Residency Requirements and Grounds for Divorce
You must be a resident of Georgia for six months and a county resident to file for divorce. If you live out of state, you may file for a divorce against a spouse who has lived in Georgia for six months in the county where the spouse resides.
Either spouse can get a divorce simply by stating in divorce papers that the marriage is "irretrievably broken," without any need for showing any wrongdoing or fault.
If the spouses are not in agreement that a divorce should occur, the spouse wanting the divorce must prove one of the following grounds for divorce:
- Mental incapacity or impotency at the time of the marriage
- Desertion for one year
- Conviction of either spouse of a offense involving moral turpitude
- Habitual intoxication or drug addiction
- Cruel treatment that endangers the life or safety of the spouse
- Incurable mental illness
- Force, menace, duress or fraud in obtaining the marriage
- The wife was pregnant by a man other than the husband at the time of the marriage, and the husband didn’t know
The legal divorce process begins when one of the spouses files a "Petition for Divorce" with the Superior Court. The other spouse is then served with the paperwork and given time to respond. The court will not grant a divorce based upon the irretrievable breakdown of the marriage until at least 30 days after the other spouse is served. If the parties are in agreement about property and debt division, the divorce can be finalized without a trial. If the parties can’t come to an agreement, the court will set a time for a hearing, usually some time in the future.
After the Petition for Divorce has been filed, either party can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.
Dividing the Property
In Georgia, assets and debts acquired during your marriage are called "marital property" and will be divided "equitably" when you divorce. "Equitable" does not necessarily mean "equal," but what is fair to both spouses.
Not all property is considered "marital property":
- For example, property you inherit during the marriage generally is considered your own "separate property" and is not subject to equitable division
- Gifts given to you, except gifts you and your spouse give to each other, generally are not considered marital property
Judges have complete discretion in equitably dividing marital property and may consider any number of factors, including the conduct of the parties during the marriage. Other factors include:
- Each party’s separate assets and financial status
- Each party’s income and earning capacity
- Each party’s debts and future needs
It is important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth.
A court can order alimony in Georgia. A court will generally consider such factors as:
- The length of the marriage
- The financial resources of each party
- The time necessary for either party to acquire sufficient education and training to enable him/her to find appropriate employment
- The contribution of each party to the marriage
- The earning capacity of the parties
A court can order temporary alimony while the divorce is pending. Most alimony is ordered for a specific length of time.
Child Custody and Visitation
In Georgia, the court will make child custody decisions based on what is in the "best interest" of the child if the parents can’t come to an agreement. In deciding whether to grant sole or joint custody, the court may consider various factors, including:
- The fitness, character, personality and general health of the parents
- The wishes of the parents, if they are determined to be fit
- The wishes of the child, after taking into consideration the child’s age and maturity
- The ability of the parents to communicate with each other
- The prior and continuing care the parents have given the child
- Any history of domestic abuse
If there is a history of domestic abuse, the court will presume joint custody is not in the best interest of the child.
After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. It a parent is denied court-ordered access to a child, he or she may bring the issue back before the court. The judge may decide to modify the visitation order, order makeup visitation for the time missed or order counseling or mediation.