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Henry Dahut, J.D.
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Georgia Divorce & Family Law Summary
Introduction
Deciding to pursue a divorce is a significant and often difficult decision that requires careful consideration.
If you are contemplating divorce in Georgia, understanding the state’s legal process and laws is an important first step. Being informed will help you through the complexities of divorce, from property division to child custody and support obligations.
You need to ensure you make well-informed decisions at every step of the divorce process.
This summary will guide you through many of Georgia’s divorce laws, highlighting key considerations and decisions you will need to make as you proceed.
If you are seriously considering a divorce, the sooner you consult a local and experienced divorce lawyer, the more prepared you will be to make informed decisions concerning your options.
Georgia divorce legal topics will be discussed in the following order:
- Residency Requirements
- Grounds For Divorce
- Legal Separation
- Property Division
- Maintenance – Spousal Support
- Child Custody
- Child Support
- Legal Name Change
- Mediation
Residency Requirements
To file for a divorce in Georgia, at least one spouse must be a state resident for six months before filing a divorce petition.
Grounds For Divorce
All states, including Georgia, now provide for no-fault divorce. Georgia also recognizes fault-based divorces. Let’s look at both.
No-fault grounds for divorce
In Georgia, the no-fault divorce system allows couples to end their marriage without placing blame on either party.
The no-fault system is partially based on the concept that where there is no fault to prove, there is no blame, and where there is no blame, there is no pain. Well, almost no pain.
No matter what type of divorce process you choose, even under the best of circumstances, divorce is a life-changing and disruptive process that is both complex and stressful.
By opting in for a no-fault divorce, the spouses acknowledge and attest to the fact that their marriage is irretrievably broken, meaning there’s no chance for reconciliation.
By choosing a no-fault divorce, couples can avoid the need to prove any specific wrongdoing, such as adultery or cruelty.
The no-fault approach leads to a more straightforward and less adversarial process that focuses on resolving issues such as property division, child custody, and support.
The no-fault system is designed to streamline the divorce process, making it less dramatic and emotionally chaotic.
Fault-based grounds for divorce
In Georgia, the fault-based divorce system requires one spouse to prove that the other was responsible for the breakdown of the marriage due to specific misconduct.
To succeed in a fault-based divorce, the accusing spouse must present evidence supporting their claims. This makes the process contentious.
In Georgia, the following types of misconduct inflicted on the accusing spouse are generally grounds for divorce and include:
- Adultery in either of the parties after marriage
- Willful and continued desertion by either of the parties for the term of one year
- The conviction of either party for an offense involving moral turpitude, under which the spouse is sentenced to prison for a term of two or more years
- Habitual intoxication or drug addiction
- Cruel treatment willfully inflicted on the spouse causing bodily or mental pain
- Incurable mental illness
The strategic advantage of choosing a fault-based divorce
Evidence in a fault-based divorce can significantly impact the court’s rulings and settlement process:
- Evidence of fault, such as adultery, can influence the court’s decisions on awarding spousal support. A spouse found at fault may receive less or be required to pay more in alimony.
- While Georgia is an equitable distribution state (discussed below), proof of misconduct can sway the court to award a larger share of marital property to the wronged spouse.
- Evidence of issues like cruelty or habitual intoxication can affect custody decisions based on the court’s concern for the safety and welfare of the children.
Legal Separation
In Georgia, legal separation is known as “separate maintenance.”
Unlike divorce, separate maintenance allows couples to live apart without legally ending their marriage.
In cases where legal separation is sought, one spouse files a petition for separate maintenance, similar to divorce proceedings, even though the marriage is not dissolved.
During the period of separation, the spouses can try to resolve financial and custody concerns without pursuing a full divorce, which might be preferable for personal. financial or other reasons.
Property Division – Equitable Distribution
Equitable distribution is the process used to divide marital property during a divorce in Georgia. Like in community property states, there is an important distinction between what is considered separate property and marital property.
Marital property is defined as property that the spouse acquires during the marriage and is, therefore subject to division.
Separate property is defined as property acquired before the marriage or given to one spouse as an individual gift or inheritance during the marriage. Generally, the separate property of each spouse shall remain the personal property of that spouse and is not subject to division.
The court considers various factors to ensure a fair distribution, such as each spouse’s financial situation, contributions to the marriage, duration of the marriage, and any misconduct affecting the marriage.
Equitable distribution is based on what the court believes is fair and reasonable under the circumstances.
Watch Georgia Attorney Max Ruthenberg-Marshall discusses the divorce process in Georgia:
Maintenance – Spousal Support
Types of Alimony:
In Georgia, spousal maintenance is financial support paid by one spouse to the other after a divorce.
There are three types of spousal maintenance in Georgia:
Temporary: Support during the divorce process.
Permanent: Ongoing support after the divorce, usually for long-term marriages.
Rehabilitative: Short-term support to help the receiving spouse become self-sufficient.
The court will consider the following factors in determining spousal maintenance:
- Duration of the marriage
- Standard of living during the marriage
- Age and health of each spouse
- Financial resources and needs of each spouse
- Contributions made by each spouse during the marriage
Modification of spousal maintenance after the divorce
One spouse may petition the court to modify the court’s alimony order if there are significant changes in circumstances, like remarriage or a substantial change in income or health of the spouses.
Child Custody
In Georgia child custody is determined based on the best interests of the child.
The three different types of child custody awarded to parents are:
Joint Legal Custody: Both parents share decision-making responsibilities.
Joint Physical Custody: The child spends significant time with both parents, though not necessarily equally.
Sole Custody: Rarely granted by the courts, this form of custody is when one parent has both primary decision-making authority and the child resides with the parent that was granted sole custody.
The court will consider the following factors in determining child custody:
- Emotional ties between the child and each parent
- Each parent’s ability to care for the child
- The child’s home, school, and community stability
- The mental and physical health of both parents
- Any history of family violence or substance abuse
Child Support
Child support continues until the child becomes 18 years of age, dies, marries, or otherwise, becomes emancipated, except that if the child becomes 18 years of age while enrolled in and attending secondary school on a full-time basis, then such support shall continue until the child completes secondary school, provided that such approval shall not be required after the child attains 20 years of age.
Georgia uses an income-shares model to determine the amount of child support.
The court will consider the existence of exceptional circumstances and may adjust child support based on, but not limited to:
- Ages of the children
- A child’s extraordinary medical costs or needs
- Educational costs
- Day-care costs
- Shared physical custody arrangements
- A party’s other support obligations to another household
- A party’s own extraordinary needs, such as medical expenses
- The income of the custodial parent
- The cost of insurance coverage for dependent children
- Extraordinary travel expenses to exercise visitation or shared physical custody
Mediation
In Georgia divorce cases, before trial, the parties are often ordered to mediation. Mediation provides a structured environment for both parties to discuss issues such as property division, child custody, and support.
Legal Name Change
In all divorce actions, a party may enter a request with the court to restore a spouse’s maiden or last name. If a divorce is granted, the judgment or decree shall specify and restore to the party the requested name.
Sources and References
Cornell Law Information Institute
Divorce – Judicial Counsel of Georgia
Difference Between Fault and No-Fault Divorce | Stearns.
