Divorce / Annulment
- What is a divorce?
A divorce is the judicial termination of a marriage. It is the mechanism through which a marriage is legally dissolved.
- What is a legal separation?
There is no such thing as a “legal separation” in Georgia. A spouse can file an action for “separate maintenance” in which the Judge can make a determination of custody, child support, and alimony as in a divorce without dissolving the parties’ marriage.
- What is a 'no-fault divorce?'
Historically, a spouse filing for divorce had to demonstrate fault in requesting divorce. Now no such demonstration is necessary. A party need only show that the marriage is irretrievably broken, that the parties are living in a bona fide state of separation, and that there is no hope of reconciliation.
- What is an annulment?
An annulment is the judicial determination that a marriage never existed. An annulment is only available in limited circumstances, such as when a party is fraudulently induced to marry.
- Is it better to settle the divorce or go to trial?
Litigation is generally more cost-prohibitive, emotionally-taxing, and time-intensive than resolving the case by agreement. Negotiated agreements allow parties to come up with creative solutions to issues that a Court will typically not take the time to construct. However, resolving cases by agreement requires that both parties are open to the negotiation process, reasonable in their dealings, and willing to make concessions.
- What are the residency requirements for filing for divorce in Georgia?
The party filing for a divorce must have been a resident of Georgia for at least six months before filing the petition for divorce. A nonresident plaintiff may file a petition for divorce in Georgia if the spouse he or she seeks to divorce has been a Georgia resident for six months.
- What constitutes 'marital property?'
Marital property consists of assets acquired as a result of the labor or investments of the parties or either of them during the marriage. It does not matter in whose name the assets are titled, as long as they were acquired with funds earned by either party during the marriage.
- Can I represent myself in a divorce or custody action?
Yes, you can. The question is whether it is wise to do so. There is an old adage that an attorney who represents himself “has a fool for a client.” This is because the practice of law has become increasing complicated. It is for this reason that it is generally injudicious for a divorcing spouse or someone seeking custody of his or her child to proceed “pro se” (literally “for himself,” without the benefit of legal counsel).
Representing yourself can be your most costly decision in divorce and custody cases. Your estranged spouse and his or her attorney is not looking out for your interests. You need someone who knows your rights, obligations – someone who is prepared to be an advocate for your interests. It is wise to choose a lawyer who specializes in the area of law that is consistent with your needs. Someone familiar, for example, with the laws surrounding the division of assets in divorce, someone aware of the manner in which Georgia’s separate property distinction has eroded in recent years, who knows when adultery serves as a bar to alimony, what the legal burden is in an original custody action, the factors that go into a determination of best interest, the proper court in which to file a petition for termination of parental rights, the legal burden in a grandparent visitation action, what it means to “abandon ones opportunity interest” in a legitimation action, and who is otherwise knowledgeable concerning family law practice and procedure.
- How is property division determined in Georgia during divorce?
Property division in Georgia must be “equitable.” Equity seeks to do that which is fair, but what is fair is not necessarily equal. In Georgia, the Court is charged with considering various factors in determining what would constitute an “equitable” distribution of the parties’ assets. Those factors include such things as the duration of the parties’ marriage, each parties’ age, general health, occupation, vocational skills, employability, contributions to the family, and conduct during the marriage.
- Is a party’s inheritance, premarital assets, and gifts from third parties subject to equitable division?
The short answer is “no,” a party’s inheritance, premarital assets, and gifts from third parties constitute that party’s separate property and is not subject to equitable division.
One of the central principles of property division in Georgia is that only the real and personal property and assets acquired by the parties during their marriage are subject to equitable division. If a spouse receives a gift from a third-party or an inheritance during the marriage, then he (or she) gets to keep that property. If, however, the gift is made by one spouse to the other during the marriage, then it constitutes marital property and is subject to equitable division. So, if a husband (for example) gives his wife a diamond necklace on their 18th Anniversary, the necklace is marital property and can be awarded to either party or ordered sold and the proceeds divided in a manner that the Court deems – you guessed it, equitable. However, the more likely result is that the Court would allow the wife to keep her necklace – and for the husband to keep the Cartier watch that the wife gave him for his 40th birthday.
- Can separate property be transmuted into marital property?
Again, the short answer is “yes,” a spouse’s premarital property can be converted to marital property. For example, if a spouse transfers his or her ownership of a premarital home into his and his spouse’s joint names by deed of gift, then the transfer of that asset will likely be deemed a gift to the marriage and subject to equitable division.
- What are the grounds for divorce in Georgia?
In Georgia, there are 13 grounds for divorce:
(1) Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
(2) Mental incapacity at the time of the marriage;
(3) Impotency at the time of the marriage;
(4) Force, menace, duress, or fraud in obtaining the marriage;
(5) Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;
(6) Adultery in either of the parties after marriage;
(7) Willful and continued desertion by either of the parties for the term of one year;
(8) The conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer;
(9) Habitual intoxication;
(10) Cruel treatment (he willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health);
(11) Incurable mental illness (only if the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party and he or she has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the divorce action and the superintendent or other chief executive officer of the institution and one competent physician appointed by the court, after a thorough examination, make a certified statement under oath that it is their opinion that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party’s mental health cannot be expected at any time during his life);
(12) Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16;
(13) The marriage of the parties is irretrievably broken. The Court does not have the authority to grant a divorce on this ground less than 30 days from the date of service on the defendant (the person being served with the divorce petition).
- What are the elements of a valid marriage?
A valid marriage under Georgia law requires three things: persons able to contract, an actual contract, and consummation according to law. All three elements must coexist at one point in time.
- What is the 'consummation' required for a valid marriage?
“Consummation” can be accomplished by obtaining a license to marry and performance of a ceremony by an authorized person or by an actual agreement, in words of present tense, to be man and wife with the intention of assuming such relationship.
- When is a marriage void?
Marriage of persons unable or unwilling to contract or who are fraudulently induced to contract are void. However, children born the issue of such a marriage before the marriage is annulled and declared void by a competent court are considered legitimate under Georgia law. When a person is unwilling to contract or fraudulently induced to enter into a marriage contract, that person’s subsequent consent to and ratification of the marriage, if made freely and voluntarily and accompanied by cohabitation as husband and wife will render the marriage valid. Additionally, once a legal impediment to marriage is removed, the subsequent ratification of the marriage, freely and voluntarily made, and cohabitation as husband and wife, will render the marriage valid.
- Is adultery still a crime in Georgia?
Yes, a married person commits the offense of adultery when he or she voluntarily has sexual intercourse with a person other than his or her spouse. Adultery is punishable as a misdemeanor under Georgia law.
- Does Georgia recognize common law marriages?
Common law marriage was abolished in Georgia as of January 1, 1997. However, valid common-law marriages entered into prior to January 1, 1997, are still recognized.
- What factors are considered by the Court in determining whether to enforce a prenuptial agreement?
Three factors are considered by the Court in determining the validity of a prenuptial agreement:
1) Was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts?
2) Is the agreement unconscionable?
3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?
- When will duress work to avoid a contract (such as a prenuptial agreement)?
Duress which will avoid a contract must include threats of bodily or other harm or coercion that would be sufficient to bend the will of another. Insistence on a prenuptial agreement as a condition of marriage does not, under Georgia law, rise to the level of duress required to void an otherwise valid contract.
- What is alimony?
Alimony is an allowance out of one party’s estate that is made for the support of the other party when they are living separately. It can be temporary or permanent.
- On what is an award of alimony based?
In cases in which alimony is sought, the trier of fact (a judge or jury) is authorized, but not required, to award alimony to a party in accordance with that party’s needs and the other party’s ability to pay. In determining whether or not to grant alimony, the court must consider evidence of the conduct of each party toward the other. There are other factors that the Court may consider in awarding alimony, such as the length of the parties’ marriage, their ages, health / medical condition, educational background, and contributions to the marriage.
- Can adultery or desertion by a spouse impact an award of alimony?
A party is not entitled to alimony if it is established by a preponderance of the evidence that the separation of husband and wife was the result of that party’s adultery or desertion.
Legitimation / Paternity
- What is the effect of legitimation a child?
Legitimating a child gives the child the right to inherit from his or her father as if born in lawful wedlock. It also gives the parent the right to inherit from the child. It further allows the child to be placed in a paternal relative’s home if their mother is unable to care for the child. However, legitimating a child does not give a father the right to custody of – or parenting time with – the child until he files a legal action and seeks and is granted custodial rights or parenting time.
- Can you legitimate a child without filing a legal action?
In July of 2005, a new law went into effect allowing fathers to legitimate their children at the same time as they acknowledge paternity, obviating the need to file an action in court to legitimate the parent-child relationship. But again, even with this expedited process, legitimating a child does not give a father the right to custody of – or parenting time with – the child until he files a legal action and seeks and is granted custodial rights or parenting time.
- Is a child born out of wedlock entitled to child support from the biological father?
Yes, the obligation to support one’s child begins when the child is born, not when paternity is established.
- How does a mother obtain child support for a child born out of wedlock?
In Georgia, the mother of a child born out of wedlock may file an action against the biological father to establish his paternity and to collect child support.
- If a child is the issue of an adulterous relationship, is he or she considered 'born out of wedlock'?
Yes, under Georgia law, a “child born out of wedlock” is a child whose parents are not married when the child is born or who do not subsequently marry – or a child who is the issue of adulterous intercourse of the wife during wedlock. The marriage of the mother and reputed father of a child born out of wedlock and the recognition by the father of the child as his own will render the child legitimate.
- When is a Guardian ad Litem appointed in dependency (abuse and neglect) cases?
Under the Georgia Code, juvenile court judges are required to appoint a guardian ad litem (“GAL”) for a child who is a party to the proceedings if that child does not have a parent, guardian, or custodian appearing on his or her behalf or if the interests of the child’s parent, guardian, or custodian appear to be adverse to the interests of the child. The GAL may be an attorney or court appointed special advocate (“CASA”).
- What is the role of a GAL in Juvenile Court?
GAL’s are appointed by the Juvenile Court to look into the allegations made by the parties, to speak with each parent, their witnesses, the child, educators, therapists, medical practitioners, relatives, daycare providers, and others who have information that is relevant to the underlying issues and helpful to the GAL in formulating opinions and making recommendations to the Court about custody, parenting time, and any safety parameters would be in the child’s best interest and promote the child’s welfare.
- What is a CASA?
A CASA is a lay (non-attorney) volunteer GAL. CASA’s (Child Appointed Special Advocate) are trained in abuse and neglect (deprivation) cases, juvenile court procedures, and have met the requirements of (and are supervised by) a CASA program.
- What is the role of a Child Advocate in Juvenile Court?
Child advocates, as the name implies, are charged with advocating for what the child wants. They are attorneys for the children. However, child advocates in Georgia sometimes serve a dual role – functioning as both an attorney for the child and a GAL.
In a proceeding for the termination of parental rights, the court must appoint an attorney to represent the child and may appoint a separate guardian ad litem or a guardian ad litem who may be the same person as the child’s attorney.
While the Georgia Court of Appeals has held that there is no inherent conflict in the dual role, when a clear conflict exists between what the child wants and what is in his or her best interest, the child advocate should opt out of his or her role as GAL and ask the Court to appoint an independent GAL.
Custody / Visitation
- Can a child elect with which parent he or she wants to live?
In all custody cases in which a child has reached the age of 14 years, he or she has the right to select the parent with whom he or she desires to live. The child’s selection for purposes of custody, however, is presumptive. It is not controlling upon the Court. The Court must still find that it is in the child’s best interest to be placed with that parent.
- How are custody and parenting time determinations made?
What factors does the Court consider in determining what kind of custody and parenting time arrangement is in a child’s best interest?
Judges, however astute, are not armed with crystal balls. That said, in making custody and parenting time determinations, they are constrained to look into the future to predict parental behavior and the manner in which such behavior is likely to impact the child or children at interest. In making those determinations, they have little on which to rely. They have the often diametrically opposed statements of estranged spouses, expert testimony (when the parties can afford to pay for it and when it is not tainted by bias), and the factors listed in OCGA §19-9-3, those that are meant to aid the Court in deciding what custody and parenting time arrangement is in the child or children’s best interest. Those factors are as follows:
(A) The love, affection, bonding, and emotional ties existing between each parent and the child;
(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
(D) Each parent’s knowledge and familiarity of the child and the child’s needs;
(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
(G) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(H) The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;
(I) The mental and physical health of each parent;
(J) Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;
(K) Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
(M) Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;
(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
(Q) Any evidence of substance abuse by either parent.
- Does the Judge speak to the children in custody cases?
In disputed custody cases, when and if directed by the Judge, the parties’ minor child or children must be made available for consultation with the Court. At any such consultation, attorneys for both parties have the right to be present, but they are not permitted to interrogate the child or children absent the Court’s express permission.
- How is child support determined in Georgia?
Georgia’s Child Support Guidelines must be considered by any court setting the amount of child support to be paid for the support of a minor child. The Guidelines are applied as a what we call a “rebuttable presumption” in all legal proceedings that involve a parent’s responsibility to pay child support. The presumptive amount is calculated by inputting certain information into a Child Support Worksheet. A court is allowed to deviate from the presumptive amount of child support if the deviation is supported by required findings of fact and the application of the best interest of the child standard.
- What is the consequence of failing to support a child?
A failure to support one’s minor child financially can result in significant consequences – for the child and the parent. If parents willfully and voluntarily abandon their child, whether legitimate or born in lawful wedlock, and the child is left in a dependent condition, the parent who leaves the child in such condition is guilty of a misdemeanor.
If a parent willfully and voluntarily abandons his or her child, legitimate or born in lawful wedlock, leaving it in a dependent condition, and leaves the state of Georgia – or abandons his or her child, legitimate or born in wedlock, leaving it in a dependent condition after leaving the state of Georgia, he or she is guilty of a felony punishable by imprisonment for not less than one nor more than three years. The felony, under the Georgia Code, “shall be reducible to a misdemeanor.” However, any person, upon conviction of the third offense, is guilty of a felony and shall be imprisoned for not less than one nor more than three years, which felony shall not be reducible to a misdemeanor.
If a court of competent jurisdiction finds that a child is living under circumstances of destitution and suffering, abandonment, or exposure, or that the child has been begging, or that the child is being reared in an environment of immoral, obscene, or indecent influences likely to degrade his or her moral character and devote the child to vicious life, and that by reason of neglect, habitual drunkenness, lewd or vicious habits, or other behavior of the parents that it is necessary for the welfare of the child to protect him or her from such conditions, then the court may order that the parents be deprived of custody of the child and that appropriate measures as provided by law be taken in furtherance of the child’s welfare.