How to Get Divorced in Georgia
How to Start the Divorce Process
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.
What to Consider Before Filing for Divorce
Before you file for a divorce, you and your spouse must be considered separated in a legal sense. Even if you live in the same house with your spouse, you can still be considered separated as long as you are not:
- Sharing the same bedroom with your spouse
- Having a sexual relationship with your spouse
- Intending to continue a marital relationship with your spouse
Step 1. Find a Qualified Divorce Attorney
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.
An experienced, professional divorce attorney can help you understand all of the legal complexities that sometimes accompany the divorce process. Not only can they handle the necessary paperwork and logistical steps of filing for divorce, your lawyer can also become your trusted counsel throughout the process and ensure you feel confident from day one.
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.
Step 2. Determine What Type of Divorce You're Filing For
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.
Georgia also offers no-fault divorces, meaning only one party needs to convince a court that the marriage is beyond repair. This means you can get a divorce even if your spouse refuses to acknowledge your complaint or sign any papers.
Step 3. Decide When to File for Divorce
Pros of Filing for Divorce First
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 for a divorce can give you a much-needed psychological advantage, allowing you to feel better in control of the situation.
Cons of Filing For Divorce First
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.
Step 4. Determine Your 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.
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.
Contact a Divorce Attorney
Step 5. Submit Your 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.
Common Questions for Divorce Filing
Where Do I File?
You will file your complaint with the Superior Court of the defendant's county of residency.
If the defendant recently moved to another county within Georgia or out of the state of Georgia, you may file the complaint in your own county of residency. But only if that county was also the domicile of your marriage prior to the defendant moving.
Additionally, with the defendant's consent, you may file your complaint in your county of residence regardless of whether the defendant moved out of the state of Georgia or not.
Creating Your Complaint
Most experts in family law highly recommend that you hire an attorney to help you prepare and file your complaint. Your complaint sets the tone for the entire divorce process. If you miss important details or fail to provide adequate reasons for initiating a divorce, you will hurt your chances of achieving your financial goals and the outcome you want for your family. Your complaint also establishes the proper jurisdiction and venue for your divorce and includes information about your marriage regarding:
- Present living arrangements
- Children of the marriage
- Grounds you are seeking for divorce
When you assemble the information needed for your complaint, your attorney will also discuss strategy with you and help you with the often tedious paperwork involved with filing for a divorce.
How to Serve Divorce Papers in Georgia
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 judges 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.
Step 6. Begin the Discovery Process
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
Mandatory and Informal Discovery
Learn More About the Divorce Discovery Process
Step 7. Determine if Your Divorce Will Go to Trial
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.
Alternatives to Divorce Trial
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.
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 composed of several arbitrators reviews a summary of the evidence in a divorce case and renders a judgment based on these facts.
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.
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 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
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.
Waiting for a Final Hearing
Either of the spouses may request a temporary hearing. A temporary hearing resolves the issues of child custody, visitation, child support, alimony, debts, and possession of real and personal property on a temporary basis until the final decision can be made. The judge will issue a temporary order that applies until the time of the final trial. The temporary order may also prohibit one party from interfering with the other party or the children and prevent the transfer and selling of assets.
Types of Evidence Used in Divorce Trial
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.
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.