General Principles & Definitions To Help You Understand

When you are considering getting a divorce, there are a few general concepts that you must understand up-front.  We've done our best to explain these concepts in this section so that as you read through the rest of this page, it makes sense to you.

Marital Property Categories:  In Georgia, there are three types of property with regards to a divorce situation.  There is Marital Property, Separate Property, and Mixed Property, and the definitions may not be as simple as they first appear.

'  Marital Property: is any money, real estate, personal property such as appliances, pets, and any debt or utility payments that you got while you were married.  This includes wages, salary, or any other income earned while you were married.  The fact that a particular credit card is in just one name, or the fact that the home is owned in only one name DOES NOT MATTER.  If the income, debt, or property was acquired during your marriage, it is Marital Property.  The only exceptions will be certain types of Separate Property, which is discussed next.
 

'  Separate Property:  is anything that you owned before you got married, or any gift or inheritance you received while you were married.  If you owned your car free and clear before you got married, it is not eligible to be divided up in the divorce.  If a relative passed away while you were married and left you a large inheritance, it is also not eligible to be divided up in the divorce.  If someone gives you a gift during the marriage, it may not be eligible to be divided up in the divorce.
 

'  Mixed Property:  is property that is partly separate and partly marital.  The classic example is the marital home.  If you had a large bank account before you got married and used that money to put a down payment on a house during the marriage, the house is mixed property.  It is separate to the extent of the down payment made with your separate cash, but is mixed to the extent of any additional equity (and debt) which it gains during the marriage.

Equitable Property Division:  In Georgia, you may either agree on property division between yourselves (the much quicker and much less expensive option), or a judge or jury will decide on equitable division of the marital property.  This does not mean an equal division of the property.  The judge or jury will look at all sorts of factors such as who worked more, who had the higher salary, who brought more into the marriage, who has given up more for the marriage, and anything else they consider relevant in making this decision.  This takes a long time and includes a process to determine what property will be deemed marital, mixed, and separate.  It is important to understand that the judge or jury DOES NOT simply divide the property in half between the two parties and does not have to do so.

Alimony: Alimony is the payment of money from one spouse to the other.  This is done to support and maintain the spouse receiving the money.  The parties are free to agree on any Alimony payment they wish.  Alimony may be ongoing, such as a monthly payment, or an up-front lump sum, or just simply not paid at all, depending on how the parties agree.  If the parties cannot agree on alimony, the judge may grant an alimony payment to either the husband or the wife, depending on the situation, or may not grant alimony to anyone.

Child Support:  Child support laws have changed recently.  Now the State of Georgia has generated a child support worksheet into which the husband and wife enter their financial information.  This worksheet then generates a number, which becomes the child suport payment.  There are certain accommodations that can be made for items such as daycare or education payments, but wiggle room is limited under the new rules.  If the parties agree to child support between themselves, their amount must be close to what the child support worksheet generates.  Additionally, alimony and property division settle issues between the spouses, while child support is a payment made for the benefit of the child or children.  While child support may be taken into account to some extent during negotiations between spouses, Judges are typically reluctant to set one off against the other.  So if you think your divorce will likely be contested, understand that it is unlikely that the judge will reduce the property award to one spouse based on child support.
 

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What Are the Steps Involved In a Divorce?

While there is a basic procedure to the entire divorce process, it can vary from case to case.  For purposes of this informational site, a simplified explanation of the procedure may be found here.

Complaint:  The Complaint is the document you file with the Clerk of Court.  It sets out the basics of your divorce: your name, your spouses name, how long youve been married, whether you have any kids, and the reasons for the divorce.  The Complaint also sets out whether you are asking for alimony, custody, and/or a sum of money or specific items of marital property.  However, these matters may also be addressed in the settlement agreement.

'  Residency/ what county to file in:

7         At least one of the spouses must have lived in Georgia for the last 6 months, or Georgia must have been the last place you both lived while married.  Typically, if you both live in Georgia, the spouse who files the divorce files in the county where the other spouse lives. 
 

'  Service of Process:

7         Once you file the Complaint, a member of the Sheriffs Department in that County will deliver a copy of it to your spouse.

Mediation: Many counties require a couple seeking a divorce to go through mediation in an attempt to settle issues such as custody, alimony, and property division.  If the mediation is successful, then everything is written down in a settlement agreement and you proceed basically with an uncontested divorce.  If the mediation is not successful, you continue with the contested divorce.

Final Hearing / Final Order: After the case is filed, the issues such as property division, custody, and alimony will be decided either through a settlement agreement or at a hearing in front of a judge (and possibly a jury).  Once those issues are decided, whether by settlement or by the Court, the judge will issue a Final Order which finalizes the divorce.  At that point everything in the final order is binding on you and your spouse, meaning that the Court can enforce that order with fines and jail time.

Temporary Hearing / Temporary Order: There can be a good deal of time between filing for divorce and the Final Hearing/Final Order.  During this time, either spouse may wish to have a Temporary Hearing to get a Temporary Order, setting out custody, alimony, etc. while the divorce is still pending.  In many cases, the judge will simply split custody or order some basic level of alimony until the final decision is made.  The final decision DOES NOT just make the temporary order final.  It is likely that certain parts of the temporary order will change in the Final Order. 

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What is the Difference Between Uncontested & Contested Divorce?

The only practical difference between a contested divorce and an uncontested divorce is that in an uncontested divorce, the spouses have settled between themselves how the marital property is to be divided, how custody is to be arranged, how child support is to be paid, and how alimony (if any) is to be paid.  This is all written down in what is called a Settlement Agreement and is filed with the divorce.  With a contested divorce, the judge decides how property division, custody, alimony, and child support are to be handled.  The fewer issues that the judge has to decide, the quicker and less expensive the divorce will be.  (In some cases, a jury may be called upon to decide the financial issues, although a judge will still make the determinations regarding Child Custody and Visitation)

o    Settlement Agreement (Settlement between the spouses):

'  This is how matters are decided with an uncontested divorce.  While spouses may settle virtually all issues between themselves, the Court is able to have its own input, especially on matters concerning your children.  The Court must look at the best interests of the child when making custody rulings.  Also, Child Support laws have changed and you may not have much room to negotiate the actual amount of Child Support (see our above section on Child Support).
 

'  A truly uncontested divorce is very rare.  People tend to get very emotionally involved with issues such as child custody, alimony, pet ownership / custody, and other matters.  There are also matters that people may not consider. Consider a couple who agrees that the wife will get to keep the house.  Now the husband needs a few weeks to find another place to live.  Can he stay in the house until he finds another place?  Does he have to get a hotel?  Matters such as this can surprise people who do not think of them beforehand.  The answer to this question should have been included in the settlement agreement.  A good divorce attorney will be able to spot these types of issues and allow for them in the settlement agreement.
 

'  Despite how thorough the settlement agreement needs to be, it is still by far the fastest and least expensive way to get a divorce.
 

o    Settlement by Court:

'  This is how matters are decided in a contested divorce.  The Court holds a hearing and divides the Marital property if the parties cannot agree between themselves.  Juries may also decide certain financial questions, but all determinations regarding custody or visitation must come either from the spouses (with input from the judge) or from the judge. 

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Frequently Asked Questions About Divorce

Time Frame:  How long can I expect the Divorce process to take?

'  If you and your spouse can agree on everything (This means Everything!!), then your divorce could take as few as 31 days from the day the complaint is filed.  This is very rare, however, and you should allow at least 60 days for most uncontested divorces.  If questions arise or conflicts surface, the process can take even longer.  So the short answer to How long will it take? is It depends on how well you and your spouse can get along.

What are Fault v. No-Fault Grounds?

'  There are 13 grounds for Divorce in Georgia.  Only one of these grounds is no Fault.
 

'  The No-Fault Ground:  Irretrievably Broken

7         In Georgia, if either spouse believes that the marriage is irretrievably broken, then the divorce may be granted.
 

7         This is by far the most common ground for divorce in GA.
 

7         It assigns no wrong-doing to either spouse but simply states that the marriage cannot continue and that the spouses need a divorce.
 

'  Fault Grounds

7         There are 12 Fault grounds for divorce.  These accuse one spouse of some specific wrong and cite that wrong as the reason for the divorce.  Some common examples would be infidelity (an affair), physical abuse, or abandonment.
 

7         Many people choose not to use a fault ground to save their spouse some embarrassment or to convince the spouse not to counterclaim with fault grounds of their own. 
 

7         Fault divorces are almost always contested and can be some of the more expensive and lengthy divorces.

What About Living separate or together when divorce is filed?

'  You can technically still be living together when you file for divorce, however you should not be sharing the same room or sleeping together.  You must be considered separated when you file for divorce. 

What is an Annulment and How is it Different From Divorce?

'  An annulment is different from a divorce in that while a divorce terminates a valid marriage, an Annulment says that the marriage was never valid to begin with.  When determining whether an annulment might be a viable option for you, you will need to consider factors such as how long you were married, if there was any flaw in the marriage or any fraud anywhere leading up to the marriage.  You will also need to consider whether you had any children during the marriage.  Generally you will not be eligible for an annulment if there were any children born during the marriage.  In that case you will need to proceed with a divorce.  Please call us if you have more specific questions about annulments, or think you may qualify for an annulment.
 

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About the Attorneys

Rajeev Kaila, B.S.E.E., J.D. and Samuel R. Bagwell, B.B.A., J.D. are the founding partners at Kaila Bagwell, LLP. Both Rajeev and Sam are graduates of the University of Georgia School of Law. Both partners share a tremendous interest in the area of Domestic Law and believe strongly in the mantra that if handled correctly, a life change through the legal system can be a good thing for a person.  Feel free to contact Kaila Bagwell during regular business hours and ask to speak to either Rajeev or Sam.  They would be happy to hear from you.
 

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