Divorce can be a stressful and challenging experience as you navigate both the legal and personal issues that lead into the next phase of your life. Divorce cases range from quickly settled to hotly contested and prolonged litigation. In Georgia, a divorce case involves not only changing the legal relationship between the parties, but also addressing issues of division of property, division of debts, alimony, along with custody, a parenting time schedule, and child support if there are children. Hiring an attorney can help ensure that your rights are protected and help alleviate the stress of navigating an unfamiliar court system.
Residency Requirements and Waiting Period
For a divorce to be filed in Georgia, one of the parties must reside in Georgia for at least six months prior to the filing of the divorce. Georgia does not impose a minimum separation period to file for divorce but does require that the parties be living in a bona fide state of separation at the time of filing, meaning you are not living as spouses or having sexual relations with each other. The parties do not need to be living in separate homes to be living in a bona fide state of separation. For divorces where the grounds alleged are that the marriage is irretrievably broken, a Court in Georgia will not grant a divorce prior to 30 days after the Respondent has been served. As a practical matter, unless a divorce is uncontested at the time of filing, this 30 day requirement does not affect the timeframe for most divorces.
Grounds for Divorce
A divorce can proceed on the grounds that the marriage is irretrievably broken without alleging more specific grounds for divorce. Other grounds can be alleged such as adultery, desertion, or cruel treatment, among others, and some of these grounds can impact the other issues the Court will be addressing in your divorce. The other party does not need to consent to the divorce even if the only grounds alleged are that the marriage is irretrievably broken. Absent specific limited circumstances, the divorce will proceed and be granted. In the rare cases where a divorce is dismissed, the party seeking a divorce can simply refile.
The Risks of Representing Yourself
Divorcing couples often make the mistake of proceeding pro se, meaning representing themselves, to save money. Representing yourself does mean saving money up front, but it often leads to unintended consequences. If you do not have a lawyer to advise you of your rights in a divorce, you risk settling on a position that is worse than the result you would get with representation. The financial consequences of an ill-advised settlement can be much more expensive than hiring an attorney. Pro se divorces are often vague in their terms, which leads to issues with interpretation later on, or the drafting does not effectuate the intended consequences of the parties. Some of these mistakes can be fixed retrospectively, often by spending a lot more money than would have been spent on hiring an attorney in the first place. Sometimes, these mistakes cannot be fixed and one party is irreparably harmed.
In Georgia, an uncontested divorce is a case in which the parties not only agree to get a divorce but also agree to all the terms within the divorce. Often times, one party thinks a divorce will be uncontested because the parties agree on most of the big issues, but then once the parties start discussing specific terms, it turns out there are points of disagreement. For example, the parties may agree that they will split the holidays with their children, but one party may interpret “split the holidays” to mean alternating years, while the other party may interpret “split the holidays” to mean each parent gets half the day on each major holiday. A lawyer can help you negotiate and reach a full settlement addressing all issues thoroughly so that you can file an uncontested divorce.
Expected Time-Frame for an Uncontested Divorce
If a divorce is filed as uncontested, meaning signed settlement documents are filed at the same time as the Petition for Divorce or shortly thereafter, there is still a 30-day waiting period before the divorce can be granted. The divorce is not automatically granted at this time and will usually occur at a Court-scheduled hearing where the Petitioner needs to appear and give testimony. There may be additional requirements the parties need to meet, particularly if there are children of the marriage. A lawyer can help keep the case on track so that there is not a significant delay after the 30-day waiting period and can often have the divorce granted without either party having to appear in Court.
In Georgia, a contested divorce is a case in which the parties do not agree on all the terms of a divorce. The majority of divorce cases are contested. These cases are often settled at some point prior to trial through mediation or other settlement negotiations. Settlement negotiations can be complex since the divorce needs to address equitable division of property and debts, whether there will be alimony and if so what amount, and if there are children, the case needs to address custody, parenting time (sometime called visitation), and child support. It is best to have an attorney handle these negotiations on your behalf to help ensure your legal rights are being protected and to give you the best chance at reaching a reasonable settlement given the particular facts of your case.
Some cases cannot be settled and proceed to trial. In Georgia, it is most common to have a bench trial, meaning a Judge decides the case, but certain issues can be put in front of a jury. It is important to have an attorney represent you at trial as they understand the formalities required in a Courtroom, particularly regarding the presentation of evidence, and they can advocate for the best result in your case.
Expected Time-Frame for a Contested Divorce
A contested case that goes to trial can easily take seven months to a year, and sometimes longer than that, though the parties can settle at any time during the process. During this timeframe, your lawyer can conduct discovery, which involves the opposing party being required to produce certain information or documents. The discovery process helps build your case by giving access to information that would not otherwise be available to you. To address certain issues between the parties while the case is pending, a Court can issue a Temporary Order addressing things like temporary use of the marital home or vehicles, temporary payment of bills, temporary alimony or child support, and a temporary parenting time schedule.
Some couples prefer not to get divorced for religious or personal reasons. A separate maintenance is similar to a divorce in that it addresses substantive issues between the parties such as alimony, custody, child support, and use of and right to marital property, however, at the end of the case the parties are not divorce—they continue to be married but living in a state of separate maintenance. Either party can still file for divorce while a separate maintenance action is pending or after it is concluded.
A separate maintenance is not to be confused with a legal separation that merely precedes a divorce. Georgia does not require a minimum separation period to get divorced and choosing to live in a bona fide state of separation does not legally alter your relationship status. What is typically thought of as a legal separation as part of a divorce action is more comparable to a Temporary Order addressing issues between the parties while a divorce case is still pending.
Seeking Legal Help
Whether your divorce is contested or uncontested, The Ruthenberg-Marshall Law Firm can help protect your rights, advise you through the process and answer any questions you may have, advocate for the best result for you in settlement, and if the case is unable to reach a settlement, represent and advocate for you at trial.
For help with your divorce action, you can schedule a Legal Clarity Session with The Ruthenberg-Marshall Law Firm by calling 678-435-9069 or contacting us here.