Divorce Frequently Asked Questions (FAQs)
What is a legal separation or separate maintenance? In Georgia, you are legally separated 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 will not grant you a "legal separation". Rather, you must swear that you are in an actual state of separation and then the court can grant a divorce or an Order for "Separate Maintenance". "Separate Maintenance" is a lawsuit which may be filed in Georgia to address all issues which could be addressed in a divorce case except for the granting of a divorce. Oftentimes people file a case for Separate Maintenance instead of a Divorce for differing reasons. Some of those reasons include religious or moral opposition to divorce or a desire to remain married for a legal benefit (to maintain insurance, social security, etc.) or other various reasons which a lawyer can discuss with you in detail.
What if we still live together when I file for divorce? That is fine, but spouses must be considered "separated" in a legal sense. Spouses may generally be considered separated even if they live under the same roof as long as they are not having sexual relations.
I just received a complaint for divorce from my spouse, now what? Quickly contact and consult a family lawyer. You have 30 days to "answer" the complaint in writing. The answer allows you to give "your side of the story" and to admit or deny each claim in the complaint. You may also file a "counterclaim" and seek a divorce in response to your spouse seeking a divorce.
Can I get the court to help me immediately? Either spouse may request a temporary hearing where issues of child custody, visitation, child support, alimony, debts and possession of property may be resolved on a temporary basis until final resolution. The judge will issue a temporary order that applies only until the time of the final trial. The temporary order may also prohibit the transfer or selling of assets, or prevent one party from interfering with the other party, or from interfering with the party's children.
What if there is violence? Call the police. Additionally, either a lawyer, or a social agency can assist a party in filing a lawsuit to prevent family violence. The court can immediately address issues such as temporary use of a home and restraining orders even if the parties are not married.
Will a judge or jury decide my case? If parties are not able to resolve their issues by mutual agreement, questions of child custody, visitation and attorney's fees can only be determined by the judge (not a jury). However, the judge or, if one of the parties requests, a jury, will resolve the financial issues of the marriage (i.e., division of property, division of debts, alimony and child support). Both spouses may introduce evidence by their own testimony and may also summon other witnesses to the final trial. The decision returned by a judge or jury is written into a court order that is binding upon both parties. At any temporary hearing, only the judge (not a jury) makes the decisions.
What about my children? Typically, until a court ruling or agreement, married persons share custody. The judge will try to fashion a custody plan which is in the "best interests of the child." The judge will consider many factors including the age and sex of the child, and the ability of each parent to care for and nurture the child. A child who has reached 14 years of age may generally choose which parent will have custody. A child who is age 11, 12, or 13 may speak to the judge, but the judge is not required to follow the child's wishes.
Can I share custody? Yes. The court can award joint custody instead of sole custody. There are two types of joint custody: (i) Joint legal custody, where both parents have equal rights and responsibilities for major decisions concerning the child; and (ii) joint physical custody, where 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. Regardless of the label, the parties should attempt to agree upon (or the court will decide) who has the right to make a decision affecting a child if the parties cannot agree.
What happens to "our" possessions now? 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. Contact a lawyer to discuss this matter if it is an issue in your situation.
How will the court orders be enforced? Court orders for money can generally be enforced by garnishment, attachments of property or by a contempt action. Custody and visitation orders may be enforced in a variety of ways from contempt applications to warrants for wrongfully taking or withholding a child.
How long will the whole process take? It depends. If you reach an agreement on all issues, the divorce is considered "uncontested," and may be granted 31 days after everything is filed (barring a change in Georgia law; check with an attorney as laws change and this time period is constantly subject to change). 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. Of course, if you reach an agreement while the case is pending, you can submit that to the court almost immediately and the case will be over and the divorce will be granted.
My spouse and I agree on all matters concerning the divorce, do we still need a lawyer? Hiring a lawyer, even when parties are in agreement on all terms, will ensure that all matters which should be covered in a divorce are addressed. Acting without a lawyer could end up being a costly error, both to the parties and to their children. Also, a lawyer may only represent one party, so each party should consult with a lawyer of their own choosing. Even if you agree on all issues, you may not recognize or realize potential, even unintended pitfalls which a lawyer may help you avoid. However, Georgia law does not require that you have a lawyer and if you can navigate the legal system and file the appropriate documents while following the applicable rules, it is possible to file and complete a divorce without lawyers involved. This is known as proceeding "pro se."
How much do lawyers cost? As is the case with any professional, cost varies from law firm to law firm. Lawyers cannot charge a "contingency fee" in a divorce case, so they charge either by the hour or a flat fee. Flat fees are rare, except when the case is truly "uncontested" and all terms have been agreed upon. 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 may serve either or both of two purposes: 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 will usually be $80.00 per hour or more for paralegals and from $200.00 to $500.00 per hour for lawyer time.
Our services are generally paid for on an hourly basis. You will be charged a retainer, the amount of which will depend upon the nature and complexity of your legal matter, and which will prepay for a certain number of hours of legal services. We will bill you on a monthly basis, and if and when the retainer has been expended, any balance due will be payable upon your receipt of the statement. Our billable services include telephone calls, conferences, drafting of pleadings and correspondence, attendance at depositions, mediation and any court proceedings should that be necessary, and any other time that the attorney or paralegals may spend on your behalf. There also may be certain costs which will be advanced on your behalf, such as filing fees, court reporter bills, appraisal fees, witness fees, mediator fees, and other expenses. These will not be incurred without discussion with you, and will be included in your monthly statement. You will be provided with a written explanation of our billing policy when you retain us, and any questions you have can be addressed at that time.
What Can I Do As A Client To Achieve A Good Result And Also Save Money In Legal Fees? Your relationship with our office is a partnership. We are committed to providing you the best legal services possible. Here are some guidelines to help us meet your goals and keep your legal fees down.
• Bring with you to our office any court documents, financial records, notes, diaries, or other written information you think may be important to your case.
• Be as brief as you can in conferences and telephone calls. Prepare a list of your questions so you won't forget to discuss something important.
• Arrange for childcare before you come to our office. We do not have facilities to properly watch your children and your conferences with us will be more productive if you are not distracted.
• Maintain a file with all correspondence, court pleadings, and mailings from our office.
• Always feel free to raise any questions you may have about our services or fees. The sooner problems are addressed, the quicker they can be resolved.
Sadness, anxiety, frustration, depression and anger are all common emotions experienced by our clients at one time or another, and we understand that divorce and custody disputes can be stressful and emotionally devastating. Expressing these feelings can be helpful to you and to us as we prepare your case and work towards achieving the legal results you want. However, we are not trained psychologists and we urge you to seek psychological or pastoral counseling if you are experiencing serious emotional distress. We will then be able to focus our efforts on your legal needs and your ability to make sound decisions will be enhanced.