Divorce

Historically, only the Georgia Legislature could grant divorces between spouses. In 1833, the Georgia Constitution was amended to authorize a divorce upon two successive jury verdicts in the Georgia Supreme Court. Finally, the Legislature provided for specific grounds for divorce later. In 1956, the present procedure for the granting of divorce was established. The spouse filing for divorce has to have been (1) a legal resident of the State of Georgia for at least 6 months, and (2) the judge may grant a divorce after a period of no less than 30 days from the date of service, although certainly litigations, which could include a jury trial, would prolong the proceedings.

There are 13 grounds for divorce in Georgia, ranging from cruel treatment, desertion, and adultery to the most common ground, irretrievably broken marriage, the “no-fault” divorce. While the vast majority of divorces are granted on the no-fault ground, any of the 12 other grounds may be pursued and the judge or jury may award a divorce. The filing party, called the Plaintiff or Petitioner, must state or allege one or more of the grounds, and the spouse who is named as the Defendant or Respondent, must generally file a response or an answer to the divorce complaint or petition within 30 days from when he/she is served or acknowledges he/she has officially received the divorce papers. In addition to the answer, the responding party may file against the Petitioner and also request a divorce on any of the 13 grounds, called a counter-claim. The petition is filed in the superior court of the county of residence of the Defendant if she/he resides in Georgia. If the Defendant does not live in Georgia or cannot be found after a diligent search, a petition must be filed in the county of residence of the Plaintiff.

As divorce proceedings are considered equitable in nature, a spouse may also seek other relief in addition to a divorce, (1) including alimony, (2) custody and child support for any children born of the marriage or legally adopted by a non-biological parent, (3) equitable division of all the marital assets and debts, and (4) attorney’s fees.

The procedure for obtaining a divorce and any other relief requested by a party may initially begin with a temporary hearing in front of a superior court judge where evidence is presented by the parties and witnesses called by them. The judge will then rule upon the temporary issues in the case, such as temporary custody and parenting time, child support, alimony, payment of the debts such as the home mortgage and car notes, credit cards, who may have the exclusive use of the marital home, vehicles, or other property on a temporary basis along with temporary attorneys’ fees. The temporary order will last until the final trial or the parties can come to an agreement resolving all these issues. If the parties cannot resolve the issues, the case will then proceed to a final trial where the permanent issues are heard and decided by the judge or jury. These issues can range from custody and parenting time, (always determined by the judge) child support, alimony, what property is awarded to a party as equitable division (or alimony), and what debts are to be paid by whom. The issue of attorney’s fees is also addressed wherein the court must review the financial circumstances of the parties. However, at any time, the parties can come to a final agreement and sign a contract resolving the entire matter. Most courts also have a requirement that the litigants participate in alternative dispute resolution, typically mediation, as a process to help the parties reach settlement. The mediation is presided over by a fully trained individual, typically a lawyer, who attempts to assist the parties find common ground on the number of issues they disagree on. This is a valuable resource which provides the parties an additional forum to have a third party listen to the concerns of both parties in helping guide them to a mutual understanding.

The length of time that a divorce case is pending is dependent on a number of factors. A truly uncontested divorce, in which the parties only seek a divorce and have no children, assets or other issues to determine, can take as little as 31 days. Conversely, a matter in which custody is contested, or numerous properties need valuation, or a closely held business in which a spouse holds title or an interest may also need valuation could cause the divorce proceedings to take many months or even a year or more to finalize. Experts in valuation, guardians or psychologists may need to be hired, or the court’s busy calendar may also delay the process. Spouses who are ready to resolve their disputes and are more cooperative in the process can shorten the time frame considerably.

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