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Getting a Divorce: How to and FAQ's

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Getting a Divorce: How To

How Do I Get A Divorce?
Sheila Chrzan
Atlanta Legal Aid Society
Last Revised: July 2004

 

It is always a good idea to have an attorney represent you when getting a divorce.

If you do not have an attorney, then you are representing yourself in court and are applying for a divorce "pro se" (pronounced "pro say"). You may be able to find forms and instructions on how to file for a divorce in the Clerk's office or the courthouse law library. A few courts have a specific pro se section that will help you.

 

(1) File the Complaint for Divorce. First you file a Complaint for Divorce and tell the court why you want a divorce. You must tell the court why you want a divorce. There are specific reasons that the law will allow you to get a divorce. You must say which of the reasons you are asking the court to grant a divorce. In the Complaint you must also tell the court what you want the court to do. Do you want custody of any children you and your spouse have? Do you want the court to award you child support so that you can have money to take care of the children? How do you want the court to divide the property that you and your spouse have? There is a fee to file for a divorce.

You generally file the Complaint for Divorce in the Superior Court of the county where your spouse lives. You may file in the county where you both lived if your spouse moved to another county within six months of the date you are filing. If your spouse has moved out of state, you can file in your county.
 

(2) Service of Process - the Legal Way to Give the Complaint for Divorce to Your Spouse. You must have a copy of the Complaint for Divorce "served" on your spouse. This means that the sheriff or another "process server" will give the divorce papers to your spouse in the way that the law requires. This is called "service of process". There is also a fee to have the Complaint served.

 

(3) Hearing or Trial. After your Complaint for Divorce is served on your spouse the spouse may file an answer. If your spouse does not file an answer, your divorce is considered to be "uncontested". If there are no issues to be decided (such as child custody, child support, division of property, etc.) then the court will schedule a hearing where the court will make a final decision. If the divorce is contested by your spouse (when they file the Answer), the court may schedule the case for a temporary hearing or a trial.

Courts have different schedules for trying divorces. The court may require that the parties attend mediation. Check with the Clerk of Court concerning your court's requirements.

 

Again, it is always a good idea to have an attorney represent you when getting a divorce.

 

I Have Not Seen My Spouse For Years and I Do Not Know Where My Spouse Is. Can I Still Get a Divorce?

Yes. You will need to tell the court that you tried to find the defendant. You give the court a signed, statement (an "affidavit") where you:

  • swear that to the best of your knowledge the whereabouts of your spouse (the defendant) are unknown
  • swear that you have used reasonable diligence in trying to find out where the defendant is currently
  • state what the last residence of the defendant was.

A notice must then be published in the newspaper that the court designates for such notices for four (4) consecutive weeks. If your spouse does not file an Answer within 60 days after the notice is first published, the court can grant the divorce at a hearing. NOTE: In a divorce by publication the court cannot award alimony, child support, or property situated outside of Georgia.

 

If your spouse does file an Answer, the court will schedule a trial.

 

My Spouse Now Lives in Another State, Can I Still Get A Divorce In Georgia?

 

Yes. If your spouse was a resident of Georgia at one time, you can request child support, alimony and property division. You will have to arrange to have the petition for divorce "served" on your spouse in the new state.

 

My Spouse Has Never Lived In Georgia, Can I Still Get A Divorce?

 

Yes, if you have lived in Georgia for six months or more. But if the court cannot get personal jurisdiction over your spouse then it can not award alimony or child support, or award property in another state. "Personal jurisdiction" means that there are enough connections between your spouse and the State of Georgia that the Georgia Courts have the power to make decisions that will affect your spouse. This is a complicated area of law.

 

Again, it is always a good idea to have an attorney represent you when getting a divorce.

Getting a Divorce: FAQ's

Common Questions About Divorce
Atlanta Legal Aid Society, Inc.
Last Revised: November 2005

 

Can I represent myself in a divorce?

 

Yes, you have the right to represent yourself. When you represent yourself, you are acting as your own lawyer. Most judges will expect you to behave like a lawyer and expect you to know all the court's rules. If your spouse has hired a lawyer, it is especially easy to get confused or frustrated by court rules. Judges and court staff are not allowed to give you advice. Even if your spouse does not have a lawyer, you may be unable to finalize your divorce without some legal advice. Some people end up going to court over and over again because they are unaware of certain rules. So, if possible, you should hire a lawyer.

 

Is there a waiting period for a divorce in Georgia?

 

No, but you must have lived in Georgia for at least six months before you can file for divorce in Georgia. If you live on a military base, you must have lived in Georgia for at least one year.

 

What is no-fault divorce?

 

This means that you do not have to prove that your spouse did something wrong to get the divorce. No one has to be "at fault". It's enough that you don't want to be married anymore. You can get a divorce even if your spouse does not want a divorce. You may have heard the term irreconcilable differences. In Georgia, the phrase is: "the marriage is irretrievably broken." To get the divorce, you need to claim that there is "no hope of reconciliation" - that there is no hope that you and your spouse will get back together. Also, you need to be separated from your spouse.

 

Can I get a legal separation?

 

In Georgia, you become legally separated from your spouse once you intend to be separated and stop having sexual relations with your spouse. You do not need to have a formal, court-ordered separation before you can obtain a divorce. You may not want a divorce, but believe you need a court order to handle certain parts of the separation. In this case, you can file a "separate maintenance action". A separate maintenance action can deal with things like: custody, alimony, and child support. Sometimes it can handle property and debts. If you file a separate maintenance action, your spouse can respond by filing for a divorce.

 

Does Georgia have common law marriage?

 

A common law marriage is a marriage that is created without a marriage license. As of January 1, 1997, new common law marriages cannot be created in Georgia. However, if you created a common law marriage in Georgia before January 1, 1997, you marriage is still valid. If (before January 1, 1997) you and your partner 1) had the ability to marry 2) intended to marry and 3) behaved as if you were married, then you could have a common law marriage.

 

Do I need a divorce if I want to end my common law marriage?

 

Yes - otherwise you are still married. If you marry another person without first getting a divorce, then you could be accused of bigamy. Also, the second marriage can also be annulled.

 

How long does it take to get a divorce?

 

The answer depends on whether you and your spouse are cooperating or fighting about the divorce. The divorce will take much less time if 1) you and your spouse have reached a complete agreement and 2) your spouse is fully cooperating in the court process. In this case, the least amount of time it can take is 31 days after the certain papers are filed with the court. If your spouse is simply refusing to participate in the divorce, it can take from 46 days to 60 days to finalize a divorce. Also, it may take even longer because of the court's schedule. If you and your spouse are fighting about property or children, a divorce can take many months or even years to finalize.

 

What can the court decide?

 

The court can decide child custody, visitation, child support, alimony, division of property and division of debt. The court can give a wife back her former name if she requests this. The court cannot order the wife to take back her former name. Also the court can order one spouse to keep away from the other. The court can also decide preliminary issues - whether the case should be heard in Georgia, whether you were ever legally married to your spouse, whether the children born during the marriage are the husband's biological children, whether certain property can be divided in the divorce.

 

Can I get alimony?

 

Alimony is money paid by one spouse to support the other after the separation. Alimony can be short-term or long-term. Many courts just award alimony in cases when a long-term marriage ends.

 

Can I get part of my spouse's military retirement or civilian pension?

 

You may be able to get part of your spouse's military retirement or civilian pension. This can be true even if your spouse is not retired yet. Sometimes you cannot begin to receive these benefits until your spouse retires. There are two reasons for a court to give a part of a spouse's military retirement or civilian pension. Sometimes courts call it dividing the "property" obtained during the marriage. Sometimes courts call it alimony. You should tell your lawyer if you think your spouse has a military or civilian pension or any other benefit. You have to ask for these benefits during the divorce. You can't ask for these benefits later after the divorce is final.

 

Can I continue to receive health insurance coverage for my children and myself?

 

You can ask the court to order your spouse to provide health insurance for the children. If you want health insurance coverage for yourself, some laws let you continue receiving health insurance coverage (COBRA). You must give the insurance company certain notices. The premium payments must be made. You can ask the court to order your spouse to pay these. Tell your lawyer if you need health insurance coverage from your spouse. If the insurance coverage is cut off, you may not be able to get it back.

 

How does the court divide property in a divorce?

 

The judge (or jury) decides how to divide the property. The court makes a decision based on the fairness of the circumstances. The court looks at what each spouse gave to the marriage and the needs of each spouse. Gifts to just one spouse during the marriage should not be divided or given to the other spouse. Also, property inherited by just one spouse during the marriage should not be divided or given to the other spouse.

 

What if my spouse is abusive?

 

Tell your lawyer or the court if there is family violence in your home. You can ask the court to order the abuser to stay away from you. If your spouse is violent and you have children, the judge can issue special orders to keep you safe during visitation. The court should consider your safety and the child's safety when it decides custody and visitation.