We got advice from our divorce lawyers at Stearns-Montgomery & Proctor for filing for a divorce in Georgia. Here's what you need to know to protect your interests and achieve a fair resolution.
Going through a divorce is one of the most stressful events in one’s life. But by clearly understanding the legal requirements and procedures, you can ease some of the complications of an already emotional process.
If you're considering filing for a divorce in Georgia, you may have questions about the process, your rights, and the potential outcomes. Here's some advice to help guide you through the divorce process, protect your interests, and achieve a fair resolution.
What Constitutes a Divorce in Georgia? Legislation
When going to court to legally dissolve your marriage, it’s important to realize that different states abide by different laws and guidelines. It is essential that the advice you get pertains to the laws of the specific state where you will be filing. If not, you could quickly end up with an unnecessarily drawn-out and costly process.
You need to determine your residency requirements before filing for a divorce in Georgia. To qualify for this process within the State, you or your spouse must be a state resident for at least six months before filing. You generally need to file in the county where your spouse resides; however, if you meet the residency requirements but no longer live in Georgia, you may be able to file from where you live.
To start the process, you have to submit specific court documents. These will vary depending on whether the divorce:
- Involves minor children
- Is a no-fault or fault divorce
- Is contested or uncontested
If the divorce proceedings between you and your spouse are cooperative, your spouse can sign and file an Acknowledgement of Service with the court. This significantly speeds up the process and reduces complications.
Unfortunately, if this is not the case, Georgia divorce laws require that your spouse receives a personal, hand-delivered notification after you have filed with the court. You can arrange this with the sheriff's office or a private process server for a fee. Your spouse has 30 days to respond. If there is no response, the court can proceed with a default divorce, granting the requests in your divorce paperwork.
Note that if you cannot find or do not know where your spouse is, with court permission, you may be able to provide notification by publishing a notice in a newspaper, also known as “divorce by publication.”
What Are Your Rights?
When filing a divorce in Georgia—especially a no-fault divorce—filing under irreconcilable differences as the reason for marriage dissolution is a good idea. This implies that partners didn’t get along and wanted to dissolve the marriage without blaming each other. While there may be deeper and more serious reasons for the divorce, not placing blame in the legal proceedings increases the likelihood of the divorce remaining uncontested.
Once you accuse the defendant (even rightly so), they may take offense. This places a barrier between the parties coming to an amicable agreement. It is important to remember that filing a divorce in Georgia creates a public record. This means that anyone who wants to pay for a copy of the divorce action can do so unless it's under seal. This may further trigger the defendant to fight back rather than come to an agreement.
If both parties agree on how to divide assets and take care of children (if any), they don’t need a lawyer to file for an uncontested union dissolution. With no need for a hearing or lawsuits, the process is more straightforward, faster, and low-cost.
Your Right to Leave Georgia
Whether it is a contested, uncontested, or no-fault divorce, you still have a right to protect yourself by removing yourself from the situation if needed. It’s important to note that you should keep the timing of this strategic to avoid filing complications.
If you move states—whether for a job, to stay with family, or for any other reason—you should do so before filing for a divorce. Once the divorce is filed, you cannot move children from state jurisdiction without special court authority. Before the divorce filing, you can move with your children since, at that point, neither you nor your spouse has a custody order.
Your Responsibilities During Proceedings
While filing for a divorce in Georgia can be complicated with numerous steps, requirements, and case-specific regulations, you can make things simpler by avoiding inevitable mistakes during the process.
The following four slip-ups can unnecessarily draw out the process. They can count against you in the ruling and increase the cost of finalizing the dissolution.
1. Leaving Fields Blank in Court Papers
The court will not accept forms with blank spaces or incorrect information. This can delay and add stress to the process. Though some sections may not apply to your situation or should not be filled out by you, make sure all the necessary sections are correctly completed.
2. Missing Deadlines and Schedules
Courts run on tight schedules, with little room for adjustments. Failing to meet your court deadline or adhere to the assigned schedule can lead to case dismissal.
3. Failure to Communicate with Your Spouse
While this is a very emotional and challenging time between partners, it is essential to set grudges aside and work together to settle quickly. You will need to keep in touch regarding the process and requirements. Alternatively, you can communicate via a third-party (lawyer); however, you need to budget the costs for this into your planning.
4. Inaccurate Paperwork
Court professionals will spot even the slightest mistake in paperwork—and when they do, they will reject all of it. Before signing and submitting your forms, ensure everything is accurate, relevant to your case, and ready for filing. If you are unsure about anything, professional help can simplify the process and reduce complications.
Filing for Divorce with Children
Divorce always becomes a little more complicated when minor children are in the family. The welfare of your children is critical, and naturally, parents will want to protect their children from any harmful, hurtful, or uncomfortable situation.
If both partners come to an amicable and uncontested agreement out of court, each spouse will be responsible for childcare. However, if spouses can’t agree, custody battle proceedings will be somewhat different. In these cases, the court may appoint a Guardian Ad Litem.
A Guardian Ad Litem is a licensed professional who performs an investigation and represents minor children. While a judge can't come into your home and ask you questions during an investigation, they can appoint someone to investigate how you live, how the children live when they're with you, and who else lives in the house.
While they might ask the children questions, they are generally sensitive to the situation and won’t talk about the proceedings. Instead, they may ask if the parent does homework with the child or other such indirect questions to get a perspective on the living situation. If there are specific serious allegations, the Guardian Ad Litem may have to have a more upfront discussion with the children.
Further Considerations in Custody Rulings
Georgia law requires each spouse to submit a parenting plan when filing for divorce. The plan should include how you will make significant decisions regarding childcare and upbringing, parenting schedules, and where the child or children would live throughout the year.
The judge will award sole or joint custody by considering the parenting plans. When making the final judgment, the judge may also consider the following factors:
- Parent-child relationships
- Sibling relationships
- Child safety
- Professional responsibilities and work hours of parents
- Financial provision for the child
- Domestic abuse or violence
- Parent's physical and mental health
- Criminal activities
If your child is 14 years or older, they can choose who they want to live with. Between the ages of 11 and 14 years, the judge will also consider their preference when making the deliberation.
There is no one-size-fits-all ruling. Every case is unique, and the judge handles every situation accordingly. But once the judge makes a ruling in a disputed case regarding child support, maintenance, and custody, both parties must abide by the ruling lawfully.
In a high-asset divorce, multiple high-value assets need to be valued separately. Property disputes, joint business ownership, retirement accounts, and other investments often form part of the complexities. Tax implications and matters such as spousal and child support can further complicate matters.
While the divorce process is still much the same, emotions are high and other professionals generally come on board to assist in high-asset situations. For example, you’ll want to bring in a forensic accountant to help you determine the actual value of specific properties and assets. With significant marital investments at stake, the parties must identify, value, and negotiate all assets. This increases the cost of finalizing the marriage dissolution.
Find out more about high-asset divorce proceedings—and how to protect your assets—with the advice of the legal team at Stearns-Montgomery & Proctor.
Without a prenuptial agreement, Georgia law entitles each party to 50% of the value of all assets, regardless of who actually purchased them. Georgia law considers all assets marital property. But assets—especially property—are sometimes split unevenly to help with tax ramifications and get around alimony. Instead of alimony money coming out of one person's account, it might instead be taken out of the property.
Keep track of all assets within the marriage, including bank records, property ownership, stocks and bonds, businesses, and other valuables. Obtain copies of tax returns to ensure a comprehensive financial outlook.
In a particularly acrimonious divorce, one spouse may try to devalue or sell assets to punish the other. To guard against this, seek a temporary order to protect your assets. (Many counties in Georgia have a standing order to prevent this once divorce proceedings start.)
When filing in Georgia, you can file either a no-fault or fault divorce. A no-fault divorce allows either party to sue for divorce, citing only ‘irreconcilable differences.’ This legal process eliminates the need to prove grounds such as adultery, intoxication, or desertion. Contrary to popular belief, this does not indicate that either spouse is blameless about the marriage’s dissolution; it also does not indicate that the issues about the marriage and divorce are uncontested.
While filing a no-fault divorce doesn’t necessarily mean there are no fault grounds, it may not be in the filing party’s best interest to bring accusations into legal proceedings. Depending on your desired outcome, a professional divorce lawyer can help you determine the best way to file.
If you file for a fault divorce, you allege that your spouse was at fault for the marriage breakdown. In this case, you will need to prove the accusation. In Georgia, there are 11 grounds for divorce at fault:
- Blood relationship between spouses
- Mental incapacity at the time of marriage
- Spousal impotency at the time of marriage
- Fraud, threat, or forced danger in obtaining the marriage
- Pregnancy outside of the bounds of the marriage, during the marriage period
- Spousal abandonment for a period of one year or longer
- Imprisonment for two years or longer
- Substance abuse relating to alcohol or drugs
- Abuse or cruel treatment, which includes willful infliction of pain or harm on the filing spouse
- Incurable mental illness
Contested vs. Uncontested Divorces
When filing a divorce in Georgia, you can either file a contested or an uncontested divorce.
In an uncontested divorce, you and your spouse privately agree on the details of marriage dissolution. You both approve the divorce terms, including the division of property, custody, child support, and alimony, where applicable.
Since you and your spouse are making these decisions (as opposed to a judge), you will not require a trial. An uncontested divorce is generally less costly and less stressful.
A contested divorce, on the other hand, will require a trial. The process is more time-intensive and expensive since you cannot finalize the disputed matters without a court ruling. Each party must submit evidence with their proposal to the court; a judge then makes the final decisions regarding unresolved issues, including custody, asset divisions, debt, alimony, and child support. Both parties must abide by the judge’s decision.
Georgia does not offer a "legally separated" status. However, those wishing to remain married but live separately can file a domestic relations action called Separate Maintenance.
Separate Maintenance actions are similar to divorce actions in procedural aspects. You initiate the process with a petition; a sheriff or process server then serves the documents to your spouse. The process aims to resolve issues such as property division, child support, alimony, and custody via court order. However, unlike divorce, the marriage is not dissolved. In addition, the petitioner in a Separate Maintenance action is not bound by the same residency laws before filing.
Whether separate maintenance or divorce is best for a given situation depends on the individual's unique circumstances.
If a couple asks for separate maintenance, they can live independently while working out marriage issues. They can move back together after a reconciliation, but it also does not prevent either party from filing for divorce in the future. If you fail to work things out or want to get remarried, you should consider divorce. During separate maintenance, you are not allowed to marry someone else.
Reasons couples may want to file for separate maintenance include the following:
- Retaining health care benefits, tax benefits, joint property rights, and responsibility for marital debts
- Taking time to figure out their problems living separately before deciding to terminate the marriage
Like divorce, separate maintenance can become a contested matter if parties disagree. This will similarly entail a court appearance where a judge will make the final ruling over property and asset division, child custody, and alimony.
Pre- and Postnuptial Agreements in Georgia
As previously mentioned, when filing for a divorce in Georgia, the law starts each spouse off at 50% of everything acquired during the marriage. Even if one spouse contributed 100% financially to the assets and the other did not contribute anything, they’re still entitled to a portion of the equity. This is where a prenuptial or postnuptial agreement can protect your assets.
What’s the difference between the two? Simply put, you draw up a prenuptial agreement before you marry, while a postnuptial is established once the couple is married.
Most often, these contracts protect the interests of partners in a family business and the higher-earning spouse. The agreements designate certain assets as separate, so they are not subject to division in the case of divorce. Ownership should be clear if there is a likelihood of acquiring substantial family-owned assets such as a professional practice, vacation property, closely-held stock, or an inheritance.
It’s essential that your prenup or postnup leave no room for misinterpretations, loopholes, or misunderstanding. Incorrect or unclear wording could result in a very costly mistake. Ensure that your agreement is legally accurate to protect your assets during a divorce.
Even if you do have a prenup, you may still be subject to split assets gained during the marriage, regardless of who contributed the most. Each party should retain a Georgia attorney to help protect their interests according to state law, as proceedings or requirements may vary between states.
Mediation and Collaborative Practices
Georgia Code states that marital property division, child custody, maintenance, and alimony must be agreed on to finalize a divorce legally. If couples cannot agree, the court may refer them to a mediator. During this process, the goal is to enable both partners to communicate better, ultimately finding the best resolution for them.
The mediator will make suggestions to help with financial, property, and child-related issues—but it is ultimately up to the parties to make the final decision. If a couple cannot reach an agreement through mediation, it will go to court as a contested divorce. Even if all issues are not resolved, settling some through mediation can reduce overall costs and the time taken for the trial.
Both parties (with their attorneys) will meet online via Zoom during the mediation. They will be placed in separate breakaway rooms for this process and will not see or be able to address the other party. The mediator—usually a retired judge or attorney—will help the parties with impartial advice and techniques to reach a compromise. The mediator has no legal authority to make decisions or judgments and has no bias toward either side.
Benefits of Mediation
- It is not legally binding—unlike a court ruling, you can reject or further negotiate the proposed terms
- Mediation records are not made public like divorce records unless an agreement is finalized
- If you can come to an agreement through mediation, it greatly reduces emotional stress and cost and speeds up the divorce process
In prioritizing the well-being of their children and respect for the family, some couples enter into collaborative practice. Collaborative practice is a non-litigious approach to divorce, where all parties, including lawyers, agree not to take the case to court. It aims to build a settlement on areas of agreement rather than perpetuate disagreement.
Additionally, collaborative professionals specialize in and prioritize non-confrontational negotiation. Negotiations are conducted in good faith to reach a settlement that satisfies both parties. This helps reduce the emotional strain of the process and can greatly simplify the resolution.
Protect Your Rights During Your Divorce
The requirements and proceedings to finalize a divorce vary from state to state. When filing a divorce in Georgia, first determine whether you meet the residential requirements to do so. From there, make sure you understand every step in the process. Whether you are filing a contested or uncontested divorce, need legal advice, or want to enter collaborative practice, we’re here to lighten your burden.
The team at Stearns-Montgomery & Proctor has offered legal advice and advocacy in the state of Georgia since 1988, specializing in family law and divorce. Every family is different, and there is no one-size-fits-all solution. Our legal team will help you navigate child support, custody, alimony, spousal support, parental rights, and asset allocation in the best possible way for your unique situation.
Contact us today so we can ensure your rights are protected.