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Georgia Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in Georgia, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
No court shall grant a divorce to any person who has not been a bona fide resident of this state for six months before the filing of the petition for divorce, provided that any person who has been a resident of any United States army post or military reservation within this state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the United States army post or military reservation; and provided, further, that a nonresident of this state may file a petition for divorce, in the county of residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition. (Georgia Code - Sections: 19-5-5)
Grounds for Filing:The Petition for Divorce must declare the appropriate Georgia grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
The following grounds shall be sufficient to authorize the granting of a total divorce:
(1) The marriage is irretrievably broken. Under no circumstances shall the court grant a divorce on this ground until not less than 30 days from the date of service on the respondent.
(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. (Georgia Code - Sections: 19-5-3)
Filing Spouse Title:Petitioner. The Petitioner is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Respondent. The Respondent is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:In the Superior Court of _______________ County, Georgia. This is the Georgia court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Petition for Divorce and Final Judgment and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to Georgia law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Disclosure Statement, Domestic Relations Financial Affidavit , Marital Settlement Agreement, Affidavit Regarding Custody, and Domestic Relations Case Filing Information Form.
Court Clerk's Title:County Clerk's Office of the Superior Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since Georgia is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
There are no factors listed in the statutes regarding what is considered by the court when distributing the property upon divorce.
The verdict of the jury disposing of the property in a divorce case shall be carried into effect by the court by entering such judgment or decree or taking such other steps as are usual in the exercise of the court's equitable powers to execute effectually and fully the jury's verdict. (Georgia Code - Sections: 19-5-13)
Restoration or Name Change:In all divorce actions, a party may pray in his pleadings for the restoration of a maiden or prior name. If a divorce is granted, the judgment or decree shall specify and restore to the party the name so prayed for in the pleadings. (Georgia Code - Sections: 19-5-12, 19-5-16)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
Alimony may awarded to a spouse unless that spouse is guilty of desertion or adultery. This being said, marital conduct is considered in alimony awards in the state of Georgia. Also the following other factors are considered by the court when the parties can not agree on an alimony arrangement; participation each party had to the marital estate; the length of the marriage; the future financial resources of each party; the age and health of each party; the future earning potential of each party; the net worth of each party's separate property; the standard of living sustained during the marriage; and rehabilitative time one party may need to gain employment. (Georgia Code - Sections: 19-5-5)
Child Custody:When minor children are involved in a divorce, the Georgia courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
In all cases in which a divorce is granted, the party not in default shall be entitled to the custody of the minor children of the marriage. However, in all cases in which a divorce is granted, an application for divorce is pending, or a change in custody of a minor child is sought, the court, in the exercise of a sound discretion, may look into all the circumstances of the parties, including but not limited to; the parental suitability of each parent, the needs of the child, the prior role of each parent, the wishes of the child, the location of the residences of each parent, and any agreement between the parents.
In addition to other factors that a court may consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of family violence: (A) The court shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence; (B) The court shall consider the perpetrator's history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person; (C) If a parent is absent or relocates because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances shall not be deemed an abandonment of the child or children for the purposes of custody determination; and (D) The court shall not refuse to consider relevant or otherwise admissible evidence of acts of family violence merely because there has been no previous finding of family violence.
In all cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection shall be controlling, unless the parent so selected is determined not to be a fit and proper person to have the custody of the child.
In all cases in which the child has reached the age of at least 11 but not 14 years, the court shall consider the desires, if any, and educational needs of the child in determining which parent shall have custody. (Georgia Code - Sections: 19-9-1 and 19-9-51)
Child Support:Georgia child support guidelines uses the Percentage of Income formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child. This method simply applies a percentage to the income of the parent according to the number of children requiring support.
The state of Georgia has a formula for determining the child support obligation based on a percentage of income. These guidelines are applied when the two parents can not agree on a monthly support amount, and at which time the court will also take into consideration the following factors which would allow them to better determine the appropriate amount of monthly child support to be paid: (1) Ages of the children; (2) A child's extraordinary medical costs or needs in addition to accident and sickness insurance, provided that all such costs or needs shall be considered if no insurance is available; (3) Educational costs; (4) Day-care costs; (5) Shared physical custody arrangements, including extended visitation; (6) A party's other support obligations to another household; (7) Income that should be imputed to a party because of suppression of income; (8) In-kind income for the self-employed, such as reimbursed meals or a company car; (9) Other support a party is providing or will be providing, such as payment of a mortgage; (10) A party's own extraordinary needs, such as medical expenses; (11) Extreme economic circumstances including but not limited to: (A) Unusually high debt structure; or (B) Unusually high income of either party or both parties, which shall be construed as individual gross income of over $75,000.00 per annum; (12) Historical spending in the family for children which varies significantly from the percentage table; (13) Considerations of the economic cost-of-living factors of the community of each party, as determined by the trier of fact; (14) In-kind contribution of either parent; (15) The income of the custodial parent; (16) The cost of accident and sickness insurance coverage for dependent children included in the order; (17) Extraordinary travel expenses to exercise visitation or shared physical custody; and (18) Any other factor which the trier of fact deems to be required by the ends of justice. (Georgia Code - Sections: 19-5-12, 19-6-14 and 19-6-15)
Copyright Notice:The above synopsis of Georgia divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
In a Georgia divorce, the mother is not automatically given custody of the children. The judge considers the best interests of the child. The court considers the age and gender of the child, the child's relationship with each parent, and the ability of each parent to take care of the child. Sometimes, the court will allow a child over 14 years old to choose who he or she will live with. Visitation rights are usually given to the parent who does not get legal custody.
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