FAQs


Because divorce can be a complicated and intricate process involving many factors, every case is unique.

However, we have tried to include answers to general questions that many clients have when dealing with divorce.

What is a prenuptial and/or post-nuptial agreement?
Under what conditions can I get a divorce?
How long does a divorce usually take?
How much does a divorce usually cost?
Who is responsible for the cost of the divorce?
Are there residency requirements?
If I move out of my marital home before filing for divorce, is that considered abandonment?
In preparing, what information do I need to provide my attorney?
How are family/children/expenses handled before the divorce is final?
Do both parties have to go to court?
Will I (Or My Spouse) Be Awarded Alimony?
How is the amount of alimony calculated?
How is child custody decided?
How is child support calculated?
What kind of tax implications will child support and alimony have on my return?
Who claims the children as exemptions on their taxes?
Is there anything that I can do to ensure my children are minimally affected by the divorce?
Should I wait to start dating until after the divorce is final?
Can the terms of the final settlement be modified?
What steps do I take if my former spouse is not following the terms of the divorce decree?
What is Alternate Dispute Resolution (ADR)?
If I have a child out of wedlock, what kind of rights do I have as a parent?
Under what circumstances can I obtain a TPO?

What is a prenuptial and/or post-nuptial agreement?

A prenuptial agreement is an agreement which protects the property of one or both spouses that was owned prior to the marriage from being divided as marital assets during the divorce if the property was owned by a spouse prior to the marriage.  A prenuptial agreement can also set forth a proposed division of assets and spousal support in the event of a divorce.  A post-nuptial agreement is a contract crafted by the parties after marriage but for the same purpose as a prenuptial agreement.

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Under what conditions can I get a divorce?

The State of Georgia recognizes thirteen grounds for divorce:

  1. Intermarriage by persons within the prohibited degrees of consanguinity and affinity.
  2. Mental incapacity at the time of the marriage.
  3. Impotency at the time of 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 by 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 and under which he or she 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.
  12. Habitual drug addiction.
  13. The marriage is irretrievably broken.

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How long does a divorce usually take?

An uncontested divorce may be granted as early as 31 days after the Defendant has been served with the complaint for divorce.  However, if the divorce is contested or must go to trial the length of time varies depending on the issues involved and how complex the facts are.

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How much does a divorce usually cost?

Attorneys bill by the hour, so the cost of the divorce is dependent on several factors including but not limited to the depth of the case and the length or duration of the divorce.  There may also be other expenses involved in the process including but not limited to filing fees, travel, manuscript fees, and other court costs.

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Who is responsible for the cost associated with the divorce?

Unless agreed upon otherwise, each party is responsible for the payment of their respective attorney and court filing fees.  In some instances a party may be awarded attorney’s fees by the court.

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Are there residency requirements?

The Plaintiff (party filing for divorce) shall have been a “bona fide” resident of the state for six months before the filing of the action for divorce.  In addition, all actions for divorce shall be brought in the county where the defendant resides if he or she is a resident of Georgia.  If the defendant is not a resident of Georgia, the action must be brought in the county where the plaintiff resides.

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If I move out of my marital home before filing for divorce, is that considered desertion?

No, you are allowed to move out of your marital home.  Georgia law states three vital elements to the ground of desertion:

  1. Willful absence- there must be intent to desert and the absence must be willful.  Furthermore, the absence must not be justified by the conduct of the other spouse nor with the other’s consent.
  2. A cessation of co-habitation- There must be a cessation of co-habitation or denial of conjugal relations.
  3. For a period of one year- The willful absence must be for a period of one year as provided by the statute, and it must be continuous for that period immediately prior to the filing of the petition for divorce.

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In preparing, what information do I need to provide my attorney?

Your attorney will need as much information as possible concerning any marital assets, debts, income, and issues involved in the divorce.  The following records may be helpful:

  • Income tax returns- including any forms needed to prepare these returns (i.e. 1099, W-2’s, K-1’s);
  • Financial statements;
  • Stocks, bonds, or any other investment statements;
  • Any statements that list the current balance of any retirement accounts or deferred pension plans;
  • Wills;
  • Personal property- Bill of sale, invoices, appraisals, and contracts;
  • Employment records;
  • Business records;
  • Previous legal proceedings and judgments;
  • Any documents relating to debts owed to or by you;
  • Medical expenses;
  • Telephone bills;
  • Tapes and photographs.

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Will I (Or My Spouse) Be Awarded Alimony?

Alimony may be awarded to either spouse in accordance with the needs of that spouse and ability of the other spouse to pay. In deciding whether to award alimony, a court will consider the cause of separation and each party’s conduct toward the other prior to separation.

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How Is The Amount Of Alimony Determined?

The Court may decide to award alimony. If alimony is awarded, several factors will be taken into consideration in determining the amount to be awarded. Some of those factors include, but are not limited to: the duration of the marriage, the age and health of the parties, the standard of living during the marriage, the contribution of each party to the marriage, the separate property of each party, the education of the parties, the time necessary for further education, and the earning potential of both parties. The Court may award alimony as a lump sum or in payments over a specific period of time, depending on the circumstances of each individual case. Also, alimony may be awarded as a monetary sum or property.

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How are family/children expenses handled before the divorce is final?

Both spouses may agree upon a mutually acceptable arrangement at any point during the pendency of a divorce.  Or a temporary hearing can be held in order to resolve any financial needs for a temporary time period if the two parties cannot agree.

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Do both parties have to go to court?

If the case is uncontested and the parties have the necessary documents and settlement agreement, only the party who filed the complaint for divorce (the Plaintiff) has to appear in court for the final judgment in the divorce.  If a trial is necessary or the divorce is contested, both parties are required to appear.

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How is child custody decided?

Child custody is based upon the best interest of the child/ren.  A court can award sole or joint physical custody to one or both parents or to a third party if necessary.

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How is child support calculated?

Effective January 1, 2007, the guidelines for calculating child support are based on a new “income share” model which will take into account the income of both the custodial parent and the noncustodial parent, and these guidelines will apply to child support in a contested or uncontested hearing.  The amount of child support varies depending on the number of children, the income of both parents, the cost of medical insurance, and the expenses of the children.

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What kind of tax implications will child support and alimony have on my return?

Alimony and separate maintenance payments are generally deductible from the gross income of the payor spouse and includible in the gross income of the recipient spouse if payments are made pursuant to a decree of divorce or separate maintenance, a written separation agreement, or a support decree, and if they meet certain other criteria.

Child support- There is not a includable/deductible tax treatment for any payments received or paid for the support of the minor children of either spouse.

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Who claims the children as exemptions on their taxes?

In situations where the parents are divorced, legally separated, or separated pursuant to a separation agreement or have lived apart at all times for the last six months of the calendar year, the custodial parent will receive the dependency exemption.  The custodial parent is defined as the parent having custody for the greater part of the calendar year.  For this to occur, however, the child must be in the custody of one or both of the parents for more than half of the calendar year and must receive over one-half of his support from them during that year.  There are three exceptions to the general rule that the custodial parent receives the exemption.  The rule does not apply (1) if the custodial parent signs a written declaration releasing his or her rights to the exemption and the noncustodial parent attaches the declaration to his or her return; (2) if a multiple support agreement is in effect; (3) if a “qualified pre-1985” instrument provides that the noncustodial parent is entitled to the exemption and the noncustodial parent provides at least $600 of the child’s support for the tax year.

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Is there anything that I can do to ensure my children are minimally affected by the divorce?

Divorce is an emotionally tiresome event.  Most children have immediate distress when they learn of an impending divorce because they wonder what will happen to them; where they will live; if they will have to move; if they will go to the same school and keep the same friends; if they will have the same neighbors; and if they will get to keep their stuff.  Parents can best allay their children’s anxiety by setting their expectations and then meeting those expectations.  Many parents may be tempted to speak to their children about the proceedings or to use the children as “messengers” to relay notes or verbal messages to the other parent.  Parents can relieve the stress that divorce can have on children by keeping the children out of the “middle”.  Avoid bad-mouthing your spouse in front of your children.  Think of your children first before acting on your own emotions.  Speak with your children about the fact that they are not to blame for the divorce.  Encourage your children to talk about their feelings and reactions.  Be honest with your children but do not go into unnecessary detail.  Try to provide a stable, comfortable, secure environment for them both during and after the divorce.

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Should I wait to start dating until after the divorce is final?

Yes.  Under Georgia law, until you are divorced you are still married.  Particularly when minor children are involved, it is confusing and disruptive for a parent to have a “boyfriend” or “girlfriend” in addition to a spouse.  Adultery is marital misconduct, which can affect child custody, alimony, and an equitable division.

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Can the terms of the final settlement be modified?

The general rule is that after a decree of divorce is final and the term of court has expired, neither the parties nor the court has authority to modify the terms of the decree.  However, as with most general rules there are many exceptions.

Under Georgia law child support, visitation, and child custody may be modified.  Several factors can affect the court’s decision to modify child support and custody including but not limited to a substantial change in financial status of one or both parents or a material change in the conditions directly affecting the welfare of the child/ren.  A property division is not modifiable.

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What steps do I take if my former spouse is not following the terms of the divorce decree?

The terms of any court order must be obeyed.  If not, it is a contempt of court.  A contempt action seeks compliance with a court order and a judge is authorized to award attorney fees for a willful contempt.

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What is Alternate Dispute Resolution (ADR)?

Alternate Dispute Resolution is a field that encompasses several areas including but not limited to mediation, arbitration, and facilitation.  The most common of these areas in divorce actions is Mediation.  Mediation is a process designed to help the parties involved come to a mutually acceptable agreement out of court.  The process is headed by a mediator who acts as a third-party neutral.  Mediation is a confidential process.  If an agreement cannot be reached in mediation, the case may go in front of a judge or jury.

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If I have a child out of wedlock, what kind of rights do I have as a parent?

The mother of a child born out of wedlock is presumptively entitled to the custody of the child and, being the only recognized parent, she exercises all parental power.  However, the biological father of a child born out of wedlock may render the child legitimate, and then he has as equal a claim as the mother to the parental and custodial rights to the child.  DNA testing must first confirm paternity.  Once a child has been legitimated, a court employs the best interest of the child standard in making an award of child custody in a contested manner.

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Under what circumstances can I obtain a TPO?

Family Violence
A person can make an application for family violence upon being victim to the occurrence of certain acts:
1) Any felony
2) Assault
3) Battery
4) Criminal damage to property
5) Criminal restraint
6) Stalking
Felonies are defined under Georgia law and are subject to prosecution. An assault is a threat of harm that does not involve touching – but the threat of harm must be imminent, such as one pulling one’s fist back in a gesture that appears to be aimed for the victim. A battery is any kind of unconsented-to touching, like slapping, punching, spitting, choking, etc. The touching must not be with the victim’s consent – but it does not necessarily need to be harmful. Someone spitting in another’s face is not harmful, but it is a battery nonetheless. Criminal damage to property occurs when one damages the personal property of another – or one’s own property – with an intent to damage, and the cost of repair is $500 or greater. Criminal restraint occurs when one is prohibited from freedom of movement by another, such as being held down against one’s will. Stalking means following someone for the purpose of harassment; it can also include excessive electronic communications that are interposed for the purpose of harassment.
It is important to understand that either party can be subject to a TPO – being female is not insulation against it. It is especially easy to commit family violence if alcohol is involved. Argue after a couple glasses of wine, and an initial impulse is to throw something: wine glass, cell phone, little things that are easy to hurl. If the damage to property is in excess of $500 to repair, or if an object hits someone – family violence has occurred.

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