The Beginning Phase of Divorce
If you have decided to begin the divorce process, chances are this is a complicated time for you. Understanding the process can make things easier. In the following sections, we will walk you through each phase of the divorce process, from finding an attorney to navigating the nuances of how and where to file.
How to Start the Divorce Process
The divorce process can be intimidating and involves a number of components, including:
- Finding an attorney
- Determining whether your divorce will be contested or uncontested
- Deciding where and when to file
- Determining the grounds of your divorce
- Filing your Complaint for Divorce
The first and best step you can take for yourself during the divorce process is finding a well-respected divorce attorney in Atlanta and asking the right questions. In the meantime, review the information in the following sections so that you can familiarize yourself with all the stages involved in initiating the divorce process.
Contested vs. Uncontested Divorce
One question you may have upfront is whether your divorce is a contested divorce or an uncontested divorce.
A contested divorce means that both parties are unable to agree on either the terms of the divorce or whether to get the divorce. An uncontested divorce, on the other hand, is one wherein both parties have been able to come to an agreement on all terms related to the divorce before going to court or an arbitrator. The central steps in an uncontested divorce include acknowledging service of the divorce complaint, the exchange of a few documents at most, and attendance at an Uncontested Hearing to finalize the process.
Contested divorces take more time. Ultimately, they are settled by the court, but both parties must take part in a series of complicated steps prior to that. One spouse first serves the other a complaint for divorce via the County Sheriff. Both parties then complete Discovery, exchanging all documentation related to a wide range of issues, including assets and their allocation, custody of any children, alimony, and child support. Both parties must then attend hearings and mediation sessions. The process can go on for several months.
Given the complexities of a contested divorce, it is wise to have a lawyer by your side during the process. It is also important to keep in mind that, at any point during the contested divorce process, both sides can ultimately come to an agreement and settle. An attorney can provide critical guidance during these negotiations, as well.
Same-Sex Divorce in Georgia
Same-sex divorce in Georgia has its complexities. We are often contacted by clients with questions and concerns regarding same-sex divorce, including concerns over whether the state of Georgia will acknowledge same-sex divorces. Questions related to key issues in a divorce such as asset distribution or custody are just some of the things that can make same-sex divorce more complicated in Georgia. Consulting with an attorney is advisable.
Pros and Cons of filing first.
Should you file first in your divorce action? There are a number of pros and cons related to this issue.
A significant “pro” in filing first is that you get more control of the timeline of the case and where the case will occur. Filing first allows you to decide when everything will begin. It may also potentially allow you to select a venue that is more convenient for you, if there are multiple venue options available to you in your case. Defining the “where” of your divorce case is especially advantageous, too, when you live in a different county or state from the other party.
Filing first also makes you the plaintiff in your case, meaning that your side speaks first and last during trial. Finally, being the first to file in a divorce can give you a much-needed psychological advantage, allowing you to feel better in control of the situation.
There are downsides, however. One con in filing first in your divorce action is that there are filing fees associated with your domestic civil action. This fee can vary from county to county in Georgia, but you should plan for a fee of at least $200. Another con associated with being the first to file in a divorce is that the other party will be able to file counterclaims to your initial filing.
If those counterclaims contain anything unanticipated, you could lose your advantage in a case. According to O.C.G.A. § 9-11-12(a), however, you can amend complaints or choose not to answer any counterclaims in your divorce case.
How long is the divorce process in Georgia?
Divorce can take time, and this can create stress for everyone involved. For this reason, many want to have a clear idea of how long a divorce will take from start to finish. While it is difficult to set a firm timeline, especially in a contested divorce, there are some regulations in the state of Georgia that define mandatory waiting periods and give some guidance as to timeline:
- Provided there is written consent from both parties agreeing to a hearing, a divorce in Georgia can be granted any time 31 days after either filing an Acknowledgement of Service or after service itself.
- If an action is unanswered, a divorce in Georgia can be granted any time 46 days after service. Exceptions include a court-ordered extension or if children are involved.
- If a divorce action is served via publication, a divorce in Georgia can be granted 61 days or more after the publication date.
- 4.There is a statutory requirement that all discovery must be completed within 6 months from the time an answer to the divorce is filed.
All that being said, the timeline of a divorce still depends on several other factors, not the least of which is court availability. Court dockets are often overloaded and it can take anywhere from 30 to 60 days before you will be able to get into court.
Another factor that can extend the timeline of your divorce is the presence of children in your marriage. Making decisions in the best interest of any children involved is a priority in a divorce, and it can take time. Finally, if your divorce is contested and involves extensive litigation, this can extend the timeline dramatically, adding 12 months or more to a case in some situations.
What’s Considered Grounds for Divorce?
In Georgia, there are thirteen statutory grounds for divorce defined by O.C.G.A. § 19-5-3.
- A marriage being irretrievably broken
- Intermarriage by people who are related to a prohibited degree
- Mental incapacity
- If a marriage was obtained via force, menace, duress or fraud
- Impregnation of the wife by a man other than the husband at the time of the marriage, if the husband did not know
- Conviction of one party of a crime of moral turpitude w/ a sentence of two years or longer
- Chronic intoxication
- Cruel treatment
- Incurable mental illness
- Chronic drug use
Of these 13, there are four that are the most widely used as grounds for divorce in Georgia: adultery, cruel treatment, desertion, and a marriage being irretrievably broken.
The last is what some might refer to as a “no fault” divorce. A marriage that is irretrievably broken is defined by precedent in Georgia as one in which “either or both parties are unable or refuse to cohabit” and in which there is no chance of reconciliation.
When adultery is grounds for a divorce, the party at fault must have had sexual intercourse with someone other than his or her spouse. A nuance of which many are not aware is that adultery can serve as grounds for a divorce even if it took place during separation. If you want to prove adultery, you can use direct or circumstantial evidence.
Cruel treatment can be used as grounds for divorce in Georgia when one party inflicts either mental or physical pain against their spouse to an extent that the spouse would be justified in anticipating danger to life, limb or health.
Finally, when desertion is the factor at the heart of a divorce, the party claiming desertion must prove:
- that the absence of the at fault party was willful and intentional;
- that there was a cessation of cohabitation either by physical absence or by denying conjugal relations without any justification;
- and, that both these lasted continuously for a period of one year.
You should discuss what grounds to use in your divorce with an attorney. Certain grounds for divorce may have a strategic advantage. What’s more, you may be able to use multiple grounds, provided they are not inconsistent.
Important Information for Parents
According to Georgia Uniform Superior Court Rule 24.8 and Code, parents involved in a divorce may be required to take part in the Parent Education and Family Stabilization course. The court requires this course in order to ensure the psychological wellness and minimize the stress of all children involved in a divorce. Ideally, it also provides a way for parents to learn to work together for the good of their children.
If your court in Georgia allows for distance learning, you can access and take your course online via third parties that have been approved by the court. Your court should provide you with court-approved providers of any required courses.
Submitting a Petition for Divorce
The first step in filing for divorce is determining the county in which you should file. According to O.C.G.A. § 19-5-2., you or your spouse must have been a resident in a county for at least six months prior to your filing in order for your divorce to be filed in that county.
Once you have determined which county you will file in, the first form you should complete is the Complaint for Divorce. This document should contain a statement that you or your spouse has resided in the county for at least six months. It should also state your legal grounds for divorce.
When you have completed your Complaint for Divorce, you will need to file it at the clerk’s office in the superior court of the county in which you have decided to file. Once the clerk has your signed copy and has provided you with a date-stamped copy, your divorce is considered “filed.” Make sure to get a copy for your spouse, as well, which you will then serve to them, if possible. (Details regarding filing to follow in the next section.)
After filing your divorce, you will need to determine what financial disclosures related to your divorce are required by your country. Financial disclosures can include information related to:
- your income
- your assets
- your debts
- your tax returns
- your bank and credit card statements, and
- any additional documentation related to your finances.
Getting the steps right when it comes to filing for divorce is essential, especially if you are involved in a contested divorce. The best way to file your case correctly is to work with an attorney. Attorneys have the experience and knowledge necessary to ensure you never miss a date or a form that could potentially put your divorce case at risk.
As stated above, serving your forms to your spouse is an important part of the process of filing for divorce. There are several ways in which you can do this in the state of Georgia:
Acceptance of Service
If your spouse agrees to it, they or their attorney can accept service of your complaint. They will need to give you a signed and notarized Acceptance of Service as proof that this has taken place.
Georgia also allows for service of an Acceptance of Service via email. In this scenario, you will also need to file a “Notice of Consent to Electronic Service” with the court before you serve your spouse via email.
Sheriff or Special Process Server
As an alternative, you can also serve your spouse via a sheriff or special process server. A process server cannot be just anyone; a process server must be certified by your county sheriff’s office to work as a process server. You can typically find a list of certified process servers via the court clerk’s office where you filed. Once your spouse has been served by the process server, the process server will submit a notification to your home court stating that your spouse received the filing.
Serving by Publication
Sometimes, especially in divorces based on desertion, you may need to serve your spouse via publication in a local newspaper. First, you will need to sign an affidavit stating that you cannot locate your spouse. After your affidavit is accepted by the court, the court clerk will publish a notice of your case four times over 60 days in a local newspaper. The cost of publication is your responsibility.
Responding to Complaints for Divorce
If you have received a Complaint of Divorce, you will need to respond via a document containing two components: your Answer and your Counterclaim.
Your Answer is your response to the claims made in your spouse’s filing. You can either admit or deny any claim made or admit to and deny the entire thing. You can also respond by saying you do not have enough information from the Petitioner to answer either way.
The second component of your response, the Counterclaim, is where you tell your side of things with regards to the divorce and declare what you are asking for in terms of assets, child support and custody, etc. You can also put forth your own grounds for divorce. If you and your spouse decide to settle, your terms can vary from those defined in your Counterclaim. You can also amend your Counterclaim at a later date, if you wish to change your requests.
Filing your response is important for a number of reasons. One of the most important is that it protects against the possibility of a default judgment being issued against you. Default judgments typically occur when the respondent does not file a response or attend scheduled hearings and often results in the petitioner getting what they asked for.
What Happens if Someone Fails to Respond to a Complaint for Divorce?
According to Georgia law, a respondent has 30 days after receiving a Complaint of Divorce to respond. If that respondent does not file an Answer and Counterclaim or any defensive pleadings within that 30 days, the respondent technically waives all further notices with regards to the case. This means the respondent will receive no communications regarding the time and date of the trial and will not be made aware of any decision or entry of judgment. You may ask the assigned judge for a hearing to be set as soon as 46 days after the respondent was served. There are some judge’s who may still insist that the respondent received notice.
The respondent does, however, retain the right to demand a jury trial and defend himself/herself against the claims for divorce or alimony. The respondent may also still submit defensive pleadings at any time before the judge hands down a final judgment. As a matter of public policy, Georgia errs on the side of continuing a marriage and, therefore, avoids handing down default judgments in divorce actions.
Establishing separate maintenance is a process by which you can take legal action on several issues related to a partnership, including establishing custody and dividing assets, without actually getting a divorce.
Courts in Georgia allow separate maintenance for several reasons. For one, some individual’s religions do not allow them to get divorced. Separate maintenance allows the couple to separate without breaking the precepts of their religion. Sometimes, a couple might have a legal reason for staying married but separate, such as keeping a spouse and children on an insurance plan. Separate maintenance can also be a good answer for marriages in which one spouse is a noncitizen but wants to stay in the country.
Legal Separation in Georgia
Dissolving a marriage in Georgia can only happen via annulment or divorce. As an alternative, couples can also pursue something known as separate maintenance. This is what might be called legal separation in other states. Legal separation is not allowed in Georgia, but the process of separate maintenance is very similar.
Types of Discovery in the Divorce Process
In this section, we’ll briefly introduce how the divorce process may involve different types of discovery.
In addition to the interrogatories and requests listed above, there may be mandatory discovery in your case, depending on your county. This discovery is required by courts so that the court is guaranteed to have as full a picture of both parties’ financial and living situations as possible. It serves as an initial discovery that gets the case started; your own attorney can pursue additional, formal discovery later on, as well.
In some counties you will need to complete a mandatory Answers to Interrogatories at the start of your case that answer certain specifics about your life and financial status. You must serve a copy of this document to the opposing party once you have completed it. Information provided in this mandatory discovery include:
- Information related to your background, including:
- Your name
- Legal residence
- Your Education
- Information related to your employment & income, including:
- A 3-year employment history
- A list of all your sources of income
- Information related to your children, including:
- All expenses related to your children
- Any special needs your child may have
- Any existing child plan
In addition to these core questions, you will also need to address some miscellaneous issues, including whether you claim any non-marital property, all insurance policies you have, a list of gifts you’ve received, and a list of any other legal actions in which you are involved.
Mandatory Required Documents to be Produced
In Georgia, it is also mandatory that you submit a response to a Required Documents to be Produced. You will need to provide copies of:
- 3 years of tax returns
- Your most recent W-2
- 12 months of pay stubs
- Evidence of all sources of income from all sources
- Most recent statements for financial assets
- Documents related to childcare and school
- Documents related to any business you own
This response may also include something known as a Domestic Relations Financial Affidavit. Called a DRFA for short, this document is a sworn financial statement. It is mandatory in most counties in Georgia, and it resembles a budget, breaking down all of the expenses related to your household. You should always endeavor to be truthful in this document. You can make amendments to your DRFA if you find you have made a mistake.
The Discovery phase of your divorce can be one of its most intense times. During the Discovery phase, you must disclose many personal facts about your life and finances. Knowing what is coming ahead of time can streamline the process for you. In the following sections, we will walk you through the logistics of discovery in Georgia, including:
- Interrogatories & Requests for Document Production;
- Requests for Admissions;
- Depositions; and,
- Mandatory and Informal Discovery.
Interrogatories in Georgia
In some counties in Georgia, you will be required to prepare and submit answers to a form of mandatory discovery known as Interrogatories. Interrogatories serve a particular advantage because they allow you to submit a pre-selected set of questions to the other party, allowing you to get at issues of particular relevance to your case. Interrogatories are not only useful for getting at information you need for your case, but also can serve as evidence potentially during trial. All responses to interrogatories are required by law to be answered truthfully and completely.
When do interrogatories occur during the discovery process? Georgia law states interrogatories can be served upon the petitioner once the case begins and upon the respondent with or after service of the Complaint for Divorce. Georgia Law also limits the number of interrogatories on any case to 50 to avoid one side “papering” the case and bogging down the other side with extra work and costs. An exception to this rule is if a party is able to demonstrate that the complexity of a case demands more interrogatories.
Once you receive a set of interrogatories, you must respond within 30 days. As stated in O.C.G.A. § 9-11-33 (a)(2)., you also have the option of objecting to instead of answering any question if you believe them to be improper or outside the scope of your case.
Requests for Document Production
Another key part of the discovery process are requests for document production. These requests allow you to gather key evidence in a variety of forms, including everything from documents to land surveys.
As stated in O.C.G.A. § 9-11-34 (a)., requests for document production allow you to serve the other party with requests:
“1) To produce and permit the party making the request, or someone acting on his behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into a reasonably usable form), or to inspect and copy, test, or sample any tangible things … which are in the possession, custody, or control of the party upon whom the request is served; or
2) To permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon….”
As with interrogatories, Georgia law states requests for documentation can be served upon the petitioner once the case begins and upon the respondent with or after service of the Complaint for Divorce. Parties have 30 days to respond, typically, unless the defendant receives the requests along with the initial Complaint of Divorce. In this case, he or she would have 45 days to respond.
Requests for production are of particular value because you can serve them upon third parties, including the other party’s employer or firms handling the other party’s finances. When a nonparty is served with a request for production, state law requires that you serve a copy to the other party, as well.
Opposing Parties May Request Admission Statements
Another request that a party can make during discovery is a request for admission. This request requires that the opposing party make factual admissions with regards to the case. As with responses to interrogatories, you do have the option of objecting to a request instead of answering it, provided you give the reason for your objection. You also cannot claim you have insufficient knowledge to answer a question unless you have made a reasonable inquiry into the issues at hand and come up with insufficient information. Importantly, if the person served with the requests for admissions does not answer timely, the questions are considered admitted which could be devastating to their case.
The court is allowed to explore a party’s answers or objections. If an objection is found to be without justification, the court can order the party to answer in full. The court can also demand that an answer be amended if the court finds that an answer is insufficient.
Depositions During Divorce Process in Georgia
Georgia law states that attorneys in a divorce case can conduct depositions at any time during discovery. A deposition is a face-to-face interview that includes examination and cross-examination that one might see in court. Once a divorce has been filed, either party may take the testimony of someone related to the case by deposition, provided that person has been given reasonable written notice that includes the time and place of the deposition along with the names and addresses of those taking part. If a witness is unwilling to take part in a deposition, they can be compelled by subpoena, according to O.C.G.A. § 9-11-30(a)-(b)(1).
During the deposition, the witness gives testimony under oath, and that testimony is recorded. Attorneys for both parties can make objections during the process, as well. If a party can prove that the deposition is being conducted in bad faith, they can petition the court to limit or stop the deposition, too.
Any transcript of a deposition should be made available for review by the witness. If the witness believes there are errors in the transcript, they can make changes to it and sign a statement listing the errors and the reasons for making the edits.
In some cases, it may be necessary to collect evidence outside of what is required by the court. If adultery is suspected in a divorce case, for example, you may want to collect evidence of that adultery. This can include anything from a text or email to photographic evidence. You can also collect evidence from household documents you shared previously with your spouse, including IRS returns and shared bank statements.
Informal discovery can add a good deal of value to your case. It is important, however, that you use it correctly. Consulting with your attorney is the best way to guarantee that informal discovery is put to its best use in your case.
What Happens if Someone Fails to Respond to Discovery
Sometimes, a party in a divorce case may refuse or fail to respond to discovery. Or, they may respond to discovery, but provide insufficient answers. When this happens, your first recourse should be making an attempt to communicate with the opposing party. If this results in no change, you can then turn to the court. The court may provide guidance, but it may also sanction the party who has failed to respond.
Under Georgia law, there is a formal process whereby you can attempt to force the other party to respond. This includes submitting a motion compelling an answer. If a motion is granted, the court may also order that the party who refused to respond must pay any reasonable expenses incurred by the motion.
Alternatives to Trial for Divorce Process in Georgia
Going through a divorce trial is not your only option when considering divorce in Georgia. Spouses also have the option of going with different types of alternative dispute resolution, including mediation, arbitration, and settlement conferences. Each of these has their own set of advantages. The following sections will look at each in detail to help you decide whether or not alternative dispute resolution is the right choice for you.
Georgia Mediation Process
In mediation, you and your spouse meet with a mediator to discuss the issues on which you can come to agreement before continuing the divorce process. This essential component of the divorce process can reduce the costs and strain of a divorce, and many attorneys recommend using mediation. To learn more about the mediation process for divorce in Georgia, visit our detailed mediation page.
An alternative to the divorce process that many couples consider is collaborative law. Collaborative law is a process by which the parties involved in a divorce work with an array of professionals to address the central questions of their divorce without going to court. Professionals that can be involved in the collaborative law process include:
- Third-party child specialists
- Third-party financial planners
- Divorce coaches
At the start of the collaborative law process, the spouses involved agree to share all information pertinent to the process, including financial assets and liabilities. The spouses also agree to do their best to avoid court and come to an agreement. Your lawyer is an essential part of the process, protecting your rights and ensuring that important issues such as child custody are addressed correctly. The collaborative law process ends with a signed settlement and divorce agreement, which is then submitted for approval to the courts.
Arbitration is another alternative to court that divorcing spouses in Georgia can consider. In arbitration, an arbitrator or a panel comprised of several arbitrators reviews a summary of the evidence in a divorce case and renders a judgment based on these facts.
In some states, arbitration may either be binding or non-binding.
Arbitration is similar to mediation in the sense that they are both alternative dispute resolution methods for settling a divorce. The difference is that in mediation the parties decide their own terms, whereas in arbitration all final decisions are left to the arbitrator or arbitrators.
Georgia law allows arbitrators to have discretion over all issues related to a divorce. According to O.C.G.A. §19-9-1.1, however, when it comes to child custody, the judge has final discretion over what is in the best interests of the child.
Spouses considering divorce in Georgia can also use another form of alternative dispute resolution known as a settlement conference. A settlement conference comes in two forms: a judicially hosted settlement conference and an informal settlement conference.
Both types of conferences are similar to mediation in that both parties come together to make decisions about their divorce. In a judicially hosted settlement conference, this process is overseen, however, by a senior judge, or experienced practicing attorneys. Both parties present their positions to the judge or attorney; who, in turn, might express opinions on certain points or provide guidance. No one is under obligation to accept any of the their recommendations. If either party is not satisfied with the results of a judicially hosted settlement conference, they can decide to go forward with a trial. In some cases, negotiations during the settlement conference can result in a partial settlement that can serve as a framework moving forward.
In an informal settlement conference, the parties meet together with their attorneys to discuss the issues at the heart of the divorce without the help of a neutral third party. There are no rules when it comes to an informal settlement conference; if the parties involved cannot come to an agreement, they are under no obligation to draft a settlement.
Late Case Evaluation
A late case evaluation is an opportunity to settle a case that typically occurs at the behest of the judge, if that presiding judge believes a settlement is possible. A late case evaluation can be scheduled any time after the discovery process is finished, but is often scheduled at the 120 Day Status Conference.
In a late case evaluation, a neutral third party known as a late case evaluator listens to the positions of each spouse. The evaluator then makes a recommendation concerning settlement. This recommendation is non-binding. Late case evaluations can be valuable for both parties because the evaluator’s recommendations can provide some insight into the strength of their positions and whether or not that position would succeed at trial.
Neutral late case evaluators are often family law attorneys, retired judges, or Superior Court judges not currently associated with the case. Both parties can come to an agreement on who the late case evaluator will be; if there is no agreement, the court can assign one.
Divorce Trial Process in Georgia
Divorce Trial Procedures
When alternatives to trial have not worked, spouses will need to prepare for going to trial in their divorce. This can be a long and complex process. Understanding what is to come can help you prepare logistically and emotionally for what is to come.
Scheduling the Trial
The protocols for scheduling a trial vary from county to county in Georgia. In some counties, you will be notified of a specific date for the trials, while in others your case will be placed in a calendar with other domestic relations cases. In the former scenario, your trial will happen on the provided date unless some special circumstance occurs and forces a date change. In the latter, you show up on the assigned date and wait for your case to be called. This can mean that you are heard on that day; however, if the docket is full, you may have to wait until the next day.
The majority of states in the U.S. require that a judge presides over domestic relations matters. In Georgia, however, you can choose to have certain matters related to your divorce heard by a jury. Divorce matters that a jury can hear include:
- Equitable division of assets
- Certain parts of the child support
There are certain matters that are reserved for judges alone. If your divorce case in Georgia involves child custody or visitation matters, you will need a judge to rule on these issues.
Given the complexity of divorce trials, it is of the utmost importance that you have a lawyer by your side during proceedings. Everything from when to stand to how to speak can affect the judge and your case. A lawyer can also help you from engaging in certain inappropriate behaviors, such as having ex parte conversations with a judge or jury during your trial.
If you have decided to have a jury trial, you and your attorney will engage in jury selection as a first step. After this, your attorney will then argue any pretrial motions. The first part of the formal trial process is the opening statement. This is your opportunity to establish your position on all matters related to the divorce and demonstrate how you will prove your case. If either party does not have an attorney, they can address the court themselves.
After the completion of opening statements, the plaintiff will begin calling their witnesses. The plaintiff’s attorney will question each witness, something that is known as direct examination. Once the plaintiff’s attorney questions the witness, the defendant’s attorney will cross-examine the witness. This back and forth continues until all of the plaintiff’s witnesses have testified. The defendant is then allowed to call their witnesses, and the plaintiff attorney cross-examines them.
During both the plaintiff and defendant witness testimonies, the attorneys may choose to offer up other forms of evidence, including documents, photographs, copies of emails, etc.
After both sides have presented their evidence, each attorney or party has a chance to make a closing statement. This serves as an opportunity to sum up everything that has been presented in a case. Think of it as the closing paragraph of an essay. This is the last opportunity to persuade the judge or jury as to the validity of your case.
The Final Decree of Divorce
At the end of the trial, your jury will either recess to deliberate the case or else your judge will recess to chambers to do the same. Once they have come to a determination in your case, they will present their findings and provide instructions on how both parties should proceed with regard to all issues related to the divorce. The judge in both scenarios will then issue the final judgment and a Decree of Divorce.
Temporary Hearing vs. Final Hearings
In some cases, you may have issues pending that cannot wait until the divorce process is complete, in which case you would request a temporary hearing and ruling. Questions around child custody, support, or alimony are just some of the issues that may require a temporary ruling.
A temporary hearing is similar to a trial but is much smaller in scope. According to O.C.G.A. §§ 19-6-3, 19-6-15, 19-11-140, either party has the right to request a temporary hearing on issues related to custody, visitation, support, division of property, or alimony. A ruling made during a temporary hearing is a stop-gap measure and may be superseded by the final ruling in the divorce.
There are certain requirements you must meet if you request a temporary hearing. For one, you must serve the opposing party with notice of the hearing at least 15 days before the hearing. Additionally, if the matter being heard is a financial matter, you will need to file a Domestic Relations Financial Affidavit and a child support worksheet with the court’s clerk and serve it to your spouse 15 days before the hearing.
It is important to understand that evidence given during a temporary hearing is different from evidence given at a final hearing and is given different weight by the courts. What’s more, different rules govern temporary orders and final orders. Another important distinction is that children are not allowed to testify at temporary hearings; only the parties and one witness each can testify.
Why You Need An Experienced Divorce Attorney
As you can see, the trial process for a divorce is quite complicated. What’s more, there are many nuances involved in trial law that you cannot know unless you are an experienced attorney. For these reasons and more, it is always best to move forward to trial with a lawyer by your side. Finding the right attorney can be the difference between a successful trial and a trial that is not in your favor. In this section, we’ll dive deep into the various reasons why having a divorce attorney is beneficial.
Types of Evidence Used in Divorce Trial
During a divorce trial, each party presents evidence proving that the divorce falls under one of the thirteen grounds for divorce in Georgia. Evidence is also used to prove by a preponderance of evidence why a ruling should be in a party’s favor with regards to division of assets, alimony, and child support or custody. Evidence presented at trial comes in several forms:
Lay Witness Testimony – Lay witness testimony is a testimony given by people who have been privy to certain aspects of a marriage. Lay witnesses can include neighbors, friends, teachers, and more. When child custody is at stake, a child may testify, but that typically only occurs under certain circumstances. A judge may also ask to speak with a child in chambers with the attorneys present.
Expert Witness Testimony – Expert witness testimony is given by individuals who have expertise in certain areas relevant to the divorce, such as child wellness and finances. Experts can include accountants, psychologists, and property appraisers, to name a few.
Documentary & Physical Evidence – The parties involved in a divorce may also present documentary evidence related to the case. This can include anything from pay stubs and bank statements to a child’s school report card. Both parties may also present physical evidence such as recordings or photos at trial.
Qualified Domestic Relations Order
A Qualified Domestic Relations Order, or QDRO, is an order required by a defined contribution plan such as a 401k in order for funds from that plan to be disbursed during a divorce. While a QDRO is the most common type of order used in these cases, there are other orders that may be necessary if you or your spouse have different types of funds. A Court Order Acceptable for Processing, or COAP, is necessary when dividing a federal pension, while a Military Pension Division Order, or MPDO, is necessary for dividing military pensions.
The process of transferring funds out of a plan or pension can take some time. It can also vary from fund to fund or employer to employer. You should expect that it will take several months at the very least.
How Taxes Affect Divorce in Georgia
Concerns over tax implications that result from a divorce are some of the most important considerations in the process. They can have a sizable effect on the financial impact of a result. The following are some of the most common tax issues that come up in a divorce, but by no means comprise a comprehensive list. The best way to address tax concerns in a divorce is to consult in-depth with your attorney.
When it comes to child support and alimony, neither is tax-deductible. This means that the party receiving the payment cannot use it as a deduction on their taxes. What’s more, neither should be treated as income by the receiving party.
Individuals involved in a divorce also often wonder about the tax liability of monies distributed from retirement accounts. Any funds received pursuant to a QDRO are not viewed as taxable income, if they are kept in the associated fund. If the monies are distributed out of the fund to the receiving party, they are considered taxable income, according to the IRS.
Finally, any money or property transferred to a spouse is not regarded as either a gain or loss to either party.