Family Law
Divorce
What is a "no fault" divorce?
A "no-fault" divorce is one where the spouse suing for divorce does not have to prove that the other spouse did something wrong. Georgia allows divorces regardless of who is at "fault". To file for a "no-fault" divorce, one spouse must simply state that the parties have "irreconcilable differences with no hope of reconciliation", meaning that they are no longer able to get along on the smallest details of everyday life.
Can a divorce action be stopped by one of the spouses?
A "no-fault" divorce can't be stopped by a spouse, because objecting to the other spouse's petition for divorce is itself an irreconcilable difference that would justify the divorce. However, a spouse could potentially stop a fault divorce by either convincing the court that he/she was not a fault or by using any of the following defenses. 1.Condonation - implied approval of another's activities by treating the person as though the offense were never committed. Example: If one spouse committed adultery and the other never objected to it, the offending spouse could say that the other spouse condoned the behavior. 2. Connivance - setting up a situation so that the other person commits a wrongdoing. Example: inviting the offending spouse's lover over then leaving them alone together for an extended period of time would be considered conniving an adulterous behavior. 3. Provocation - inciting of another to do a certain act. Example: If one spouse sues for divorce on the grounds of cruel treatment, and it is later proven that he/she provoked the other into committing the act, the petition for divorce can be stopped. 4. Collusion - secret agreement or cooperation between the spouses designed to deceive the judge. Example: There is no waiting period of separation between the spouses before a "no-fault" divorce can be filed, in Georgia. In some other states, the couple must wait months or years, before a "no-fault" divorce can be filed. If a couple doesn't want to wait through the required separation period, one manufactures a "fault" with the other and files for a fault divorce.
What is involved in starting the process for a divorce or legal separation?
The first step would be the filing of a properly executed petition with the appropriate court. The petition must be filed in the county where the defendant (the person against whom the petition is filed) resides. Divorces are always filed in the Superior Court, in Georgia. The plaintiff (the person filing the petition must be a Georgia resident for at least 6 months, before the petition can be filed. The court must have jurisdiction over the person of the defendant, in order to hear the matter and grant the Final Judgment and Decree of Divorce. If the defendant lives out of the state of Georgia, a Georgia court cannot grant a divorce, unless: 1. The defendant submits himself/herself to the jurisdiction of the Georgia court, by signing an Acknowledgment of Service and receiving a copy of the divorce petition, or 2. The defendant is personally served with a copy of the divorce petition by a county sheriff or process server.
What can I do, if I cannot locate my spouse, but I still want a divorce?
Georgia allows a divorce to be filed with service by publication. In order to be allowed to publish a notice of the divorce in the legal newspaper of the county of your residence, the court will first require you to sign an affidavit showing that you have done everything possible to locate your spouse. In your affidavit, which must be filed with your divorce petition, you must list all sources you have contacted and the information you obtained from them. The sources you must contact usually includes: relatives, friends, past employers, past neighbors, etc. If you have no other sources, computer databases can be used to gain information. If the spouse's current address is found, during your investigation, he/she must be personally served, by a county sheriff or process server, with a copy of the divorce petition.
How long does the process take to obtain a divorce?
In Georgia, the divorce petition must be filed in the court for a minimum of 30 days. If the parties can agree on all issues and the defendant has acknowledged service, the final divorce can usually be obtained shortly thereafter. If there is difficulty in getting the defendant served and/or if there are contested issues involved, it can be several years before the court can resolve all of the issues involved. The decree of divorce has full effect as soon as the judge signs it.
What about the divorce kits and preprinted forms that are available?
Family law is a complex area of the law, which is not well served by simplistic forms that do not address all of the issues and areas concerned. The problems created by individuals not well versed in the law, or not consulting with appropriate legal counsel to review the facts and problems of each individual case, can sometimes be hard or impossible to solve, even for the best lawyers. The lasting effects of decisions made in haste without proper advice would militate against the use of such forms.
How are Custody and Visitation issues decided?
No area of family law brings to the courtroom the tension, anxiety, hostility, volatility and raw emotion as child custody and visitation litigation. Rare is the divorce, separation or custody determination in which the parties have been able to set aside personal differences to reach the goal of what is best for the children involved. Most parents pay lip service to this ideal, but often cannot reach it in actuality. Most often a judge will take great pains to get parents themselves to come to a mutually acceptable custody agreement, if that is possible. A decision made by a stranger is rarely completely acceptable to all, if the attempt has not been made in earnest. Mediation is now required by most family courts in Georgia, to attempt to bring warring parents together for the purpose of resolving the issue of what is in the best interests of their children.
What is an annulment?
An annulment is a method of voiding the contract of marriage. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted if the initial marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect. Due to the difficulty in proving the grounds necessary to obtain an annulment, it is often easier to just get a divorce.