January 21, 2013

May a Judge Refuse to Grant a Georgia Divorce When The Parties Allege Their Marriage is Irretrievably Broken?

In Georgia, there are 13 grounds for divorce. The most popular ground for divorce is that the parties’ marriage is “irretrievably broken.” Because it is not necessary for either party to allege any fault in order to obtain a divorce based on the ground that the marriage is irretrievably broken, divorce granted on this ground are often referred to as “no fault” divorces. Although it is not necessary for a judge to find that the marriage was broken due to any fault or either party, a judge must still find that the parties’ marriage is indeed broken before a divorce may be granted on this basis. Thus, the answer to the question posed by the title is yes, a judge may indeed refuse to grant a divorce to a couple who allege that their marriage is irretrievably broken.

When one spouse initiates a divorce action based on the ground that the marriage is irretrievably broken, the other spouse may indeed resist or contest the divorce action. Minielly v. Minielly, 234 Ga. 434 (1975). In a contested irretrievably broken divorce case, all evidence of the marital relationship is admissible for consideration by the judge or a jury, including evidence of efforts to save the marriage, or the absence of such efforts. Harwell v. Harwell, 233 Ga. 89 (1974). The main issue that a judge or jury hearing a contested irretrievably broken divorce case is whether there is any prospect for reconciliation between the parties. See Minielly supra. If sufficient evidence is presented that the parties will likely or have already reconciled or resumed cohabitation, the court may either dismiss the action for divorce or refuse to grant the divorce. See Lindsay v. Lindsay, 241 Ga. 166 (1978).

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

May 18, 2012

Frequently Asked Questions: Georgia Divorce

Question: My wife left me and took our children with her. I have not seen them for three years. How can I find her to serve divorce papers and seek custody?

Answer: Some lawyers and most private investigators have access to databases that should be able to show where the other party is living. If you are trying to handle the divorce without the help of an attorney, you will likely need to hire a private investigator to find our where she is. Once you find where she is living, you can then personally serve her with the divorce papers to start the divorce process.

Question: Can I legally ask my husband for a separation but not have to leave my home?

Answer: Georgia does not recognize a “legal separation.” When you file for divorce, you assert in the pleadings that you are living in a “bona fide state of separation.” That simply means that you and your husband have not had marital relations (sex) since a certain date. There is an action for separate maintenance that can be filed in certain circumstances, but you should schedule a consultation with an Atlanta divorce lawyer to determine whether your specific situation would fall into this category.

Question: How do I get a divorce if my spouse won’t sign the papers, attend the classes, or follow through with any of the requirements?

Answer: If your spouse won’t cooperate, you may have to schedule the case for a final contested hearing. Before you attend this hearing, however, it is strongly recommended that you consult with an Atlanta divorce lawyer to make sure that you have prepared all your paperwork correctly for a final divorce. If your spouse does not attend a parenting class, some judges will still grant the divorce but may deny visitation to the offending spouse until he/she attends the class.

January 2, 2012

Can I get a divorce online in Georgia?

In these tough economic times, people are often looking for ways to save money. So it is not surprising that Georgia divorce attorneys are often asked if a person can obtain a divorce online, rather than hire an attorney and go through the court system.

In Georgia, you cannot get a divorce online. You can obtain the divorce paperwork online, but you must file it with the Superior Court, who will then grant your divorce after going through the required legal procedure. Some counties offer help with divorce filings and make it easier than others to file and obtain a divorce without an attorney. However, there are some aspects of a divorce case, particularly child custody and child support, that require specific legal documents (i.e. parenting plan, child support worksheets) that must be filled out correctly and completely before the court will grant the divorce, even if all issues are agreed upon. Thus, while there is certainly nothing wrong with negotiating issues in your divorce without the assistance of at attorney, it might actually save you time and money to hire an attorney to help you with the paperwork to ensure it is done correctly and that there will be no issues in having your divorce granted as expeditiously as possible.

November 25, 2011

Parenting plans in Georgia

With the holiday season upon us, many divorced parents in Georgia will look to their parenting plan for guidance on arranging their holiday schedules. Parenting plans are custody agreements that are submitted jointly or individually by each party in an action that involves child custody in Georgia. Except in those cases where emergency relief is necessary due to family violence, parenting plans are required in all actions in Georgia where child custody is at issue.

A parenting plan may be temporary until a final decree is entered, at which time a permanent parenting plan will go into effect. Under Georgia law, when considering either a joint plan or opposing plans of the parties, the court must make its determination based upon the best interest of the child. O.C.G.A. § 19-9-3. The court bases its determination on a number of factors including, but not limited to, the relationship that exists between each parent and the child, and the ability of each parent to provide the child with basic necessities. Id. at a(3).

Parenting plans require that both parties acknowledge and decide on a variety of issues. O.C.G.A. § 19-9-1. Holiday visitation is one such issue, and it can be difficult and emotional for parties to come to an agreement because it requires each party to agree to some holidays away from their children. It may never be easy to split time with your child and the other parent, but a successful parenting plan can alleviate tensions between the parties and allow each parent to enjoy time with their child.

If you need help creating a parenting plan, or seek to modify your existing parenting plan, please contact our Atlanta divorce attorneys to assist you in the process.

By Courtney Carpenter, Associate Attorney, Meriwether & Tharp LLC

November 18, 2011

How long does a divorce take in Georgia?

Georgia divorce lawyers are often asked how long an average divorce takes in this state. This is a difficult question to answer because there is not really an “average” divorce case. The length of time depends greatly on whether the parties are able to settle matters and, if not, what issues they are fighting about. Even cases with similar facts can be very different. For example, consider a case where both parties work, and have 2 children, a marital home, several joint accounts, and some separate property. Some parties with these facts are able to resolve everything fairly quickly and easily. Other parties with these same facts, however, may argue over every custody, child support, alimony and/or equitable division of assets. Even one contested issue can cause a divorce to drag on, especially if it is something about which both parties feel passionate.

The length of a divorce case can also depend on the County in which the divorce is filed because some courts are more back logged than others. Often, there is not much you can do about this issue.

In our experience, the average time range for a divorce in Georgia is 45 days for a completely uncontested divorce to about 3 years for a hotly contested divorce. However, as mentioned above, this time can vary greatly based upon the specific facts of your case.

October 29, 2010

An Atlanta Divorce Attorney's Thoughts on Celebrity Divorce - Courteney Cox and David Arquette

This week in An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I’m going to discuss the recent separation of Courteney Cox and David Arquette. After 11 years of marriage and one child together, the couple announced that they were on a “trial separation.” People Magazine, October 25, 2010. In their statement, they said “…[w]e remain best friends and responsible parents to our daughter and we still love each other deeply. As we go though this process we are determined to use kindness and understanding to get through this together…”

However, since the announcement, Arquette does not seem to be using “kindness” in the process. He has gone on Howard Stern’s radio show to detail the reasons for the split and even publicly admitted to sleeping with another woman since he and Cox separated. We have yet to see if the couple will reconcile and, if not, how their divorce will play out, but it is likely that the sting of Arquette’s actions will have some bearing on the outcome.

Unlike Arquette, non-celebrities don’t usually have the ability to speak to media outlets about their divorces. However, spilling detailed relationship troubles to everyone you know and rubbing your spouse’s face in your post-separation activities, such as Arquette has done, will likely make for a more bitter and litigious divorce, which, in turn, will cost both parties more money. As a colleague of mine always says, one thing that can drive up the cost of a divorce is emotion. There is simply no reason to make an emotional process even more difficult for you, your spouse, or your children.

October 1, 2010

Georgia Grounds for Divorce - Marriage is Irretrievably Broken

In Georgia, parties cannot obtain a divorce except on one of 13 grounds allowed by law, the thirteenth of which is “[t]he marriage is irretrievably broken.” OCGA §19-5-3(13). A divorce under this ground is generally referred to as a no-fault divorce.

A marriage is irretrievably broken “where either or both parties are unable or refuse to cohabit and there are no prospects for reconciliation.” Harwell v. Harwell, 233 Ga. 89, 91 (1974). However, both parties do not need to agree that the marriage is irretrievably broken. The Supreme Court has held that “where one of the parties to a marriage refuses to cohabit with the other and testifies that the marriage is irretrievably broken, the fact that the other party maintains hope for reconciliation will not suppose a finding…that there are ‘prospects for reconciliation.’” McCoy v. McCoy, 236 Ga. 633, 634 (1976). Therefore, if one party requests a divorce on this ground and testifies that there is no chance of reconciliation, the other party cannot prevent the divorce simply by testifying that he/she believes they can reconcile.

September 22, 2010

DeKalb County Parenting Seminar Information

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. DeKalb County (Avondale Estates, Chamblee, Decatur, Doraville, Lithonia, and Stone Mountain) offers its Seminar for Divorcing Parents at three different locations in the county. All remaining 2010 seminars will take place in the 1st floor Jury Room of the Dekalb County Courthouse Judicial Tower, located at 556 N. McDonough Street, Decatur, Georgia. The schedule for the remainder of 2010 is as follows:

Friday, September 10, 9:30am – 1:30pm
Friday, September 24, 9:30am – 1:30pm
Monday, October 4, 5:00pm – 9:00pm
Friday, October 22, 9:30am – 1:30pm
Monday, November 8, 5:00pm – 9:00pm
Friday, November 19, 9:30am – 1:30pm
Monday, December 6, 5:00pm – 9:00pm
Friday, December 17, 9:30am – 1:30pm

The cost of the seminar is currently $30.00 per person. Dates and time are subject to change so please check the DeKalb County Seminar for Divorcing Parents website for the most up to date information and for online registration under the divorce tab.

September 15, 2010

Gwinnett County Parenting Seminar Information

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Gwinnett County (Buford, Dacula, Duluth, Lawrenceville, Lilburn, Norcross, Snellville, and Suwanee) offers its Parenting Seminar at the Gwinnett Justice and Administration Center, 75 Langley Drive, Lawrenceville, Georgia 30045. The seminars are held in Conference Room A West Wing on the second floor. The schedule for the remainder of 2010 is as follows:

Weekday seminars from 9:00am – 1:00pm: September 2, September 9, September 23, October 7, October 14, October 28, November 4, November 10, December 2, December 9

Evening seminars from 5:00pm – 9:00pm: September 16, October 21, November 18, December 16

The cost of the seminar is currently $30.00 per person and registration MUST be received prior to the day of the seminar. You can find additional information and register online for these seminars at the Gwinnett County Parenting Seminar website.

September 8, 2010

Atlanta Divorce Lawyer's Guide to Cobb County Parenting Seminar

Under Georgia law, both parties in a divorce are required to attend a parenting seminar if the parties have children under the age of 18. See Uniform Superior Court Rule 24.8. Cobb County (Acworth, Austell, Kennesaw, Marietta, Powder Springs and Smyrna) offers its Divorcing Parents Seminar at the Cobb County Superior Court Building (Building D; 6th floor jury assembly room), 30 Waddell Street, Marietta, GA 30090.

Cobb County offers a four-hour weekday seminar (from 8:30 am to 1:00 pm) or two two-hour evening sessions (from 7:00 pm to 9:00 pm). The schedule for the remainder of 2010 is as follows:

Thursday morning classes (8:30am – 1:00pm): September 2, September 16, October 7, October 21, November 4, November 18, December 2, December 16

Monday evening classes (7:00pm – 9:00pm): September 13 AND 20, October 11 AND 18, November 8 AND 15, December 13 AND 20

The cost of the seminar is currently $30.00 per person. You can find additional information and register online for these seminars at the Cobb County Divorcing Parents Seminar website.