the law requires that they be dissolved by the court. A partner who simply walks out on a spouse deserts the other spouse.
In Georgia, to walk out on children or a pregnant wife is abandonment and a crime. Leaving a spouse and children does not eliminate the legal duty to support them. Further, neither spouse can remarry legally until the former marriage is legally ended.
What happens if the requirements for a valid marriage are not met? What if after you were married, you discovered that your partner was not eligible to contract a valid marriage? Or what if your new spouse has tricked you into marriage?
SITUATION 6 Deanna has just learned that her new husband Philip was never divorced from his first wife. What can she do?
One way to end a marriage is to annul it. An annulment is a declaration by a court that a marriage never existed: It was never a valid marriage in the first place. When one of the parties to a marriage is ineligible to enter into a marriage contract under state law, the marriage can be annulled. However, an annulment will not be granted if a child or children have been born or are to be born as a result of the marriage.
In situation 6, Philip is still married. Therefore, his marriage with Deanna is automatically void and may be annulled.
SITUATION 7 Joan and Wayne were married in a religious ceremony. They were married because Joan told Wayne she was pregnant. Wayne now learns that Joan had lied. He would like out of the marriage. What can he do?
Suppose a person is tricked or forced into marriage. Or suppose one of the parties is insane. In these cases, the marriage is voidable but not automatically void. If no annulment is sought and granted, the marriage remains valid.
Situation 7 is an example of a voidable marriage. Wayne can go to court and obtain an annulment because Joan lied to him. Suppose, how--ever, Joan was really expecting a child. Wayne would not be able to get an annulment. He could, however, obtain a divorce.
SITUATION 8 Gary, 17, and Sandra, 16, get married without parental consent. Can their par-ents have the marriage annulled?
A marriage of persons under 18 who have married without parental consent can be voided as long as there is no child or child-to-be.
A third party, such as a parent, can legally act to void the marriage. However, suppose one or both partners to a marriage were underage when they married, but they have continued living together until they are both 18. Then, under Georgia law, the marriage would be considered valid.
LEGAL SEPARATION OR DIVORCE?
Marriages can be ended in several ways under Georgia law. You have just read about the conditions under which marriages can be annulled. In addition, both legal separations and divorces are valid in Georgia and in other states.
How does a legal separation differ from divorce?
Unlike divorce, a legal separation doesn't end a marriage. It provides a legal way to settle some of the issues that arise when spouses decide to separate. For example, when couples separate, one or the other might need financial support. If there are children, custody, visitation, and sup-port must be decided. A legal separation must, like a divorce, be granted by a court. When it grants a legal separation, the court also resolves or helps to resolve the other issues. Acceptable grounds or reasons are similar to those for divorce.
Fault Grounds for Divorce in Georgia
Apply at the Time of Marriage
1. Partners closely related by blood or marriage
2. Mental incapacity
4. Force, menace, duress or fraud in obtaining the marriage
5. Pregnancy of the wife (by another man) which was unknown to the husband
Apply After Marriage
6. Adultery by either of the parties
7. Wilful an dcontinued desertion by either of the parties for the term of one year
8. The sentence of either party to two or more years of prison for an offense involving moral turpitude (such as murder, involuntary manslaughter, rape, embezzlement)
9. Habitual intoxication; drunkenness
10. Cruel treatment
11. Incurable mental illness
12. Habitual drug addiction
Legal separation is useful when spouses wish to separate but not end the marriage. It is useful for people who do not want to divorce for religious reasons. Or it may be used if one spouse does not want to deprive the other of insurance or pension benefits that person might lose in a divorce.
A divorce is a declaration by a court that a marriage contract is broken and has ended. The divorce occurs on the day the divorce decree is granted by the judge and filed at the courthouse. After the divorce, the two people are legally "single." They can remarry. This new status may affect their lives in many ways.
Grounds for Divorce
CASE OF LINDA SMITH V. PETER SMITH
Linda, 45, and Peter, 48, have been married for 25 years. They have three children-Hazel, 14, Bobby, 16, and Charles, 18. Charles is a freshman at Georgia Tech.
Linda taught school before Charles was born. She worked while Peter got his master's degree. Linda has been a housewife and mother for 18 years.
Peter was a senior vice president in a local company, making $90,000 per year. He quit his job to start his own computer consulting firm. He expects to make $50,000 his first year. Peter has moved into an apartment.
Linda goes to see a lawyer, who explains what the grounds for divorce are in Georgia.
Grounds for divorce are the reasons the court will accept as valid for ending a marriage. The grounds have changed and will continue to do so as society changes. For example, there used to be 12 grounds for divorce in Georgia. All of these were "fault" grounds, meaning that, to get a divorce, one spouse had to prove that the other was at fault in causing the marriage to break down.
However, often people do not feel fault is the reason for the divorce, or-even if fault exists-they do not want to make such accusations in public. In 1973, the legislature passed a law creating another ground for divorce known as the no-fault ground. This ground means that the marriage is irretrievably broken. It is called the no-fault ground because neither party has to prove the other at fault. The court is interested only in whether the marriage contract is irretrievably broken and that there is no hope of reconciliation.
Although fault need not be proved in Georgia, both spouses can still make accusations of each other. Each party can testify about the conduct of the other. Evidence of wrong-doing is relevant to alimony and the division of marital property. However, it does not affect the amount of child support granted.
Filing and Notification
CASE OF SMITH V. SMITH, continued
After talking to her lawyer, Linda Smith files for divorce. She asks for a no-fault divorce. Her lawyer tells her the suit will be filed in the Superior Court of Bibb County, the county in which Peter lives.
After the petition for divorce is filed, Peter is notified by the court. He hires his own lawyer, Justin Jones. In most cases, it is important that the parties have different lawyers. If a lawyer represents both parties, the lawyer is acting more like a judge than an advocate for one client.
Peter will not contest the divorce. He agrees that the marriage is irretrievably broken.
A divorce must be filed in the proper court. In Georgia, superior courts have exclusive subject matter jurisdiction in divorce proceedings. The rules governing personal jurisdiction of courts in divorce cases are very specific. For example, all states require some residency before allowing a person to seek a divorce. A person must have lived in Georgia for at least six months before filing for divorce in the state. Further, the lawsuit must be filed in the county in which the defendant, or the person being sued, lives.
In Georgia, a divorce cannot be granted for at least 30 days after the defendant is legally notified of the divorce. The date of notification is therefore very important. In no instance will the court grant a divorce automatically. The person who filed the lawsuit must ask the court for the divorce decree after the waiting period has passed.
The waiting period can be seen as a cooling-off period or a time for possible reconciliation. It is also a time for both partners to settle matters to their satisfaction before the divorce is final. In Georgia, all support, custody, and property division issues must be settled either by agreement of the parties or by trial before the divorce is granted.
Note that Georgia gives divorcing parties the right to a jury trial. Both parties must waive this right for a judge to try the case.
Determining Personal Rights and Obligations
As you will see, many things have to be settled in a divorce.
1. Child custody
2. Visitation rights
3. Child support
5. Division of property
6. Division of debts
In a divorce, one parent usually is given physical custody of the child or children, meaning that the children live with that parent and visit with the other parent. That other parent has visitation rights. Sometimes, legal custody of the child or children is joint between both parents. In that case, the children live part-time with each parent.
CASE OF SMITH V. SMITH, continued
Peter and Linda agree that Linda should have custody of the children.
Peter wants to see them regularly. Linda agrees to the visitation rights he wants. As you read this section, think about how you might advise that other matters be settled between Peter and Linda. Prepare to make some recommendations for settling their affairs.
One important financial question is that of alimony for a dependent spouse. Alimony is a right of one spouse to receive financial support from the other spouse, if there is a need for such support. It is not, however, a guaranteed right of either party.
In the past, the wife was the receiving party and the husband was the paying party. This arrangement is no longer the case necessarily. In 1979, in Orr v. Orr, the U.S. Supreme Court said that laws that gave only the wife the right to support payments discriminated against men. The laws were, therefore, unconstitutional.
Even a dependent spouse is not always entitled to alimony. For example, a spouse who commits adultery or abandons the other will probably not receive alimony.
An important consideration when alimony is awarded is how much to pay. In 1981, the Georgia legislature established new factors for determining the amount of alimony to be awarded to a dependent spouse. Basically, the amount of alimony payments reflects the need of one party for support and the ability of the other to pay.
A second important issue is child support. It is generally paid in Georgia until a child becomes self-supporting, marries, or reaches the age of 18. However, Georgia law provides that a parent may be required to support a child enrolled in a secondary school until the child reaches the age of 20. Child support is a right that belongs to the child, not the parent. Parents cannot agree between themselves that it will not be paid.
Generally the parent without custody pays child support. The parent with whom the child lives receives child support as trustee for the child, which means that the money is to be used for the benefit of the child. Georgia has new guidelines for calculating child support. The amount of child support depends on the income of both parents. A formula using worksheets determines child support. The amount of child support can be increased or decreased depending on the specific facts of each case. To get the worksheets, go to: www.georgiacourts.org/csc/andhttp://ocss.dhr.georgia.gov/portal/site/DHR-OCSE/
New Child Support Guidelines!
The new Child Support Guidelines will apply only to an order pending Establishment or Modification as of January 1, 2007, and only to new actions filed for Establishment or Modification on or after January 1, 2007. Child Support Orders are not automatically reviewed for modification with the implementation of the new child support guidelines law. Information regarding Georgia's Child Support Guidelines can be found on the Child Support Guidelines Commission web page at: http://www.georgiacourts.org/csc.
You can USE THE CHILD SUPPORT CALCULATOR HERE.
Division of Property
Another important issue is the division of the couple's property. In December 1980, the Georgia Supreme Court decided the case of Stokes v. Stokes, 246 Ga. 765 (1980), one of the most important cases in Georgia family law. It concerned the property rights of the parties in a divorce action. The court held that the judge or jury should divide the couple's marital property (that is, any property acquired during the marriage) equitably between the husband and wife, but each could retain any property that he or she owned prior to the marriage. It didn't matter in whose name or names the marital property was listed.
Certain types of property have been designated by the courts as nonmarital. Examples are any property that a person owned before a marriage or received by gift or inheritance during the marriage.
Some important guidelines have come from this case. They are generally followed by Georgia courts in dividing property in divorce or legal separation cases.
A judge or jury is t
- assign each spouse's property to that spouse, including the property and assets each owned prior to the marriage or property personally inherited or given to the party during the marriage
- equitably divide between the parties the real and personal property and assets ac-quired during the marriage, without considering in whose name the title is (as with a deed to a house or a certificate of title to a car).
To divide marital property, the judge or jury considers
1. the length of the marriage and any earlier marriage of either party;
2. the age, health, occupation, vocational skills, and employability of each party;
3. the service contributed by each spouse to the family unit; 4. the amount and sources of income, property, debts, liabilities, and needs of each of the parties;
5. debts against the property;
6. whether the division is instead of, or in addition to, alimony; and
7. the opportunity of each spouse to earn money or acquire property in the future.
Division of Debts
Another financial issue involves debts that must be paid. The court may divide the responsibility for the debts, or it may order one or the other spouse to pay all debts.
Other Financial Matters
Before getting a divorce, a couple should make a monthly budget showing the amount of money each needs to live. They should also list their assets and their debts. Superior courts have certain budget forms called financial needs affidavits on which this information must be written.
What if financial matters cannot be settled by an agreement? The couple will then need to have a trial by either a judge or a jury. Actually, only a small percentage of divorce cases go to trial in Georgia.
In many divorces, the parties settle all the issues by a written agreement, which is reviewed by the court. The court can change the agreement if it is very unfair to one party or to the children. Usually, a court will change an agreement only if the child's or children's best interests are not met. Courts are most concerned about the welfare of the children.
Suppose it was agreed that Peter would pay Linda $1,000 each month in child support and alimony. Then Peter's business fails two years later, or Linda gets a job paying $1,500 a month, or either of them remarries. Can any changes be made in the settlement?
Very often, the financial circumstances of the mother, father, or both change over the years - after the divorce is final. The changes may mean that the alimony or child support needs to be modified.
Support provisions can be changed only once every two years. Any alterations must be based on a substantial change, upward or downward, in the financial condition of either spouse. Alimony can be modified when the spouse receiving the alimony lives continuously and openly in a sexual relationship. The relationship can be either heterosexual or homosexual.
At the time of divorce, parties can agree to waive or give up their future rights to change the amount of alimony. Such a waiver is probably unwise. Unexpected changes may occur in the future. In general, the right to alimony ends when the receiving spouse remarries.
Since 1986, changes in child support may also be modified by the court when a substantial change in the financial condition of either parent or the needs of the child occurs. Parents cannot waive the right to modify child support because it is a right that belongs to the child or children.
For the most part, the government favors marriage and families and tries not to legislate on these matters. When the law does interfere in family life, it is often to ensure that children are cared for or to protect the basic rights of individuals. Recent laws about family violence demonstrate how the courts must often choose between interfering and not interfering. In these laws, the government chooses to protect the individual over not interfering in family life. Do you agree with this preference?
*Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase atwww.cviog.uga.eduor by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.