Divorce - FAQs

Below are the answers to some of the most common questions that we receive. 

What’s the difference between a Divorce and an Annulment? 

A divorce dissolves a legal marriage.  An annulment is a legal decree stating that the marriage never existed in the first place.  Annulments only apply in a few circumstances such as bigamy or mental incapacity at the time of the marriage.  When children are born as a result of the marriage, a judge will almost never grant an annulment. 

Can I get a divorce even if my spouse doesn’t want one? 

Almost always.  Here is why:  Georgia law lists 13 grounds for divorce, but the most common ground is that the marriage is “irretrievably broken”.  (Georgia’s version of no-fault divorce).  If one party no longer desires to participate in the marriage, then the marriage is irretrievably broken and you will be granted a divorce. 

What about a legal separation? 

Parties who wish to live apart permanently, but do not want a divorce can file an action for “separate maintenance”.  With this type of action, the court will not divide the assets or debts, but it can award alimony. 

How do I start a divorce? 

First, you should always consult with a lawyer well before filing for divorce so that you can receive proper advice on how to best prepare yourself.  Having a plan early on can save you a great deal of heartache, grief, and money. 

Legally speaking, a divorce is started by filing a “Complaint” for Divorce in the appropriate Superior Court.  The complaint or petition must contain certain information about the marriage, such as the grounds for divorce, children’s information, and assets or debts.  A copy of the complaint has to be legally served on the other spouse.  Where it is not possible to serve the spouse directly, the law provides for alternatives. 

What should I do if I have been served with divorce papers? 

You should consult with an attorney immediately.  You only have 30 days to file an “Answer” to the complaint in order to fully preserve your rights and contest any claims your spouse has made as to custody, alimony, child support, property division, etc. 

What can we do to stop my spouse from moving the children to another state?  

The court will always view issues pertaining to child custody and visitation according to what is in the best interest of the children.  Upon filing for divorce, most judges will order that both parties remain within the state of Georgia.  Either spouse can request a temporary hearing.  A temporary hearing can resolve issues of child custody on a temporary basis, until the final trial.  Temporary hearings can also resolve issues of child support, alimony, debts, and property possession on a temporary basis. Emergency hearing can also be held if neccessary. 

How long will my divorce take? 

The time needed to complete your divorce depends on many factors, including the degree to which you and your spouse have agreed on matters and how quickly the particular court moves.  If both spouses have agreed on all aspects of separating their lives, a final judgment of divorce may only take 1 to 2 months.  On the other hand, hotly contested cases, child custody cases, and complex property cases, may take months or even years to resolve.  At times, the actual divorce may be granted prior to the property issues being resolved, particularly if one spouse wishes to remarry.  

How much will my divorce cost? 

Even after your initial consultation, it is very difficult for us to predict how long your case will take to resolve.  But, one thing is clear - the more issues you and your spouse are able to resolve without the assistance of a lawyer, the less time the lawyer will need to spend on your case and, therefore, the less expensive it will be.  On the other hand, when spouses involve lawyers and courts to resolve even the small issues, the more expensive the case will be.   

Under no circumstances should a spouse “resolve” issues due to threats of violence or intimidation, but in many situations, simply talking to each other could save both parties hundreds of dollars.  Negotiations between lawyers or mediation (where a neutral person helps the parties to negotiate an agreement) will always cost less in attorney’s fees than a trial will, so the possible range of outcomes versus costs needs to be evaluated on a case by case basis.  

Can I make my spouse pay for my lawyer?  

Although this is no guarantee, where there is a large financial disparity between the parties, courts will frequently order that the “wealthier” party reimburse the other for their attorney’s fees within a reasonable range.  

Do we have to go to trial? 

No, in fact, the vast majority of cases are settled in some other way.  Sometimes the parties themselves can resolve issues.  Lawyers may negotiate agreements, or the parties may attend mediation, where a neutral person (a mediator) assists the parties in reaching an agreement.  Trials are extremely expensive because they involve many hours of preparation and many hours of courtroom time.  We try to help our clients evaluate the risks and possible rewards to see whether a trial makes sense in their case.  

How do the courts determine who gets what? 

In Georgia, spouses do not automatically get half of everything.  Property is divided into two classifications, “separate property” and “marital property”.  Only the marital property will be subject to being divided.  

Dividing the marital property means dividing not only the assets, like houses, cars, and investments, but also the debts.  Georgia law calls this process “equitable division”, meaning that property is not necessarily divided on a 50/50 basis, but should be fairly, or equitably divided.  The judge will consider a number of factors when dividing the property such as how long the marriage lasted, the age of each spouse, their employability, and how much each spouse contributed to the marriage.  

My spouse owned the house we live in before we got married.  Who gets the house now?  

Georgia courts use a “source of funds” rule to value the house.  If one spouse purchased the house before the marriage, but marital funds were then used to decrease the mortgage, assuming that the home’s value increased, the court will look at the percentage of total contribution made by the nonmarital funds.  That percentage is then used as the percentage of net equity that will be awarded to the spouse that initially purchased the property. This also means that the spouse that did not purchase the house acquires a certain percentage of the house value. 

What about custody? 

The welfare of minor children is of great concern to the courts (and to us).  The court will decide issues of custody based on the best interest of the child.  While mothers have traditionally been most often awarded primary custody of the children, there is a growing trend towards more fathers becoming primary custodians.  We represent both mothers and fathers in their quests for custody.  

What is joint custody and can we get it? 

There are two types of joint custody – “joint legal custody” and “joint physical custody”.  Joint legal custody means that both parents participate in the major decisions concerning the child. Joint physical custody means that the child spends approximately the same amount of time with each parent.  Joint physical custody is not likely to succeed unless both parents are strongly committed to cooperating for the benefit of the child.  The court can award joint legal custody, joint physical custody, or both, depending upon what the court believes will be in the best interest of the child.  

My child is 14 years old.  Can he decide for himself where he wants to live? 

Yes, at age 14 the child’s preference is controlling, so long as the parent that the child chooses to live with is not found to be inappropriate or unfit.  Even before age 14, a child’s preference can be highly persuasive to the court. 

My divorce was final last year and my spouse was awarded sole custody.  Can we still fight this? 

Even after the court makes a final determination of custody, you can petition the court to change custody if you can show that there has been a substantial change in circumstances and that a change of custody would be in the best interest of the child.  

How much child support will I have to pay? 

As of January 1, 2007, Georgia’s child support laws are completely new.  Please see our New Child Support Laws page to read more.  

Can I receive Alimony? 

The purpose of alimony is for one spouse to pay for the support and maintenance of the other. Alimony can be temporary, permanent, in a lump sum, or made in periodic payments.  The court may grant alimony where one party has a need for it and the other party has the ability to pay.  In determining the amount of alimony, the court will look at several factors such as the age of the parties, the length of the marriage, the employability of the spouse, the physical and emotional conditions of both parties, and the financial resources of the parties.  It is also important to note that a party who causes the separation by committing adultery will not be awarded alimony.  Alimony also may carry serious tax consequences for both parties involved.  

When is my divorce final? 

A divorce is final when a judge signs a decree of divorce, whether this is after a trial or after an agreement is reached.  The final decree declares that the marriage is over and that both parties are free to re-marry.  It also may legally restore the wife’s maiden name.  

The above FAQ’s are not legal advice.  Please note that we have put the above FAQ’s into the simplest terms possible.  In family law, there are almost always individual factors that make these situations more complicated.  Important tax consequences are also not addressed in the above. 

To have your specific questions answered, please contact us.