Divorce in Georgia

Grounds

The grounds for dissolution are set forth at O.C.G.A. § 19-5-3, and are:

  1. Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
  2. Mental incapacity at the time of the marriage;
  3. Impotency at the time of the marriage;
  4. Force, menace, duress, or fraud in obtaining the marriage;
  5. Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;
  6. Adultery in either of the parties after marriage;
  7. Willful and continued desertion by either of the parties for the term of one year;
  8. The conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer;
  9. Habitual intoxication;
  10. Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health;
  11. Incurable mental illness;
  12. Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16;
  13. The marriage is irretrievably broken.

In almost all cases, the final ground, that the marriage is irretrievably broken is the sole ground alleged in divorce complaints, and it is sufficient to allow the granting of a divorce.  This is the so-called "no-fault" ground for divorce in Georgia.   So long as one party swears that the marriage is irretrievably broken with no hope of reconciliation, the divorce itself cannot be contested, although the issues of child custody, child visitation, child support, alimony, property division, debt division and attorney's fees certainly may.

However, multiple grounds may be alleged because marital "fault" is permitted to be taken into account in the court's division of property and alimony.  Proof of "fault" may be considered even in "no fault" divorces.

Procedure

The divorce action is begun by filing a summons and complaint with the Superior Court in the county where the other party resides, unless that person is a nonresident of the state.  The filing fee varies somewhat from county to county, depending on certain allowed add-on charges.  The base fee is $60.00, with county add-on fees adding up to another $10.00.  The fee for service of papers will generally be about $25.00.   In certain "family violence" cases, there is no filing fee or service fee.

The complaint sets forth the names of the parties, the jurisdiction of the court, the names and birth dates of any minor children, the grounds for divorce, and the relief requested. The court can award alimony, an equitable division of property, child support, child custody, restoration of the wife's maiden name, and any other appropriate relief.

Parties in a divorce are called "plaintiff" and "defendant," but it really does not matter which party commences the action. Some attorneys suggest that there is an advantage to being the plaintiff because you get to tell your side of the story in its entirety first, although in practice it rarely makes much difference.

The defendant will have 30 days from the service of the divorce action to file an answer with the court.  A divorce based upon the no-fault ground of divorce cannot be granted prior to 31 days after service.

While the divorce is pending, the parties may seek to be awarded temporary alimony (including attorney's fees in the nature of alimony), child custody and support, a restraining order against abuse, and exclusive possession of the marital residence. The court has the power to grant this type of temporary relief.

Separation Agreements

Most Georgia divorce cases are settled before trial. This is typically done by a written "Separation Agreement."  Drafted by the parties' counsel, and then executed and acknowledged by the parties, this agreement provides for all of the financial arrangements (alimony, child support, real and personal property, counsel fees, etc.) to which the parties have agreed, as well as for the custody and visitation of children, waiver of rights in future property (including estate rights), and other matters.

If the parties have settled their case by agreement, the case is an "uncontested" matter and can be scheduled for an appearance before the court.   At this appearance, brief evidence is given to establish that the court has jurisdiction, the grounds for the divorce, and that all matters have been settled, and that the child support set meets state guidelines.  list, and a hearing is scheduled.   Almost all separation agreements are accepted and approved by the courts.

Discovery

Parties to a divorce in Georgia must make a complete financial disclosure through a financial affidavit form.  In addition, counsel for the parties may use all of the traditional litigation discovery tools: interrogatories, depositions and requests for production of documents, requests for admissions, non-party requests for production, etc.   The complexity of the case determines the amount of discovery which is required.   In cases involving business owners and others who may be able to easily conceal or manipulate their income discovery may involve extensive (and expensive) procedures by financial experts such as accountants and actuaries.

Jurisdiction

Georgia courts have subject matter jurisdiction when one of the parties has been a resident of the state of Georgia for at least six months.  In Georgia, the six months' residence must exist at the time of the filing of the complaint.  Persons who have not been residents for six months may still file an action for legal separation and later convert this to an action for divorce once the required time period has passed.

Personal jurisdiction is not required to grant a divorce.  The court has "in rem" jurisdiction over the marriages of residents of the state. The court must, however, have personal jurisdiction over the defendant if financial relief is to be granted, i.e. child support, division of property, alimony, etc.

In divorce actions, the defendant, even if out of the state, must be given notice and an opportunity to be heard. If the defendant cannot be found, a notice is required to be published in a newspaper pursuant to court order.

Alimony

Alimony may be awarded to either party. If no alimony is awarded at the final hearing, it can never be awarded thereafter.   The person required to pay alimony will wish alimony to be of short duration and non-modifiable either as to duration or amount, while person receiving the alimony will want the opposite.  These are matters for the fact-finder's sound discretion, taking into account the length of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each party, the property settlement, and whether the custodial parent should work. In addition, the court may take marital fault into account. For instance, a person who commits adultery so as to cause the breakup of the marriage may be legally barred from receiving alimony.

Child Support

Georgia requires both parents to support their children.  Typically, this is accomplished by requiring the non-primary custodian to pay a specific periodic amount for the support of the children.  Judges are required to carefully scrutinize this area to assure that the amount set is within the child support guidelines.  Judges may only depart from the guidelines where they can point to the existence certain permissible factors to justify that departure.  Child support often includes a requirement that the payor spouse maintain health insurance coverage.  You can find more information on this subject on our child support page.

Child Custody

If the Georgia court has jurisdiction over the children, a divorce decree must include provision for child custody based upon the "best interests of the child." The child's preferences and the cause for the dissolution of the marriage may also be considered.

Georgia has a statutory presumption in favor of joint custody when the parents agree to it.  For more information about custody, see our child custody page.

In contested custody matters, an attorney may be appointed to represent the minor child, at the expense of the parents. This person is referred to as a guardian ad litem.  In some cases, this county Department of Family and Children Services will be directed to perform a home evaluation.  In some counties, this will be performed by a private agency at the parties' expense.  In other cases, the services of a professional custody evaluator may be retained.

Visitation is generally arrived at using the same "best interests" standard applicable to custody.

Division of Property

Georgia is an  "equitable distribution" state - all property of the parties is subject to distribution in a dissolution action. The court, or jury, can consider a variety of factors in dividing assets such as the length of the marriage; the causes for the divorce; the age, health, station, occupation, amount and source of income; vocational skills; employability; estate; liabilities and needs of each of the parties; the opportunity of each for future acquisition of capital, assets and income; and the contribution of each of the parties in the acquisition, preservation or appreciation value of the assets.  In short marriages, the court will often attempt to restore the parties to their pre-marital financial state. In relatively long marriages, the property division is typically closer to 50-50, although that result can vary widely.

Attorneys' Fees

Either spouse may be required to pay the counsel fees and disbursements of the other spouse, based on the same factors to be taken into account in making an award of alimony.   Generally, a party with enough funds to pay his or her own attorney will not receive an award of attorney's fees; however, the non-monied spouse may recover counsel fees from the monied spouse in a proper case.  Generally, the prevailing party in the divorce action may be able to recover his or her attorneys' fees.  You should not refrain from consulting an attorney just because you do not have the immediate funds to pay a retainer.

The cost of hiring an attorney varies based on the time expended, the issues involved, the difficulty of the matter, the results achieved, and any extraordinary time or demands placed upon an attorney which would prevent an attorney from representing other clients. Of these factors, the time expended is generally the most important. Most attorneys will require that a retainer be paid at the time of retention. Every attorney in Georgia should have a written fee agreement with his clients.

Do I Really Need an Attorney?

Having a lawyer is always a good idea. However, many people feel they cannot afford an attorney.  Often, these people find later that they could not afford to have been without a lawyer.  By then, however, it is often too late.  Divorces are sometimes complex and often depend on factors that a layman would not consider. Moreover, closeness to the subject matter makes an objective presentation of evidence nearly impossible. If you cannot afford a lawyer, often there are resources available to you at state expense. Check with your local Georgia Legal Services Office or your county's Clerk of Superior Court.

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