The Divorce Process
In Georgia legal separation occurs if you are no longer engaging in marital relations and you consider yourself to be in an actual state of separation. You can be separated even if you are living in the same household as your spouse. To file a case for divorce, you must be in such a state of separation. The court does not grant "legal separation." You must first swear that you are in an actual state of separation and then petition the court for divorce or an order for separate maintenance. Separate Maintenance is a lawsuit which may be filed to address Child Custody, Child Support, Alimony, and Property Division, but the action itself does not result in a dissolved marriage. Rather, the spouses will remain legally married although living apart.
Contested v. Uncontested Divorce
There are two "types" of divorce- contested and uncontested. In an uncontested divorce, the parties have come to agreement on all four aspects of the divorce (Child Custody, Child Support, Alimony, and Equitable Division of Property) and there are no issues for the court to decide. The parties just need to properly present their settlement agreement and the other required documents to the court for approval as the judge requires. This process usually only takes 30-60 days once the paperwork is submitted.
In a contested divorce, the parties to the divorce do not agree on one or more aspects of the divorce. This may be because you have not spoken to your spouse about the issues in your divorce or because you have not been able to come to an agreement upon the terms of the settlement agreement. Your attorney will work to negotiate the terms of your settlement agreement with your spouse and/or their attorney. While most divorces are successfully settled out of court, some cases eventually must proceed to trial if the parties are ultimately unable to reach a resolution themselves.
The determining factor in classifying the divorce as contested or uncontested is whether or not you and your spouse have already worked out all of the issues concerning Child Custody, Child Support, Alimony, and Equitable Division of Property.
The divorce complaint must be filed in the superior court of the county in which the defendant resides (or the county where the parties resided during the marriage if the defendant left the county within six months before the filing for divorce). What if the defendant lives in another state? The Georgia Supreme Court has held that personal jurisdiction over the defendant is not a prerequisite to the grant of a divorce by a Georgia Court. However, personal jurisdiction over the defendant is required if the petitioner is seeking alimony, attorney's fees, child support, or division of other assets located outside the state.
The first step in obtaining a divorce is to file a complaint or petition for divorce. A complaint is a formal legal document that explains to the court that you are seeking a divorce and includes information on the marriage including present living arrangements, children of the marriage, assets, debts, and the specific grounds for divorce.
Service of Process
Service of Process means that the defendant must be properly provided the court summons and copy of the complaint. In order to have proper service of process the procedural rules of the Georgia Civil Practice Act must be followed.
Once a party is formally served with a complaint for divorce, he/she usually has 30 days to respond to the filing with an answer. The spouse who receives the complaint should promptly consult an attorney. The spouse may contest the reason claimed for the divorce or contest the claims for child custody, child support, alimony, or property division by filing an answer with the court.
The discovery process is a period in which both parties learn information related to the case that will likely influence the court to rule in their favor. This process can take many forms from written questions, requests for documents, requests to admit statements are true, and depositions. The scope of discovery is somewhat wide and allows for obtaining discovery regarding any matter, that is not privileged, which is relevant to the subject matter of the case. The discovery period generally lasts for six months, however, the court may lengthen or shorten the discovery period as appropriate.
Your privacy should be respected and abusive or overly invasive discovery may be sanctioned or result in a protective order against the abusive party. It is equally important to respond to proper discovery requests in a timely manner. If you fail to respond within the time allowed you may be subject to penalties and sanctions.
Temporary hearings can occur at anytime by the request of either spouse to address immediate concerns prior to a final trial. Temporary hearings help provide a temporary solution to issues of child custody, child support, visitation, alimony, debts, or possession of property. The order issued by the judge will apply only until the time of the final trial.
In Georgia, several counties have established alternative dispute resolution programs to help resolve cases before going to trial. Mediation is one of the most often utilized methods of alternative dispute resolution. Mediation is a form of alternative dispute resolution where a neutral third party facilitates settlement discussions between the parties. During the process, the mediator will focus the parties' attention to their needs and interests. The mediator has no authority to make a decision or impose a settlement. Rather the resolution of the case, or lack thereof, rests solely on the parties themselves. A successful mediation will often save both parties the large expense of litigating the issues at trial.
If all previous attempts at settlement have failed to resolve outstanding issues, the case will go to trial for the judge and/or jury to decide. Litigating issues at trial will be expensive and may also be detrimental to children involved in the dispute. At trial, each party will have the opportunity to present his or her case and present witnesses and evidence to support their claims. A judge will have the final decision in matters concerning child custody, visitation, and attorney's fees. However, the judge or a jury in a jury trial will decide financial issues: child support, alimony, division of property, and division of debts. The decisions of the judge and/or jury is written into a court order that is binding upon both parties.