Legally dissolving a marriage in Georgia can take as little as 31 days when all documents are complete, properly filed, and both parties are in total agreement about the division/allocation of assets and liabilities, financial support, child custody, child support and all other applicable family law matters.
Understanding the divorce process can make it easier to navigate these issues in a timely manner despite the inevitable emotions involved.
Legal Requirements for Divorce in Georgia
The following are pre-requisites for obtaining a divorce in the state of Georgia:
You or your spouse can only file for divorce if you have lived in Georgia as your primary residence for the last 6 months.
The only exception is for someone who has been “domiciled” in the State of Georgia for the last 6 months. Domicile means you primarily reside in Georgia, but also includes people who have temporarily left the state.
For example, a spouse who has been deployed by the military, or who has left the state to pursue a college education can file since they intend to keep Georgia as their primary residence and plan to return.
Grounds for Divorce
Georgia law provides for 13 grounds for divorce. But the facts and circumstances of each case are different and which grounds should be pursued in a divorce will vary from case to case.
- Irreparably broken (The marriage is broken and there is no hope of reconciliation. This is considered a “no fault” divorce and is often the most common ground.)
- Adultery or infidelity during the marriage
- Cruel treatment (physical, verbal, and/or emotional abuse)
- Willful and continued desertion by either of the parties for the term of one year
- Habitual drug addiction
- Habitual intoxication
- Past conviction of a crime of moral turpitude (examples: tax evasion, sale of narcotics or other illegal drugs, or almost any other felony)
- Untreatable mental illness (However, no divorce is granted upon this ground unless the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party)
- Mental incapacity at the time of the marriage
- Intermarriage by persons within the prohibited degrees of consanguinity or affinity, (incest or unlawful sexual relations between persons)
- Force, menace, duress, or fraud in obtaining the marriage, (being coerced or tricked into marriage)
- Pregnancy with another man’s child at the time of marriage, unknown to the husband
- Impotency at the time of marriage
There is no waiting period in Georgia, but you must be living in a bonafide state of separation (meaning you are no longer having sexual relations with your spouse). As little as one day of declared bonafide state of separation qualifies.
Once an “uncontested” case is filed, (including confirmation the defending spouse has been served), the State of Georgia imposes a mandatory 31 day waiting period before the court can enter the Final Judgment and Decree of Divorce, (specifically, 31 days after the date of confirmation of service on the defending spouse) if everything is resolved and all necessary documents are completed and properly filed.
Filing for Divorce in Atlanta
Divorce documents must be filed with the Clerk of the Superior Court in the county where you or your spouse have lived for at least 6 months.
You’ll start by filing a Complaint for Divorce, with the legal grounds for your divorce and what issues you want the court to address.
In Georgia, courts seek to achieve an equitable (meaning “fair”), not necessarily always equal, division of marital property in divorce cases.
This equitable division is an allocation of assets acquired during the marriage and may include property acquired by one or both spouses, no matter how the title is held.
For the most part, marital property is evenly divided, taking into account all factors, including tax considerations impacting each asset and/or the transfer of an asset to the other party.
Separate property, (property owned by one spouse prior to the marriage, or property that has been inherited by one party or gifted to one party (excluding interspousal gifts) may not be subject to equitable division, depending on certain criteria, such as title, comingling, or active management.
Separate property issues can present complexities that often require a careful analysis and frequently require the use of a forensic accountant to trace any separate property component, increased value, or comingling.
In high net worth divorces, this may require financial experts or forensic accountants to compile a complete view and disclosure of the entire marital estate (ensuring the inclusion of all assets), and to determine the value of complex financial assets, finding any hidden assets, considering all tax consequences, tracing and allocating separate property interests, preparing any coverture calculations on assets that partially vest during the marriage and partially vest prior to or post marriage, and ultimately achieving a fair final division of the estate.
Unlike child support, there is no guaranteed right to alimony in Georgia, nor is there any calculated format to follow when determining spousal support. Instead, alimony is based upon the “need” of the receiving spouse and the “ability to pay” of the obligated spouse.
The party seeking alimony has the burden of proof. This includes establishing to the court that alimony is necessary and legally warranted. When alimony is awarded by the court one spouse must pay the other spouse monthly payments or can involve a single lump-sum payment.
In Georgia, there are two primary types of alimony: temporary alimony and permanent alimony.
- Temporary alimony is awarded while the case is pending (usually under a Temporary Order) to provide the receiving party with a sufficient amount of support until the case can be concluded.
- Permanent alimony is an award of alimony that is granted at the conclusion of a case to be paid following the entry of the Final Decree of Divorce. This alimony award can be paid as “rehabilitative alimony” for a period of time to allow the receiving spouse to rehabilitate their earning potential, or to allow for job training, further education or reestablishment of a career and can either terminate or taper down over time.
Alimony can also be paid for a long period of time or until the death of either spouse, the remarriage (or a new live-in committed relationship) of the spouse receiving alimony, which is referred to as “lifetime alimony”.
Child Custody, Visitation and Child Support
Child custody involves two categories (physical and legal), which address and fall into three potential options (sole, primary, or joint custody).
- Physical custody refers to where the child(ren) physically live or spend time with either spouse, and how much time each parent will spend with the child(ren), known as a “parenting schedule.” In rare or extreme circumstances, one parent may be awarded sole physical custody of the child and the other parent may or may not have visitation rights (or may have supervised visitation rights). However, sole custody is generally awarded only in extreme circumstances when the child(ren) may be endangered or at risk in the other parent’s custody.
Primary custody is when the child lives with or spends more time with one parent than the other. Visitation schedules (or the “parenting plan schedule”) for the parent who does not have primary custody can vary significantly and may depend on the desires of the parents and the needs of the child(ren).
Joint custody is when physical custody is shared by both parents, for the most part equally, with each parent having equal (or 50%) of the time with the child(ren).
- Legal custody refers to a parent’s rights regarding the major decisions impacting the child(ren), such as education, medical, religion, extra-curricular, and other decisions regarding the welfare and best interests of the child(ren).
Joint legal custody means both parents have a say in these decisions; however, the court will require that one parent be designated as the primary tie-breaking decision maker on these four major issues in the event of an impasse. The tie-breaking authority can be allocated to each parent or just to one parent.
How Child Custody is Determined in Georgia
During a divorce, it is the court’s job to determine child custody based on what is in the best interests of the child(ren). Georgia law prohibits juries from determining custody matters, leaving this decision solely in the hands of the judge.
Depending on the judge assigned to your case, he or she may look at anything they consider relevant when determining the child(ren)’s best interests, but in general will evaluate the following:
- Each parent’s ability to provide for the child’s physical and emotional needs
- The role each parent has played in nurturing the child since birth
- Future and prospective ability of each parent to provide care
- Each parent’s history of alcohol or substance abuse and addiction
- Any history of domestic violence or child abuse
- The child’s relationship with each parent and the child’s preference
- Which parent has been the primary caregiver
- The work and/or travel schedule of each parent
- Also, the court may consider the requests of the child(ren), subject to certain statutory guidelines and rules (14 being the age of election; however, the court can consider the wishes of children from ages 11-13).
How Child Support is Determined
The State of Georgia requires both parents to provide physically and financially for their children until a child reaches the age of 18, dies, graduates from high school, marries, is emancipated, or joins the military.
Child support can extend past the age of 18 when a child is still in high school. Other forms of financial support can be raised to address and provide for adult children with lifelong disabilities.
If parents are unable to come to an amicable agreement on their own, the court will determine the amount of child support to be provided by one spouse to the other.
However, even upon agreement between the parents, the court is still required to ensure the amount of child support provided is in compliance with the Georgia Child Support Guidelines and meets all statutory obligations, or the court can reject the agreement reached if it does not.
Generally, the primary custodial parent (the person caring for the child more than half the time), may collect regular child support from the other parent.
However, that depends on certain variables, such as the income of each parent, other expenses being paid for the children by each parent, and the parenting schedule. Parents are not permitted to waive the child(ren)’s right to receive child support, as that right belongs to the child(ren).
The same applies to the receiving parent being prohibited from waiving the right to an increase in child support as that right also belongs to the child(ren).
However, the obligated party may legally waive their right to seek a downward modification of child support.
The Judicial Council of Georgia Administrative Office of the Courts publishes the latest child support worksheet form that can be a great resource to parents.
The Georgia child support worksheet is not a magical one step determination of child support.
Each side of a case can reach very different child support numbers despite the same set of facts, based upon certain specific deviations and non-specific deviations, and a debate over either parents’ actual income amount to use.
Common areas of dispute include:
- Amount of a spouse’s variable income (the court may average variable income such as bonuses over a “reasonable” period of time)
- Amount of childcare “reasonably necessary” for a spouse’s employment
- Amount of “special expenses” (such as private school or extraordinary medical expenses) to be discretionarily included
The court may increase or decrease the child support order depending on the individual circumstances of both parents and the best interest of the child.
Additional factors the judge will consider include:
- Number of children and their ages
- Health and dental insurance expenses
- Self-employment taxes
- Social Security benefits paid for children
- Extraordinary medical expenses
- Extraordinary educational expenses
- In-kind income for the self-employed
- Long-distance travel for visitation
Our child support attorneys have the experience to work closely with you to determine the fair and accurate amount of child support you should pay or receive.
Our goal is to ensure the most appropriate and reasonable amount of child support for your children’s care.
When Child Custody or Support is Disputed
During a custody dispute (whether an initial custody dispute or a modification action), it is the court’s job to determine child custody and child support based on what is in the best interest of the child.
While Georgia law prohibits juries from determining custody matters (custody and the parenting time schedule), leaving this decision solely in the hands of the judge, parties do have a right to submit the issue of child support to a jury for determination.
Depending on the judge assigned to your case, he or she may look at anything they consider relevant when determining the child’s best interests.
It is essential to have an experienced family law attorney handle your child support case.
Alternative Dispute Resolution in Divorce
Alternative Dispute Resolution (ADR) can be an effective way to end a marriage without resorting to a long, drawn-out, and costly court battle. Several types of ADR methods are available for divorce in Georgia, with the most common mediation, arbitration, and collaborative divorce.
- Mediation: During a mediated divorce, each spouse will meet with a neutral third party to facilitate a settlement outside of a courtroom. This third party cannot make decisions for you or impose a settlement. Mediation is especially effective when both parties can still communicate without hostility, treat each other with respect and are open to compromise. Although the court may order both parties to attend mediation, any settlement is entirely voluntary.
- Arbitration: During arbitration an arbitrator or panel of arbitrators renders a decision after hearing an abbreviated version of the evidence. In non-binding arbitration, either party may demand a trial within a specified period. The essential difference between mediation and arbitration is that arbitration is a form of adjudication, whereas mediation is not.
- Collaborative divorce: In collaborative law, parties will each involve their own attorney. Additional professionals may be called in including child therapists or financial advisors.
The Georgia Supreme Court encourages every court in Georgia to consider using ADR processes to save time and money for divorcing couples.
The process also frees up the courts, judges and juries to concentrate on more crucial cases. When effective, this process also allows attorneys to better serve their clients with fewer expenses.
Top Rated Divorce Attorney in Atlanta
Dissolving a marriage in Atlanta and surrounding Georgia communities is a complex process that requires extensive knowledge of the legal requirements of divorce as well as the division/allocation of assets and liabilities, financial support, child custody, child support and all other family law considerations for avoiding a court trial.
We recommend experienced legal counsel even in uncontested divorces particularly when complex assets or minor children are in involved.
Atlanta’s Chambers Family Law will compassionately guide you through the process of divorce so that you reemerge stronger, calmer, and more confident for your life ahead.