The basic legal steps to get a divorce in Georgia are to 1) file a “complaint” seeking a divorce, 2) get the other spouse “served” with this complaint (and other required documents), 3) complete “mediation” if all issues aren’t settled, 4) appear at a trial if necessary to conclude the case. As a part of this process, other steps may be required or desirable.
A divorce case is “domestic litigation” in Georgia. A case is started when one spouse files a “complaint” with the correct Superior Court and then has that complaint (with all required documents) “served” on the other spouse. The law specifies information that must be included in the complaint. The complaint must state the relief sought, such as custody of children, child support, alimony, property division, injunctive relief, or attorney fees; failure to request something may lead to a waiver of the right to seek such relief.
There are “jurisdictional” requirements. One of the spouses must have been a Georgia resident for at least six (6) months before a complaint is filed. Unless waived, the complaint must be filed in the right Superior Court, which is determined by the county of residence(s) of the spouses. The state of Georgia is broken down into counties, and a defendant in a law suit, which includes the defending spouse in a divorce case, has the right to be sued in the county where they live, with an important exception that applies only to divorce cases. Each county has its own Superior Court so any divorce complaint should be filed in the right county.
The defending spouse must be “personally served.” This means the Sheriff’s office of the county where the case is filed must physically hand a copy of the filed divorce complaint and all other required documents to the defending spouse. If that spouse has moved to another Georgia county within six (6) months, or works or is temporarily in another Georgia county and can only be served in that county, the complaint and other required documents must be sent or taken to the Sheriff’s department in that county for service. A court authorized “process server” may complete this service instead of the Sheriff’s office.
If the defending spouse is living out of Georgia, there is a method to get he or she served in another state, which is prescribed by Georgia law and which must be followed strictly.
A defending spouse may waive service by the Sheriff or a process server by signing an “acknowledgment” of service. Caution should be exercised in signing such a form to make sure no other rights, such as a right to a trial or a jury trial, are waived.
Once a complaint is served, the defending spouse, referred to as the “defendant,” has thirty (30) days from the date of service to “answer” the complaint, which must be done by filing a written answer with the clerk’s office where the case is filed. There are requirements and rules for such answers. Care is required or the defending spouse may prejudice their position in the case. A copy of the answer must be sent to the spouse who filed the complaint.
If the defendant doesn’t file an answer, he or she will be in “default,” and the spouse who filed the complaint may simply appear before a Judge and have the Judge award the filing spouse what they want, without any notice to the defendant.
The defendant may also include in his or her answer a “counterclaim” for divorce, which must include specific information (the information required for a complaint) and can include requests for “relief” in the case such as seeking a division of property, seeking alimony, asking for custody of a child or children, seeking child support, etc. Like a complaint, there are general format requirements.
The answer and/or counterclaim of the defendant complaint must state the relief sought by the defendant, such as custody of children, child support, alimony, property division, injunctive relief, or attorney fees; failure to request something may lead to a waiver of the right to seek such relief.
If all issues aren’t settled, the spouses will have to attend “mediation,” which will be conducted by a trained mediator who will attempt to help the spouses work out a settlement. The spouses will normally split the cost of this mediator who will charge for his or her time by the hour.
Other procedures may very well apply to a divorce case. If a spouse needs or wants to address issues on a “temporary” basis, such as who will live in the marital home, who will pay mortgage payments, or who will pay temporary child support until the divorce case is completed, the law allows the Judge to address these issues in a court hearing, if certain rules are carefully followed.
Certain procedures are authorized by the law that allow the parties to prepare their cases, such as “discovery” procedures. Issues about discovery requests may arise which the Judge can resolve upon proper written motion.
Almost all Georgia Superior Courts require divorcing parents to attend a seminar for divorcing parents, before a divorce can be finalized, to learn about how to parent after a divorce.
The course of a divorce case beyond the above steps depends on the issues, whether or not the spouses have settled or do settle these issues, the procedures the parties employ, the rules and procedures of the Superior Court where the case is filed, the Judge assigned to the case, and many other factors. Although all Superior Courts in Georgia must follow a state-wide set of rules, in practice each Superior Court Judge has his or her own approach and conventions for dealing with divorce cases.
In most Georgia counties, a divorce case will be assigned upon filing to a particular judge. In some counties there is a domestic “division,” meaning that a particular judge or judges are assigned only divorce and other domestic cases. But in many counties, Superior Court judges handle all types of cases, criminal, civil, and domestic, and all cases are randomly assigned to a judge. There are counties where cases are not assigned to a particular judge and are handled by the judge holding court.
A divorce case is completed by a “final judgment and decree” which is court order signed by a Superior Court Judge. The signed decree must be filed in the Superior Court Clerk’s office to be legally valid.
A Judge may not sign a final divorce decree if any issue in the divorce case is not resolved. There are specific legal requirements for what must be included in a final decree including specific documents that must be attached to the final decree if there are minor children involved. The law provides for the format of these documents.
Getting a final decree depends on the course of a divorce case. If all issues are settled between the parties, either before the case was filed, after the case was filed, or at mediation, a proposed final decree with all required attached documents can be submitted to the assigned Judge, along with proof of certain required information by an “affidavit” of the spouse who filed the case (or the spouse who filed a counterclaim for a divorce). There are technical legal requirements for the affidavit, which include stating that the parties continue to live separately and the marriage continues to be irretrievably broken, if this is the ground for the divorce. A final decree with all required attached documents can also be submitted to a Judge when he or she is holding court, in which case the spouse presenting the decree must testify under oath to provide the required information.
Settlements are subject to the approval of the Judge. Therefore, settlements must be in writing, usually in the form of a contract known as a “settlement agreement.” If there are minor children, a settlement agreement must incorporate a “parenting plan” regarding custody and parenting time with respect to the child(ren) and a “child support worksheet” regarding child support. In addition, if there are minor children, a settlement agreement must include facts about the incomes of the parties, the availability and cost of health care insurance for the child(ren) and the cost of any daycare or childcare that is provided for a child. In reviewing a settlement agreement and/or a parenting plan, the Judge has the power to disregard or require changes to a child custody parenting plan even if agreed to by the spouses. Provisions for child support to which the spouses agree must be examined by the Judge including the required child support worksheet, and the Judge may require adjustments or refuse to accept any agreement between the spouses with respect to child support. Other provisions in a settlement agreement are subject to review by the Judge, although it is rare for a Judge to refuse to approve agreed upon property division or alimony.
If all issues are not settled, there will be a trial to complete a divorce case. Each spouse in a divorce case can opt for a jury trial on all the issues except child custody and attorney fees. This option has to be requested in writing, before a trial starts. If neither spouse opts for a jury trial, the Judge will hear and decide the case. If a spouse opts for a jury trial and custody of any minor child is at issue, the Superior Court Judge must decide this along with all associated issues, which he or she does by having a final hearing on custody. Then there will be a jury trial on all the other issues. If there is no child custody issue, either because there are no minor children or custody has been settled, there will be a jury trial.
When a scheduled week of trials is upcoming, the Judge’s office may send out a list of divorce cases that are old enough to be “ready” for a trial with instructions (or not) that the Judge will have a court “Docket” or “Calendar” Call on a certain date to go through the list and determine what cases will be tried and in what order. Failure to attend court on the date it will be heard to respond to this docket can result in a dismissal of the divorce case or the Judge may enter a divorce decree against the spouse who does not appear granting the relief the appearing spouse wants.
The above summary does not cover every possible procedure that may apply to a divorce case in Georgia. As a specialized form of civil litigation, divorce cases are subject to numerous general and technical rules that apply to all civil cases, plus numerous general and technical rules that apply only to divorce cases.
While forms for court documents make navigating the Georgia divorce legal system much easier, failure to understand what certain forms actually mean can result in a failure to achieve something a spouse needs or wants to achieve in a divorce case, or worse, damages in the form of loss of property or money. For these reasons, it is wise to hire a lawyer to assist with a divorce.