Alternatives to Divorce
Child Support and Visitation
Marital Assets in Divorce
- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: Yes
- Property Distribution: Equitable
Grounds For Divorce
Georgia is one of the states which allows both no-fault divorce and divorce with grounds. If both spouses agree that the marriage is irretrievably broken, then the couple can obtain a no-fault divorce provided the waiting period and other conditions are met.
In Georgia, the following can be considered grounds for divorce:
- Alcohol or drug addiction
- Desertion for one year
- Felony conviction and imprisonment for two years during the marriage
- Force, duress or fraud to become married
- Impotence (undisclosed prior to marriage)
- Incurable mental illness or mentally incompetent
- Intermarriage between close family members (first cousin marriage permitted in Georgia)
- Wife becomes pregnant by another man without the husband’s knowledge
It is important to know that the grounds for divorce must be proven with evidence.
Divorce Waiting Periods
To obtain a divorce in Georgia, one of the spouses must be a resident of the state for six months prior to filing for divorce. The waiting period depends upon the situation.
- No waiting period for divorce filed with grounds
- 30-day waiting period for no-fault divorce, starting on the date the couple files for divorce
- 120-day waiting period for no-fault divorce if the couple has children
In some states there is an opportunity to become legally separated. The advantage of a legal separation is that on the date of the legal separation, any new assets or debts belong to the individual, not to the couple. Georgia does not have this option. You are either married, or divorced, or the marriage can be annulled.
An annulment is a way of ending a marriage by having the marriage declared invalid. It is as though the marriage never actually occurred. There are several causes or reasons which can be used to obtain an annulment including:
- Duress or intoxication at the time of the marriage
- Marriage between two individuals of the same sex
- Marriage of relatives closer than first cousins
- One or both parties was incompetent at the time of the marriage
- Underage marriage
A religious annulment is an entirely separate matter and is handled by the church or other religious institution.
Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution is a way of working with natural third parties to reach agreement with your spouse without going to a trial. There are several forms of ADR. The form of ADR that is permitted in Georgia is mediation.
Mediation involves a neutral third party, usually a retired judge, who works with the spouses to come to an agreement regarding child custody, division of property, alimony and child support or any other issues. The mediator has undergone special training, and will not be taking “sides” but will instead work toward finding agreement.
If the couple comes to an agreement, it is considered binding. This means that if the agreement is not followed, it is as though a contract has been broken. Most, although not all, counties in Georgia permit mediation as a path toward divorce.
To learn more about divorce in Georgia, contact a divorce attorney today to schedule an appointment for a free case review.
Two of the most contentious issues a couple will face when they divorce are the division of property and child custody determinations. If the couple can agree on a child custody arrangement, through mediation or other means, the court will typically agree to it. The court, however, is not required to agree and will make final child custody determinations according to what is in the child’s best interest.
Child Custody Determinations
When a couple is divorcing in Georgia, the judge can decide the child custody determination, the child custody amount and the visitation schedule or parenting plan. The court does not prefer one spouse’s gender in terms of child custody, although there has been a preference shown for shared custody.
A divorcing couple has the right to request a trial by jury. The factors that are considered when deciding the legal and physical custody of the child or children are:
- Each parent’s ability to provide necessities of food, clothing and medical care
- Each parent’s physical and mental health
- Familiarity with the child’s health, educational and social needs
- Involvement with schooling and extracurricular activities
- Prior abuse or criminal history
- Sibling relationships
- The child’s wishes if the child is 14 years of age or older
- The home environment of each parent
- The parent-child relationship of each spouse
- The willingness to foster a positive relationship with the other parent
There are two forms of custody. Legal custody, which is typically shared, is the ability to make legal decisions on behalf of the child such as religious upbringing, schooling and medical decisions. Physical custody, which may or may not be shared, is the ability of the parent to have the child physically present. The physical custody is where the child lives.
When child custody is determined, the parents will need to determine a visitation or parenting plan. The couple can agree on a time-sharing plan, or one parent can submit a plan. In either case, it must be approved by the court. When parents share physical custody they develop a parenting plan. When one parent has sole physical custody, the other parent would have visitation rights, which would be according to a pre-determined schedule.
Both parents are considered financially responsible for their child or children until the age of 18, or until 20 if the child is still in high school. Georgia has a formula that it follows for child support. In general, child support combines the net income of the parents, and then assigns an amount of child support owed, which is divided according to the percentage each parent contributed to the combined net income.
To use round numbers, if one spouse earned $60,000 per year and the other spouse earned $40,000, their shares of the child support would be 60 percent and 40 percent. The court then adjusts the child support amount according to how much time is spent with each parent.
Child Support Enforcement
Child support that is ordered by the court must be paid. If the child support is not being paid, the parent who is owed the child support has several legal options for child support enforcement, including wage garnishment and withholding tax refunds. If the child support payor’s or payee’s situation changes significantly, it is possible to ask for a post-divorce child support modification which the court may, or may not, grant.
Occasionally a parent will ask the court for a determination of paternity so the parent can either obtain child support payments, or obtain visitation privileges. If the couple was married at the time of the child’s birth, paternity is assumed, regardless of a DNA test.
According to Georgia statute a grandparent may petition the court for visitation privileges. The court may grant grandparent visitation if it is in the best interests of the child or children. The court looks at many of the same factors as in a child custody case such as the home environment of the grandparents, and the existing relationship of the child to the grandparents.
In addition, the grandparent may “intervene” whenever there is a question regarding child custody, such as during divorce of the parents, when parental rights are potentially being terminated, or when there is an adoption by the child’s blood relative or a stepparent. Intervention is a legal term in which a third party, such as the grandparents, joins an existing legal action.
Determining the division of property and a potential alimony payment can be two of the most difficult decisions a couple will make. Georgia is a community property state, which means that all assets and debts belong to both spouses. Further, Georgia is a state which allows for an equitable division of property. This means the assets and debts will be divided in a way that is fair, although not necessarily equal.
The couple may determine how they would like the property to be divided, although the court will need to agree to the split. The marital assets which are divided include:
- All foreign assets
- All motor vehicles and boats
- All real estate holdings including the family home
- Any collectibles such as antiques, guns or coin collections
- Any secured debt such as home improvement loans
- Any unsecured debt such as credit cards
- Household furnishings and clothing
- Liquid funds in checking and savings accounts
- Retirement funds such as IRAs, 401(k)s and Keoghs
Alimony Or Spousal Support
Alimony, also called spousal support or spousal maintenance, is an amount of money one spouse is ordered by the court to pay to the other spouse. There are several types of alimony including:
- Temporary “pendente lite” alimony is paid by one spouse to the other during the divorce proceedings.
- Temporary rehabilitative alimony is an amount that can be paid, usually monthly, for a set time period during which the lesser income-earning spouse can retrain for a job or re-enter a career.
- Lump-sum alimony is an amount that is awarded once.
- Permanent alimony is an amount that one spouse will pay the other until such time as the spouse dies or the receiving spouse remarries.
Occasionally, life changes can impact child custody, child support or alimony payments. When those changes occur, either spouse can request a post-divorce modification from the court. Common reasons for modifications include: significant health changes for either ex-spouse or for the child or children; loss of employment; death; relocation to another state.