Divorce – State FAQ – Georgia
Residency requirements, venue and procedures
Q: How long must I have lived in Georgia prior to filing for divorce in an Georgia court?
A: The party filing for divorce must have been an actual and bona fide resident of the State of Georgia for at least six months prior to the filing of the petition for divorce and such divorce action shall be filed in that party’s county of residence. If the filing party is a non-resident of the State of Georgia and the other spouse has been a resident of the state for six months, the filing party may file the petition in the county in which the other party resides.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is the Petitioner, while the other party to the action is the Respondent.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Georgia, proper venue for the divorce action is the Superior Court. See the answer to the first question, above, for what county to file in.
Q: What is the title of the document initiating the action for divorce? The document granting the divorce?
A: The action initiating the divorce proceeding is the Petition for Divorce, while the order granting the divorce is referred to as the Final Judgment and Decree of Divorce.
Q: Are there any waiting periods associated with a divorce action?
A: Yes. A divorce based upon the irretrievable breakdown of the marriage shall not be granted until at least 30 days have elapsed from the date of service upon the respondent.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Georgia. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Georgia?
A: A divorce may be granted in the State of Georgia on the following grounds:
2. Mental incapacity at the time of marriage;
3. Impotency at the time of marriage;
4. Force, menace, duress, or fraud in obtaining the marriage;
5. Pregnancy of the wife by one other than the husband at the time of marriage, unknown to the husband;
6. Adultery by either party;
7. Willful and continued desertion by either party for one year;
8. Conviction and imprisonment for at least two years for a crime of moral turpitude;
9. Habitual intoxication or drug addiction;
10. Cruel treatment;
11. Incurable mental illness; and,
12. The marriage is irretrievably broken.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: The court will consider the receiving party’s needs and the paying party’s ability to pay, although a party is not entitled to alimony if the court determines that the cause of the spouses separation was due to that party’s adultery or desertion. The amount of alimony will be determined by the court after consideration of the following factors:
1. The standard of living established during the marriage;
2. The duration of the marriage;
3. The age, physical and emotional condition of both parties;
4. The financial resources of each party;
5. The time necessary for either party to acquire sufficient education and training to find suitable employment;
6. The contribution of each spouse to the marriage;
7. The condition of the parties, including the separate estate, earning capacity and fixed liabilities of each party; and,
8. Any other factor the court deems relevant and just.
Q: On what basis does the court decide how marital property is divided?
A: Georgia is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The issue of custody of any minor children of the marriage will be determined by the best interests of the child. The court shall not prefer one party over the other on the basis of sex. The court will consider instances of domestic violence in determining custody and may also order a psychological or medical evaluation of the family as it deems necessary.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Georgia has enacted child support guidelines which establish the presumptively correct amount of support to be paid. Justification for the court’s ordering deviation from the guidelines include such things as:
1. The ages of the children;
2. Educational costs;
3. A child’s extraordinary medical costs;
4. Day-care costs;
5. Shared physical custody arrangements;
6. A party’s support obligation to another household;
7. Income that should be attributed to a party because of that party’s artificial suppression of income;
8. In-kind income for the self-employed;
9. Other support a party is willing to provide;
10. A party’s own extraordinary expenses;
11. Extreme economic circumstances;
12. Historical spending in the family for children;
13. Cost of living factors; and,
14. Any other factor the court deems to be required by the ends of justice.
Q: When does the duty to pay child support expire?
A: The duty of support shall continue until the child reaches the age of majority, dies, marries or becomes emancipated, whichever occurs first. The court may, however, under certain circumstances, order the continued support of a child who is enrolled in a secondary school until the child reaches the age of twenty.