Divorce in Georgia is referred to as a Total Divorce.
To file for divorce in Georgia, one party must be a resident of the state for at least six months prior to filing.
Any person who has been a resident of any U.S. army post or military reservation within the state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the U.S. army post or military reservation.
The Petitioner, filing party, may file a Petition for Divorce in a superior court of the county where a party has been a resident for the prior six months.
The same rules of pleading and practice applicable to ordinary civil actions shall apply to actions for divorce, alimony, and custody of minor children.
If one of the parties requests it, the divorce action may be heard and decided by a 12-person jury. However, only a judge shall make a determination of custody of a child.
In all divorce actions, a party may request the restoration of a maiden or prior name in his/her pleadings. The final judgment of divorce shall then specify and restore to the requesting party the name requested in the pleadings.
Georgia provides for several fault-based grounds for divorce and one no-fault method. The legal grounds for dissolution in the state are as follows:
Grounds due to mental illness may only be alleged if 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, and he/she has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and a chief executive officer of the institution and one competent physician appointed by the court make a certified statement under oath that recovery of the party's mental health cannot be expected at any time during his/her life.
Regarding the grounds that the marriage is irretrievably broken, the court shall not grant a divorce until not less than 30 days from the date of service on the Respondent.
For a divorce to be granted on the grounds of adultery, desertion, cruel treatment or intoxication, neither of the following may be true:
Annulments of marriage declared void by law may be granted by the superior court, unless children are born or are to be born as a result of the marriage.
Actions for annulment are filed in the same manner as those for a divorce, including jurisdiction, residency requirements. However, a decree of annulment may be ordered at any time, in open court or in chambers, when personal service is had at least 30 days beforehand and no contest or answer is filed.
In Georgia, if a divorce is granted for a cause rendering the marriage void originally, it will annul the marriage from its inception. Voidable marriages include the following:
In Georgia, an annulment can only be granted to the innocent party.
Although a decree of annulment has the effect of a total divorce between the parties and returns them to their former single status, it will not relieve the parties of criminal charges or responsibilities incurred by the marriage.
Georgia is an equitable distribution state. All marital property is subject to division. When the parties are unable to reach a settlement agreement regarding property division, the Superior Court will make a property award and issue a decree within the Divorce Decree.
First, it will determine which property and debt is to be considered marital. It will then assign a monetary value on the marital property and debt. Finally, it will distribute the marital assets between the two parties in an equitable fashion, which is meant to be fair, but not necessarily equal.
Marital property generally includes all property that was acquired during the marriage, regardless of how it is titled. Gifts from one spouse to another are marital property if they were purchased with marital funds. Pensions and business interests that were developed by one spouse are considered marital property if they were acquired during the marriage.
Non-marital property is typically considered the property acquired before marriage; through inheritance or by gift from a third party, unless there is a valid agreement stating otherwise; and property directly traceable to any of these sources.
There are no factors listed in the statutes regarding what is considered by the court when determining the division of property. The court cannot transfer title to property from one spouse to the other. Instead, it will award money to one party to compensate him/her for the other party keeping property that is deemed marital. In this manner each party receives his/her separate property and an equal dollar-value share of the marital property.
Alimony is an allowance out of one spouse's estate, made for the support of the other spouse when living separately. It is either temporary or permanent.
A party is not entitled to alimony if a court determines that the separation between the parties was caused by that party's adultery or desertion. In all cases in which alimony is sought, the court shall receive evidence of the factual cause of the separation even though one or both of the parties may also seek a divorce, regardless of the grounds alleged or granted by the court.
In all other cases where alimony is sought, it is authorized but not required, to be awarded to either spouse in accordance with the needs of the spouse and the ability of the other spouse to pay. In determining whether or not to grant alimony, the court shall consider evidence of the conduct of each party toward the other.
If either of the spouses dies before the court's order on the issue of alimony, any rights of the other spouse to alimony shall survive and be a lien upon the estate of the deceased spouse.
Permanent alimony may be granted in cases of divorce; voluntary separation; or where one spouse, against the will of that spouse, is abandoned or driven off by the other spouse.
When determining the amount of alimony, if any, to be awarded, the court will consider the following factors:
Alimony will terminate upon the remarriage of the party receiving the alimony, unless otherwise provided.
When the parties separate voluntarily or one spouse, against his/her will, is abandoned or driven off by the other spouse, if they have contracted or created some other written agreement making an adequate provision for the support and maintenance of that spouse, consistent with the means of the paying party and the former circumstance of the spouse, it bars the right of the recipient spouse to permanent alimony.
When there is no voluntary contract or agreement, if one party applies for it, the court may require the other party to make provision for the support of the requesting spouse and for any minor children in the custody of the requesting party.
In the event that there has been no divorce and the spouses cohabitate after voluntary separation, abandonment, or driving off of a spouse, it will annul and set aside all provisions made for permanent alimony. This is only if the rights of their children will not be affected by this subsequent voluntary cohabitation.
When custody of any child is at issue between the parents, each parent must prepare a parenting plan or they may jointly submit a parenting plan. It will be in the judge's discretion as to when a party must submit the parenting plan to the judge. It shall be required for permanent custody and modification actions, and in the judge's discretion, may be required for temporary hearings. The final decree in any legal action involving child custody will incorporate a permanent parenting plan.
A parenting plan should generally include the following:
A parent seeking emergency relief for family violence will not be required to submit a parenting plan with respect to custody issues.
In custody issues, there will be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent. Joint custody may be considered as an alternative form of custody by the judge, and at any temporary or permanent hearing the judge may grant sole, custody, joint custody, joint legal custody, or joint physical custody as appropriate.
The duty of a judge when determining child custody is to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child's welfare and happiness and to make his/her award accordingly.
In determining the bests interests of the child the judge may consider any relevant factors, including the following:
In addition to these factors, he/she shall consider as primary the safety and well-being of the child(ren) and of the parent who is the victim of family violence.
A child who has reached the age of 14 years shall have the right to select the parent with whom he/she desires to live, unless it is determined not to be in his/her best interest. In the case of a child who is at least 11 years of age but not yet 14, the judge shall consider he desires and educational needs of the child in determining which parent shall have custody. However, the judge has complete discretion in making his/her determination, and the child's desires are not controlling.
Family Violence and Visitation or Parenting Time:
A judge may award visitation or parenting time to a parent who committed one or more acts involving family violence only if the judge finds that adequate provision for the safety of the child(ren) and the parent who is a victim of family violence can be made. Subsequently, in the visitation or parenting time order, the judge may order the following:
Whether visitation or parenting time is allowed or not, the judge may order that the address of the child(ren) and the victim of family violence will be kept confidential. Furthermore, the judge will not order an adult who is a victim of family violence to attend joint counseling with the perpetrator of family violence, as a condition of receiving custody of a child or as a condition of visitation or parenting time.
Georgia bases child support guidelines on a Flat Percentage of Income Model. The formula is generally based on the number of children and a percentage of the gross income of the parent paying support.
The percentages used are as follows:
Basic child support obligations may be adjusted by health insurance and work related child care costs. In any case before the court involving child support, the court may include in the order of support a provision for life insurance on the life of either or both parents for the benefit of the minor child(ren). The court may order either or both parents to obtain and maintain the life insurance.
Deviations from the standard child support formula obligation may be applied if supported by required findings of fact and application of the best interest of the child standard. No deviation will be made, however, if it would seriously impair the ability of the custodial parent to maintain minimally adequate housing, food, and clothing for the child(ren) being supported by the order and to provide other basic necessities.
Approved deviations may be based upon some of the following factors:
Child support obligations shall continue until the child(ren) reach the age of majority, dies, marries, or becomes emancipated, with the exception of an unmarried, non-emancipated child at the age of majority, who is enrolled in and attending a secondary school, but is younger than 20 years of age.
Georgia does not recognize legal separations, nor does it have provisions for court actions regarding legal separations. However if a couple chooses to separate, whether they intend to divorce or not, they may obtain an order for Separate Maintenance to provide for division of real estate and personal property; support for the spouse and children, if applicable; responsibility for debts and legal fees; health and life insurance arrangements; and custody and visitation of any minor children.
Separate Maintenance is a lawsuit which may be filed in Georgia to address all issues which could be addressed in a divorce except for the actual granting of the divorce. Also, unlike a divorce, the couple does not have to reside in Georgia for any set period of time before they can file for a Separate Maintenance agreement.
To file for Separate Maintenance, one must have a valid marriage and the couple is living in a bona fide state of separation. There can be no pending action for divorce or the action for Separate Maintenance will be dismissed.
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