Family Law

1. Q : Can my marriage be annulled?

A : You may only obtain an annulment if your marriage is invalid. In order for a marriage to be valid, you must meet three criteria:
(a) Be able to enter into an enforceable contract;
(b) Actually enter into an enforceable contract to marry; and
(c) Consummate the marriage
In order to enter into an enforceable contract, you and your spouse must be of a sound mind, the proper age of consent, not be related, and not have a previous marriage that has not yet been dissolved. Next, you must enter into an actual contract of marriage by voluntary consent of both parties without any fraud, drunkenness or duress. Finally, the marriage must be consummated either by obtaining a license to marry with a formal ceremony or by an agreement in words to be man and wife. If these elements are not present, the marriage is invalid and may be annulled.

2. Q : What is a legal separation?

A : In Georgia, legal separation occurs when marital relations no longer exist between a husband and wife. This may include company, cooperation, assistance, aid and intimacy. While the court will not grant a legal separation, you may file a suit for “Separate Maintenance” which addresses the same issues as you would in divorce, but does not completely dissolve the marriage. This is useful if parties are unsure about divorcing or wish to remain married for the purposes of property, insurance, social security, etc.

3. Q : What if we are in a “common law” marriage?

A : After January 1, 1997, Georgia no longer recognizes common law marriage. Prior to this date, a common law marriage could be asserted by parties living together and holding themselves out to the public as a married couple.

4. Q : What is the difference between fault/contested and no fault/uncontested?

A : A fault or contested divorce is one in which one party or the other alleges misconduct by the other based on one of the thirteen grounds for divorce. Fault based divorces are generally not legally advantageous, but may have a bearing on issues such as alimony. Contested matters include property division, asset and debt distribution, child custody, support & visitation and alimony.

A no-fault or uncontested divorce is one in which the parties have come to an agreement on any issues that exist in the divorce, such as those mentioned above. In this case, only one party must prove, through sworn testimony that it is their opinion that the divorce is over.

5. Q : What are the grounds for divorce?

A : The grounds for divorce are:
(1) Intermarriage;
(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;
(6) Adultery;
(7) Willful and continued desertion by either party;
(8) Conviction of either party for an offense involving moral turpitude under which they are sentenced to imprisonment in a penal institution for two years or longer;
(9) Habitual intoxication;
(10) Cruel treatment;
(11) Incurable mental illness;
(12) Habitual drug addiction; and
(13) Irretrievably broken.

6. Q : Where and how do I file for divorce?

A : A divorce is filed in the Superior Court of the county where your spouse resides. If you are out of state or your spouse cannot be filed, there are other factors that you may discuss with an attorney. The divorce proceeding is initiated by the filing of a Complaint or Petition.

7. Q : My spouse and I agree on everything. Do we still need an attorney?

A : If you and your spouse agree on all matters, this is considered an uncontested divorce. It is suggested that you still seek legal counsel to ensure that there are no issues left to be addressed and all paperwork and language in the paperwork is legally sufficient and proper. But, Georgia law does not require that you are represented by an attorney and should you decide to proceed without an attorney, you are considered to be represented “pro se” (pronounced pro –say).

8. Q : Can we still obtain a divorce if we currently live together?

A : You and your spouse do not have to live in separate homes in order to file for divorce. Because divorce can sometimes be emotional, one party or the other often moves out of the marital home pending the outcome of the divorce.

9. Q : Do I have to be a Georgia resident to get a divorce?

A : To get a divorce in Georgia, the Petitioner/Plaintiff must have been a resident of Georgia for six months. However, a non-resident spouse may file for divorce against his or her spouse that has been a resident of Georgia for six months.

10. Q : I have received a complaint for divorce. Now what?

A : It is in your best interest to speak with a family law attorney immediately. You must file an Answer to the Complaint within 30 days or possibly forego future notice of court dates.

11. Q : What can I do if I need help from the court immediately?

A : Once a Complaint for Divorce and Answer has been filed, you may ask the court for a temporary hearing. At a temporary hearing issues, such as child custody, visitation, child support, personal property distribution, alimony, debt payment and allocation and real property distribution may be decided until a final hearing.

12. Q : What if my spouse has been abusive?

A : Whenever there is domestic violence, you should call the police. There is also a civil process by which you can have the court consider a restraining order or temporary protective order against the abuser.

13. Q : What do we do about the children?

A : Typically, legal custody of the children is shared by both parties and one party generally has primary physical custody. A court will hear the evidence from both sides to determine what is in the best interest of the child. From age 11-13, the court will allow a child to speak, but is not required to follow the child’s wishes. From age 14 and over, the child generally may choose which parent should have primary physical custody.

14. Q : What is the difference between legal and physical custody?

A : Joint legal custody allows both parents to have equal rights and responsibilities for major decisions concerning the child such as education, extra-curricular activities, and medical care and treatment. Primary physical custody generally allows one parent to have possession of the child the majority of the time and allows the non-custodial parent visitation rights, if they are warranted in the case.

15. Q : Can we share custody?

A : Yes; Although not generally awarded, joint physical custody may be granted based upon the best interests of a child and upon consideration of factors such as the suitability of each parent as a custodian, safety of a child, geographic location of the parents, a custodial agreement between the parents, the developmental and emotional needs of a child and the wishes of the child.

16. Q : What is the Divorcing Parents Seminar and do I have to attend?

A : You should consult your attorney or check with the clerk of courts in your county to determine if a Divorcing Parents Seminar is required. This is a class, generally offered in the afternoons and on weekends, that divorcing parents must complete to assist parents in eliminating parental conflict in the presence of the child, keeping the child out of parental issues and putting the child’s best interests first. There is a fee associated with this class.

17. Q : How much will I receive in child support?

A : Both parents income is used to determine what amount a non-custodial parent will pay. Georgia Child Support Guidelines may be found in the Official Code of Georgia §19-6-15. Child support is calculated based on several factors such as living expenses, education costs, medical costs, extra-curricular fees, the time each parent spends with the child, life insurance payments, day care costs and parents’ obligations to other children or other households.

18. Q : Can I get alimony?

A : Alimony is an issue to be determined by the court. It is generally unavailable to a spouse that contributed to the dissolution of the marriage by desertion or adultery. Alimony may be paid in various schedules or for a various length of time. Factors that the court considers when determining whether to award alimony include the contribution of each spouse to the marital property, the age, physical condition and emotional health of each of the spouses, the standard of living established during the marriage, and the time necessary for a spouse to acquire sufficient education to secure employment.

19. Q : What are your fees?

A : Our fees vary based on whether a divorce is contested or uncontested. Fees range from $3500 – $10,000 for retainers depending on the complexity of the case. Hourly rates also vary from $225.00 to $300.00 per hour for attorney time.

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10.0Jerbrina L. Johnson
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