Divorce in Georgia: The Legal Process, Your Rights, and What to Expect

Divorce in Georgia: The Legal Process, Your Rights, and What to Expect

by Richard A Sanders, Douglas G. Andrews

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Overview

Providing accurate and objective information to help make the right decisions during a divorce in Georgia, this guide provides answers to 360 queries such as What is the mediation process in Georgia and is it required? How quickly can one get a divorce? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? How much will a divorce cost? and Will a spouse have to pay some or all attorney fees? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

Product Details

ISBN-13: 9781943886180
Publisher: Addicus Books
Publication date: 09/25/2015
Series: Divorce In
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 287
File size: 1 MB

About the Author

Richard A. Sanders Jr. and Douglas G. Andrews are attorneys at the law firm of Andrews & Sanders Law Offices. They both live in Savannah, Georgia.

Read an Excerpt

Divorce in Georgia

Simple Answers to Your Legal Questions


By Douglas G. Andrews, Richard A. Sanders Jr.

Addicus Books, Inc.

Copyright © 2015 Douglas G. Andrews and Richard A. Sanders
All rights reserved.
ISBN: 978-1-943886-18-0



CHAPTER 1

Understanding the Divorce Process


Divorce isn't such a tragedy. A tragedy's staying in an unhappy marriage, teaching your children the wrong things about love.

Nobody ever died of divorce.

–Jennifer Weiner, Fly Away Home


At a time when your life can feel like it's in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown and this can cause the greatest fear and anxiety. But there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.

Your life will be stressful enough, maybe even overflowing with the drama of the breakup. Avoid throwing gasoline on the burning relationship. Do not think for a moment that it is okay to hook up with someone else, just because you are separated. Sex by a person still married, with a person not his or her spouse, is adultery and is not justified by mere separation. You owe it to yourself to end the marriage by a final decree of divorce before you begin another intimate relationship.

More often than not, building a new relationship on the burning embers and ashes of the old one is simply a weak foundation on which to build a new relationship. Having a new love interest radically alters the dynamics of the relationship with the spouse and the efforts at settling the case by agreement. It also often engenders far more effort (and more attorney fees) by your attorney to minimize the consequences of the extramarital relationship on the divorce process.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it won't go on forever.

Going through a divorce can bring about a new level of anxiety. When your attorney starts talking about "depositions" or "going to trial," you may feel your heart start pounding in fear. But developing a basic understanding of the divorce process will lower your anxiety. Understanding the divorce process can reduce your frustration and help you understand why each step is needed. It will provide you with the basic support that you need so that you can begin preparing for what comes next.

Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn't prefer that?


The Divorce Process

Divorce need not be contentious, but it too often simply is, but not simply so.

The divorce process in Georgia typically involves the following steps.

If you are initiating the divorce:


• Obtain a referral for an attorney who handles family law cases.

• Schedule an appointment with an attorney.

• Prepare questions and gather necessary documents for an initial consultation.

• Meet for an initial consultation with an attorney.

• Pay the attorney a retainer and sign a retainer agreement or pay the initial fee and sign a fee contract.

• Provide requested information and documents to your attorney.

• Take other actions as advised by your attorney, such as opening or closing financial accounts.

• Attorney prepares the summons and petition for dissolution (or complaint for divorce) for your review and signature.

• Attorney files the summons and petition (or complaint) with the clerk of the court.

• Attorney serves the summons and petition (or complaint) on your spouse (who will be referred to as the respondent or the defendant ).

• If immediate relief (such as temporary child support, deciding who stays put or moves out of the family home, spousal support, or attorney fees) is appropriate, your attorney will prepare any necessary motions (or requests for the court to act) for your review and signature and files these with the court. Your attorney will obtain a court date and will have these documents served on your spouse (the respondent or defendant).

If you have been served with divorce papers:

• Obtain a referral for an attorney who handles family law cases.

• Schedule an appointment with an attorney.

• Prepare questions and gather necessary documents for an initial consultation.

• Meet for an initial consultation with an attorney.

• Pay the attorney a retainer and sign a retainer agreement or pay the initial fee and sign a fee contract.

• Provide requested information and documents to your attorney.

• Take other actions as advised by your attorney, such as opening or closing financial accounts.

• Attorney prepares a response to the summons and petition (or complaint ) for your review and signature. (Sometimes this will include a counterclaim for a divorce.)

• Attorney files your response with the clerk of the court within thirty days of service of the petition (or complaint) and summons on you.

• If you are served with requests for immediate relief, your attorney prepares your response to these motions.

After an action has been commenced and the response filed:

• With the assistance of your attorney, you need to prepare financial disclosure documents (income and expense declaration and preliminary schedule of assets and debts). Georgia refers to this document as a financial affidavit.

• Negotiations may begin regarding temporary custody and visitation, child and spousal support, payment of obligations, and attorney fees.

• Attorney prepares motions for any requests for relief during the divorce process not previously made.

• If there are minor children, the parties comply with any local rules or court orders to attend divorcing parent orientation and to participate in mandatory mediation.

• The court holds hearing(s) on requests for temporary relief (so the parties can know who has to do what during the divorce).

• Either the parties reach an agreement or the court rules on temporary orders.

• Temporary order is prepared by one attorney, approved as to form by other attorney, and submitted to the judge for signature.

• Both sides conduct discovery — the process designed to obtain information regarding all relevant facts — and commence the process to exchange valuations of all assets, including expert opinions if needed.

• You confer with your attorney to review facts, identify issues, assess strengths and weaknesses of case, review strategy, and develop a settlement proposal.

• Spouses, with the support of their attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other forms of negotiation.

If you reach an agreement on all issues, then:

• One attorney prepares marital settlement agreement and necessary judgment paperwork.

• Both parties and their attorneys sign agreement and all necessary paperwork.

• Judgment paperwork is filed with the court.

• Either the parties waive the court date or the court holds a brief, final hearing.

• Judgment is entered and you will be divorced.

• Your attorney completes necessary orders and helps facilitate any transfers of property, assets, or debts.

If you are unable to reach an agreement on all issues, then:

• Your attorney completes all necessary discovery to bring the case to its trial-ready point.

• Your attorney files a request to obtain trial dates.

• If agreement has been reached on any issues, your attorney prepares a stipulation on those issues. All other issues are set for trial.

• You work with your attorney to prepare your case for trial.

• Your attorney prepares witnesses, trial exhibits, legal research on contested issues, pretrial motions, trial briefs, direct and cross-examination of witnesses, opening statements, witness subpoenas, and your closing argument.

• You meet with your attorney for final trial preparation.

• Trial is held. In Georgia, either spouse may demand jury trial, if desired.

• The judge or jury issues a judgment or decision and directs this ruling to be prepared as an order of the court.

• The judge signs the final order dissolving your marriage.

• The attorneys help facilitate any transfers until all agreed terms are satisfied.

(Your posttrial rights are discussed in the chapter on appeals.)


1.1 Must I have an attorney to get a divorce in Georgia?

You are not required to have an attorney to obtain a divorce in Georgia. A person who proceeds in a legal matter without a lawyer is referred to as being pro se (pronounced pro-say), which translates to "on one's own."

You should be very cautious about proceeding in a divorce case without a lawyer. You would not perform a medical operation on yourself just because you found a book that described the procedure and someone gave you a scalpel. Legal work is no different. The best advice is to hire a lawyer who is trained in these matters.

If you are considering proceeding without an attorney, at a minimum you should have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations about which you are unaware. Meeting with a lawyer can help you decide whether to proceed on your own.

If your case involves children, alimony, significant property, or debts, you should avoid proceeding on your own. The more issues in your case, the more complicated your case will be. It's always better to have matters handled correctly the first time. A judge, frustrated by a party without a lawyer, may not be the judge you would want ruling in your case.


1.2 What is my first step?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation.

Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce, your spouse might be.

Ask what documents you should bring to your initial consultation. Make a list of questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case. Legal fees may be expensive, but if you think hiring an experienced lawyer is expensive, then try hiring an inexperienced one!


1.3 Is Georgia a no-fault state or do I need grounds for a divorce?

Georgia, like most states, is a no-fault divorce state. This means that neither you nor your spouse is required to prove that the other is "at fault" in order to be granted a divorce. Factors such as infidelity, cruelty, or abandonment are not necessary to receive a divorce in Georgia. Rather, it is necessary to prove that the marriage is "irretrievably broken" with "no hope of reconciliation" and that you and your spouse are living in a "bona fide state of separation" to have the marriage dissolved.

The testimony of either you or your spouse is likely to be sufficient evidence for the court to rule that the marriage should be dissolved. This testimony, usually given by the spouse who filed for the divorce, will state that you two have been separated, that you two are living in a "bona fide state of separation," and that the marriage is irretrievably broken and that there is no hope of reconciliation.

However, Georgia still recognizes "fault" grounds and parties can claim and be granted a divorce based on fault grounds. Georgia recognizes twelve fault grounds for divorce:


• Intermarriage by persons within the prohibited degrees of consanguinity (related by blood) and affinity (related by marriage)

• Mental incapacity at the time of the marriage

• Impotency at the time of 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 by the husband

• Adultery by 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 and under which he or she 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


1.4 Do I have to get divorced in the same state I got married in?

No. You should seek a divorce in the state in which you reside. Regardless of where you were married, you may seek a divorce in Georgia if the jurisdictional requirements are met.


1.5 What is the minimum time a person must have lived in Georgia to be eligible to file for divorce here?

Either you or your spouse must have been a "bona fide resident" of Georgia (or "domiciled" in Georgia) for at least six months to meet the residency requirement for a divorce in Georgia.

Georgia allows an exception to this requirement for U.S. military members. If a person has been stationed at a U.S. military post in Georgia for at least twelve months pursuant to military orders immediately before the filing, then the divorce action may be filed in Georgia.

If neither party meets the "bona fide resident/domiciliary" requirement or the twelve-month assignment requirement, other legal options are available. If you do not meet the six-month residency requirement (nor qualify under the service members exception), talk to your attorney about options, such as a petition for separate maintenance or a protection order.


1.6 My spouse has told me "I will never give you a divorce." Can I get one in Georgia without my spouse's consent?

Yes. Georgia does not require that your spouse "agree to" a divorce. If your spouse threatens to "not give you a divorce," know that in Georgia this is likely to be an idle threat without any basis in the law.

Under Georgia law, to obtain a divorce you must be able to prove that your marriage is "irretrievably broken and there is no hope of reconciliation." Evidence of this will be your testimony on the witness stand. In short, it is not necessary to have your spouse agree to the divorce or to allege the specific difficulties that arose during the marriage to obtain a divorce in Georgia. If one spouse shows the marriage is broken, the judge must grant the divorce.


1.7 Can I divorce in Georgia if my spouse lives in another state?

Yes, provided you have met the residency requirements for living in Georgia for six months (or, if military, stationed at a military installation in Georgia for twelve months or more), you can file for divorce here even if your spouse lives in another state.

Discuss with your attorney the facts that will need to be proven and the steps necessary to give your spouse proper notice to ensure that the court will have jurisdiction over your spouse. Your attorney can counsel you on whether it is possible to proceed with the divorce.


1.8 How can I get a divorce when I don't know where my spouse now lives?

Georgia law allows you to proceed with a divorce even if you do not know the current address of your spouse. First, take serious, diligent action to attempt to locate your spouse. Contact family members, friends, former co-workers, or anyone else who might know your spouse's whereabouts. Utilize resources on the Internet that are designed to help locate people. Document and keep a record of your efforts.

Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your attorney of your spouse's last known address, as well as any work address or other address where this person may be found. Once your attorney attempts to give notice to your spouse without success, it is possible to ask the court to proceed with the divorce by giving notice through publication in a newspaper.

Although your divorce may be granted following service of notice by publication in a newspaper, you may not be able to get other court orders, such as those for child support or alimony, without giving personal notice to your spouse. Talk to your attorney about your options and rights if you don't know where your spouse is living.


1.9 I just moved to a different county. Do I have to file in the county where my spouse lives?

Yes. Georgia requires you to file a divorce in the county where your spouse resides. However, a party may file a divorce in his or her own county of residence if the other party has moved from that same county within six months before the date of the filing of the divorce and this county was the site of the marital domicile at the time of the separation of the parties.


(Continues...)

Excerpted from Divorce in Georgia by Douglas G. Andrews, Richard A. Sanders Jr.. Copyright © 2015 Douglas G. Andrews and Richard A. Sanders. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Contents

Acknowledgments,
Introduction,
1 Understanding the Divorce Process,
2 Coping with Stress during the Divorce Process,
3 Working with an Attorney,
4 Attorney Fees and Costs,
5 The Discovery Process,
6 Mediation and Negotiation,
7 Emergency: When You Fear Your Spouse,
8 Child Custody,
9 Child Support,
10 Alimony,
11 Division of Property,
12 Benefits: Insurance, Retirement, and Pensions,
13 Division of Debts,
14 Taxes,
15 Military Divorce,
16 Going to Court,
17 The Appeals Process,
18 What Happens after the Divorce?,
In Closing,
Appendix,
Resources,
Glossary,
Index,
About the Authors,

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