Legal Overview

Divorce in Georgia requires that you have been resident for at least 180 days. There are many grounds upon which to obtain a divorce in Georgia, but almost all divorces are brought based on a “no-fault” divorce. Read our detailed legal summary of Georgia including grounds, residency, child custody, child support, alimony, property, settlement agreements, annulments, and legal separation.

Divorce Process

Annulment

Unlike a divorce, which dissolves a valid marriage, an annulment is a legal decree that the marriage is now void and was invalid from its inception. If there are children born of the marriage, an annulment may not be granted, and the marriage may only be dissolved by divorce.

Settlement Agreement

Spouses may be able to reach an agreement resolving all issues arising from the marriage, including finances, division of property, and custody and visitation of children. The agreement is presented to the Court as a Settlement Agreement and, upon approval, made an order of the Court. The Court’s order, called a Final Judgment and Decree, concludes the lawsuit. If however, the parties cannot reach an agreement, the issues will be resolved by the Judge or the jury. However, a judge always decides matters of child custody and visitation.

Residency Requirements

One spouse must have lived in the State of Georgia for 6 months or Georgia must have been the last domicile of the marriage. Spouses must be considered separated in a legal sense before one can file for a divorce. Spouses may be considered separated even if they are living in the same house if they are not sharing the same room and/or not having a sexual relationship.

If there is agreement between the parties, the divorce is considered uncontested. An uncontested divorce may be granted 31 days after the Defendant has been served with the Complaint for Divorce. If there is disagreement as to any matter, the divorce will be obtained when the case reaches the Court, which can take many months.

Grounds for Divorce

In Georgia there are thirteen grounds for divorce. One ground is “irretrievably broken” (sometimes referred to as the “no-fault” ground). The other twelve grounds for divorce in Georgia are “fault” grounds. To obtain a divorce on this basis (irretrievably broken), one party must establish that he or she refuses to live with the other spouse and that there is no hope of reconciliation. It is not necessary to show that there was any fault or wrongdoing by either party.

To obtain a divorce on one of the twelve “fault” grounds, one must prove that there was some wrongdoing by one of the parties to the marriage. As an example, one fault ground is adultery. Adultery in Georgia includes heterosexual and homosexual relations between one spouse and another individual. Another “fault” ground for divorce in Georgia is desertion. A divorce may be granted on the grounds that a person has deserted his or her spouse willfully for at least a year.

Other “fault” grounds include mental or physical cruel treatment, marriage between persons who are too closely related, mental incapacity at the time of marriage, impotency at the time of marriage, force or fraud in obtaining the marriage, pregnancy of the wife unknown to the husband at the time of the marriage, conviction and imprisonment for certain crimes, habitual intoxication or drug addiction, and mental illness.

Division of Property

One of the most difficult and complex areas of divorce is the division of marital property. Marital property is all property acquired during the marriage, except for that property received by gift from a third party or by inheritance. Each spouse is entitled to an equitable share of all property acquired during the marriage. The Judge or jury will decide on the division of marital property.

Marital property will be divided equitably (not necessarily equally) between the parties regardless of how the title to the property is held. There is no set formula or percentage amount used to divide marital property.

Spousal Support

Alimony is payment by one spouse to the other for the other’s support and maintenance. The court may grant alimony to either the husband or the wife. Alimony may be for a limited period of time or until the spouse receiving alimony dies or remarries. Alimony can be paid in one payment of money or property, or it may be paid over a period of time.

Child Custody

The welfare of children is of major concern to the Court. Neither parent is automatically entitled to custody. The Judge looks at the best interests of the child in determining the proper parent to have custody. The Judge considers many factors when deciding custody. Those factors include the age and sex of the child, compatibility with each parent, and the ability of each parent to care for and nurture the child. A child over 14 years of age can choose which parent will have custody upon the consent of the Court. In election situations, however, the trial court has a wide latitude and discretion in determining whether such parent is a fit and proper person to have custody.

As to a child at least 11 but not 14 years old, the court must consider the desires, if any, and educational needs of the child in determining custody between the parents, but the court will have complete discretion and the child’s desires will not be controlling.  Court considers it important for a child to maintain a relationship with both parents; therefore, visitation rights are awarded to the parent who is not given legal custody of the child.

The Court in its discretion can award joint custody instead of sole custody. There are two types of joint custody. Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the child; joint physical custody means that physical custody is shared by the parents in such a way to assure the child substantially equal time and contact with both parents. In awarding joint custody, the Court may order joint legal custody, joint physical custody, or both.

Child Support

In Georgia both parents are required to support their children until a child reaches the age of twenty (20), dies, graduates from high school, marries, is emancipated, or joins the military, whichever event occurs first. The noncustodial parent will be required to pay a reasonable amount of child support to the custodial parent towards the child’s living expenses. Child support, in addition to a monthly or weekly sum, may also include such items as health insurance and payment of medical and dental expenses.

Effective January 1, 2007, the guidelines for calculating child support based on a new “income shares” model which will take into account the income of both the custodial parent and the non-custodial parent.  The child support guidelines are a minimum basis for determining the amount of child support and will apply as a rebuttable presumption in all legal proceedings involving the child support responsibility of a parent.

The Court cannot order parents to pay for college. However, parents may agree to pay child support beyond the age of 18 or to pay for college expenses.