DIVORCE F.A.Q.s

  • What are the grounds for divorce in Georgia? In Georgia there are 13 grounds for divorce. One ground is “irretrievably broken” (sometimes referred to as the “no-fault” ground). The other 12 grounds for divorce in Georgia are “fault” grounds.
  • What is a "no-fault" divorce? To obtain a divorce on this basis (irretrievably broken), one party must establish that he or she refuses to live with the other spouse and that there is no hope of reconciliation.
  • What should I do if I receive a "Complaint For Divorce" that my spouse has filed? The spouse who receives the complaint should promptly consult a lawyer. The spouse may contest the reason claimed for the divorce or contest the claims for child custody, child support, alimony or property division by filing an answer with the court. If, however, an answer is not filed within 30 days, the right to contest the complaint may be lost.
  • Will I have to go to court to get a divorce? Not necessarily. In fact, we aim to resolve all divorce cases before they make it to a courtroom.  Spouses may be able to reach an agreement resolving all issues arising from the marriage, including finances, division of property and custody and visitation of children by using mediation or other options. The agreement is presented to the court as a settlement agreement and, upon approval, made an order of the court. The court’s order, called a final judgment and decree, concludes the lawsuit. If, however, the parties cannot reach an agreement, the issues will be resolved by the judge or the jury.
  • How long does it take to get a divorce?  When the parties involved already have an agreement, the divorce is considered uncontested.  An uncontested divorce may be granted 31 days after the defendant has been served with the complaint for divorce.  If there happens to be a disagreement to any matter, the the divorce will be obtained once the case reaches the court, and without the right legal representation, may take many months. 
  • How long do I have to be separated to get a divorce? While there is no set requirement for a particular amount of time that you must be separated, you must do so before filing a complaint.  Separation is defined by a termination of marital relations between a husband and wife, but does not require the husband and wife to live in separate residences. 
  • Who will pay for my family expenses until the divorce is final? Unless you and your spouse are able to come to an agreement on this matter, the court will hold a hearing to determine the temporary financial needs of each party and how best to meet them.  At the hearing, the court may also award temporary alimony or child support as well as other expenses.
  • Is there a residency requirement for getting a divorce in Georgia? Yes, one spouse must have lived in the state of Georgia for six months or Georgia must have been the last domicile of the marriage.
  • Is there a way to live apart without getting a divorce?   e A person who wishes to live apart from their spouse permanently, but who does not want to get a divorce, may file a "separate maintenance" action. The spouses will remain legally married while living apart.  The court may divide property between the two parties, and may also order alimony be paid by one spouse to the other.
  • Who will pay the legal fees? You will be responsible for your own attorney's fees.  Sometimes though, after consideration of the finances of the parties involved, the court may require one spouse to pay some or all of the expenses of litigation for the other party. 
  • What can I do to insulate my children from the stress of divorce? Divorce can be upsetting enough for the adults involved, never the less for any children. affected by this change.  As a parent, you must find a way to keep a level head when it comes to discussing a divorce with your children.  You must never disparage the other parent, outwardly voice disdain for them, or bring your children into the fight.  The well being, happiness, and safety must always remain your top priority. even though at times it may be extremely difficult to put your own feelings aside.

  • What do I do if I am the victim of family violence? Georgia has a law protecting victims of family violence. The parties do not have to be married in order for a victim to ask the court for relief. However, the parties have to reside in the same household. A victim of family violence can file a petition with the Superior Court that family violence has occurred in the past and may occur in the future. The court can issue a temporary order granting a variety of remedies, including eviction of the offending party from the residence or providing suitable alternate housing for the victim and children, as well as financial relief.

 

MODIFICATION F.A.Q.s

  •  What types of Family Court orders can I get modified?  Spousal support, child support, child custody and visitation orders are some of the most common Family Court orders that individuals try to modify after divorce. The person petitioning for the modification might be asking to pay a lower monthly amount of support, to receive a higher monthly amount of support, to take custody away from another parent or to increase one's visitation hours.
  • How do I qualify for a post-divorce modification? If you and your former spouse cannot agree on a change of terms, you will need to petition for a modification to be made through the court.  The person petitioning for modification must present strong grounds for the change, as the court will usually consider issuing a new order if there is a major change in the circumstances of the parties involved. 
  • Can my former spouse and I just make the modification through a verbal agreement?  Unless your agreement has been signed by the judge, you are still legally beholden to your previous court order. This means that even if you and the other party in your former marriage verbally agree to new terms, you will need to get a written agreement signed by a judge and obtain a new court order. By failing to obtain an official modification through the court, you could end up putting yourself at risk. For example, you could easily be found in violation of your court order (or in "contempt of court") if you do not pay the previously established amount of child support or spousal support.

CHILD SUPPORT F.A.Q.s

  • How is my child support amount decided? Georgia has specific Child Support Guidelines.  Using these guidelines, a divorcing couple can calculate their monthly child support obligations.  The guidelines were created based upon a model that takes into account both parents' gross incomes.  Although the guidelines are very specific, your family's situation is unique, and financial, relational, and schedule concerns should also play a major part in the decision.  In order to guarantee this, you must ensure that you are represented by an elite lawyer who will recognize and effectively communicate your needs.  In some cases, the court may deviate from the Guidelines and adjust the amount based on your special circumstances.
  • I am currently paying child support, and I recently lost my job. Can I reduce the amount of my child support obligation? Under the current laws, loss of income can potentially be a basis for lowering your child support obligation.  An action to modify child support, whether to increase or decrease, must be substantiated by showing a substantial change in income or the financial status of either party.
  • If the child for which I have been paying child support elects to live with me, can I stop paying child support?  Technically, until your original child support obligation term is met pursuant to an order of the Court, you must continue to pay support to the child's legally custodial parent.  Depending on the specifics of the case, there is a probability that a court would terminate your child support obligation should the custody of the child be permanently changed to you
  • How often can I file to reduce/increase a child support obligation?  After your original order that establishes the support obligation has been entered, you are able to file for a modification of child support at any time thereafter.  Once child support has been modified by the court, you cannot file another action for modification for two (2) years from the date of the original order modifying support.  If the modification has been initiated by the other parent, there is no limitation on how quickly you may file your own modification request.
  • My ex-spouse and I verbally agreed that I would reduce / increase my child support payment.  Do we have to file anything with the court?  Yes.  Until a modification order is signed off on by the Court, you are under no legal obligation to change the amount of your child support obligation.

CHILD CUSTODY / VISITATION F.A.Q.s

  • How does the Court decide custody?  During an initial custody proceeding, the court will review what is in the best interest of the children.  Once the court has made it's decision and awarded custody, the custody can only be changed if there is a change of conditions.
  • What is Legal Custody?  Legal custody is the term used for the parent who is legally authorized to make decisions in regards to the child's welfare.  These may include education, medical, religious, extra-curricular and other decisions related directly to the child.  Usually, the parties are required to try to cooperate to reach mutual decisions.  However, if this is not possible, the legal custodian will have the ability to make the final decisions.  It is generally advisable to designate both parents as joint legal guardians so that there is no confusion when it comes to school record, medical, or other records access.
  • What is Physical Custody?  Physical custody is the term used for the parent with whom the children will reside the majority of the time.  Regardless of who is the sole physical custodian, or if the parents are awarded joint physical custody, a schedule should be prepared and agreed upon between the two parents, so as to avoid any confusion or aggravation down the road.
  • My fourteen (14) year old child told me that she now wants to live with me instead of her mother. Can she?  How often can she change her mind?  A child who is fourteen (14) years or older may elect which parent they would like to reside with, and the likelihood is that the court will defer to his or her election, so long as the Court agrees that the change of residence is in the best interests of the child.  A child may change their mind and request to change their residence once every two (2) years, barring any extenuating circumstances.
  • How often can I file to change custody? Visitation?  An action to change custody or visitation can be brought at any time following the most recent custody order.  You must be able to prove that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be new.  Concerning visitation only, the court has the authority to review and modify visitation rights once every two years without the necessity of proving any change of condition.
  • My ex-wife recently, within the last 6 months, moved from Georgia to New York with our 4 year old child. Where should I file an action to change custody to me?  
    Generally, if a court in Georgia issued the most recent custody/ visitation order regarding your child, you will need to file in Georgia.  However, the Georgia court may decide that it is not for Georgia to handle if they deem that there is no longer a significant connection to the state and that substantial evidence is no longer available in Georgia.

PATERNITY F.A.Q.s

  • Is DNA testing useful?  A DNA test is extremely effective in determining the biological parentage of the child.  It involves a simple swab of cheek cells from both the possible parent and the child, is affordable, and the results are usually available in a short period of time.
  • Can I get some support for my child even though I am not married to the father of my child?  Yes, it is definitely possible to obtain child support through a court order.

  • I believe that the child I have been paying child support for is not my biological child. What should I do?  The worst thing that you can do is nothing, partially because the court will usually view your inactivity as acceptance.  DNA testing should be considered.  A lawyer will be able to discuss this with you in great detail and properly advise you based on your situation.

  • Can I get visitation or custody, even though I was not married to the mother, and am not on the birth certificate?  Through a legitimation suit, the law does allow you to request these rights.  In a suit, the court is likely to establish the child's name, from whom she may inherit, and child support.

  • Will the Courts award back child support for the time I raised the child prior to getting a child support order?  In Georgia, some expenses involved in giving birth to and raising a child may be available, but generally back child support will not be available.

PRENUPTIAL AGREEMENT F.A.Q.s

  • Do the parties need separate attorneys when preparing a prenuptial agreement?  will We would advise so.  For a prenup to be valid, the court must feel confident that both parties had the opportunity to seek independent advice to make sure that neither party was forced to sign.  An attorney can fully explain the terms and any advantages or pitfalls contained.  They may be able to make suggestions to change the agreement to ensure that the agreement is as fair as possible. 
  • Can we change or terminate the prenuptial agreement later?  In some cases you may be able to draft an addendum, however prenups usually contain a provision that dictates exactly how to cancel or revise the agreement, and at what time intervals. 

  • Can a prenuptial agreement cover child custody or child support?  reviseThe simple answer is no.  Because no one can predict what the circumstances should a custody dispute arise, custody must be determined at the time of the dispute.  The parties are also not able to determine child support because the law regards child support as a child's right, and the parties cannot override that right.  Georgia has very strict rules on how child support is calculated.

  • Can a prenuptial agreement cover alimony?  Prenuptial agreements may be used to limit, establish, or eliminate alimony in the event of a divorce.  However, if the circumstances have changed significantly since the prenup was written, the judge does retain the ability to modify the amount of support, although this is rare.

 

*These materials have been prepared by ATL Family Lawyers for informational purposes only and are not legal advice. The information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel. You should consult an attorney for individual advice regarding your own situation. Do not send confidential information until you speak with one of our attorneys and get authorization to send the information to ATL Family Lawyers.

 

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