What can end a marriage?
Authored By: GeorgiaLegalAid.org
Ending a marriage in Georgia
What should I know? +
- What happens if I want to end my marriage?
- What is an annulment?
- What is separate maintenance?
- What is a divorce?
- What is a settlement agreement?
Because marriages are legal contracts, the law requires the court to be involved. Marriages can be ended in three ways:
An alternative to ending a marriage is legal maintenance, also called separate separation.
An annulment is a declaration by a court that a marriage never existed. Annulment means there was never a valid marriage in the first place. If one of the parties to a marriage was not eligible to enter into a marriage contract under state law, the marriage can be annulled. In this case, a third party can void the marriage. The third party might be:
a parent or guardian of a child under the legal age to marriage or
a guardian of a mentally incompetent person
However, an annulment will not be granted if a child has been born or will be born as a result of the marriage. There are a few other grounds for annulment. You should consult with an attorney whenever annulment is an issue.
A separation means one spouse intends to be separate from the other and no longer acts as a spouse. The parties do not have to live in separate homes to be separated. It is enough that one spouse sleeps in another room with the intention to be separated. The parties cannot, however, continue having sexual relations with each other.
If you are separated, you can file a case to establish you and your spouse's rights and obligations to each other during the separation. This is called a separate maintenance action and it must be filed in Superior Court. A legal separation must be granted by a court. The court also resolves or helps to resolve the other issues. Acceptable grounds or reasons are similar to those for divorce. If you file a separate maintenance action, your spouse may respond by asking the court to change the action to a divorce action.
Unlike divorce, separation through a separate maintenance action does not end a marriage. It provides a legal way to settle some of the issues that arise when spouses decide to separate. It is useful when spouses wish to separate but not to end the marriage. It may be used if one spouse does not want to deprive the other of financial support, insurance, or pension benefits that person might lose in a divorce. If there are children, custody, visitation, and support must be decided.
A divorce is a legal action between married people to terminate their marriage relationship. Divorce is a civil court matter. 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.
The divorce occurs on the day the divorce decree is signed by the judge and filed at the courthouse. After the divorce, the two people are legally single. They can remarry.
What are the grounds for divorce?
Grounds for divorce are the reasons that the court will accept as valid for ending a marriage.
What is a fault divorce?
Spouses can request that a divorce be granted based on some fault of the other spouse. The most common grounds for granting a fault divorce are listed below:
Before the marriage:
Partners closely related by blood or marriage
Force, menace, duress or fraud in obtaining the marriage
Pregnancy of the wife (by another man) which was unknown to the husband
After the marriage:
Adultery by either of the parties
Willful and continued desertion by either of the parties for a term of one year
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)
Habitual intoxication; drunkenness
Incurable mental illness
Habitual drug addiction
What is a no-fault divorce?
Georgia's no-fault ground is that the marriage is irretrievably broken. It is called the no-fault ground because neither party has to prove the other is at fault. The court is interested only in whether:
the marriage contract is irretrievably broken and
that there is no hope of reconciliation.
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:
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:
extracurricular activities, and
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:
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.
What can I do? +
- Can I just leave my spouse?
- How do I file for a divorce?
- What can I do if changes need to be made to the settlement agreement after the divorce is final?
In Georgia, if a spouse walks out on children or a pregnant wife, it is abandonment and a crime. Leaving a spouse and children does not eliminate the legal duty to support them. Furthermore, neither spouse can remarry legally until the former marriage is legally ended.
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. A person must have lived in Georgia for at least six months before filing for divorce in the state. Furthermore, you generally file the Complaint for Divorce in the superior court of the county where the other spouse lives. You may file in the county where you both lived if the other spouse moved to another county within six months of the date you are filing. If the other spouse has moved out of state, you can file in your county.
In Georgia, a divorce cannot be granted for at least 30 days after the defendant is legally notified of the divorce. 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. Note that Georgia gives divorcing parties the right to a jury trial on all issues, except child custody, which only the judge can decide. Both parties must waive the right to a jury before a judge can try the case.
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. 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: Alimony can be modified when the spouse receiving the alimony lives continuously and openly in a sexual relationship. 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. For instance, 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 custody: In child custody modifications, courts look for:
a change in the child's life or
a change in a parent's life that "materially" affects the welfare of the child.
The change can be positive or negative. If the reason for the change is based on a parent's circumstances, you must also prove that the change affects the child, not just the parent. Also, the reason for the change should be something that has occurred since the final order was decided. It is possible to base a change of custody case on something that existed at the time of the original court case. However, you would have to show that the condition has worsened or improved "materially" since the original order was decided.
When a child is 11 years old or older, the child can tell the court which parent they want to live with. In this case the court will consider the child's choice, but will not necessarily do what the child wants. The court will consider the child's choice as “very important." However, the court will decide custody based on what the court thinks is in the best interests of the child. A child is who 14 or older has the right to decide which parent they want to live. The court still must decide whether the chosen parent is a fit and proper person to have custody. An election by a child 14 or older cannot be considered as a "material change of circumstances" more than once every two years.
Child support: Parents cannot waive the right to modify child support because it is a right that belongs to the child or children. Child support orders can be changed based on a change in the income or financial need of either parent. Child support can be changed based on the changing needs of the child. Sometimes if a child support enforcement agency is involved, either parent has the right to have the child support order periodically reviewed without going to court. Sometimes a parent can request a change in child support when there are major changes to the child support laws.
Visitation: Visitation can be changed if it is in the best interests of the child. You do not need to prove that there has been a "material" change in the child's life or a parent's life. Once the court grants a modification of visitation, you have to wait two years to ask the court for another change. However, if you can prove that a material change of circumstances is the reason for the change, you don't need to wait two years.
Modification of a court order in family law cases can be a complex process. If possible, you should discuss your case with an attorney or hire an attorney to represent you.
There are family law self help centers throughout Georgia that can help you file and answer to a Complaint for Divorce on your own. You can find these self help centers in the “Find Help” section of our website.
- Abandonment: one spouse has left the other without consent
- Alimony: a right of one spouse to receive financial support from the other spouse
- Annulment: a declaration by a court that a marriage never existed
- Child custody: 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
- Child support: court-ordered payments, typically made by a noncustodial divorced parent, to support one's minor child or children
- Division of property: a judicial division of property rights and obligations between spouses during divorce
- Divorce: the legal dissolution of a marriage by a court or other competent body
- Fault divorce: the dissolution of a valid marriage, where one of the spouses is guilty of marital misconduct; a fault divorce is usually chosen by a spouse who wishes to be vindicated by proving the other's fault
- Grounds for divorce: the regulations specifying the circumstances under which a person will be granted a divorce; each state has its own set of grounds; a person must state the reason they want a divorce at a divorce trial and be able to prove that this reason is
- Marriage: the legally or formally recognized union of two people as partners in a personal relationship
- No fault divorce: where neither spouse is required to prove "fault" or marital misconduct on the part of the other; to obtain a divorce a spouse must merely assert incompatibility or irreconcilable differences, meaning the marriage has irretrievably broken down
- Separate maintenance action: allows the family court to resolve all the issues that could be resolved in a divorce action except for granting a divorce
- Settlement agreement: an agreement that spells out the terms of the divorce and the relationship between the two spouses after the divorce; these agreements usually cover property division, child custody, child plans, debt division, spousal support and any other relevant issues related to the divorce
- Use the Georgia Department of Public Health’s Vital Records form to report that your divorce has been completed if you handled your divorce on your own.
- Use the Georgia Commission on Child Support’s online calculator to help you calculate child support.
- View Greater Boston Legal Services’ document that explores the myths and realities behind changing identities for survivors of domestic violence.
This article is adapted with permission from an excerpt of An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). Reviewed and revised by GeorgiaLegalAid.org, 2019.