Divorce and other family law related issues can be some of the most difficult life events a person will ever face. The outcome, even the process itself, can change the entire course of a person’s life. Often, much of the emotional stress and concern surrounding these events arises from fear of the unknown. Naturally, anyone facing the prospect of a divorce or other family law related issue is confronted with endless doubts and questions. The following section is designed to answer some of the questions you may have concerning the legal aspects of divorce or other family law related issues in Georgia. Because every case is unique, the answers provided are general. This information is not a substitute for competent legal representation.
There are many personal reasons for seeking a divorce. However, for legal purposes, most of these reasons fall under certain standardized categories or conditions. There are 13 conditions which constitute grounds, or justification, for divorce in Georgia. Some are more common than other, but all are recognized by law.
Divorce is a civil lawsuit, which begins with the filing of a complaint by either spouse. Getting divorced could take as few as 31 days after the complaint is served, if you and your spouse agree within that time on all terms of settlement, which may include alimony, child support, property division, child custody and visitation, and other issues. Otherwise, it could take quite a bit longer depending upon your individual situation.
There is no requirement that you must be separated for any particular amount of time, but, before a complaint is filed, you and your spouse must be separated. Separation requires a termination of marital relations between a husband and wife. It does not require the husband and wife live in separate residences.
Generally, no. Your spouse might have an investigator watching you, and you do not want to provide any “ammunition” which can be used against you. Further, your date could be put in the embarrassing position of being called as a witness in the divorce action. In addition, if you have children living with you, it may have a adverse effect on them.
You and your spouse may agree upon how to handle on-going family expenses until the divorce is final. Otherwise, the court may hold a hearing to determine what the temporary financial needs of each party are and how they will be met. At the temporary hearing, which both parties attend, the court may award one party temporary alimony and/or child support as well as other expenses.
If you and your spouse are able to reach an agreement on division of property, child support, payment of debts, alimony and other relevant issues, your agreement will be presented to a judge at the time your divorce becomes final. Only the party who files the complaint will have to be present in court. If you and your spouse are unable to each an agreement, a trial will be held before a judge, or if either party requests it, before a jury, and both parties should be present in court. Your lawyer will advise you prior to this appearance date in court and will work with you to make it as comfortable as possible for you.
Custody of the minor children will be determined according to the children’s best interest. The court may award custody to either parent, both parents or to a third party. Generally, the non-custodial parent will be awarded rights of visitation. Once a child reaches 11 years of age, the court may consider the child’s preference as to the parent with whom he or she wishes to live, and upon the child reaching 14 years of age, such election becomes presumptive, subject to the court’s determination as to the best interest of the child.
Effective January 1, 2007, Georgia adopted new statutory guidelines for determining child support. The general concept of the guidelines is that parents have a shared responsibility to support their children until each child is eighteen (18) years old, graduates from high school, dies, marries or is otherwise emancipated. The guidelines require a calculation of child support based on the number of children for whom support is being paid and the income of both parents. Generally, each parent’s child support obligation is based upon their pro rata share of the parties’ combined income taking into account certain expenses related to the children and which parent pays them, including health insurance, child care necessary for a parent’s employment, extraordinary medical expenses, private school and others which vary on a case by case basis.
Property acquired by you and your spouse during the marriage, whether titled in the name of one or both of you, is marital property and is subject to equitable division by the court. For the most part, property acquired by either party before the marriage or by gift or inheritance before or during the marriage will remain the separate property of that spouse. In deciding how to equitably divide marital property, a court may take into account the separate estate of each party, the contribution of each party to the marriage, the practice and custom of the parties with reference to their individual incomes and other relevant factors which the court regards as fair and proper to consider. Equitable division does not necessarily divide the property equally between the parties.
Alimony may be awarded to either spouse in accordance with the needs of that spouse and ability of the other spouse to pay. In deciding whether to award alimony, a court will consider the cause of separation and each party’s conduct toward the other prior to separation.
If the court decides to award alimony, the amount awarded will take into account the standard of living during the marriage, the duration of the marriage, the age and health of each party, the financial resources of each party, the contribution of each party to the marriage (including homemaking and child care), the separate estate and earning capacity of each party, the time needed for either party to acquire education or training to enable him or her to find employment, and any other relevant factors the court regards as fair and proper to consider. Alimony may be awarded in cash or in property, and it may be payable periodically or in a lump sum.
Generally speaking, if certain conditions are satisfied, alimony is deductible from the income of the payor spouse and includable in the income of the recipient spouse. Child support is neither deductible from the income of the payor spouse nor includable in the income of the recipient spouse.
The parent who has physical custody of the children for the greater part of the calendar year receives the dependency exemption unless he or she releases to the other parent, in writing, his or her right to the exemption.
Your legal fees and costs incurred in connection with a divorce (or any other family law case) will generally depend upon the complexity of the issues involved and the extent to which the issues are contested or litigated. In most cases, a retainer or fee deposit will be necessary. Retainers can range from $2,500.00 (or less) to $25,000.00 (or more) depending upon the case. You will be charged for the services of attorneys and legal assistants at hourly rates which, for attorneys, range from $225.00 to $450.00 per hour, and for paralegals, range from $110.00 to $175.00 per hour. You will also be charged for all expenses incurred by the law firm on your behalf, such as court costs and fees, costs for depositions, travel, copying, long distance telephone calls, facsimile transmissions, and investigation. The firm will bill these costs against the retainer on a monthly basis and will ask that the retainer be replenished when it runs low or is depleted.
You will be responsible for your own attorney’s fees. Sometimes, upon consideration of the financial circumstances of both parties, the court will require one spouse to pay all or part of the attorneys’ fees and expenses of litigation of the other spouse. Generally speaking, these fees and expenses are awarded on the same basis as alimony and for the purpose of enabling a spouse to contest all issues raised in the pending divorce action.
In order to file for divorce in Georgia, you or your spouse must have been a Georgia resident for at least six months prior to the date of filing the complaint for divorce. There is no time period of residency required in an action strictly for alimony or separate maintenance.
The suggestions listed below are made for the present and future benefit of your children. Even under the best circumstances, all children suffer in a divorce. Everything you do or do not do as a parent affects your children and their future. Always try to act in your children’s best interest.
From a financial standpoint, it is necessary for your attorneys to have a complete picture of the assets, debts and income of both spouses. By providing your attorneys with the information and documents listed below, you will assist them in preparing the pleadings and documents required in your case and help prevent your spouse from dissipating or secreting any assets. As soon as possible, gather as many of the documents which relate to the period of your marriage for both you and your spouse and have them available for review and copying.
Possibly. Although a division of property is not modifiable, alimony and child support may be modifiable, either upward or downward, provided there has been a substantial change in income or financial status of either party, since the date of the original support order. Once this threshold requirement is met, the payor’s alimony and/or child support obligation may be reconsidered under the appropriate standards. Custody may also be modified subject to a threshold showing that there has been a material change of condition substantially affecting the interests and welfare of the child and that the proposed change is in the best interests of the child. Visitation rights can also be modified upon showing that the proposed change is in the best interests of the child whether or not there has been a material change of condition substantially affecting the interests and welfare of the child.
When a party willfully fails to comply with an Order requiring payment of alimony or child support payments, or to follow an Order relating to custody or visitation, the law authorizes the filing of a contempt action to enforce the Court Order. Upon a finding of contempt, the offender can be ordered to cooperate or face incarceration. The court can also order the offender to pay the other side’s attorneys fees. A party can also enforce a Court Order by collecting past due support through garnishment of bank accounts, wages and other assets. Property of the payor can also be attached.
Prior to legitimation of a child born out of wedlock, the mother is entitled to custody of the child, and she exercises all parental power over the child. The father may seek custody and/or visitation of the child through a legitimation suit. In such case, the court can declare the child legitimate, specify the child’s name, and order the child and father capable of inheriting from each other. The mother may obtain child support from the father through a paternity suit. Upon a finding or acknowledgment that the alleged father is the biological father of the child, the court may issue an order designating him as the father of the child, and imposing a child support obligation upon him.
Possibly. Your ability to file an appeal depends upon the nature of your case. Certain domestic cases are subject to discretionary appeal procedures, which means that you must request and be given permission to file an appeal with the Georgia Supreme Court or the Georgia Court of Appeals. Other cases are subject to direct appeal procedures, which means that Georgia law grants you the right to appeal. Be advised that there are strict time requirements for the filing of an appeal, and that within the filing deadline your attorneys must have an adequate opportunity to review your case and to prepare and timely file the appeal.
Before or after the wedding, Georgia law allows a couple to enter into their own contract setting forth their financial obligations during the marriage. With or without considerable assets, every couple should consider whether a prenuptial or postnuptial agreement is appropriate for them. Such an agreement is commonly used to protect property that one or both parties owned prior to the marriage from becoming divided upon divorce, but it can also be effectively used to protect gifts from family members or to guard a personal interest in a family business. Prenuptial agreements are also being used increasingly as estate planning vehicles to protect future inheritances of adult children in the event of remarriage later in life. A properly drafted prenuptial or postnuptial agreement may allow a couple to separate and divorce promptly and amicably without a costly legal battle.
Georgia acknowledges that grandparents have rights with respect to their grandchildren; however, there is no presumption in favor of visitation rights for grandparents. The rights of grandparents can vary based upon the marital status of the children’s parents and other circumstances surrounding the children, including the pendency of an action for custody and/or divorce, termination of parental rights or adoption.
Alternative Dispute Resolution (ADR) is a process that enables parties to resolve their domestic matter outside of the courtroom in what is often a more efficient and cost-effective manner. There are several types of Alternative Dispute Resolution, including the following:
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