What Is No-Fault and Fault Divorce?
There are two types of divorce, no-fault and fault. All states accept the premise of no-fault divorce because it streamlines the legal process by avoiding the finger pointing and mud-slinging that often come with a fault divorce. Couples hoping to get a no-fault divorce usually only need to demonstrate that they are incompatible, meaning they just don’t get along anymore and staying married is impossible.
A fault divorce is more complicated than no-fault divorce because it involves at least one spouse placing blame on the other for the breakup. In the states that still allow fault divorces, the court requires a standard of proof, meaning if you accuse your spouse of committing adultery, you need to prove it in court and then, convince the judge that those actions caused the divorce.
What Type of Divorce Is Available in Georgia?
Georgia is a mixed state, which means couples have the option of pursuing a no-fault or fault divorce. Generally, a no-fault divorce is faster, less expensive, and leaves what’s left of the couple’s relationship intact. Spouses requesting a no-fault divorce in Georgia must state in their complaint for divorce that the marriage has suffered an irretrievable breakdown, meaning neither spouse desires to stay married and there’s no chance for reconciliation.
Alternatively, if your spouse’s marital misconduct caused your relationship’s demise, and you can prove any of the following, the judge may grant your request for a fault divorce:
- willful and continued desertion for at least one year
- your spouse committed a felony and was sentenced to at least two years in prison
- habitual intoxication or drug abuse during the marriage, or
- physical or mental cruelty.
You can also base your divorce on your spouse's incurable mental illness.
Is There a Residency Requirement in Georgia?
Although the standard of proof in each type of divorce is different, couples filing for any divorce in Georgia must meet the state’s residency requirements. At least one spouse must be a resident of the state for a minimum of 6 months before filing for divorce. If you or your spouse can’t prove residency, you’ll need to file for divorce in another state or wait until you meet the residency requirement in Georgia.
How Do I File for Divorce?
Every divorce begins with the filing spouse (petitioner) submitting a complaint for divorce with the court. The complaint contains essential information for the judge, including your wedding and separation dates, whether you have children, whether you and your spouse have any property, and if either spouse wants financial support from the other.
The petitioner must then serve a copy of the legal documents to the other spouse (respondent), who then has 30 days to answer the complaint. If you’re attempting to navigate the legal process without an attorney, you may find court forms and information at your local courthouse.
Georgia has a strict rule that the court can’t grant a divorce until at least 30 days after the petitioner serves the respondent. This court created this post-filing waiting period with the hope that it would be enough time for spouses to negotiate the terms of their divorce agreement. If the couple can't resolve all their issues, the court will schedule a trial, where the judge will decide all the divorce-related legal issues.
What If We Need the Court’s Help During the Waiting Period?
The divorce process is highly emotional, so it’s not unusual for spouses to require court intervention during the waiting period. Your attorney can request temporary court orders that will remain in effect until the judge signs your settlement agreement or issues a final divorce judgment. The most common types of temporary orders include:
- financial orders that restrict each spouse from wasting marital assets, or require each spouse to continue paying routine bills and expenses
- custody and child support orders that designate which spouse will be the primary caretaker of the children, where the children will reside, and how much money the other spouse will contribute during the divorce
- restraining orders that prohibit one spouse from entering the marital home, or if domestic violence is an issue, that prevent the abusive spouse from contacting the victim, and
- healthcare orders that require the provider spouse from canceling medical or life insurance policies.
Negotiate a Settlement or Go to Trial
Couples in every divorce have two options: work together to create a divorce settlement agreement or ask the court to decide your disputed issues during a trial. Divorce trials can be challenging, take days or weeks to conclude, and the judge’s decision is final. Preparing an agreement allows you to decide what’s best for each spouse and your family.
Regardless of which path you choose, the legal issues in a divorce include:
- property and debt division
- child custody, visitation, and support, and
- spousal support (alimony).
Property division refers to splitting the assets and liabilities between each spouse. Georgia uses equitable distribution to divide marital assets and debts in a way the court believes will be equitable or fair, but not necessarily equal or 50/50. The court doesn’t allocate or divide any "separate property," which refers to any property that a spouse owned before the marriage, or received as a gift or through inheritance during the marriage. Generally speaking, a spouse who owns separate property will get to keep that property after the divorce.
Couples with children must provide the court with a parenting plan if you negotiate your divorce. The plan must include who will have (or how the parents will share) physical custody, legal custody, how both parents will resolve disputes that arise in the future, and who will pay child support for the children. If you can’t decide these issues on your own, the court will do so by evaluating what’s in the children’s best interest using a set of specific factors.
In some situations, especially those where one spouse was the primary earner, the other may need financial support, either temporarily or permanently, after a divorce. When a spouse requests alimony, the judge will determine if it’s appropriate, and if it is, the court will set an amount, by using a variety of factors, including each spouse’s income, age and health, financial needs, and ability to pay.