Some common questions and information on the family law process and terminology.
Please contact Hoelting & McCormack for a consultation.
- How does the divorce process work?
- How long does it take to get a divorce?
- How long do I have to be separated before I file for divorce?
- Do I have to live in Georgia to file for divorce here?
- What are the grounds for divorce in Georgia?
- Do I have to go to court?
- Do I have to attend a class?
- Is there a waiting period for a divorce in Georgia?
- What is mediation?
- What is collaborative law?
- How is child support calculated in Georgia?
- What happens if my ex-spouse’s income goes up or down?
- What is legal custody?
- What is physical custody?
- Can a child custody and parenting time arrangement be modified?
- What is a Guardian ad Litem?
- What is a prenuptial or postnuptial agreement?
How does the divorce process work?
Each divorce is as unique as each family. It is important that your attorney understands the legal process, the practical implications of a particular strategy, and your individual needs and concerns. While a wide variety of issues have to be addressed in any divorce, most divorce cases involve resolution of the following matters: child custody and child support (where children are in the picture), spousal support (form, amount, duration, applicability or lack thereof), equitable division of marital property, equitable distribution of marital debt, assignment of separate property to the person who can prove that it is his or hers, and payment of attorneys’ fees (how much, if any, and from what source).
How long does it take to get a divorce?
The quickest way to be divorced is to resolve any and all issues between you and your spouse and to execute any and all of the requisite paperwork before a case is ever even filed – what we refer to as an “uncontested case.” Once the “uncontested” case is filed, the State of Georgia imposes a mandatory 31 day waiting period before the Court can enter the Final Judgment and Decree of Divorce. In its fastest form, in other words, a divorce may be entered in as little as 31 days. For cases that begin in a “contested” posture (meaning, they are not formally settled prior to being filed), or for those cases that proceed through the Collaborative Law process, the timeframe will be significantly longer, and an exact end date cannot be identified with specificity. Factors that impact how long these latter types of cases to resolve include, but are not limited to, the county in which the case is filed, the actions taken by you and by your attorney, the actions taken by your spouse and by his or her attorney, whether a Guardian ad Litem and / or other experts are involved in the case, and how your assigned judge handles his or her particular docket. We will do our best to keep you informed throughout the process as to how a certain event may impact the progress of your case.
How long do I have to be separated before I file for divorce?
You must be able to state, under oath, that you are maintaining a “bona fide state of separation” from your spouse when you file your complaint for divorce or any answer and counterclaim to a complaint for divorce. While Georgia law is a bit murky on this point, most divorce attorneys and most judges consider “separated” to mean that spouses are no longer having sex and are no longer occupying the same room in the house; you do not need to occupy separate residences in order to qualify for a Georgia divorce.
Do I have to live in Georgia to file for divorce here?
What are the grounds for divorce in Georgia?
A trial court can grant a Georgia divorce on the basis of “fault” or on the basis of “non-fault.” Some of the fault-based grounds for divorce are:
- Cruel treatment;
- Habitual intoxication;
- Habitual mental illness;
- The conviction of either party for an offense involving “moral turpitude;” and
- Willful and continued desertion of one of the parties by the other party for a period of one year.
It is somewhat antiquated to plead for “fault”-based divorce in Georgia since a divorce is also available through “non-fault.” To qualify for a “non-fault” divorce, a party must be able to state, under oath, that his or her marriage is irretrievably broken and that there is no hope for reconciliation. Sometimes there are strategic reasons why a “fault”-based divorce should be pled, and we will explain when and why we recommend that approach, should we believe it to be appropriate for your case.
Do I have to go to court?
Whether or not you must appear in court depends upon the county in which your divorce is filed, whether either party wishes for temporary relief that cannot be resolved by agreement, and whether either party wishes for final relief that cannot be resolved by agreement. Most cases are settled out of the courtroom on both a temporary and final basis. Even if the case is fully resolved by agreement, however, some judges ask that a party appear in person to finalize his or her divorce case by confirming, once again, that the marriage is irretrievably broken, that there is no hope for reconciliation, and that the agreement between the spouses and related documents should be incorporated into any Final Judgment and Decree of Divorce that is issued by the Court. Most of the time, a judge will receive an affidavit swearing to these statements in lieu of a physical appearance.
Do I have to attend a class?
If you have a child or children with your spouse, virtually all counties in Georgia will require you to attend a seminar for divorcing parents. Most of the classes are approximately four hours long, and some (depending upon the circumstances) can be taken on-line. You do not have to attend the class with your soon-to-be-ex-spouse. As part of our management of your case, we will send you a letter setting forth the information that you need to sign up for the parenting class in your particular county.
Is there a waiting period for a divorce in Georgia?
What is mediation?
Mediation is one way of resolving your case amicably and without the unpredictability and cost of placing your family disputes into the hands of a judge who comes to the courtroom every day with his or her own biases. The mediator is not an arbiter or a judge; he or she facilitates the settlement process by meeting with both parties in separate rooms and determining, by traveling between the respective sides and conveying offers between them, whether a settlement can be reached. As part of our management of your case, we will send you a letter setting forth a detailed description of the mediation process and our overall recommended approach to mediation.
What is collaborative law?
The collaborative law process provides a unique opportunity to resolve family law disputes in a non-adversarial manner and with the assistance of a team of seasoned experts, all of whom share the goal of making the divorce process as smooth and as amicable as possible. This collaboratively-trained assembly of professionals includes attorneys, coaches (mental health specialists), a child specialist, and a financial expert. Should spouses choose to engage in the collaborative process, they must formally agree to refrain from filing anything with the court while the process takes place. If the collaborative process fails, each party’s collaborative attorney must withdraw and he or she must start any traditional litigation process with a different attorney.
How is child support calculated in Georgia?
Judges calculate child support in Georgia based upon two core considerations: 1) a child’s needs, and 2) a party’s ability to pay. The Georgia legislature has attempted to address these two core considerations more concretely in the form of Georgia’s child support guidelines (embodied in O.C.G.A. Sec. 19-6-15) and in the form of an “income share” model of a child support worksheet where each party’s percentage contribution to the parties’ combined income is the basis for the child support calculation. The latest child support worksheet form can be found at http://www.georgiacourts.org/csc/.
As we often tell our clients, the Georgia child support worksheet is not magical and each side of a case can reach very different child support numbers based upon the same set of facts. Only upon rare occasions do parties agree upon all of the numbers that should be plugged into the worksheet, and therefore only upon very rare occasions do the respective child support worksheets match. Common areas of dispute lie in the following areas: the amount of a party’s variable income (the Court may average variable income such as bonuses over a “reasonable” period of time), the amount of childcare “reasonably necessary” to a party’s employment, and the amount of “special expenses” (such as private school or extraordinary medical expenses) that should be discretionarily included by the Court in the worksheet.
What happens if my ex-spouse’s income goes up or down?
Both child support and alimony are modifiable based upon a change in either party’s income and / or financial circumstances. Child support is also modifiable based upon a change in the needs of a child. While child support is modifiable downward or upward, alimony is typically only modified downward or terminated because the marital partnership on which an alimony award is based ceases upon divorce.
What is legal custody?
The term “legal custody” encompasses each parent’s right to information about his or her child, as well as his or her right to participate in caring for that child, educating that child, and forming his or her belief system. In the vast majority of cases, parties will share joint “legal custody” of their child and will each have equal access to any and all records regarding their child and any and all experts who have been consulted with respect to their child. They will also have equal rights to weigh in with respect to any major decision impacting their child.
If the parties cannot agree as to a major decision related to their child’s education, healthcare, religion, and / or extracurricular activities, however, then Georgia law requires that one party must possess “tie-breaking” final decision-making authority in each such area. That being said, both parties can make decisions in any emergency situation to protect a child’s health and / or welfare, and both parties are permitted to make day-to-day decisions with respect to care for a child as he or she may deem fit in his or her household.
What is physical custody?
Physical custody is what it sounds like: the legal arrangement governing where a child will be, physically, during weekdays, weekends, holidays, and summer vacation. If the parties are not “joint physical custodians,” then one parent will have more time with the child and will be designated his or her “primary physical custodian,” and the other parent will be given less time with the child in the form of a “parenting time” schedule. In Georgia, unless parties agree to joint physical custody, it is more common for a primary physical custodian / parenting time arrangement to result in court.
Can a child custody and parenting time arrangement be modified?
Yes. An existing child custody and parenting time arrangement may always be modified where 1) a material change of circumstances arises impacting a child; and 2) in light of that change, a different custody and parenting time arrangement is shown to serve the child’s best interests. Parenting time may also be modified once every two years at a particular party’s request without the necessity of proving a “material change.”
What is a Guardian ad Litem?
A Guardian ad Litem (“GAL”) is an individual appointed by the Court to represent the best interests of a child or children in a contested custody case. Unlike a legal guardian, the GAL does not have control over the person or the property of a child, and does not provide a home for a child. The GAL is also not an attorney for a child. What the GAL does is to undertake an exploratory investigation into what custody and parenting time arrangement may serve a particular child’s best interests. As part of that investigation, the GAL will ask the parties to complete questionnaires, will interview the parties, will spend time with the children, and will interview a host of collateral witnesses, including, but not limited to, mental healthcare providers, teachers, doctors, friends, and family. At the conclusion of the investigation, the GAL will make a recommendation to the Court as to what custody and parenting time arrangement will best serve the child’s best interests. The GAL’s recommendation is not binding upon the Court, but it does carry significant weight and is always seriously considered by the judge in any custody case.
If a GAL is appointed in your case (whether at our request or at the other side’s request), we will send you a detailed letter setting forth our overall recommended strategy with respect to the GAL’s investigation.
What is a prenuptial or postnuptial agreement?
A prenuptial agreement is a contract entered into by both parties prior to beginning their marriage that attempts to resolve, in advance, any and all financial matters that may arise in the context of divorce. A postnuptial agreement is an identical type of contract, but it is entered into after parties marry and sometimes in the context of a contemplated separation. These forms of agreements cannot pre-agree upon child support or child custody in any manner that is binding upon the Court.
Unfortunately, the entry into a prenuptial agreement or postnuptial agreement does not constitute a guarantee of outcome in a divorce or an assurance that attorneys’ fees will not be spent in the context of a divorce. Parties regularly dispute that such agreements are valid under a three-pronged test laid out in a case known as Scherer v. Scherer. The single most important consideration under Scherer is whether a party has fully and meaningfully disclosed his or her financial circumstances and income at the time of execution of a prenuptial or postnuptial agreement. The financial disclosures included in any prenuptial or postnuptial agreement are therefore the most critical component of the document.