Our Marietta Georgia divorce lawyers and Cobb County GA divorce attorneys are here to help you with your questions about how to get a divorce in Georgia. What are your rights? What are your likely obligations? What procedures are there to get you to a final divorce? This article containing information from Atlanta Legal Aid, discusses briefly the basic process of a contested divorce case and an uncontested divorce case.
It is always a good idea to have an attorney represent you when getting a divorce.
If you do not have an attorney, then you are representing yourself in court and are applying for a divorce “pro se” (pronounced “pro say”). You may be able to find forms and instructions on how to file for a divorce in the Clerk’s office or the courthouse law library. A few courts have a specific pro se section that will help you.
(1) File the Complaint for Divorce. First you file a Complaint for Divorce and tell the court why you want a divorce. You must tell the court why you want a divorce. There are specific reasons that the law will allow you to get a divorce. You must say which of the reasons you are asking the court to grant a divorce. In the Complaint you must also tell the court what you want the court to do. Do you want custody of any children you and your spouse have? Do you want the court to award you child support so that you can have money to take care of the children? How do you want the court to divide the property that you and your spouse have? There is a fee to file for a divorce.
You generally file the Complaint for Divorce in the Superior Court of the county where your spouse lives. You may file in the county where you both lived if your spouse moved to another county within six months of the date you are filing. If your spouse has moved out of state, you can file in your county.
(2) Service of Process – the Legal Way to Give the Complaint for Divorce to Your Spouse. You must have a copy of the Complaint for Divorce “served” on your spouse. This means that the sheriff or another “process server” will give the divorce papers to your spouse in the way that the law requires. This is called “service of process”. There is also a fee to have the Complaint served.
(3) Hearing or Trial. After your Complaint for Divorce is served on your spouse the spouse may file an answer. If your spouse does not file an answer, your divorce is considered to be “uncontested”. If there are no issues to be decided (such as child custody, child support, division of property, etc.) then the court will schedule a hearing where the court will make a final decision. If the divorce is contested by your spouse (when they file the Answer), the court may schedule the case for a temporary hearing or a trial.
Courts have different schedules for trying divorces. The court may require that the parties attend mediation. Check with the Clerk of Court concerning your court’s requirements.
Again, it is always a good idea to have an attorney represent you when getting a divorce.
I Have Not Seen My Spouse For Years and I Do Not Know Where My Spouse Is. Can I Still Get a Divorce?
Yes. You will need to tell the court that you tried to find the defendant. You give the court a signed, statement (an “affidavit”) where you:
- swear that to the best of your knowledge the whereabouts of your spouse (the defendant) are unknown
- swear that you have used reasonable diligence in trying to find out where the defendant is currently
- state what the last residence of the defendant was.
A notice must then be published in the newspaper that the court designates for such notices for four (4) consecutive weeks. If your spouse does not file an Answer within 60 days after the notice is first published, the court can grant the divorce at a hearing. NOTE: In a divorce by publication the court cannot award alimony, child support, or property situated outside of Georgia.
If your spouse does file an Answer, the court will schedule a trial.
My Spouse Now Lives in Another State, Can I Still Get A Divorce In Georgia?
Yes. If your spouse was a resident of Georgia at one time, you can request child support, alimony and property division. You will have to arrange to have the petition for divorce “served” on your spouse in the new state.
My Spouse Has Never Lived In Georgia, Can I Still Get A Divorce?
Yes, if you have lived in Georgia for six months or more. But if the court cannot get personal jurisdiction over your spouse then it can not award alimony or child support, or award property in another state. “Personal jurisdiction” means that there are enough connections between your spouse and the State of Georgia that the Georgia Courts have the power to make decisions that will affect your spouse. This is a complicated area of law.
Again, it is always a good idea to have an attorney represent you when getting a divorce.
SOURCE FOR POST: Atlanta Legal Aid Society Inc
The Superior Court Family Division uses Status Conferences to help parties resolve legal issues and possibly reach settlements prior to trial. There are 30-day, 60-day, and 120-day status conferences within the Family Division. During status conferences, parties meet with Judicial Officers or the Court to check jurisdiction and discuss issues in dispute and methods to resolve those issues. Discovery obligations are also reviewed and questions regarding temporary financial arrangements, possession of marital home, and child custody are discussed. During status conferences parties may also attempt mediation to resolve issues.
View a video clip of a 30-Day Status Conference
30-Day Status Conference on Contested Cases
Parties meet with Judicial Officers to check jurisdiction, venue, and to discuss issues in dispute and methods to resolve those issues. The Judicial Officer assigned to the case will check to ensure discovery obligations have been met. Questions regarding temporary financial arrangements, possession of marital home, and child custody are discussed. Mediation may be offered to resolve issues being discussed. A Guardian ad litem or Social Services Coordinator may be asked to investigate questions of child custody.
It is essential to the process that parties are prepared for their 30-day Status Conference. This will enable the Judicial Officer to move forward with the case. Parties subject themselves to the risk of having the 30-Day Status Conference rescheduled if the following items are not completed prior to the 30-day Status Conference.
Parties MUST complete the following documents and BRING to the 30-day Status Conference:
- Domestic Relations Financial Affidavit. Click here to download a PDF copy of the Domestic Relations Financial Affidavit for completion.Note: If Child Support is a legal issue in your case, the Georgia Child Support Commission’s Website has Excel Calculators and downloadable forms to assist in completing the calculations for Child Support.
- Answers to Interrogatories. Interrogatories are nothing more than questions. Each party must provide written answers to all Interrogatories (questions) and bring to the 30-Day Status Conference. Click here to download a PDF copy of the Interrogatories for each party to provide written answers.
- Required Documents to be Produced. It is mandatory that each party obtain certain documents and bring to the 30-Day Status Conference. Click here to download a PDF copy of list of the Required Documents to be Produced.
It is imperative that prior to the 30-Day Status Conference parties have thought about some of their issues and be able to clearly communicate these issues and wants to the assigned Judicial Officer.
For example, in a Divorce action, the Judicial Officer might cover with the parties the following: (this is not an exhaustive list)
- Any child custody issues?
- Parenting time? Should there be any restrictions on parenting time?
- How much for Child Support?
- Alimony? If so, how much?
- Retirement accounts to be divided? Bank accounts to be divided?
- Any property to be divided? What is the property?
- Any debt need to be divided? Any joint credit cards?
- Are there cars involved? Does each party own a car? Who will keep which car? Who will pay for each car? In whose name is it each car titled?
- Are there homes involved? Are there time shares involved? In whose name is each home or time share? Who will keep each house or time share? Who will pay each mortgage? In whose name is the mortgage, lease, or time share?
30-Day Status Conference on Uncontested Cases
At the 30-Day Status Conferences, cases in which the parties reached agreement before filing are presented to the Judicial Officer for review and entry of a Final Order. Some parties with contested cases are able to reach agreement at the status conference through the guidance of the Judicial Officer and the help of on-site mediation. The agreements are also presented to the Judicial Officer for review and entry of a Final Order.
SOURCE: Superior Court of Fulton County, Family Division
As the tax filing date for each year steadily approaches and you begin organizing and/or gathering documents to assist in your upcoming tax preparation for the prior fiscal year, you may want to consider whether you and your spouse are going to file married jointly or married filing separately.
Disadvantages of Separate Returns: Married couples who file jointly are taxed as if each spouse had exactly the same taxable income. Accordingly, substantial tax savings are realized by filing jointly.
Different tax rates on separate returns; earnings taxed separately: If you are separated from your spouse but still legally married by the end of 2006, you must file separately unless you and your spouse agree to file a joint return or a court has entered a judgment of legal separation. A later obtained judgment or marital dissolution does not relate back to an earlier year in which you and your spouse were married.
You and your spouse will each be taxed on your respective earnings separately. But you will each have to allocate income, treating income earned before the date of separation as community property (taxable half to each) and income earned after the separation date as the earning spouse’s separate property. If all income is community income so that the income and deductions are divided equally among you and your spouse, the total tax on separate and joint returns will be the same.
Restrictions on itemized deductions and child care credit: If you and your spouse file separate returns, you both must agree to itemize deductions. If not, then neither can. IRC Section 63(e)(1). No child credit may be claimed on a spouse’s separate return unless the other spouse was absent from the household during the last six months of the year. IRC Section 21(e)(4)
Allocation of tax liability: Separated spouses who are willing to file jointly should reach a clear agreement as to how the tax liability will be apportioned between them. A logical approach is to prorate the tax liability by using a ratio based on the parties’ separate incomes. In the alternative, spouses may chose to allocate liability based on what each would have paid if separate returns were filed.
Relief from tax liability: Generally, spouses who sign a joint return are each jointly and severally liable for the tax shown on that return, including any tax deficiencies, interest and penalties attributable to the other spouse. The liability exposure should be kept in mind when deciding whether to file jointly or separately.
Potential joint liability relief: A spouse wrongfully exposed to joint liability for deficiencies, interest and penalties may have recourse under an indemnification agreement or under various code provisions. For example: (1) ‘Innocent Spouse’ relief from liability for tax deficiencies attributable to erroneous items of the other spouse (IRC Section 6015(b)); (2) ‘Separate liability’ relief from liability for tax deficiencies (IRC Section 6015(c)); and Equitable relief from liability for tax deficiencies and underpayments (IRC Section 6015(f)).
Helpful assistance can also be found at the IRS Web site http:/www.irs.gov.
SOURCE: Adapted from a post by California Family Law Practice Blog
Have more questions about divorce and taxes? Please call our experienced Atlanta GA divorce attorneys for an in-depth strategy and planning session at 770-425-6060 or fill out an online contact form.
As a Georgia family lawyer, I have seen my fair share of courtroom battles. The saddest of these place the children of the marriage squarely in the middle. A recent news article explains how parents can avoid doing that. The article emphasizes that parents should remember:
- They will be connected forever. Parents must stay in touch with one another as co-parents and then as co-grandparents.
- They must maintain boundaries between adult problems and children. Children should be allowed to remain unburdened by adult problems. Children lack the coping skills and intellectual ability to understand adult concerns. They also must process their own feelings regarding the divorce.
- They must make transitions smoothly. Children get stressed when they are shuffled from home to home. Transitions should be brief and respectful. Children should not be asked to relay messages back and forth.
- They must be flexible. Parents must cooperate. Life changes, and parents should be mature enough to make some adaptations when necessary.
- They should deliver solid parenting. The quality of parenting can suffer during a divorce. A parent might be more focused on issues related to the divorce and on adjusting to a new phase in life. Parents should try to be the best parents they can be.
Our Marietta, Georgia family law firm handles both litigated and collaborative divorces. Contact the Georgia family law attorneys at Georgia Family Law: Worrall Law LLC for more information. You may reach us by calling 770.425.6060 or by filling out an online contact form.
Think “prenuptial agreement” and you think “I love you!”, right? Perhaps not! In my Marietta and Atlanta divorce and family law firm, I find that even though an important legal document like this can protect your bank account and other assets, many folks consider a prenup as a dealbreaker. According to Casey Bond, in an article published at GoBankingRates.com, asking for one can be construed as lack of trust by the party requesting it. Thus, it can be a challenge to persuade a potential spouse that having a prenup is a good idea when they have this attitude. This post summarizes Ms. Bond’s article on the radical concept of using postnuptial agreements to save a troubled marriage.
On the flip side, many engaged couples believe that signing a prenup is equal in importance to the marriage preparations as it is to reserve the church and register for gifts. But suppose you and your spouse chose not to enter into a pre-marital agreement concerning your finances and you now regret that choice? Your answer may be a postnup instead.
Prenup and Postnups : The Differences
Postnuptial agreements, often called post-marital contracts, are much less commonly used than prenups, but their popularity has been increasing in recent years. Essentially, these two contracts are created for the same purpose, but a postnuptial agreement is made after a couple has been married instead of doing it before the wedding.
The postnup’s purpose is to protect each spouse’s individual income and assets in case the marriage ends, whether as a result of divorce or death of one of the spouses. They are widely used in community property states where entitles one spouse is automatically to the other spouse’s assets when they become married. Remember, though, that every state’s laws and requirements surrounding postnuptial agreements are different.
Postnuptial Agreements: Who Needs Them?
Please understand that signing a postnup does not mean that you expect your marriage to end in divorce. These documents certainly are not for everyone, but a postnup can do a lot of good for many marriages under special circumstances:
Revising a Prenup: Many couples who choose to create a postnuptial agreement already have a prenuptial agreement in place. A postnup is often needed when one spouse has a significant shift in finances, like a promotion or inheritance, and the spouses find it necessary to modify the terms of the original prenuptial agreement. Indeed, there can be numerous changes to a postnup as the financial situation within a marriage changes over time.
Protect a Business: Many business owners will want postnups because a divorce could seriously threaten assets of the business or adversely affect outside partners and investors.
Fights About Finance: Any married person knows that finances and money are often a great source of strain on the relationship. This may be more true for some couples than for others. Occasionally couples who frequently argue over their finances and at risk of divorcing over the subject find that a postnuptial agreement can relieve that stress and once again strengthen the marriage.
Adultery: Postnups are also frequently used as resources for managing an unfaithful spouse. In marriages where a spouse has strayed and engaged in an adulterous relationship with another partner, the other may require in a postnuptial agreement that if it occurs again, the philanderer must pay a large amount of cash to their husband or wife. The question of whether or not this will actually improve the marriage is open to question.
Creating a Postnuptial Agreement
If you are already married and you believe the two of you need a postnuptial agreement, you should understand that the process is not as simple as writing up who-gets-what in case you get divorced and having a lawyer approve it. In Georgia, for a post-marital contract to be enforceable, both parties should have individual legal representation, they must provide full disclosure of each party’s financial situation (i.e., no secret bank accounts) and the contract should be reasonably fair to both parties.
In summary, if you find yourself in one of the categories listed above, You might can benefit greatly from having a postnuptial agreement and it could well be beneficial to create one. Whether it’s a business requirement, or whether it could actually save your marriage, if you believe a postnuptial agreement is a good idea, discuss it openly with your spouse. He or she may agree it is a good idea, too.
In our Marietta family law firm, we frequently prepare post-nuptial agreements and pre-nuptial agreements. Please contact us at 770-425-6060 to schedule a Georgia Family Law Strategy Session to discover more about these documents and whether they are appropriate for you and your spouse or spouse-to-be.
SOURCE FOR POST: Could a Postnuptial Agreement Save Your Marriage?, by Casey Bond in GoBankingRates.com