VIEWS: 5 PAGES: 6 POSTED ON: 4/21/2010
What is a marriage? There are legal requirements for being able to form an enforceable contract with someone (i.e. you are of age, you are not under the influence of drugs, etc.). In the case of marriage, if you agree to marry and you consummate the marriage, your marriage will likely be considered valid. Certain obvious exceptions exist, of course, such as when an individual tries to enter into an existing marriage while still married to another. During our initial consultation we will give you a more complete explanation if you are concerned that your marriage may not be valid. What is "Common Law Marriage" and aren’t they invalid in Georgia anyway? Common Law Marriage is a term which generally meant that if you lived with someone, considered yourself married and held yourself out to the world as a married couple, then you were considered married. To be considered married under this theory, you did not need to have gone through a wedding ceremony. If you were indeed married under this theory, you remained married until a court granted you a divorce. In Georgia, this concept was eliminated as of January 1, 1997. However, if you were married under this theory prior to January 1, 1997, you will still be considered married under Georgia law. If you had lived a life with someone as described above, you should consult a divorce attorney before you “move on with your life”. Is there such a thing as an easy divorce? The divorce process can be complicated or simple, based in large part on how you and your spouse interact. The more the two of you can agree upon, the easier (and less costly) it will be. However, we acknowledge that, given the very nature of a divorce, a divorce can never be easy because of all of the things affected by it (i.e., emotions, health, children, finances, etc.) Does the Court have or need to be involved at all? Without a doubt. The Court will have to either determine the issues, or, if all issues are agreed upon, the Court will need to approve the final result. More importantly, only a Superior Court Judge has the authority to grant you a divorce. What grounds do I need for a divorce? In Georgia there are thirteen (13) grounds for divorce. The most commonly used ground, and only essential one, is "irretrievably broken" (also known as the "no-fault" ground). You need only establish that there is no hope for reconciliation between you and your spouse. The remaining grounds for divorce are considered the "fault" grounds, such as cruel treatment, adultery, intermarriage within prohibited degree, etc. What is 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. Do I need to live in the state of Georgia to get a divorce here? No. Generally, only one spouse must be living in Georgia and have lived in Georgia for at least six (6) months. That is, if you live out of state but your spouse has been living here for at least six (6) months you may bring a divorce action against your spouse. Does one person have to move out of the marital home to file for divorce? No, you just have to be considered "separated" in a legal sense. That is, you may generally be considered separated even if you continue to live together as long as you are not having sexual relations and otherwise conducting yourselves as husband and wife. Where do I file for divorce? Generally, a complaint for divorce should be filed in the Superior Court of the defendant's county of residence or, if the defendant no longer resides in the State of Georgia, in the county of the plaintiff's residence. With the defendant's consent, or if defendant had previously lived with plaintiff and has been gone for less than six (6) months, the complaint may be filed in the plaintiff's county of residence. Once I am served with a complaint for divorce what should I do? Immediately contact and consult with a divorce lawyer. You only have thirty (30) days to respond the complaint in writing. The lawyer will usually explain to you how to respond to the complaint so that all of your legal interests are protected. What if I need immediate help from the Court? 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 may issue a temporary order that applies only until the time of the final trial. What if I am a victim of violence? Secure your safety and then 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. What are my (or the other person's) child support obligations? In Georgia, both parents can be required to provide assistance to their children until a child reaches the age of 18 years if not in high school, graduates from high school if eighteen (18) years or older, reaches the age of 20 years and is still in high school, dies, marries, is emancipated or joins the military, whichever event occurs first. The non- custodial parent will generally be required to provide a reasonable amount of child support to the custodial parent to assist with living expenses. Child support may also include health insurance, payment of medical and dental expenses, and life insurance. Child Support Guidelines are in effect in Georgia. The guidelines are located in the Official Code of Georgia in §19-6-15. A calculation will need to be made to determine the appropriate amount of child support. The amount can vary based on various factors including time the non-custodial parent spends with the child(ren), the ages of the child(ren), day care costs, medical costs, education costs, significant income or debt of either party, and obligations to another household. Each year the legislature considers revising these guidelines, so check with a lawyer to be sure these guidelines are still in effect at the time your case is filed. There is a good chance these laws will change by the time your case begins. Additionally, the court will look at the budget of each party. Each party is required to prepare a Domestic Relations Financial Affidavit the court can then balance the income and expenses of each party when determining the appropriate level of child support (and/or alimony). What about college? The court cannot force parents to pay for college expenses. However, parents can agree between themselves to pay support beyond the age of 18 and/or to pay for college expenses. What is alimony? Alimony is a support payment by one spouse to another which, based upon various factors may be appropriate in a particular case. Alimony is generally not available to a spouse who caused the dissolution of the marriage by their adultery or desertion. Alimony may be for a limited time period or until the spouse receiving alimony dies or remarries, or may be paid in one lump sum. Again, the court will review the Domestic Relations Financial Affidavit when determining the issue of alimony. Factors the court will consider in determining alimony include the length of the marriage, health of each party, assets of each party, and the contributions of each party to homemaking, child caretaking, and career building of the other party. 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 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." What is a consultation? During the initial consultation we listen to all of the relevant facts and opinions about your case and try to make as thorough an evaluation of your as can be made in the one or two our session. Because the law is a matter of human behavior is difficult to determine exactly how a case will proceed; however, we try to leave the session fully informed as to what it will take to adequately represent your interests and also to have given you the confidence that you will make it through this most difficult time. What is a retainer and how is it used? The retainer fee is the amount we assess that it will take to adequately “get your case off the ground”. Because of the uncertainty of events in divorce actions we can not be certain that what you initially pay (the retainer) will be sufficient to get you through the entire proceeding. Once you have remitted your retainer we bill against the monies at the applicable contractual hourly rates (i.e., attorney $250, legal assistant $95, secretary $55, etc.) and costs. You will receive a Statement for Services Rendered every thirty (30) or so days. If you owe any monies during a particular billing cycle you have fifteen (15) days to remit said balance. If you have monies remaining on retainer at the end of the representation you will receive a refund for said balance. Please contact our office at (404) 768-4487 to arrange your consultation. Where can I find more information about divorce? There are many resources available. You might consider visiting www.fultonfamilydivision.com for information about the Fulton County Family Division Court. The best way to learn more about divorce or family law is to arrange a consultation with a family law attorney.
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