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DIVORCE

Each state has its own divorce laws, complete with divorce forms, documents, and filing procedures. Following is some basic information concerning family law issues in Georgia:

Divorce is a legal action by which a marriage is terminated. Georgia law recognizes no-fault and fault-based divorce, and the law specifically outlines these grounds. In a no-fault divorce, neither party is required to show fault or reason in the breakdown of the marriage, and most divorces are granted on this basis, even when conduct issues in the marriage have been raised in the case. In a fault-based divorce, grounds can include adultery, habitual drug addiction or drunkenness, mental incapacitation or incurable mental illness, and cruel treatment.

The minimum requirement for filing for a divorce is that the party who files with the Court must have resided in the state of Georgia for the six months prior to the filing of the divorce complaint. The person who files the case is called the Plaintiff or Petitioner. The other party to the marriage is called the Defendant or Respondent. There are circumstances where a nonresident may file without living in the state of Georgia, specifically when his or her spouse has lived in Georgia for six months.

Uncontested divorce: a divorce in which all the issues between the parties (spousal support, child support, child custody, division of assets, etc.) have already been resolved by the two parties with a written agreement and other documents prior to the case being filed, and the parties want the Court to enter an order with those terms.

Contested divorce: a divorce in which all the issues have not been agreed upon by the two parties. If the parties do not reach an agreement while the case is pending, the issues that are disputed will be determined by a judge or jury. Juries do not determine child custody; that can only be decided by a judge based on the standard of what is in the best interests of the child.

Alternative dispute resolution (ADR): an alternative to divorce litigation. Two forms of ADR are arbitration and mediation. Arbitration involves presenting the issues of both sides of the dispute to a neutral third party, who then makes a decision, whereas mediation concentrates on both parties coming to a resolution themselves with the help of a mediator. The mediator has no decision-making power but merely assists the parties in settling the dispute. Issues such as spousal support, visitation, parenting plans, and division of marital assets can be negotiated during mediation sessions.

Noncitizens and citizens who are foreign-born often have unique issues in a divorce action. There may be specific cultural issues that can be relevant to custody issues. For example, in my practice, I routinely encounter parties who are concerned that the other party may take the child and flee to another country. Additionally, there may also be concerns that another party has assets overseas or has been transferring assets overseas in an attempt to hide them from his or her spouse. There also may be immigration-related concerns in a divorce, particularly if one party’s immigration status is tied to the other party. These are unique situations that should be addressed with your attorney at the outset of the case.