Generally
Family Law in Georgia includes Divorce, Child Custody, Legitimation, Paternity, and Separate Maintenance cases, referred to as Domestic Cases by the Superior Courts. Adoptions are specialized matters that are part of Family Law, as are Juvenile Court matters. Some Family Lawyers handle all of these matters, while many restrict their practices to only certain types of matters or cases.
Family Law also includes Family Violence and Stalking Petitions. These types of cases are designed to stop domestic violence and stalking and the law provides forms and requires that the court system make it easy to file these petitions and get immediate relief from a Judge.
With the exception of cases that must be filed and handled in Juvenile Court, Family Law cases must be filed in a Superior Court. In some Counties there is a Domestic Court or Division of the Superior Court.
In Counties with a Domestic Court Division, one or more Superior Court Judges assigned to the Division will handle Domestic cases.
The County Matters
Family Law matters are “County Centric.” These matters must generally be filed in the county of one of the parties. Because of this, and because of the nature of Family Law matters in general, the county where a matter is filed can make a huge difference. As an example, only one Judge can decide a Child Custody matter; a Child Custody case may and probably will be decided differently depending on the county in which it is filed. Furthermore, if there is more than one Superior Court Judge in a County or Circuit, that means there are multiple opinions about Child Custody and the likelihood of different results from the different Judges in different cases is very real, even if the facts are similar in those cases. And although the rules that apply to Family Law courts are the same statewide, how and when those rules are utilized and enforced can vary substantially from county to county and Circuit to Circuit.
Judges for the Superior Court are elected in and serve a “Circuit,” which is a grouping of Counties. Many Circuits consist of a county in which is located in a major city, surrounded by much smaller counties, and this means that the Superior Court Judges in that Circuit may live in the large city and appear as Judges in the smaller surrounding counties on some sort of rotating basis that the Judges determine. In larger counties in Georgia, cases will be “assigned” to one of several Superior Court Judges in the Circuit, and each of these Judges will most likely handle matters differently from other Judges in that Circuit.
Rules Governing Domestic Cases
Divorce, Separate Maintenance, Legitimation, and Paternity cases, must be filed in a Superior Court and are subject to some of the most complicated rules and forms in the Georgia court system. These rules include the provisions of the Georgia Civil Practice Act, statutes that specifically address these types of cases, separate statutes that govern issues that can be raised in these cases (such as Child Support and Child Custody), the Uniform Superior Court Rules, and the unwritten rules that every Superior Court Judge follows to handle and decide cases.
Specialized forms are required in these cases, to include a Domestic Relations Financial Affidavit, a Parenting Plan if there are minor children, a Child Support Worksheet if there are minor children, plus case forms that the Clerk of the Superior Court will require to file a case and file a final court order.
Adoptions must be filed in a particular county and completed in accordance with the Georgia Adoption Code, which is very detailed and has many specific requirements. Adoptions are not public matters and are heard “in chambers.” Contested Adoptions can be particularly difficult.
Juvenile Court cases are subject to the Georgia Juvenile Code and the Uniform Juvenile Court Rules, which provide specialized rules and procedures. Juvenile Court hearings and trials are not open to the public.
Trials in Domestic Cases
The Georgia Constitution guarantees the right to a Jury Trial in Divorce, Separate Maintenance, Legitimation, and Paternity cases, but this right is limited based on the issues.
Child Custody can only be decided by a Judge. This issue can be raised in any of the above cases. Legitimation can be decided only by a Judge. If there is a Child Support issue in a Child Custody or Legitimation case, this can be decided by a Jury Trial, so it is entirely possible that there will be 2 trials if a party requests a Jury Trial, one on the issue of Legitimation and/or Child Custody before the Judge and the other before a Jury on all other issues such as Child Support, Property Division, or Alimony.
The issue of Child Support can be decided by a jury, but the law dictates how a jury must decide the issue by detailed requirements a jury must follow.
Any issue other than Child Custody or Attorney Fees can be decided by a Jury in a Divorce case if one of the spouses requests a Jury Trial. This includes property division, alimony, division of debts as well as other issues that might be raised.
Can I represent myself in court in a Family Law case?
Sure, you can. People do it all the time. But the real question is should you?
For any number of reasons, many people decide to file a Family Law case themselves, without a lawyer. It is also common for those named as a Defendant in a Family Law case to represent themselves, pro se, even if the opposition has a lawyer. Many times, this is to save money by not having to pay a lawyer, or because the party doesn’t see any need to get legal help because the case is “simple.” When you don’t have a lawyer, you are considered a pro se party.
While a party can certainly represent themselves in a Family Law case, they should carefully consider whether this is a good idea or not. The Superior courts in Georgia are subject to many, many statutes and rules that can result in a big problems for a Pro Se party, since they cannot possibly know and understand all these rules and procedures. While there are Superior Court Judges who try to help Pro Se parties, the help that they can provide is very limited.
You will be at a disadvantage in court. Especially if there is a lawyer on the other side. You will not know what the judge is looking for or, importantly, why, and you will not find it easy to communicate in the manner that is required in court. Even if you think you know what you want to say, you may very well find that you cannot figure out how to be allowed to say what you want to say, because it is “not admissible” or “not relevant to the issues.” You may not even be able to get documents or records reviewed by the judge if you don’t follow certain procedures. And you will learn way too late that you can’t just stand up and tell the judge things you know because others told you so. Court is not a conference, it’s not a conversation; it is formal, it is conducted in a certain way, and it is governed by the Rules of Evidence, and other Rules. Gaining the necessary knowledge of all these formalities and rules and the ability to communicate in court is why lawyers go to school for 3 years.
Moreover, filing or defending any Family Law case is going to require many necessary documents. In fact doing anything in court in a Family Law case necessitates filing and “serving” certain documents. And responses to such filings are also required. And this doesn’t touch the tip of the iceberg. There are required financial forms, required documents if there are minor children involved, required documents and information in other documents about incomes and many other details if child support is involved. Even lawyers struggle to keep up with all this paperwork. Pro Se parties can’t possibly know about all the required documents and failing to properly prepare many of these documents can seriously jeopardize their position.
Aren’t there Forms Online to Do the Paperwork?
Sure are. Probably hundreds of web sites. Most commonly these are “do it yourself” Divorce forms, most often for “uncontested” divorces. But again, the real question is “Should you try to use do-it-yourself forms?”
Probably the most important factor in deciding whether to “do it yourself” in a Family Law case is the issues involved. By this, I don’t mean whether the case is “uncontested,” or “everything is or will be agreed on,” or “I’m not fighting her [or him].” What I mean is are minor children involved, what type of property or assets are involved, and is there anything, anything at all, about which the parties don’t agree, completely?
If there are minor children involved, the forms and documents that must be completed to handle a Family Law case are both required and important. Judges can and should refuse to grant a final order in a Divorce, a Legitimation or a Paternity case involving minor children unless there is an adequate, detailed Parenting Plan that complies with Georgia law, a Child Support Worksheet that follows Georgia Law, written findings that state certain required facts with respect to Child Support, and an adequate amount of Child Support. These documents should never be completed using “guesswork” or as “forms we just have to fill out” since a final order will incorporate these documents and a party who does not obey the Decree can be held in contempt and fined or jailed. Moreover, these documents will form the foundation or starting point if there is a subsequent Modification of Custody or Child Support case, and a party may find that what is in these documents incorporated in a final order will severely limit their options and may even foreclose modification.
As to property, online forms should be used in only very simple situations, such as there are no kids, no house owned, no joint lease on an apartment or house, no joint debts, no vehicles owned jointly, no retirement, no joint tax returns or no self-employment or small business schedules on joint tax returns, no other liabilities, and only some furniture and furnishings.
Almost anything else will cause problems with using online or form settlement agreements. As just one example, one common situation is “we don’t have any kids together and all we have is a house, 2 cars, and some small amount of retirement, and we agree on these things, so there’s no reason to pay a lawyer to get us divorced.” Most people think this is simple. It’s not.
What if the house and the mortgage(s) is(are) in both of their names? If they agree that one of them will keep it, how will they get the other person off the deed? Who pays the mortgage payments? What if they don’t pay and the other party’s credit gets ruined, because they are still on the mortgage(s)? Maybe they agree that the one who gets the house will “refinance” the mortgage(s) and thereby get the other party off these loans. What happens if the one who agrees to do this can’t actually refinance? If they agree to sell the house, and write out an agreement that states “The parties agree to sell the house…” who will live in it until it’s sold? What if they damage something? Who will pay the mortgage payments? Who will pay for the AC if it breaks? What price will it be sold for? Sell by Owner, or use a real estate agent? Which one? What if they can’t agree on a price, or can’t agree on whether to accept a contract? What if someone dies before the house is sold?
These questions and more are why many “simple” Divorce cases are not actually simple and why many spouses do need to at least talk to a good Family Lawyer. And no matter what many think, it is virtually impossible for non-lawyers to completely understand what is written in Divorce Settlement Agreements. What seems clear may be very unclear. Divorce settlement agreements can be some of the most complicated contracts written and it usually is an extremely good idea to have a good Family Lawyer at least look at a settlement agreement.
