You should understand these basic terms before you start the 6 Steps. These terms are used throughout Modern Divorce Online.
“Uncontested divorce” means that the couple seeking a divorce is not asking the judge to decide anything for the parties because they have figured things out for themselves. Once the spouses have a signed settlement agreement, they can file an uncontested divorce asking the court only to enter the final decree of divorce. Assuming every necessary document has been filed, a Georgia court can finalize an uncontested divorce in as few as 31 days after filing.
“Contested divorce” (also known as a litigated divorce) means the parties have not worked everything out and are, potentially, asking the judge to (1) divide their marital property and debts between them, (2) decide whether alimony will be paid/received and, if so, how much and for how long, (3) determine how they will share custody and parenting time of their children, if applicable, and (4) calculate how much child support needs to be paid, if applicable.
Regardless of whether a divorce is uncontested or contested, the court will grant a divorce. The outcome of the case is not in doubt. The unknown factors are how long it will take and how much it will cost. Both of these are within the spouses’ control.
In Georgia spouses have to be in a bona fide state of separation in order to file for divorce or separate maintenance. Essentially, this means that you and your spouse are not engaging in sexual relations with each other. It is permissible to file for divorce while you live in the same home together so long as you are living in a bona fide state of separation.
Some spouses live in a bona fide state of separation and never file for divorce. The state of Georgia considers these couples still married and still subject to all of the laws which apply to married couples. Spouses can each live in separate residences, have separate bank accounts and even work out a co-parenting arrangement, but in the eyes of the law they are still married. Georgia law does not recognize the concept of legal separation. Even if you and your spouse have taken actions to separate, Georgia law does not recognize that those actions have changed your status as legally married to legally separated.
If you and your spouse desire to live apart but not get divorced, you can file for separate maintenance. (Throughout MDO we will use the terms “separate” or “separation” in reference to couples seeking court-ordered separate maintenance.) A separate maintenance case can be contested or uncontested just like a divorce. The issues addressed in a separate maintenance action are similar to but not identical to those addressed in a divorce. You should discuss with a lawyer whether separate maintenance might be a good option for you and your spouse. After a final order of separate maintenance is obtained, you and your spouse will still be legally married and unable to marry anyone else (unless you then get a divorce).
Some couples opt for separate maintenance instead of divorce because a complete divorce is culturally unacceptable. Some couples opt for separate maintenance because one spouse needs to remain on the other spouse’s health insurance plan, and this is allowed because the spouses are not fully, legally divorced.
In Georgia, you have to tell the court why you are seeking a divorce. You have to do this even if you are filing an uncontested divorce. Georgia is a “no-fault” divorce state which means that you are allowed to ask for a divorce based on your marriage being “irretrievably broken” – it’s no one’s fault, it’s just how things have turned out. Most divorces in Georgia are filed as “no-fault” divorces.
Georgia law also allows you to seek a divorce based on the fault of the other party but you will have to prove that fault. Proving your spouse is at fault is a lengthy and expensive process. So why would anyone choose to file a fault based divorce? Because if you are able to prove fault you may be able to affect the outcome of your case. For example if your spouse’s adultery is the cause of the breakup of your marriage then you will not have to pay alimony.
A spouse can seek divorce based on the reasons:
(1) Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
(2) Mental incapacity at the time of the marriage;
(3) Impotency at the time of the marriage;
(4) Force, menace, duress, or fraud in obtaining the marriage;
(5) Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;
(6) Adultery in either of the parties after marriage;
(7) Willful and continued desertion by either of the parties for the term of one year;
(8) The conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer;
(9) Habitual intoxication;
(10) Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health;
(11) Incurable mental illness; and
(12) Habitual drug addiction.
We’ve got you covered. Visit A Modern Divorce by Taylor & Weber LLC for options to help you mediate issues, draft a parenting plan or settlement agreement, file your documents with the court, or simply provide legal advice.
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