What is marriage?
Traditionally marriage is a civil contract that exists between two people of the opposite sex. In the past, marriage was considered to be between people of opposite genders. However, the times are changing, and same sex marriages are now being considered in some states. Only in very few states are same sex marriages actually legal. To be "capable of contracting", both persons typically must be of age (18), or have consent from a parent. Different states have different statutes on the "legal age" for marrying. The individuals must be unmarried and not divorced within the past six months.
What is common law marriage?
Common law marriage is only allowed in a small number of states. In a common law marriage, the individuals do not have a marriage ceremony and never obtained a marriage license to get married. Basically, a common law marriage requires an arrangement between the people (of opposite sexes) to act as husband and wife. This agreement can either be made by conduct or by words. The people involved must represent themselves (act in a way to appear to be married) to others as being married. For example, if they use the same name, call each other husband and wife, have children together, open joint bank accounts, and live at the same residence, all of these "indicia" of being married may be sufficient.
Before a divorce can be granted, the issues surrounding the custody of all of the children of the marriage must be determined. Child custody issues can also arise separate from divorce between biological parents who are separated but not divorced or between parents who have never been married to each other.
A relative who is not a biological parent cannot obtain custody of a child unless the court determines, by clear and convincing evidence, that it would be in the child’s "best interest" to live with a relative other than he biological parent. In Georgia, it is no longer necessary to prove that the parent is "unfit" before a relative can be awarded custody.
The court will award custody by using the "best interest" of the child standard. Under this standard, the courts will consider several factors, including:
- The wishes of the parents, which should be given special weight (assuming the parents are determined to be fit);
- the wishes of the child (in Georgia, a child who is 14 years old or older generally has the right to select the parent with whom he desires to live subject only to a determination that the parent is fit) (as of July 1, 2000, the Court must also consider the wishes of a child between the ages of 11 and 14 as to which parent they wish to live with, although this is not binding on the court and other considerations could override the child’s wishes).
- the interaction of the child with parents and siblings;
- the child’s adjustment in the home, school and community; and
- the mental and physical health and stability of the individuals involved.
In determining the "best interest" of the child, the court will sometimes appoint a Guardian Ad Litem to investigate the child’s situation and make a recommendation to the Court. The Guardian Ad Litem has a duty to act on behalf of the child, advocating the child’s preference if the child is old enough to express a preference. The Guardian Ad Litem’s recommendation is not binding on the court, but the court will usually take the recommendation into consideration.
The court may award "joint custody." The court may consider the agreements of the parties, if the agreement is in the best interest of the child. If a child is 14 years old or older, the child shall have the right to select the parent with whom he desires to live. The child’s selection will be controlling unless the parent is not fit.
It is now the policy of virtually all states to encourage joint legal custody of children whenever practical . Joint legal custody does not necessarily mean a 50:50 time sharing of the children, although some parents are very creative in working out a parenting plan doing just that, or at least close to it. Joint legal custody also does not mean that there won’t be any child support ordered. Joint legal custody is in reality is more a 50:50 sharing of the responsibility for decision making about the things that affect the lives of the children.
In the most ‘common’ joint custody plan, 1 parent has primary physical possession, and the non-custodial parent has the standard visitationof basically every other weekend, alternating holidays, and an extended period in the summer, and pays child support based on the Georgia State Child Support Guidelines. In the real world, joint legal custody is typically a parenting plan that keeps both parents actively involved in all of the major decisions impacting the child and gives the non-custodial parent a greater role in the lives of their children.
In determining custody, the court will consider the age and gender of each child, whether there are siblings, the relationships with the parents, and which parent has been the primary caretaker during the marriage. The court will also consider which parent, if given custody, will help the child maintain a healthy relationship with the non-custodial parent. The court almost always awards visitation to the parent not given custody. However, the court may consider family violence in making a decision about whether to award visitation to the non-custodial parent. If the parties are able to reach an agreement about custody and a visitation schedule, the court will usually approve the agreement if it is in the best interest of the child.
Orders providing for the support and custody of children are subject to modification after the divorce if there is a substantial change in the circumstances of the parties i.e. an increase or decrease in income or a change in the living arrangements of the children.
Depending on what county you are filing for divorce in, those families who have children will be required to attend an educational seminar as part of the adjudication process. For instance, Fulton County has a required education program entitled "Seminar for Parents of Minor Children" that address issue specific to "families in transition" which includes parties involved in divorce, separate maintenance, paternity, change of custody, visitation, legitimation, and other domestic relations matters involving children. It is a four hour program and both parties involved in the action are required to attend within thirty (30) days of the Court Order being served upon the Respondent/Defendant. There is a $30.00 non-refundable fee.
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.
This collection of definitions will help clarify some unique characteristics to the Georgia Divorce laws, process and paperwork which is filed with the court.
Filing Party Title:
The spouse who will initiate the Divorce by filing the required paperwork with the court.
Non-Filing Party Title:
The spouse who does not initiate the Divorce with the court.
In the Superior Court of _____________ County, Georgia
The proper name of the court in which a Divorce is filed in the state of Georgia. Each jurisdictional court typically has a domestic relations or a family law department or division.
Child Support Enforcement Website:
The state run office devoted to enforcing existing child support orders and collecting any past due child support.
In Re the Marriage of:
The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.
Initial Divorce Document:
Petition for Divorce
The title and name of the legal document that will initiate the Georgia Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.
Final Divorce Document:
Final Judgment and Decree
The title and name of the legal document that will finalize the Georgia Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.
Clerk’s Office Name:
County Clerk’s Office of the Superior Court
The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.
There are legal provisions in Georgia for an action for separate maintenance for spouses who are living separately, but not divorcing. The factors and conditions are the same as those listed below under Alimony/Maintenance/Spousal Support. [Code of Georgia Annotated; 19-6-10].
The applicable Georgia law that will dictate how property and debt is to be divided upon Divorce.
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.