Georgia Divorce Law

Divorce in Georgia is referred to as a Total Divorce.

Residency Requirement:

To file for divorce in Georgia, one party must be a resident of the state for at least six months prior to filing.

Military Personnel:

Any person who has been a resident of any U.S. army post or military reservation within the state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the U.S. army post or military reservation.

Filing:

The Petitioner, filing party, may file a Petition for Divorce in a superior court of the county where a party has been a resident for the prior six months.

The same rules of pleading and practice applicable to ordinary civil actions shall apply to actions for divorce, alimony, and custody of minor children.

If one of the parties requests it, the divorce action may be heard and decided by a 12-person jury. However, only a judge shall make a determination of custody of a child.

Spouse’s Name:

In all divorce actions, a party may request the restoration of a maiden or prior name in his/her pleadings. The final judgment of divorce shall then specify and restore to the requesting party the name requested in the pleadings.

Georgia provides for several fault-based grounds for divorce and one no-fault method. The legal grounds for dissolution in the state are as follows:

1. Intermarriage by persons within the prohibited degrees of consanguinity or affinity (parent and child or stepchild, brother and sister – whole or half, grandparent and grandchild, aunt and nephew, or uncle and niece);
2. Mental incapacity at the time of the marriage;
3. Impotency at the time of the marriage;
4. Force, menace, duress, or fraud in obtaining the marriage;
5. Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;
6. Adultery in either of the parties after the marriage;
7. Willful and continued desertion by either of the parties for the term of one year;
8. The conviction of either party for an offense involving moral turpitude, under which he/she is sentenced to imprisonment in a penal institution for a term of two years or longer;
9. Habitual intoxication;
10. Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health;
11. Incurable mental illness;
12. Habitual drug addiction; or
13. The marriage is irretrievably broken.

Grounds due to mental illness may only be alleged if the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party, and he/she has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and a chief executive officer of the institution and one competent physician appointed by the court make a certified statement under oath that recovery of the party’s mental health cannot be expected at any time during his/her life.

Regarding the grounds that the marriage is irretrievably broken, the court shall not grant a divorce until not less than 30 days from the date of service on the Respondent.

For a divorce to be granted on the grounds of adultery, desertion, cruel treatment or intoxication, neither of the following may be true:

• The adultery, desertion, cruel treatment or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing the divorce;
• The complaining party consented to the adultery, desertion, cruel treatment or intoxication;
• Both parties are guilty of like conduct; or
• There has been a voluntary condoning of the act(s) complained of and subsequent cohabitation.

Annulments of marriage declared void by law may be granted by the superior court, unless children are born or are to be born as a result of the marriage.

Actions for annulment are filed in the same manner as those for a divorce, including jurisdiction, residency requirements. However, a decree of annulment may be ordered at any time, in open court or in chambers, when personal service is had at least 30 days beforehand and no contest or answer is filed.

In Georgia, if a divorce is granted for a cause rendering the marriage void originally, it will annul the marriage from its inception. Voidable marriages include the following:

• Intermarriage between parties within the prohibited degrees of consanguinity or affinity, as in divorce grounds;
• Either or both parties did not have the mental capacity to enter into a contract;
• One of the parties was under the age of 16 at the date of the marriage;
• One of the parties was forced to enter into the marriage;
• One of the parties was fraudulently induced to enter into the marriage; or
• Bigamy.

In Georgia, an annulment can only be granted to the innocent party.
 

Although a decree of annulment has the effect of a total divorce between the parties and returns them to their former single status, it will not relieve the parties of criminal charges or responsibilities incurred by the marriage.

Georgia is an equitable distribution state. All marital property is subject to division. When the parties are unable to reach a settlement agreement regarding property division, the Superior Court will make a property award and issue a decree within the Divorce Decree.

First, it will determine which property and debt is to be considered marital. It will then assign a monetary value on the marital property and debt. Finally, it will distribute the marital assets between the two parties in an equitable fashion, which is meant to be fair, but not necessarily equal.

Marital property generally includes all property that was acquired during the marriage, regardless of how it is titled. Gifts from one spouse to another are marital property if they were purchased with marital funds. Pensions and business interests that were developed by one spouse are considered marital property if they were acquired during the marriage.

Non-marital property is typically considered the property acquired before marriage; through inheritance or by gift from a third party, unless there is a valid agreement stating otherwise; and property directly traceable to any of these sources.

There are no factors listed in the statutes regarding what is considered by the court when determining the division of property. The court cannot transfer title to property from one spouse to the other. Instead, it will award money to one party to compensate him/her for the other party keeping property that is deemed marital. In this manner each party receives his/her separate property and an equal dollar-value share of the marital property.

Alimony is an allowance out of one spouse’s estate, made for the support of the other spouse when living separately. It is either temporary or permanent.

A party is not entitled to alimony if a court determines that the separation between the parties was caused by that party’s adultery or desertion. In all cases in which alimony is sought, the court shall receive evidence of the factual cause of the separation even though one or both of the parties may also seek a divorce, regardless of the grounds alleged or granted by the court.

In all other cases where alimony is sought, it is authorized but not required, to be awarded to either spouse in accordance with the needs of the spouse and the ability of the other spouse to pay. In determining whether or not to grant alimony, the court shall consider evidence of the conduct of each party toward the other.

If either of the spouses dies before the court’s order on the issue of alimony, any rights of the other spouse to alimony shall survive and be a lien upon the estate of the deceased spouse.

Permanent alimony may be granted in cases of divorce; voluntary separation; or where one spouse, against the will of that spouse, is abandoned or driven off by the other spouse.

When determining the amount of alimony, if any, to be awarded, the court will consider the following factors:

• The standard of living established during the marriage;
• The duration of the marriage;
• The age and the physical and emotional condition of both parties;
• The financial resources of each party;
• Where applicable, the time necessary for either party to acquire sufficient education or training to enable him/her to find appropriate employment;
• The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
• The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
• Any other relevant factors as the court deems equitable and proper.

Alimony will terminate upon the remarriage of the party receiving the alimony, unless otherwise provided.

When the parties separate voluntarily or one spouse, against his/her will, is abandoned or driven off by the other spouse, if they have contracted or created some other written agreement making an adequate provision for the support and maintenance of that spouse, consistent with the means of the paying party and the former circumstance of the spouse, it bars the right of the recipient spouse to permanent alimony.

When there is no voluntary contract or agreement, if one party applies for it, the court may require the other party to make provision for the support of the requesting spouse and for any minor children in the custody of the requesting party.

In the event that there has been no divorce and the spouses cohabitate after voluntary separation, abandonment, or driving off of a spouse, it will annul and set aside all provisions made for permanent alimony. This is only if the rights of their children will not be affected by this subsequent voluntary cohabitation.

Custody:

When custody of any child is at issue between the parents, each parent must prepare a parenting plan or they may jointly submit a parenting plan. It will be in the judge’s discretion as to when a party must submit the parenting plan to the judge. It shall be required for permanent custody and modification actions, and in the judge’s discretion, may be required for temporary hearings. The final decree in any legal action involving child custody will incorporate a permanent parenting plan.

A parenting plan should generally include the following:

• A recognition that a close and continuing parent-child relationship and continuity in the child(ren)’s life will be in the child(ren)’s best interest;
• A recognition that the child(ren)’s needs will change and grow as the child(ren) matures and demonstrate that the parents will make an effort to parent that takes this issue into account so that future modifications to the parenting plan are minimized;
• A recognition that a parent with physical custody will make day-to-day decisions and emergency decisions while the child(ren) is residing with him/her;
• That both parents will have access to all of the child(ren)’s records and information, including education, health, extracurricular activities, and religious communications;
• Where and when the child(ren) will be in each parent’s care, designating where the child(ren) will spend each day of the year;
• How holidays, birthdays, vacations, school breaks, and other special occasions will be spent with each parent including the time of day that each event will begin and end;
• Transportation arrangements, including how the child(ren) will be exchanged between the parents, the location of the exchange, how the transportation costs will be paid, and any other matter relating to the child(ren) spending time with each parent;
• Whether supervision will be needed for any parenting time, and if so, the particulars of the supervision;
• An allocation of decision-making authority to one or both of the parents with regard to the child(ren)’s education, health, extracurricular activities and religious upbringing, and if the parents agree these matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution; and
• What, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child and the other parent’s right to access education, health, extracurricular activity and religious information regarding the child.

A parent seeking emergency relief for family violence will not be required to submit a parenting plan with respect to custody issues.

In custody issues, there will be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent. Joint custody may be considered as an alternative form of custody by the judge, and at any temporary or permanent hearing the judge may grant sole, custody, joint custody, joint legal custody, or joint physical custody as appropriate.

The duty of a judge when determining child custody is to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his/her award accordingly.

In determining the bests interests of the child the judge may consider any relevant factors, including the following:

• The love, affection, bonding, and emotional ties existing between each parent and the child(ren);
• The love, affection, bonding, and emotional ties existing between the child(ren) and his/her siblings, half siblings and stepsiblings, and the residence of such other children;
• The capacity and disposition of each parent to give the child(ren) love, affection, and guidance and to continue the education and rearing of the child(ren);
• Each parent’s knowledge and familiarity of the child(ren) and the child(ren)’s needs;
• The capacity and disposition of each parent to provide the child(ren) with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
• The home environment of each parent considering the promotion of nurturance and safety of the child(ren) rather than superficial or material factors;
• The importance of continuity in the child(ren)’s life and the length of time the child(ren) has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
• The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child(ren);
• The mental and physical health of each parent;
• Each parent’s involvement, or lack thereof, in the child(ren)’s educational, social, and extracurricular activities;
• Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child(ren);
• The home, school, and community record and history of the child(ren), as well any health or educational special needs of the child(ren);
• Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
• The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child(ren) and the other parent, consistent with the best interest of the child(ren);
• Any recommendation by a court appointed custody evaluator or guardian ad litem;
  
• Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
• Any evidence of substance abuse by either parent.

In addition to these factors, he/she shall consider as primary the safety and well-being of the child(ren) and of the parent who is the victim of family violence.

A child who has reached the age of 14 years shall have the right to select the parent with whom he/she desires to live, unless it is determined not to be in his/her best interest. In the case of a child who is at least 11 years of age but not yet 14, the judge shall consider he desires and educational needs of the child in determining which parent shall have custody. However, the judge has complete discretion in making his/her determination, and the child’s desires are not controlling.

Family Violence and Visitation or Parenting Time:

A judge may award visitation or parenting time to a parent who committed one or more acts involving family violence only if the judge finds that adequate provision for the safety of the child(ren) and the parent who is a victim of family violence can be made. Subsequently, in the visitation or parenting time order, the judge may order the following:

• An exchange of the child(ren) to occur in a protected setting;
• That visitation or parenting time be supervised by another person or agency;
• That the perpetrator of family violence attend and complete a certified family violence intervention program as a condition of the visitation or parenting time;
• That the perpetrator of family violence abstain from possession or consumption of alcohol, marijuana, or any Schedule I controlled substance during the visitation or parenting time and for 24 hours preceding it;
• That the perpetrator of family violence pay a fee to defray the costs of supervised visitation or parenting time;
• That overnight visitation or parenting time is prohibited;
• A bond from the perpetrator of family violence for the return and safety of the child(ren) be required; and
• The imposition of any other condition that is deemed necessary to provide for the safety of the child(ren), the victim of family violence, or another family or household member.

Whether visitation or parenting time is allowed or not, the judge may order that the address of the child(ren) and the victim of family violence will be kept confidential. Furthermore, the judge will not order an adult who is a victim of family violence to attend joint counseling with the perpetrator of family violence, as a condition of receiving custody of a child or as a condition of visitation or parenting time.

Support:

Georgia bases child support guidelines on a Flat Percentage of Income Model. The formula is generally based on the number of children and a percentage of the gross income of the parent paying support.

The percentages used are as follows:

17 to 23% for one child;
23 to 28% for two children;
25 to 32% for three children;
29 to 35% for four children; and
31 to 37% for five or more children.

Basic child support obligations may be adjusted by health insurance and work related child care costs. In any case before the court involving child support, the court may include in the order of support a provision for life insurance on the life of either or both parents for the benefit of the minor child(ren). The court may order either or both parents to obtain and maintain the life insurance.

Deviations from the standard child support formula obligation may be applied if supported by required findings of fact and application of the best interest of the child standard. No deviation will be made, however, if it would seriously impair the ability of the custodial parent to maintain minimally adequate housing, food, and clothing for the child(ren) being supported by the order and to provide other basic necessities.

Approved deviations may be based upon some of the following factors:

• High income;
• Low income;
• Other health related insurance;
• Life insurance;
• Child and dependent care tax credit;
• Travel expenses;
• Alimony;
• Mortgage;
• Permanency plan or foster care plan;
• Extraordinary expenses;
• Parenting time; and
• Nonspecific deviations.

Child support obligations shall continue until the child(ren) reach the age of majority, dies, marries, or becomes emancipated, with the exception of an unmarried, non-emancipated child at the age of majority, who is enrolled in and attending a secondary school, but is younger than 20 years of age.

Georgia does not recognize legal separations, nor does it have provisions for court actions regarding legal separations. However if a couple chooses to separate, whether they intend to divorce or not, they may obtain an order for Separate Maintenance to provide for division of real estate and personal property; support for the spouse and children, if applicable; responsibility for debts and legal fees; health and life insurance arrangements; and custody and visitation of any minor children.

Separate Maintenance is a lawsuit which may be filed in Georgia to address all issues which could be addressed in a divorce except for the actual granting of the divorce. Also, unlike a divorce, the couple does not have to reside in Georgia for any set period of time before they can file for a Separate Maintenance agreement.

To file for Separate Maintenance, one must have a valid marriage and the couple is living in a bona fide state of separation. There can be no pending action for divorce or the action for Separate Maintenance will be dismissed.