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Georgia Divorce Requirements

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DIVORCE

Under Georgia Law, you have the right to represent yourself in all legal cases, including divorce.

The legal term for representing yourself is "pro se," pronounced "pro say") which is Latin for "on your own behalf." Representing yourself is not a good idea for everyone. It is important to understand that by representing yourself, you may be giving up important rights. It is very important for you to find out if your spouse has a pension, retirement account, insurance or other significant property before you decide whether to file your own divorce. If you do not ask for such things in the divorce, you will give them up forever.

Before you file for divorce on your own, you need to talk to your spouse, if possible, and find out how he/she feels about the divorce and about the issues mentioned above. This will give you an indication on how to proceed with the divorce.

The law limits the authority of the court to grant divorces (known as a question of jurisdiction-can this court hear this divorce?). The law also dictates when the court has jurisdiction over a divorce proceeding.

Within Georgia, the Superior courts have jurisdiction to hear divorce cases. Generally, the Superior court with jurisdiction for your case is the Superior court in the county where you live or the Superior court in the county where your spouse lives. When you file the relevant papers, you must have stated your grounds for that court to have jurisdiction. If not state correctly, your spouse could file a motion to dismiss your case.

After you file your papers, your spouse has 30 days (if your spouse lives in Georgia), 60 days (if your spouse lives outside of Georgia, but in the United States), or 90 days (if your spouse lives outside the United States) to respond to your request for divorce (known as a Complaint.  If your spouse fails to respond, the court will proceed with the divorce so long as service of process has been completed correctly. Whether or not your spouse responds, you are the main witness at the final hearing and will have to appear before the court. In some cases, however, you will be able to avoid a hearing and the Judge will grant you a divorce based upon the pleadings, but only if you have an executed Marital Settlement Agreement and you spouse has signed an Acknowledgement of Service and Consent to Jurisdiction form. If you have signed a Settlement Agreement, you may arrange to have the final hearing any time 31 days after the Defendant was personally served (of the Acknowledgement of Service was filed with the Clerk).  At the end of the hearing, the court will decide at some later time (normally 30 days) to grant a divorce and a settlement of marital issues.

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RESIDENCY

In order to start the divorce process you must file a complaint in the Superior court where you or your spouse lives. In your complaint or at the hearing, you will have to meet the residency requirement for the ground you specified above. Divorce laws apply only to the residents of a state, and each state has its own residency requirements. To secure a no-fault divorce in Georgia,  the residency requirement is six months in Georgia. You must file for divorce in your county of residence.  A non-resident may file for divorce against a spouse who has been a resident of Georgia for six months.  The divorce must be filed in the county in which the respondent resides.  The law absolutely requires that you or your spouse has been a resident for the stated period of time immediately prior to and at the time that you file for a divorce. For example, you cannot have lived in Georgia for six months before moving to Nebraska for another six months and then come back to Virginia to file for a divorce. However, after you have filed, you can move anywhere in the world.

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SAME STATE, DIFFERENT ADDRESSES

You do not have to remain at the same address to fulfill your residency requirement. You can move anywhere within the state from which you are filing. The forms do not require you to list all addressees, but you should be prepared to prove where you lived during the separation in the final hearing.

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PROOF OF RESIDENCY

Your residency is substantiated by your sworn complaint. The testimony is all that most courts require to verify residency. But cases have been dismissed and even overturned because of improper proof of residency.

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RESIDENT VERSUS NONRESIDENT

A court may take on a divorce proceeding even if your spouse is not a resident of Georgia. If you or your spouse move to another state after the divorce has been filed, you may still have your case heard in Georgia.

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HOW TO ESTABLISH RESIDENCY

Register to vote. Get a driver's license. Get a job. Open charge accounts. Register your car. Take out a library card. The list is endless. But whatever you do, do not maintain a residence in another state that could imply that you do not intend to remain in the state from which you file.

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COUNTY JURISDICTION

Georgia has counties that govern which court your divorce will take place in. This is called venue. The divorce must be filed where either the plaintiff or defendant resides or where either is regularly employed or has a place of business. There are other tests for meeting the venue requirements.

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DIVORCE: Fault and No-Fault

Divorce is the ending of a marriage ordered by a court. In Georgia, however, you could ask for two types of divorce: a final divorce and a legal separation.  When the court decrees (orders) a final divorce, it means that the divorce is permanent, permits remarriage, and terminates property claims. When the court decrees a separation, it means that the divorce is not permanent, does not permit remarriage, and does not terminate property claims (but the separation may settle these claims); it serves only to legalize the separation and provide for support. You are not required to get a separation before you can get an absolute divorce - there is a common misconception that you need a legal separation in order to get a divorce. This is not the case.

In Georgia you can get a divorce if there is no hope that you and the Defendant can save the marriage. This is known as "no-fault" divorce. Most divorces are granted on the single ground that the marriage is "irretrievably broken." It is not necessary to show any wrongdoing or fault

Annulment establishes that your marital status never existed. The court will declare that you were never married. An annulment is a declaration by a court that a marriage never existed: It was never a valid marriage in the first place. Because the courts rarely grant an annulment, you should think twice about using this route if you want to end your marriage. The court may look to, but is not limited to, the legitimacy of children and the preservation of the sanctity of marriage. Because of these consideration a court will look to granting a divorce instead of an annulment

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Grounds

There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the state. You cannot simply break up, saddle your charger, and ride off into the sunset. Among other legal considerations, you have to give the state an acceptable reason why you should be allowed to break up. The reason is known as the ground for your divorce. Over the years each state has enacted legislation that governs acceptable grounds.

 There are different grounds for a divorce, separation, and annulment.  In Georgia, there are 13 grounds for divorce.

  • impotence;
  • adultery;
  • conviction/imprisonment of over 2 years for an offense involving moral turpitude;
  • alcoholism and/or drug addiction;
  • confinement for incurable insanity;
  • separation caused by mental illness;
  • willful desertion;
  • cruel and inhuman treatment which endangers the life of the spouse;
  • habitual drunkenness;
  • consent to marriage was obtained by fraud, duress, or force;
  • spouse lacked mental capacity to consent;
  • wife was pregnant by another at the time of marriage unknown to the husband, and;
  • incest

(Code of Georgia Annotated; 19-5-3)

Any one of these grounds, if proved, will result in the complete dissolution of the marriage (look to each ground in order to find out how to prove that ground). You can file for divorce under more than one ground: for instance, adultery and desertion.

The grounds for a legal separation a similar to the grounds for divorce.

Although any one of these grounds is enough for a limited divorce, a limited divorce will not completely terminate your marital status. In order to do so you must either seek an absolute divorce or an annulment.

There are two characteristics of a "totally void" marriage:

  • the marriage posses some defect rendering it susceptible to collateral attack (some evidence that shows the marriage never happened or should have never happened) even after the death of one or both spouses; and
  • no direct step or proceeding to annul is necessary (although the latter may be desirable).

One such defect is if your spouse was formally married to someone else and still has not divorced that person. Your marriage to this spouse is considered totally void.

Another defective marriage is one done between "blood" relatives. There is also a provision that a minor of 16 and 17 years of age or younger than 16 could not marry unless the statutory provision of the Family Law code §2-301 is met.

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WAITING PERIODS FOR ABSOLUTE DIVORCE

Under each ground for an absolute divorce, there is a provision for when you can bring the lawsuit against your spouse to the court. However, if you claim that your spouse committed adultery, you can bring the action for absolute divorce at any time. As long as you can fulfill the residency requirement (discussed in the residency section) there is no time limit when claiming adultery. In a claim of desertion, however, you may have a time-limit problem. Whether the desertion was actual or constructive, you must wait a year after the event of desertion before you file for an absolute divorce. For a voluntary separation, you must have been voluntarily separated for at least 12 months without cohabitation before you can file for absolute divorce.

If your spouse has been convicted of a felony or misdemeanor with a sentence of at least three years or an unspecified sentence in a penal institution, and has served 12 months of that sentence, you can then file for absolute divorce. In a two year separation, before filing for absolute divorce, you and your spouse must have lived separate and apart, without cohabitation for two years without interruption. Finally, if your spouse has been confined to a mental institute, hospital or other similar institution for at least three years, you can then file for an absolute divorce, provided you have met the residency required for this particular ground.

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ADULTERY

Adultery is sexual intercourse between a married person and someone other than the spouse. In Georgia, neither cunnilingus nor fellatio, which the law defines as sodomy, is a ground for divorce and generally neither is considered adultery. The sexual intercourse must involve some penetration of the female organ by the male organ, but a "completion" of the sexual intercourse is not required.

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HOW TO PROVE ADULTERY

There probably is no such thing as a pleasant adultery case; because names, dates, places, paramours, and the like have to be brought out in the open. If your spouse no longer cares about what you know and is open about the affair, you're lucky. You can then catch your spouse flagrante delicto, which means you have your spouse in the flagrant wrong and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he (she) witnessed.

Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.

Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the paramour are generally sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering the paramour's apartment at 11 P.M. and not coming out until 8 A.M. the following morning and that they were alone. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition. When you think about it, this seems to make sense.

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NAMING THE CO-RESPONDENT

Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person.

THE ADULTERERS

Adulterers are not equal under the blanket of the law. In Georgia, adultery may impact custody if the adultery is proven to have harmed or impaired the children. Adultery does not necessarily affect alimony awards in Georgia. It will, however, be a factor for consideration in awarding alimony.

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CONDONATION

Generally, if you knew your spouse committed adultery but continued to live and cohabit with your spouse, then adultery cannot be used as a ground. Once you resume marital relations, after you learned of the adulterous act, the courts feel that you have forgiven, or "condoned," the act. But, if your spouse starts having affairs again, you can then sue on grounds of adultery. Or, if your spouse has had several affairs and you knew of and condoned only one, you may file on adultery regarding the newly discovered affairs.

In Georgia, however, condonation does not necessarily bar the action for divorce; it now only a "factor for consideration."

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CRIMES

If your spouse has been convicted-not simply charged-of a crime, that is a ground for divorce in Georgia. The conviction can be for either a misdemeanor or a felony in any state, and the spouse has to serve at least 12 months of a minimum three-year sentence in a penitentiary or penal institution.

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DESERTION AND ABANDONMENT

For all practical purposes, desertion and abandonment are one and the same. .There are two elements that have to be present in order to constitute desertion: the willful desire or the intent to desert and the cutting off of the marital relationship. In Georgia, the abandonment has:

  • continued for 12 uninterrupted months;
  • must be willful and malicious;
  • beyond any reasonable expectation of reconciliation.

There are two types of desertion-actual desertion and constructive desertion.

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ACTUAL DESERTION

When your spouse packs bags, books, and toothpaste, walks out the door, moves into another apartment, and stays there, he or she is guilty of actual desertion. The spouse voluntarily leaves and has no plans to return except perhaps to pick up a forgotten belonging.

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CONSTRUCTIVE DESERTION

You also can be deserted even if your spouse does not leave. If your spouse's behavior is so cruel or despicable that you find yourself dialing suicide prevention, you can leave and charge your spouse with constructive desertion. Constructive desertion is basically defined as one person leaving the relationship-not necessarily the home. The following are some cases of marital misconduct that have been applied to constructive desertion:

Willful refusal of sex, without just cause and nonperformance of other marital duties as to practically destroy the home life. The denial of sex alone does not constitute desertion. The spouse also has to stop carrying out the mutual responsibilities of the marital relationship.

Conduct that endangers a spouse's life, safety, health, and even self-respect (although an isolated assault or two will not necessarily constitute cruelty unless the act was particularly severe and atrocious).

One spouse's failure to move if, for example, the other gets a job transfer. The exception is if one spouse's choice of domicile is unsafe or unsuitable for the other.

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IF THE DESERTER RETURNS

Your spouse has left you, spent six months chasing butterflies, and suddenly wakes up one morning and decides that you are the one after all. In good faith, your spouse shows up at your doorstep and begs you to forgive and forget. In Georgia, if you say yes, then all is well. But if you say no and refuse to even see or listen to your spouse, then, strange but true, your spouse could sue you for desertion. The waiting period would start all over again beginning with the time of your refusal. Keep in mind that "good faith" is the key. If, for example, your husband deserted you and then tried to return only after realizing what the high costs of his alimony and legal fees would be, his desire to return would not necessarily be considered "good faith".

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INSANITY

Your spouse must be judged permanently and incurably insane and be confined in an institution or a hospital for a minimum of three years before filing. To prove insanity, two or more psychiatrists are needed to testify that your spouse is incurable and that there is no hope of recovery. The court will appoint an attorney to act in the defense of your spouse whom you purport to be insane. These costs are usually borne by you. In Georgia, you also must be a resident for two years before filing.

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BIGAMY

Knowingly entering into a bigamous marriage is also a ground for divorce.

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GROUNDS FOR LIMITED DIVORCE OR LEGAL SEPARATION

Many people who, for personal or religious reasons, do not wish to obtain a full divorce can get a "limited divorce" instead.   A party who wishes to live apart permanently, but who does not want to get a divorce, may file a "separate maintenance" action.  Limited divorces are very much like an absolute divorce with the major difference being that the parties cannot remarry. You are, in effect, still legally married at the same time that you are legally separated.

In order to obtain a limited divorce in Georgia, you must meet residency requirements, grounds, and other legally prescribed laws just as you have to in a case for absolute divorce. Limited divorces can also can involve property settlements, alimony, and child support and custody.

The grounds for obtaining a limited divorce in Georgia are cruelty or excessively vicious conduct to complainant or minor child; desertion; and voluntary separation beyond any reasonable expectation of reconciliation. The court may require that the parties participate in reconciliation efforts.

The Georgia courts may grant a limited divorce even though you are seeking an absolute divorce. The courts also may decree these divorces forever or for a limited time only. And finally, Georgia's limited divorces may be revoked by the courts at any time upon the joint applications of the parties to be discharged. In such cases, you return to the state of being legally married.

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PROVING GROUNDS FOR LIMITED DIVORCE OR LEGAL SEPARATION

In order to prove the grounds for a limited divorce, you must go through the same processes of proof as you would in a case for an absolute divorce. The courts give the same serious weight to limited divorces as they do to absolute divorces.

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