In Georgia, the divorce terminates the marriage contract between husband and wife, giving each party the legal right to marry another person. The divorce will equitably divide martial assets and debts, will determine child custody and parenting time, and will establish child support and spousal maintenance. The Superior Courts of Georgia have subject matter jurisdiction over family law matters, including divorce, separate maintenance petitions, annulments, child custody, child support and alimony.
Grounds for Divorce
Like most states, Georgia is a “no fault” divorce state. This means that the court will grant a divorce without allegations and proof of fault, taking blame out of the divorce process. Consequently, there is no need for the court to decide which spouse was the source of the failure of the marriage. The parties must only show that the marriage is irretrievably broken, that is there is no chance of reconciliation.
Legal Separation in Georgia
Unfortunately, legal separation is not recognized in the state of Georgia. However, if parties wish to live separately, they may petition the court for separate maintenance to decide on issues of equitable division as well as support. In a separate maintenance action, the court can determine amounts of child support and parenting time, set alimony and divide the parties' assets and debts when parties aren't quite ready to divorce. Additionally, the court has the authority to transform the Petition for Separate Maintenance into a Petition for Dissolution of Marriage. If you are concerned about finding a separate maintenance attorney, you can relax – a family law attorney at Atlanta Family Law Group can represent you in a separate maintenance action, as well as in a divorce.
For a divorce action to be commenced in a Georgia Superior Court, one of the spouses must have resided in the state of Georgia for six months or more. This is a jurisdictional reqirement without which Georgia Superior Courts would have no legal power to dissolve the marriage.
Jurisdiction Over Children
The Georgia Superior Court's subject matter jurisdiction over child custody and child support issues depends upon the answers to the following questions:
Whether Georgia is the place where the child has lived for the most recent six months (“home state” jurisdiction); or
- Whether Georgia has the most significant connection with the child and at least one parent; or
- Whether the child is physically present in Georgia and needs protection based on abandonment or some emergency; or
- Whether no other state is able to assert jurisdiction (or chooses not to assert jurisdiction if it could), and it is in the child's best interest for Georgia to assume jurisdiction.
If the Superior Court does not answer in the affirmative to one of these threshold jurisdictional questions, then the case with children will be dismissed. If the court lacks subject matter jurisdiction, then it has no legal authority to render a decision over child custody and chld support – lack of subject matter jurisdiction requires dismissal of the action.
To satisfy venue requirements (which county in Georgia the case should be heard), the Petition for Divorce is filed in the county where the Respondent/Defendant resides. There is some flexibility to the venue requirement – the parties may waive any objection to venue or venue may be changed when there is good and sufficient cause why a different county court should hear the case.
Petitioning for Divorce
The Petitioner's Complaint for Divorce must be verified. This means the Petitioner swears under oath that all of his or her statements are true, correct and complete to the best of Petitioner's knowledge and belief. The verified statements made by the Petitioner include the following:
Personal information about both parties
- Date and location of the marriage
- That the marriage is irretrievably broken and there is no chance of reconciliation
- One or both spouses have resided in the state of Georgia for at least six months prior to the filing of the Petition for Dissolution of Marriage.
- Personal information about all minor children born to or adopted by the couple.
- Information regarding assets and debts, including marital and separate property.
- Request for child support and spousal support
The Petition for Divorce is filed with the clerk of the Superior Court along with the filing fee. Once the petition is filed, the other party is notified of the divorce action via personal service and summoned to respond to the Petition.
Changing Your Name
If you wish to have your maiden name restored, then you can request a name change in the divorce process. If, at some point after the divorce is final, a former spouse decides to change his or her name, then a Petition to Change Name of an Adult can be filed with the Superior Court as a separate civil action.
Service of Process
Once the Petition for Divorce has been filed, the respondent must be served with the petition and summons. This is referred to as “service of process”. If service is not accomplished as required by law, then the court has no authority to move forward with the divorce action. Service of process can be accomplished by Sheriff's Service, service by a private process server or through publication if the Respondent cannot be located. Once the Respondent has been served, he or she will have thirty days form the date of service to respond to the Petition for Divorce.
When a response is filed with the court by the Respondent Spouse, then the divorce process continues. In Georgia, every family law case is heard and tried by a Superior Court judge or judge sitting by designation of the Superior Court. Issues involving spousal support, child custody and parenting time, asset and debt division, and child support must be resolved before the divorce will be granted and a final divorce decree issued.
When the spouses are able to enter into a written settlement agreement, they may be granted an uncontested divorce by the family law judge, avoiding further litigation or a trial. With a consent decree, the case is fully resolved and finalized. If the spouses are unable to reach an agreement on all issues in the divorce, then the parties proceed through all phases of litigation, including trial. Throughout the divorce process, the parties may avail themselves of Alternative Dispute Resolution (ADR), such as private or court ordered mediation, to resolve as many issues as possible with court intervention.