Separation
In Georgia, couples must be in a state of "separation" prior to filing for divorce or separate maintenance. "Separation" is the intentional cessation of consortium and conjugal rights. Upon filing for either divorce or separate maintenance, the filing spouse must swear under oath that the couple is separated. A state of separation does not necessarily require that the parties maintain separate and distinct residences.
"Separate Maintenance" is an action available in Georgia which deals with many of the issues that would normally be dealt with in a traditional divorce action. The difference between divorce and separate maintenance is that an action for separate maintenance does not dissolve the marriage contract. There are many considerations that may lead a couple to opt for separate maintenance rather than divorce.
Divorce
Marriage is a contract which Georgia views as the "most important of all human transactions and the basis of the whole fabric of civilized society."[1] This reverential opinion of the marriage contract is the basis for requiring that a marriage contract be dissolved only by court order. This includes common law marriages, which may only be dissolved by formal divorce proceedings despite the manner in which the marriage was created.
Georgia does however recognize the concept of a "no-fault" divorce which is derived from the thirteenth statutory ground, "the marriage is irretrievably broken." This is the most recently recognized ground for divorce and was not defined by the courts until 1974 in the case of Hartwell v. Hartwell. In Hartwell, the Georgia Supreme Court defined this ground as follows:
The parties do not specifically complain of each other's conduct. They merely state that their marital differences are insoluble and request a change of status. The only question is whether there are prospects for reconciliation.
Georgia continues to recognize "fault" grounds and grounds which render the marriage void ab initio, as well. These are as follows: intermarriage of related persons; mental incapacity at the time of marriage; impotency at the time of marriage; force, menace, duress, or fraud in obtaining the marriage; pregnancy of the wife, at the time of marriage, unknown to the husband; conviction of a crime of moral turpitude; habitual intoxication; adultery; willful and continued desertion; cruel treatment; incurable mental illness; and habitual drug addiction. The first five grounds are also grounds for an annulment of the marriage.
There is no statute of limitations on the grounds for divorce; however, the jury may consider a lapse of time and any evidence of acquiescence or condonation.
Custody
In the case of a marriage which has produced children (and where those children are minors), custody is generally determined during the divorce proceeding. Georgia's state policy is to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of raising their children.
There is no prima facie right to the custody of the child in the father or the mother and the judge may consider any relevant factor in determining custody. Children over the age of fourteen may select which parent they will reside with and children over the age of eleven may indicate a preference which the judge may consider in determining custody. In recent years, awards of joint legal and joint physical custody have become the norm. Joint Legal Custody means both parents have equal right and responsibilities for major decisions concerning the child. Joint Physical Custody means that physical custody of the child is shared between the parents in a way that provides substantially equal time with each parent.
Parenting Plans are now required in all cases in which custody is at issue. Parenting Plans must include a recognition that a close and continuing parent-child relationship and continuity in the child's life will be in the child's best interest as well as recognitions of certain needs of the child. The Parenting Plan details which parent has decision making authority over certain issues, when and where a child will be in each parent's custody, where the child will be during holidays and breaks, as well as any limitations that may exist on the parent while the child is in his or her custody.
Once a determination of custody has been made and entered in a case the parties may not modify the determination by agreement without consent of the court. Either party may file a petition for modification of a previously entered custody determination; however, the parties may not file for a review of a custody determination more often than once in each two-year period following a determination by the court without a showing of a change in any material conditions or circumstances of a party or the child.
Money matters in divorce
Money is always an important consideration for divorcing couples as it relates both to the potential award of alimony and the parties' respective presumptive child support responsibilities.
Alimony may be awarded to either spouse based on the needs of the spouse and the ability of the other spouse to pay. Alimony is unrelated to the division of marital assets because it is derived from the separate estate of the responsible party. Alimony is barred if it is established by a preponderance of the evidence that the separation between them was caused by that spouse's adultery or desertion. Alimony is not available in the case of an annulment.
Where a claim for alimony is at issue the following factors will be considered in determining the amount: the standard of living established during the marriage; the duration of the marriage; the age, physical and emotional condition of both parties; the financial resources of each party; the time necessary for either party to acquire sufficient education or training to enable him or her to find appropriate employment; the contribution of each party to the marriage; the separate estate, earning capacity, and fixed liabilities of the parties; and such other relevant factors as the court deems equitable and proper.
Child support is the right of the child and cannot be waived or excused by a parent. In Georgia, child support is based on an "income shares" model which determines a presumptive child support responsibility for each parent based on the parent's income. Adjustments can be made to the presumptive amount based on the child's needs or the respective parenting time of each parent. Minimum wage will be used to impute the income of an unemployed parent.
Property disputes
During a divorce action, property will be classified as either marital or separate property. Marital property is the property acquired by the parties during the marriage. Only marital property is subject to equitable division. Property owned by one party prior to the marriage is separate property and not an asset of the marital estate. This property may however be awarded as alimony. Additionally property acquired by one party by gift, inheritance, bequest, or devise during the marriage remains the separate property of that party. An "equitable" division of the assets does not mean an equal division, but a fair division.
Disputes frequently arise in division of the assets because a spouse may claim an interest in property titled in the other spouse on equitable grounds which is generally based on the theory of an implied or resulting trust. Gifts are another type of property over which disputes often arise relating to whether a gift has been made to one spouse by the other or whether gifts from third parties have been made to both spouses or to one spouse individually.
Some of the uncertainty inherent in an equitable division of the assets by the court may be alleviated by an antenuptial agreement; also these agreements are subject to the court's discretion and may not be determinative. Given the current economy it is more important than ever for divorcing parties to make good faith efforts to resolve these disputes amicably and with reasonable foresight to their futures as property awards incident to a divorce can have far-reaching effects on the credit and borrowing potential of both parties.
[1] Mosely v. Mosely, 67 Ga. 92 (1881)
