Quick Info - Divorce

GENERAL ASPECTS OF A DIVORCE CASE

The divorce process can be complicated or simple, based in large part on how the parties involved interact and can agree on the resolution of the various issues. The more the parties can agree upon the resolution of the case, the result is generally an easier and less costly divorce, and the parties are generally more satisfied with the outcome.

Divorces can be contested or uncontested. If uncontested, all necessary documents are submitted to the court for approval, and it is simply a matter of time before the matter is resolved (click the "uncontested divorces" link for further.). If disagreement exists regarding any matter involved in the divorce, the divorce will be obtained when the case reaches the court, which can take many months or even years depending on the court's schedule. However, a divorce is much like any civil lawsuit in the sense that the vast majority settle without being tried, and if the parties can reach an agreement while the case is pending, the parties can submit the settlement agreement to the court and the case will shortly be over and the divorce will be granted.

Generally, a complaint for divorce is filed in the Superior Court of the defendant's county of residence; the action must be filed in Superior Court, as State Courts are not vested with the jurisdiction to hear a complaint for divorce. Alternatively, if the defendant no longer resides in the state of Georgia, the divorce is filed in the county of the plaintiff's residence, or of the defendant so agrees or had previously lived with plaintiff and has been gone for less than 6 months, the complaint may be filed in the plaintiff's county of residence.

In the event you are served with divorce papers, the safest thing to do is quickly contact and consult a family lawyer, as you only have 30 days to "answer" the complaint in writing. The "answer" allows you to give your version of events, to admit or deny your spouse’s allegations, and allows you to file a "counterclaim" and seek a divorce in response to your spouse seeking a divorce.

Before a party may file for divorce, the husband/wife must be considered "separated" in a legal sense. This does not necessarily mean living in separate dwellings, as spouses may be considered separated even if they live under the same roof; the main component of a "legal separation" is that the parties are no longer having sexual relations.

UNCONTESTED DIVORCES

If the parties reach an agreement on all issues, the divorce is considered "uncontested," and may be granted 31 days after everything is filed (though depending on the county of venue, it can take longer depending on the Judge’s availability and schedule). An Uncontested Divorce is when both parties are in agreement with all of the terms of the divorce, including all issues pertaining to custody, alimony, child support and division of assets. Though one party may not want to be divorced, the term "uncontested divorce" generally means that no issues of division of property, child support, custody, etc., are contested.

Even when parties can agree to all terms in resolving the case, it is still often helpful to get the assistance of any attorney to review any material to be submitted to the court to ensure that all matters which should be covered in a divorce are addressed. In any case, a lawyer may only represent one party, so each party should consult with a lawyer of their own choosing before signing any finalized documents and submitting them to the court. However, you are not required to have a lawyer and if you can navigate the legal system and file the appropriate documents while following the applicable state law and local rules, you can file and complete a divorce without attorney involvement.

CONTESTED DIVORCES

If the parties can agree on certain issues, but not others, certain facts/issues and aspects of the divorce can be settled by the parties, and the Court or an arbitrator will determine the resolution of any remaining issues. Even if the parties to a divorce reach an agreement on all terms, the Court will need to approve the final result. At the same time only the Court can grant a divorce.

While there are 13 grounds for divorce, the majority of which are "fault" driven, one ground is "irretrievably broken," generally thought of as a "no fault" ground, and is most commonly used.

CHILD SUPPORT ISSUES

In Georgia, both parents can be required to provide assistance to their children until a child reaches the age of 18 years if not in high school, graduates from high school if eighteen (18) years or older, reaches the age of 20 years and is still in high school, dies, marries, is emancipated or joins the military, whichever event occurs first. The non-custodial parent will generally be required to provide child support to the custodial parent to assist with living expenses. Child support can also include payment or provision of health insurance, payment of medical and dental expenses, and life insurance.

While the old child support guidelines required the non-custodial parent to pay a percentage of their gross income to the custodial parent, the current guidelines (effective January 1, 2007) take both parties income, among other factors, into consideration when determining the amount of child support. Child Support Guidelines are in effect in Georgia. The guidelines are located in the Official Code of Georgia in section 19-6-15. The amount of support paid can vary based on various factors including the income of both parties, time the non-custodial parent spends with the child(ren), the ages of the child(ren), day care costs, medical costs, education costs, significant income or debt of either party, and obligations to another household.

While a court cannot force parents to pay for college expenses, parents can agree between themselves to pay support beyond the age of 18 and/or to pay for college expenses.

DIVISION OF PROPERTY

Marital property is generally 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" (which does not mean equal) share of all marital property acquired during the marriage. There is no set formula or percentage amount used to divide marital property; however, credit may be given to a party who has contributed "separate" or "premarital" property to the marriage. Georgia case law sets forth a complicated formula to determine how the contribution of "separate" property to the marriage is to be handled. Like any other aspect of a divorce case, if the parties cannot agree on who will be taking what, the court or an arbitrator will make the decision.

FEES

Costs associated with the handling of a divorce, and whether it is contested or uncontested, vary from law firm to law firm, and client’s are either charged by the hour or pay a flat fee for services rendered. Flat fees are uncommon except when the case is truly "uncontested" and all terms have been agreed upon by the parties. In a flat fee case, the cost may range from a few hundred dollars to a few thousand dollars, depending on the lawyer and the complexity of the issues (transfers of real estate, retirement funds and the like). For a contested case, most lawyers require a retainer which is an up-front payment which will serve either or both of two bases: to ensure the lawyer is available and cannot accept employment by the opposing party, and to serve as an advance payment for services to be rendered. Most lawyers then bill against that retainer and ask that it be replenished when it runs low or is depleted. Retainers can range from $1,000.00 (or less) to $25,000.00 (or more), depending on the complexity of the case and the law firm's usual practice. Hourly rates charged by lawyers and paralegals vary, but at our firm will usually be $75.00 to $100.00 per hour for paralegals/law clerks and from $150.00 to $200.00 for attorneys.

MODIFICATION OF SUPPORT

Under the current law regarding the modification of child support, there are various reasons to increase or decrease support. Loss of income, increased costs in child rearing, or increased income may be a basis for lowering or raising a parties child support obligation. Generally, in an action to modify child support, either upward or downward, a party requesting the modification must establish that there has been a substantial change in income or financial status of either party, since the date of the original support order. Once this threshold requirement is met, your obligation to pay child support is reconsidered under the appropriate child support guidelines.

Much like with the bringing of an action for divorce, if the party against whom you are filing the action resides in the State of Georgia, the case is to be filed in the county where the party/defendant against whom you are filing resides. If the party lives outside the State of Georgia, you may be able to file in the county where you reside depending upon the specific facts of your case.