Divorce Documentation & Procedure


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Separation

Separation

Georgia does not have a “separation” requirement, as many other states require. In fact, in divorce proceedings in Georgia, unlike other states, you can continue to reside together in the same marital home and be considered "separated". The expense of having to maintain two separate homes (while separated) was part of the reasoning on this issue. Some states actually require the couple to live separate and apart for up to a year. Additionally, some states require the parties to bring witnesses to court to testify as proof of the separation. Georgia only requires that the parties are in a "bonafide state of separation", regardless as to whether they continued to reside in the same marital residence.

Waiting Periods

Second, let's look at "waiting periods". A divorce can be obtained in Georgia in as little as thirty-one (31) days from the date of filing the divorce action. The parties may sign a "Consent To Trial" which permits the divorce to be concluded in as little as thirty-one days. However, bringing finality in a divorce action in thirty-one days is applicable to "uncontested divorces", as the parties would have entered into a "Settlement Agreement" resolving all issues pertaining to division of assets/property, marital debts, minor children, etc. If the divorce is contested; however, the parties will, no doubt, engage in discovery to determine assets, debts, etc., prior to having a final hearing. Discovery is allowable for up to six months from the date the Defendant files his/her Answer.

Discovery

Discovery includes interrogatories (questions that must be answered under oath), "requests for production of documents" or "notice to produce" which require the parties to turn over certain documents pertaining to property, finances, debts, investments, employment, etc. Discovery may also include depositions in which a party is required to testify under oath with all questions and testimony being taken down (typed) by a court reporter.

During the discovery period, phone records, social media accounts (i.e., Facebook, Twitter, etc.), text messages, e-mail, are all fair game.

Mediation

Mediation is available to the parties should they so desire to mediate the issues of their divorce action. In fact, some courts will require that the parties go to mediation. A mediator is an independent, neutral party who listens to the issues and concerns of each party and attempts to help the parties reach an agreeable resolution. In the event that some, but not all issues are resolved in mediation, then a mediation agreement will be signed by the parties as to those issues that were resolved. The remaining unresolved issues will be determined by the Court at trial.

Service by Publication

In the event that the Plaintiff does not know the whereabouts of his or her spouse, a diligent search must first be initiated to attempt to locate the spouse, and an affidavit of diligent search must be filed at the time the Complaint for Divorce is filed. Additionally, a notice must be placed in the local legal organ (newspaper) for the County in which the Plaintiff resides. After the expiration of sixty (60) days from the date of publication, the attorney may request a trial date to conclude the divorce action.

Documents

Some of the documents associated with a divorce action may include:

  • Complaint for Divorce
  • Verification
  • Child Support Worksheet
  • Permanent Parenting Plan
  • Settlement Agreement
  • Alternative Dispute Resolution
  • Mediation Agreement
  • Consent to Trial
  • Acknowledgment of Service
  • Motion for Judgment on the Pleadings
  • Parenting Seminar
  • Interrogatories
  • Request for Production of Documents
  • Notice to Produce
  • Notice of Deposition
  • Temporary Order
  • Disclaimer of Representation
  • Temporary Protective Order
  • Contempt Order
  • Domestic Relations Financial Affidavits
  • Child Support Addendum
  • Notice of Publication

A divorce action is initiated by the filing of the "Complaint for Divorce". Included in this document are, the names of the parties, a paragraph stating that the Plaintiff has been a resident of Georgia for at least six (6) months prior to filing the complaint, where the Defendant may be served, the names and dates of birth of any minor children born into the marriage, a paragraph addressing the income of the parties, the grounds for the divorce, and what relief the Plaintiff is seeking (alimony, child support, attorney's fees, the marital residence, investments/assets, etc).

The Complaint must be verified under oath. Therefore, a signed, notarized "Verification" is required for any complaint or petition filed in court.

Whenever minor children are an issue, both parties are required to complete and file a "Domestic Relations Financial Affidavit". In this document, the parties are required to disclose income, monthly expenses, debts, and assets. Information is obtained from this document to prepare the "Child Support Worksheet".

The "Child Support Worksheet" is an online computer generated document. Years ago, in computing child support, Georgia only took into consideration the income of the non-custodial parent (typically, the father). However, now Georgia takes into consideration the income of both parents. In the "Child Support Worksheet", the income, health insurance, and child care expenses are entered. If either parent is unemployed, Georgia permits the entry of "imputed income" (based on minimum wage) for the unemployed parent. Accordingly, if a parent is unemployed, income in the amount of $1,256.00 may be entered for that party. The child support worksheet will calculate the presumptive child support contribution for each party.

The "Child Support Addendum" is another document required when minor children are involved. The gross income of each party, the number of children, the presumptive child support, any deviation for the presumptive child support amount, health, dental and vision insurance, uninsured health care expenses, parenting time, social security benefits, and any modifications are addressed within this form.

Also, a "Permanent Parenting Plan" is required. The Permanent Parenting Plan addresses primary physical custody (whether sole, or joint), legal custody (sole or joint), and a visitation schedule. Some judges will not require a Permanent Parenting Plan if all issues are adequately addressed within the Settlement Agreement.

For "uncontested divorces", as well as, divorces that commence as "contested" but ultimately settle, a "Settlement Agreement" (or "Mediation Agreement") is required. All issues pertaining to the divorce should be adequately addressed in the Settlement Agreement (e.g., the marital home, custody of the children, child support, division of property, division of debts, health insurance, division of other assets, investments, pensions, taxes, visitation, alimony, attorneys fees, etc). No issues pertinent to the divorce should be left out of the Settlement Agreement. Otherwise, there is a likelihood that the parties will be back in court within a few months or even years arguing about some issue that was not adequately addressed or not addressed at all in the Settlement Agreement.

Most judges will require the parties to go to mediation, also known as, "Alternative Dispute Resolution", if the divorce is "contested". If the parties reach agreement as to ALL issues pertinent to the divorce, at times, the parties will submit a "Mediation Agreement" in lieu of the "Settlement Agreement". Otherwise, legal counsel for one of the parties will prepare a "Settlement Agreement" based on the agreement reached during mediation.

In order for the "uncontested divorce" to become final (i.e., concluded) in as short as thirty-one (31) days from the date of filing the divorce action, the parties are required to sign a "Consent to Trial" which must be notarized.

In "uncontested divorce" actions, since the parties have reached agreement as to all issues, the Defendant typically signs an "Acknowledgment of Service". This avoids the necessity of the Plaintiff having to retain the services of the Sheriff's Department to serve the divorce documents on the Defendant. By signing an "Acknowledgment of Service", the Defendant is acknowledging that he/she has received a copy of the Summons and Complaint for Divorce.

If the divorce is "uncontested" or if the parties have finally reached agreement as to all issues in a "contested" divorce, the parties may wish to conclude the divorce by filing a "Motion for Judgment on the Pleadings". This permits the judge to enter a final order on the divorce action without the necessity of either party appearing in court to present evidence.

Finally, if minor children are involved in a divorce action, both parties are required to attend a "Parenting Seminar". This seminar typically lasts approximately four (4) hours and addresses issues pertaining to the minor children. More information on the parenting seminar may be obtained by contacting the Clerk of the Superior Court for the county in which the divorce action has been or will be filed in. In the event that the Wife wishes to return to her maiden name, her "Name Change" can be granted in the Final Judgment and Decree of Divorce without the necessity of having to file a separate name change petition which would require the payment of filing and publication fees.