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Family Law Questions
When dealing with the division of property in a divorce, the courts in GA uses a two-step process. (1) The property must be clarified by either marital property or non-marital property, and (2) The marital property must be divided equitably. Goldstein v. Goldstein, 262 Ga. 136 (1992). The marital property encompasses those assets that were acquired during the marriage, for instance, property, cars, stocks, and funds. The non-marital property would be the opposite, so anything received outside of the marriage, like gifts and inheritances, will not be divided upon divorce.
According to Georgia Code § 19-5-3 (Grounds for Total Divorce), there are 13 reasons upon which an individual can file for divorce. They are:
- Intermarriage by People within the Prohibited Degrees of Sharing a Common Ancestor
- Mental Incapacity at the Time of Marriage
- Impotency at the Time of Marriage
- Force, Menace, Duress, or Fraud in Obtaining Marriage
- Pregnancy of the Wife by a Man other than the Husband, At the Time of the Marriage, Unknown to the Husband
- Adultery During the Marriage
- Desertion for One (1) Year
- Conviction of Either Party for an Offense Involving Moral Turpitude Which Results in A Sentence of Two (2) Years or More
- Habitual Intoxication
- Cruel Treatment
- Incurable Mental Illness
- Habitual Drug Addiction
- Marriage is Irretrievably Broken
There is no set time frame on how long divorce proceedings take. However, an uncontested divorce can take about 60 days to complete, whereas a contested divorce can take up to three (3) years. It all depends on the city, the judge, and the essential issues that need to be agreed upon.
Legal Separation involves couples who decide to live separately without going through the formal process of ending their marriage. Georgia does not recognize legal separation, however, they do allow separate maintenance, which is similar. The court handles issues similar to divorce, i.e., alimony, child support, but they do not divide the property. Ga. Code. Ann. § 19-6-4.
Divorce involves permanently terminating the marriage. There are two types of divorce (1) uncontested and (2) contested. An uncontested divorce occurs when you and your spouse agree on the essential issues regarding the divorce. For example, you both must have agreed on issues of custody, child support, and marital property. A contested divorce is when you and your spouse cannot come to an agreement concerning the marital assets.
If the divorce is contested, you will have to go to court. Considering that matters are in dispute, you will have to plead your case in front of a Judge.
In an uncontested divorce, since the matters have been agreed upon by both parties already, you will likely be able to avoid court appearances. § 19-5-10(a) provides two ways in Georgia for a divorce to be finalized when it is uncontested. (1) Through final hearing in court, or (2) Through a Motion for Judgment on the Pleadings out of court. Only an attorney can request number 2.
The Judge determines how custody is to be determined. They will always award custody based on the “best interest” of the child. Neither party has a right to the child, and no favoritism is shown. The judge may grant joint or sole custody. Some of the deciding factors that determine what is in the best interest of the child are:
- Love, Affection, Bonding, & Emotional Ties and the Parent’s Capacity to Provide That.
- Parent’s Knowledge of the Child’s needs.
- Parent’s Ability to Provide for the Child
- Home Environment of Each Parent & Stability
Ga. Code. Ann. § 19-9-3.
The income shares model is what is used to determine child support. So, each parent’s income is considered to determine how much the noncustodial parent is to pay. Courts look at the gross and monthly income of each parent. Once that amount is determined, it goes into a table where courts then combine the total costs of caring for the child. That cost is then divided between each parent based upon how much that parent contributes to the total income.
One can quickly figure out these numbers using the Georgia Child Support Worksheet provided on the Georgia Child Support Commission’s website.
Divorce is an emotional roller coaster for many children. There is no set way on how to shield your child from the feelings associated with divorce. However, there are some ways to help your child through it.
- Ensure that you and your spouse remember to do what is in the best interest of the child.
- Avoid negatively speaking about the divorce and your spouse in front of the child.
- You and your spouse should speak with the child about the decision to divorce and reaffirm the child that the love for him/her will remain the same.
- Let the child know that they are not responsible.
- Keep your child neutral.
- Allow your child to express their feelings regarding the divorce and ask questions.
If there was alimony awarded due to a divorce settlement, the remarriage would terminate all obligation for permanent alimony of the party who the obligations were owed.
O.C.G.A. § 19-6-5
No. Each spouse will have their own interests to protect, and an attorney cannot represent both parties while protecting both interests. There will be an apparent conflict that arises, which will put that attorney in violation of their ethical principles.
A prenuptial agreement in a “just-in-case,” and it is enforceable in Georgia. They are made in anticipation of divorce, and the purpose is to allow the parties to agree upon the marital assets in case a divorce occurs. It is good to have if there is any separate or premarital property that you would like to protect.