File Divorce in Georgia

Marriage is a civil contract entered into by a marriage ceremony, or in certain circumstances, by common law cohabitation. A legal marriage can only be dissolved by a court order. Before the court will consider your divorce in Georgia you must meet the requirements for residency and state the reasons for wanting a divorce. When the parties agree or there is little property and no children, the process is very straightforward and can be handled without a lawyer. When there are disagreements about children or property, you should strongly consider seeking the advice of an attorney before proceeding.

Steps

Preparing for Your Divorce

1. Confirm that you need to get divorced. Most marriages are by license and ceremony. If a marriage certificate was filed after a church or civil ceremony, then you will need to get a divorce. Georgia has historically recognized common law marriages. Common law marriages occur when an adult couple openly lives as married, even though a marriage certificate was never filed. Common law marriage was outlawed in Georgia in 2010 and the law explicitly states:
   • If you entered into a common law marriage before January 1, 1997, it is recognized by the state. Therefore you will need to get a divorce.
   • If you started living together without going through a marriage ceremony after January 1, 1997, even if you told people you were married and acted married, you do not have to get a divorce.
   • If you are part of a same sex couple that legally married in another state, even if it was during a time when same sex marriage was not recognized in Georgia, and subsequently moved to the state, you will have to file for divorce.
2. Confirm your eligibility to seek a divorce in Georgia. In order to access the Georgia state court system, you must establish that you or your spouse lives in the state. Under Georgia law, there are three ways to establish the residency standing your need to file your divorce.
   • You must have been a bona fide resident of the state for at least six months before you file for divorce. You don't need to have lived at the same address, but had to have maintained residency in the state. You will swear to your residency in your petition and may be asked to prove it in court. Proof includes drivers license, voter registration, utility bills, and rent receipts.
   • If you live in another state, you can still file for divorce in the Georgia courts if your spouse has been a resident of the state for at least six months.
   • If you have been a resident on any "United States army post or military reservation within this state" for at least one year, you can file for a divorce in a county adjacent to the base. Be prepared to document your residency on base or in military-controlled housing.
3. Decide your county of filing. Generally, in Georgia, you file for divorce in the county where your spouse lives. If your spouse has moved out of the state, you may file in your county of residence. In an uncontested divorce where your spouse consents, you can file the divorce in your county. The state law has no specific requirement of how long you or your spouse has to live in a county before filing, but it is a good idea to wait at least 30 days to make sure you are in compliance with local rules.
4. Gather the information for your petition. You need to include specific information in your divorce petition. A good way to get started is to complete the questionnaire developed by Legal Aid of Georgia. The staff attorneys of Legal Aid are well-versed in Georgia divorce procedure and prepared this as a guide to help in your pre-divorce planning. If a section doesn't apply to you, cross it out.
5. Decide on name changes. If the wife assumed her husband's name during the marriage, she has the choice to keep her married name or revert to her maiden name. Whichever spouse prepares the documents needs to take this into consideration and include it in the petition.
6. Prepare to pay the fees. There is a fee of approximately $200 to file for divorce in Georgia. There may be additional fees for a process server, document preparation, and for administrative costs such as copies.
   • If you are low income, you may be eligible to have the filing fee reduced or waived by the court. This is called proceeding In Forma Pauperis. Legal Aid of Georgia has a fill-in-the-blanks application you can file with your petition. If it is accepted by the court, your case can proceed. If it is denied, your divorce will not be put on the court's calendar until the fee is paid.

Filing Your Divorce

1. Determine the reason for the divorce. Georgia law allows for a total of 13 different legal reasons, called grounds, for a total divorce. Twelve are fault-based. You will have to allege, and later prove, that your spouse did something wrong. The last, and most common, is the no-fault option, a simple statement that the marriage is "irretrievably broken."
   • The fault-based grounds include adultery, impotence, habitual drunkenness, drug addiction, and that the marriage was fraudulent. Many of these grounds date back to the original laws of over a century ago.
   • Divorce is a very stressful time and it is not uncommon to want to punish your spouse for wrongdoing and to list as many faults as possible in the divorce petition. Before you do this, you should consider speaking with an attorney. When fault is used as grounds for divorce, your spouse has the right to not only claim defenses and demand you provide proof for your accusations, but also file a counterclaim with allegations of fault against you. Unless an attorney counsels you that a fault-based divorce is in your best interest, such as physical violence, strongly consider using the no-fault option.
2. Prepare your divorce petition. You will use the information from your questionnaire to prepare the divorce petition for filing with the court. As someone who is acting without an attorney, called being pro se, you will be given deference by the court. However, your documents will still have to be complete and pass legal muster to be accepted by the court. A well-prepared divorce petition is the first step to an uncomplicated divorce.
   • Legal Aid of Georgia has a fill-in-the-blank divorce package for agreed and uncontested divorces both without children and with children. These forms can only be used if you and your spouse are in complete agreement about the terms of the divorce and are both willing to sign off on the documents.
   • Georgia allows for unbundled legal services. This means that attorneys can prepare divorce petitions and other documents for either an hourly or flat fee. Expect to pay between $100 and $500 depending on the complexity. Even if you and your spouse agree on terms, if you have a complex property situation, it may be worth it to have an attorney prepare and review your settlement.
   • Third-party document preparation and online document generation services. There are several for-profit and self-help services available to prepare documents at little to no cost. Quality may vary and you use them at your own risk. One way to check the quality of the service is to perform an online search with the name of the service and "complaint" or "review" to see if anyone has any opinions on the site.
3. Prepare the child-specific documents. If you and your spouse have children under the age of 18, you will need to include plans for the parenting and financial support of your children.
   • Georgia law requires that divorcing parents abide by a parenting plan. This document will detail parenting time schedules, holiday times, and any responsibilities that you and your spouse want to detail in the plan. The more cooperative the parenting plan is, the more likely the court will accept it without modification.
   • All divorces with minor children must include a child support calculation. If you or your spouse are unemployed and not disabled, the court will assume that you are capable of earning minimum wage and will base calculations on that wage.
   • Child support is not a static number. The support amount depends on the number of children and is set by the legislature in obligation tables. In a simple calculation, if there are three children and the combined gross monthly income of both parents is $4,000, the table sets the total support at $1,280 per month. That amount will be split between the two parents based on their percentage of the gross income. If the custodial parent contributes 40 percent of the gross income and the non-custodial parent contributes 60 percent, then the child support obligation will be 60 percent of $1,280 or $768.
   • The parties can deviate from the presumptive child support amount if both agree and can show there is adequate resources to provide for the child's needs. However, a child support calculation still needs to be attached to the divorce filing.
   • If you and your spouse cannot agree on custody and support of your children, the court may refer you to Alternate Dispute Resolution (ADR) including mediation. If the court orders you to ADR, your divorce will not be granted or set for trial until you have made a good faith effort to settle the disputed points. Mediation costs are usually split between the parties and, according to the Cobb County court, average about $175 per hour.
   • If the divorce is grounded in domestic violence or credible threats of child abuse, you should consult with a family law attorney before filing your case as a pro se litigant. This is to protect you from being forced into ADR and ending up in a potentially dangerous situation.
4. Sign and notarize your documents. If you and your spouse are in agreement, you will both sign the documents in the presence of a notary. Blue ink is preferred to show the signatures are original.
5. File your documents at the courthouse. If your spouse has agreed to the divorce, you will be filing a waiver of service document. If not, you will take a set of file-stamped documents to either the sheriff or a private process server who will deliver them to your spouse. Expect to pay between $20 and $50 for this service. This fee cannot be waived by the court. Your spouse has approximately 20 days after being served to answer the petition.
6. Schedule your court date. Depending on the complexity of the divorce, the case may be scheduled for a preliminary hearing date. Otherwise, on an agreed-to consensual divorce, you will most likely be scheduled for a single final hearing date after the expiration of the service period.

Finalizing Your Divorce

1. Attend your court hearing. Whether this is a preliminary hearing or the final hearing, you, as the petitioner, must be present. If you fail to appear, your divorce could be seriously delayed or even dismissed.
   • Be on time. Give yourself plenty of time to park and find the courthouse. Arrange for childcare, judges do not typically allow children in the courtroom and they can't be left unattended.
   • You can bring a companion for assistance and moral support, but your friend cannot come up to the table with you. Stand when you are addressing the judge and answer all questions. If you don't understand a question, ask the judge to explain.
2. Receive your documents. You are divorced as soon as the judge signs the orders. You and your ex-spouse can begin separating property and arranging child visitation.
   • You can make copies of your divorce decree as needed for changing your name on your identification, leases, contracts, and for your child's school. Most entities will accept a photocopy of the decree. However, some agencies or organizations may require a certified copy of the decree. Contact the court clerk for instructions on how to order certified copies. There may be a small fee for this service.
3. Wait for your divorce to finalize. Even though the judge's signature granted your divorce, it is not legally finalized until 31 calendar days after the divorce decree is filed with the court. This is the appeal period where your spouse can file an appeal to change the terms of the agreement. This is extremely rare and very difficult to do, so don't worry. The primary significance of this is that you cannot get married until the 31-day period has expired.

Video

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Warnings

• You should consult with an attorney before signing anything that may affect your legal rights or obligations.

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Sources and Citations

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