William H. Smith Law

DIVORCE

Uncontested Divorce

In Georgia, parties may obtain a divorce after the expiration of thirty days, if all the prerequisites are met and the divorce is uncontested. An uncontested divorce means that the parties agree to each and every aspect of a final settlement in their divorce case. A lawyer may only represent one party during the divorce, even if it is uncontested.

Contested Divorce

The Superior Court has the inherent authority to award alimony to either party as a result of a divorce, to rule upon a marital property division, to rule that gifts and inherited property are not marital properties and can remain with the party who inherited it or received it as a gift or inheritance, and to rule on all other matters and pertinent issues pertaining to the divorce action.

There are thirteen (13) different grounds for divorce,
and more than one ground may be alleged in the divorce complaint.

OFFICIAL CODE OF GEORGIA ANNOTATED § 19-5-3

The following grounds shall be sufficient to authorize the granting of a total divorce:

(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. No divorce shall be granted upon this ground unless the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party; and he has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and the superintendent or other chief executive officer of the institution and one competent physician appointed by the court, after a thorough examination, make a certified statement under oath that it is their opinion that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party's mental health cannot be expected at any time during his life. Notice of the action must be served upon the guardian of the person of the mentally ill person and upon the superintendent or other chief executive officer of the institution in which the person is confined. In the event that there is no guardian of the person, then notice of the action shall be served upon a guardian ad litem, who shall be appointed by the court in which the divorce action is filed, and upon the superintendent or chief executive officer of the institution in which the person is confined. The guardian and superintendent shall be entitled to appear and be heard upon the issues. The status of the parties as to the support and maintenance of the mentally ill person shall not be altered in any way by the granting of the divorce;

(12) Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16;

(13) The marriage is irretrievably broken. Under no circumstances shall the court grant a divorce on this ground until not less than 30 days from the date of service on the respondent.

Once the initial divorce complaint is filed, the opposing party may be served by a deputy sheriff, or may personally acknowledge service. Once service is perfected, a temporary hearing is scheduled pursuant to Uniform Superior Court Rule 24.2, to determine the rights, duties, and obligations of the parties until the divorce is finalized. Defendants in divorce actions must file responsive pleadings to the Plaintiff’s complaint.

Following the temporary hearing, the parties may engage in the discovery process to gain information in preparation for trial. Written discovery in divorce actions primarily consists of Interrogatories, and Request for Production of Documents. Interrogatories are written questions, which must be answered under oath, that are submitted to the opposing party. A production of documents request is often used to obtain financial information.

Parties may also schedule and conduct depositions. A deposition allows out of court testimony to be taken down by a court reporter that then produces a transcript for use in later court proceedings.

Once the parties have engaged in the discovery process, they may consider alternative dispute resolution as a way to settle the case. Alternative dispute resolution is not required in this circuit, unless ordered by a Superior Court Judge.

Official Code of Georgia Annotated § 15-23-2(1)

“Alternative dispute resolution” or “ADR” refers to any method other than litigation for resolution or disputes. Alternative dispute resolution methods include mediation, arbitration, early case evaluation, or early neutral evaluation, summary jury trial, and minitrial.

After discovery has been conducted by Plaintiff and Defendant, the parties are ready to move forward to trial. Parties in Georgia may either have a trial by Judge, or may request a jury trial. Once the trial concludes, an Order will memorialize the outcome, and the parties are bound by this Order.