The Divorce Process
In Georgia you can continue to reside together in the same marital home and be considered "separated". Georgia only requires that the parties are in a "bonafide state of separation", regardless as to whether they continued to reside in the same marital residence.
Divorce in Georgia can take as little as thirty-one (31) days from the date of filing the divorce action, by signing a "Consent To Trial". This is only for "uncontested divorces", through a "Settlement Agreement" resolving all the issues pertaining to division of assets/property, marital debts, minor children, and so forth. However, when the divorce contested; however, the parties will, no doubt, engage in discovery to determine assets, debts, etc., prior to having a final hearing. Discovery could take up to six months from the date the Defendant files his/her answer.
Discovery includes interrogatories (questions that must be answered under oath), "requests for production of documents" or "notice to produce" which require the parties to turn over certain documents pertaining to property, finances, debts, investments, employment, etc. Discovery may also include depositions in which a party is required to testify under oath with all questions and testimony being taken down (typed) by a court reporter.
Note: During the discovery period, phone records, social media accounts (i.e., Facebook, Twitter, etc.), text messages, e-mail, are all fair game.
Mediation is available to mediate the issues of the divorce action. Some courts require that the divorcing parties go to mediation. A mediator is an independent, neutral party who listens to the concerns of each party and attempts to help them reach a resolution. If some issues just cannot be resolved in mediation, then a “mediation agreement” will be signed by the parties as to those issues that were resolved. The remaining unresolved issues will be determined by the Court at trial.
Service by Publication
When a Plaintiff does not know the whereabouts of his or her spouse, a search must first be initiated to locate the spouse, and an affidavit of diligent search must be filed at the time the Complaint for Divorce is filed. Then a notice must be placed in the local legal organ (newspaper) for the County in which the Plaintiff resides. After the expiration of sixty (60) days from the date of publication, the attorney may request a trial date to conclude the divorce action.Documents associated with a divorce action may include:
- Complaint for Divorce
- Child Support Worksheet
- Permanent Parenting Plan
- Settlement Agreement
- Alternative Dispute Resolution
- Mediation Agreement
- Consent to Trial
- Acknowledgment of Service
- Motion for Judgment on the Pleadings
- Parenting Seminar
- Request for Production of Documents
- Notice to Produce
- Notice of Deposition
- Temporary Order
- Disclaimer of Representation
- Temporary Protective Order
- Contempt Order
- Domestic Relations Financial Affidavits
- Child Support Addendum
- Notice of Publication
Complaint for Divorce
A divorce action is initiated in Cumming, Georgia by the filing of the "Complaint for Divorce". Included in this document are, the names of the parties, a paragraph stating that the Plaintiff has been a resident of Georgia for at least six (6) months prior to filing the complaint, where the Defendant may be served, the names and dates of birth of any minor children born into the marriage, a paragraph addressing the income of the parties, the grounds for the divorce, and what relief the Plaintiff is seeking (alimony, child support, attorney's fees, the marital residence, the lake house, vacation home, investments/assets, etc). The Complaint must be verified under oath. Therefore, a signed, notarized "Verification" is required for any complaint or petition filed in court.
Domestic Relations Financial Affidavit
If minor children are an issue in the divorce, both parties are required to file a "Domestic Relations Financial Affidavit". The parties of the divorce are required to disclose income, monthly expenses, debts, and assets. Information from this document is used to prepare the "Child Support Worksheet". The "Child Support Worksheet" is an online computer generated document.
Child Support Worksheet
Georgia, in the past, only took into consideration the income of the non-custodial parent (typically, the father). Now Georgia takes into consideration the income of both parents. In the "Child Support Worksheet", the income, health insurance, and child care expenses are entered. If either parent is unemployed, Georgia permits the entry of "imputed income" (based on minimum wage) for the unemployed parent. The child support worksheet will calculate the presumptive child support contribution for each party.
Child Support Addendum
The "Child Support Addendum" is another document required when minor children are involved. The gross income of each party, the number of children, the presumptive child support, any deviation for the presumptive child support amount, health, dental and vision insurance, uninsured healthcare expenses, parenting time, social security benefits, and any modifications are addressed within this form.
Permanent Parenting Plan
The "Permanent Parenting Plan" is required. The Permanent Parenting Plan addresses primary physical custody (whether sole, or joint), legal custody (sole or joint), and a visitation schedule. Some judges will not require a Permanent Parenting Plan if all issues are adequately addressed within the Settlement Agreement.
For "uncontested divorces", and divorces that begin as "contested" but ultimately settle, a "Settlement Agreement" (or "Mediation Agreement") is required. All issues pertaining to the divorce should be fully addressed in the Settlement Agreement (e.g., the marital home, custody of the children, child support, division of property, division of debts, health insurance, division of other assets, investments, pensions, taxes, visitation, alimony, attorney’s fees, etc). No issues related to the divorce should be left out of the Settlement Agreement. If the Settlement Agreement is not handled properly, the parties will likely be back in court within a few years or even a few months, arguing about some issue that should have been addressed, but was somehow left off the Settlement Agreement, which is big and often costly and frustrating mistake.
Alternative Dispute Resolution
Most judges require both parties to go to mediation, also known as, "Alternative Dispute Resolution", if the divorce is "contested". If the parties reach agreement as to ALL issues pertinent to the divorce, at times, the parties will submit a "Mediation Agreement" instead of the "Settlement Agreement". Otherwise, legal counsel for one of the parties will prepare a "Settlement Agreement" based on the agreement reached during mediation.
Consent to Trial
In order for the "uncontested divorce" to become final (i.e., concluded) in as short as thirty-one (31) days from the date of filing the divorce action, the parties are required to sign a "Consent to Trial" which must be notarized.
Acknowledgment of Service
In "uncontested divorce" actions, since the parties have reached agreement as to all issues, the Defendant typically signs an "Acknowledgment of Service". This avoids the necessity of retain the services of the Sheriff's Department to serve the divorce documents. By signing an "Acknowledgment of Service", the Defendant is acknowledging that they have in fact received a copy of the Summons and Complaint for Divorce.
Motion for Judgment on the Pleadings
If the divorce is "uncontested" or if the parties have finally reached agreement as to all issues in a "contested" divorce, the parties may wish to conclude the divorce by filing a "Motion for Judgment on the Pleadings". This permits the judge to enter a final order on the divorce action without the necessity of either party appearing in court to present evidence.
Finally, if minor children are involved in a divorce action, both parties are required to attend a "Parenting Seminar". This seminar typically lasts approximately four (4) hours and addresses issues pertaining to the minor children. More information on the parenting seminar may be obtained by contacting the Clerk of the Superior Court for the county in which the divorce action has been or will be filed in. If the Wife wishes to return to her maiden name, her "Name Change" can be granted in the Final Judgment and Decree of Divorce without the necessity of having to file a separate name change petition which would require the payment of filing and publication fees.
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The McCormick Firm P.C.