In many divorces, the parties settle all the issues by a written agreement, which is reviewed by the court. If financial matters cannot be settled by an agreement, the couple will need to have a trial by either a judge or a jury. Only a small percentage of divorce cases go to trial in Georgia.
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.
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.
Issues that must be settled in a divorce are:
- Child custody
- Visitation rights
- Child support
- Division of property
- Division of debts
Child custody & Visitation Rights
There are two types of custody - legal custody and physical custody. Legal custody means the rights and responsibilities for major decisions about the child. Decisions including:
- health care,
- extracurricular activities, and
- religious training.
The judge, in most instances, grants joint legal custody. In this case, if the parents cannot agree the one with primary custody has the authority to make the final decision. Sometimes the judge may choose one parent to have sole power to make certain decisions, like for health care or education. In that case both parents still keep equal rights and responsibilities for other decisions.
Physical custody relates to who the child or children live with. In most cases, one parent is usually given sole or primary physical custody of the child or children. This means that the child or children live with that parent and visit with the other parent. That other parent has visitation rights. Sometimes, physical custody of the child or children is joint between both parents. In that case, the child or children live an equal amount of time with each parent.
Alimony is a right of one spouse to receive financial support from the other spouse. The amount of alimony payments reflects the need of one party for support and the ability of the other to pay. An important consideration when alimony is awarded is how much to pay. It is not, however, a guaranteed right of either party. In general, the right to alimony ends:
- at a specific time designated by a court,
- when a court rules the paying spouse can no longer afford to pay,
- when the receiving spouse remarries, or
- when either spouse dies.
Child support is generally paid by the non-custodial parent 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. Parents cannot agree between themselves that it will not be paid. Parents cannot waive the right to modify child support because it is a right that belongs to the child or children.
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. 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. Child support can be modified. But, except under extraordinary circumstances, a parent can only request a child support modification once every two years.
Division of Property
Marital property is any property acquired during the marriage. In a divorce, a judge or jury should divide the couple's marital property equitably between the spouses. Each could keep any property that each individually owned before 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 marriage or received by gift or inheritance during the marriage. If the nonmarital property has substantial value and its value increased substantially during the marriage, that increase in value could be treated as marital property.
To divide marital property, the judge or jury considers:
- The length of the marriage and any earlier marriage of each spouse
- The age, health, occupation, vocational skills, and employability of each spouse
- The service contributed by each spouse to the family unit
- The amount and sources of income, property, debts, liabilities, and needs of each spouse
- The debts against the property
- Whether the division is instead of, or in addition to, alimony
- The opportunity of each spouse to earn money or acquire property in the future
Division of Debts
The court may divide the responsibility for the debts, or it may order one or the other spouse to pay all debts.