The grounds for dissolution are set forth at O.C.G.A. § 19-5-3, and are:
- Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
- Mental incapacity at the time of the marriage;
- Impotency at the time of the marriage;
- Force, menace, duress, or fraud in obtaining the marriage;
- Pregnancy of the wife by a man other than the husband, at the time of the marriage,
unknown to the husband;
- Adultery in either of the parties after marriage;
- Willful and continued desertion by either of the parties for the term of one year;
- 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;
- Habitual intoxication;
- 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;
- Incurable mental illness;
- Habitual drug addiction, which shall consist of addiction to any controlled substance as
defined in Article 2 of Chapter 13 of Title 16;
- 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 cannot be contested.
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.
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.
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.
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.
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 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
factfinder'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.
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.
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.
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.
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.
Visitation is generally arrived at using the same "best interests" standard
applicable to custody.
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.
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.
Having a lawyer is always a good idea. However, many people feel they cannot afford an
attorney. Often, these people find later that they cannot 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 the county Clerk of
Superior Court.
