Family Law FAQs
Frequently Asked Questions about Family Law
- What is a valid marriage?
- What are the grounds for divorce?
- Does the divorce process have to go through the court?
- Is divorce decided by a judge or jury in Georgia?
- Do either or both parties need a lawyer even if they have agreed on all terms of the divorce?
- Is it required to live in Georgia to get divorced in Georgia?
- What if both spouses still live together when divorce is filed?
- What is legal separation or separate maintenance?
- What is alimony?
- What happens to the children of the spouses?
- Does Georgia allow shared custody?
- What are the child support obligations?
- What happens to the marital party, or shared possessions?
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Divorce
Q: What is a valid marriage?
- You have met the legal requirements (such as age)
- You have entered into a contract to marry
- You have consummated the marriage
There are certain exceptions, such as entering a marriage while still legally married to someone else.
Q: What are the grounds for divorce?
Georgia law states there are 13 grounds for divorce. These grounds are separated into two categories, "fault" and "no-fault". There are 12 “fault” grounds and one “no-fault”.
"No-Fault" (also know as Irretrievably Broken) Divorce: one party, through sworn testimony, states that, to them, the marriage is simply over.
"Fault" Divorces: one party can establish that there was some detrimental conduct performed by one of the parties that caused the divorce. These may include:
- Adultery
- Desertion
- Mental incapacity when married
- Impotency at time of marriage
- Forced marriage or fraud in obtaining marriage
- Conviction and imprisonment of some crimes
- Mental or physical cruel treatment
- Drug addiction or habitual intoxication
- Mental illness
Q: Does the divorce process have to go through the court?
Yes. Regardless if both sides agree upon all issues, the court will need to approve the divorce. Only the court has the proper authority to approve a divorce and allow each party to marry again. Going through other channels, such as legislature or even a governor, will not legally free both parties from a marriage contract.
Q: Is divorce decided by a judge or jury in Georgia?
If the divorce can not be settled by either of the partners, child custody, visitation rights, and attorney fees can only be decided by a judge. Either party however can request a jury to reconcile financial disputes (property, debts, alimony, and child support) and provide evidence to support their case.
Q: Do either or both parties need a lawyer even if they have agreed on all terms of the divorce?
While there is a process known as “pro se” in Georgia law, which allows you to file and complete a divorce without hiring lawyers, it is not recommended. Even when it appears both parties have agreed upon the terms of a divorce, a lawyer can save you costly troubles down the road. It is also advised that each party has their own lawyer for consultation.
Q: Is it required to live in Georgia to get divorced in Georgia?
Yes. In most cases, at least one spouse must be living in Georgia with a valid residence of at least six months. If one party has left the state, they can still file for divorce within six months in Georgia as long as the other partner is still a resident.
Q: What if both spouses still live together when divorce is filed?
Divorce can still be filed while residing together, but spouses must be considered legally “separated”. Spouses are generally considered separated while living under the same roof as long as they are not having sexual relations.
Q: What is legal separation or separate maintenance?
Georgia does not recognize “legal separation.” However, you are separated in the state of Georgia if you no longer engage in marital relations and both spouses consider themselves in an actual state of separation, regardless of living arrangements. You may not file for divorce until you are in such a state of separation, and then the court can grant one of two decisions:
- Divorce
- Separate Maintenance: addresses all the issues which would grant a divorce. However, no divorce is
granted. Often, people file for “Separate Maintenance” due to religious or moral opposition to
divorce or to remain married for legal benefit, such as insurance or social security.
Q: What is alimony?
Alimony is financial support paid by one spouse to the other after a divorce. There are several factors the court will consider in rulings of alimony such as:
- Length of marriage
- Child raising
- Contributions from both parties in regards to housemaking
- Careers, or building of a new career, by both parties
If a marriage is dissolved due to adultery, alimony is generally not granted to the party accused of adultery. It may be paid in one lump sum, over a declared period of time, or until the partner receiving alimony has remarried or died.
Custody and Children
Q: What happens to the children of the spouses?
The most important factor in custody hearings is the child. No parent is guaranteed the right to custody. Until a court ruling has passed or an agreement reached, the married partners share custody of the children. Once a divorce or separation has been granted by the courts, the judge will consider many factors in granting custody depending on age.
- If a child is 10 or under, the judge will decide custody based on age and sex of the child,
the child(ren)s’ emotional attachment between each parent, and each parent’s ability to care
for the child. - If a child is 11 to 13, the child may make requests, however the judge is not required to follow
the child’s wishes. - If a child is 14 or older they may generally choose which parent will be granted custody.
Q: Does Georgia allow shared custody?
Yes, the state of Georgia will grant either sole or joint custody of a child. There are essentially two types of custody, legal and physical. These two options also apply to Joint Custody:
- Joint legal custody allows both parents to make major decisions for the child.
- Joint physical custody assures that the child will have equal time and contact with each parent,
however decision making may rest on one parent.
The court can claim one or both types of custody for a child. As of January 1, 2008, the state of Georgia requires persons involved in divorce with children should have a parenting plan in place. This plan should outline the responsibilities of each parent, when and where each parent will have custody, and decision making authority.
Q: What are the child support obligations?
In Georgia, the courts can declare both parents as responsible to provide assistance for their children until they turn 18, gets married, becomes emancipated, or dies. If the child turns 18 and has yet to graduate high school, the parent(s) are still financially obligated as long as the child remains a full time student, however not past the age of 20.
There is much that applies to determining Child Support in the state of Georgia and as of January 1st, 2007, many of the decision are based on the income of both parents. The courts use a Child Support Obligation Table which calculates what support each party is responsible for. A worksheet to help determine this number can be found at www.georgiacourts.org/csc.
Generally, the non-custodial parent will be obligated to provide a reasonable amount of child support to the custodial parent for living expenses. The non-custodial parent will often also be held accountable for medical insurance. Each case is unique, and the child support laws are constantly evolving, so it is always best to consult your lawyer for the most up to date advice.
Courts cannot require parents to be responsible for payments for college beyond 18 years of age. However, both parents should make a plan to decide on who should be assisting their children through school.
Q: What happens to the marital property, or shared possessions?
Marital property is one of the most difficult components of settling a divorce. Marital property is defined as all items acquired during marriage except for gifts from a third party or inheritance. There is no set formula as to how marital property is split. However, it is split equitably between both spouses, which is not always equally.
