What should I know about filing a divorce?

Contents

• What is a divorce?
• What are the steps for filing for a divorce?
• Where do I file a divorce?
• How long does it take to get a divorce?
• What can the court decide?

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What is a divorce?

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 granted by the judge and filed at the courthouse. Only after the divorce are the two people are legally “single” and can remarry. 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.

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

• Mental incapacity

• Impotency

• 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

• If either party goes to prison for two or more years for offenses like murder, involuntary manslaughter, rape, embezzlement

• Habitual intoxication; drunkenness

• Cruel treatment

• 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 at fault. The court is interested only in whether the marriage contract is irretrievably broken and that there is no hope of getting back together.

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What are the steps for filing for a divorce?

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 you are applying for a divorce "pro se". Find divorce forms and instructions on the Georgia Courts website (the links are to fillable PDFs that may not be fully accessible).  A few courts have a specific pro se section that will help you.

 

Courts have different schedules for trying divorces. Under Georgia Superior Court Rules both parties in a divorce are required to attend a divorcing parent seminar. The court may require that the parties attend mediation. Check with the Clerk of Court concerning your court's requirements.

 

In Georgia, there is no waiting period to file a divorce, but you must have lived in Georgia for at least six months before you can file for divorce. If you live on a military base, you must have lived in Georgia for at least one year.

1. File the Complaint for Divorce: You must tell the court why you want a divorce and explain 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. For example, whether you want custody of any children or how you want the court to divide the property that you and your spouse have. The first of two spouses to file for a divorce is called the "plaintiff". The other spouse is called the "defendant". Please note, there is a fee to file for a divorce. But if you cannot afford to pay the fee, you can ask the court to waive it by filing a poverty affidavit.

2. Service of Process: 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 then the court will schedule a hearing where the court will make a final decision. If your spouse files an answer and the divorce is contested by your spouse, the court may schedule the case for a temporary hearing or a trial.

 

Besides the complaint for divorce, are there other documents that must be filed?

Yes. Some key standard documents are listed below.

• Domestic Relations Financial Affidavit

• Child Support Worksheet & Schedules (only if there are minor children from the marriage)

• Court's [Standing] Order

• Domestic Relations Case Filing Information Form

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Where do I 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. If your spouse is incarcerated, you can file in the last county in which your spouse lived prior to incarceration.

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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.

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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, like:

• 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, or 

• whether certain property can be divided in the 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.

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Contents

• What can I do before getting a divorce?
• Can I represent myself in a divorce?
• Can I get a divorce if I don't know where my spouse is?
• Can I get a divorce in Georgia if my spouse lives in another state?
• Can I get a divorce if my spouse has never lived in Georgia?
• If there's nothing to settle and I just want a divorce, what can I do?
• What happens to my benefits if I get a divorce?
• What can I do if my spouse is abusive?
• If I have a common law marriage, do I still have to file for a divorce?

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What can I do before getting a divorce?

Before getting a divorce, you and your spouse should make a monthly budget showing the amount of money each needs to live. You should also list their assets and their debts. Write this information on the form called a “domestic relations financial affidavits." These forms are found at the Superior Court. 

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Can I represent myself in a divorce?

Yes. You have the right to represent yourself and act as your own lawyer. Most judges will expect you to behave like a lawyer and expect you to know all the court's rules. Some people end up going to court over and over again because they are unaware of certain rules. Judges and court staff are not allowed to give you advice.  

If your spouse has hired a lawyer, it is especially easy to get confused or frustrated by court rules. Even if your spouse does not have a lawyer, you may be unable to finalize your divorce without some legal advice. If possible, you should hire a lawyer.

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Can I get a divorce if I do not know where my spouse is?

Yes. You will need to tell the court that you tried to find your spouse, the defendant. You will give the court a signed statement where you:

• Swear that to the best of your knowledge the whereabouts of your spouse are unknown

• Swear that you have used reasonable diligence in trying to find out where your spouse is currently

• State what the last residence of your spouse was

 

A notice must then be published in the newspaper that the court designates for such notices for 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. Please note, in a divorce by publication, the court cannot award alimony, child support, or property situated outside of Georgia.

 

If your spouse files an answer, the court will schedule a trial.

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Can I get a divorce in Georgia if my spouse now lives in another state?

You can get a divorce if your spouse lives in another state. Also, under the "Long Arm" statute,  you can request child support, alimony and property division, if:

• your spouse was a resident during part of the marriage and 

• you serve your spouse with the petition for divorce

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Can I get a divorce if my spouse has never lived in Georgia?

If you have lived in Georgia for six months or more, you can get a divorce. But if the court cannot get personal jurisdiction over your spouse, it cannot 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. 

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If there's nothing to settle and I just want a divorce, what can I do?

In our legal system, the only way to avoid going to trial is to settle.  If you have no marital property, the settlement agreement is a way to tell this to the court.  If you do not want alimony, you may use the settlement agreement to let the court know of your decision. If you have no debts with your spouse, the settlement agreement notifies the court of this fact. 

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What happens to my benefits if I get a 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.  The court usually awards alimony only when a long-term marriage ends.  One person must show a need for support, while the other person must have the ability to pay.

 

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 benefits. You have to ask for these benefits during the divorce. You can't ask for these benefits after the divorce is final.

 

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

Unless the children are covered by Medicaid, Peachcare, or another public health care program, 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.

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What can I do 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.

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If I have a common law marriage, do I still have to file for a divorce?

Yes. If you created a common law marriage in Georgia before January 1, 1997, you marriage is still valid. You must get a divorce in order to end your marriage.

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