Georgia Divorce Legal Questions

There is no way to “make sure” you get a portion of her pension.  However, Georgia uses the "equitable distribution" approach to divide property upon divorce. Under this approach, each spouse takes their separate property and the court divides the property acquired during the marriage on an equitable basis. The courts are generally authorized to effectuate an equitable distribution of all property, real or personal, (including pensions or other employment benefits) acquired by either spouse during the marriage.   Upon divorce, each spouse would be entitled to the "separate property" that each spouse owned prior to the marriage, plus any appreciation the property has earned. "Separate property" would also include any gift, bequest, devise or descent acquired by one spouse before or during the marriage.   Although each spouse would take out of the marriage their own separate property, all of the remaining property or "marital property" would be divided under an "equitable distribution" approach. Some of the factors considered by the court in deciding how to equitably divide the property include:   1. standard of living during marriage; 2. earning capacities of both parties, 3. the education and vocational skills of both parties; 4. current income of both parties; 5. age and heath of the parties; 6. assets, debts, and liabilities of the parties; 7. needs of each of the parties; 8. provisions for the custody of the minor children; 9. each party's contribution to the acquisition of existing marital assets; 10. each party's enhancement of the value of existing marital assets; 11. whether either party has dissipated or diminished the value of the martial assets by wrongful conduct.  ... Read More

Though she may be trying to stall, because you were not a “bona fide resident of Georgia” (you actually lived in AL), the court will not have subject matter jurisdiction over the divorce at this time.    In order to file for a divorce in Georgia, residency requirements must be met for the court to accept the case.  The requirements are as follows:   No court shall grant a divorce to any person who has not been a bona fide resident of this state for six months before the filing of the petition for divorce, provided that any person who has been a resident of any United States army post or military reservation within this state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the United States army post or military reservation; and provided, further, that a nonresident of this state may file a petition for divorce, in the county of residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition. (OCGA § 19-5-5)   For a Georgia court to grant you a divorce, the court must have jurisdiction to do so.  If the court discovers it does not have jurisdictional rights to hear the case, it will not be accepted or it will eventually be dismissed.  In divorce cases, Georgia courts have subject matter jurisdiction when one of the parties has been a resident of the state of Georgia for at least six months.  However, the six months' residence must exist at the time of the filing of the complaint.   (Personal jurisdiction is not required to grant a divorce.  The court has "in rem" jurisdiction over the marriages of residents of the state. The court must, however, have personal jurisdiction over the defendant if financial relief is to be granted, i.e. child support, division of property, alimony, etc.)  Basically, you must have actually lived in Georgia for six months prior to filing for the court to have jurisdiction.... Read More

Ideally the attorney and you memorialized the agreement via a written contract/engagement letter.  The first thing to do would be to look and see what that says.  Ultimately, if the attorney agreed to handle the entire divorce for a certain flat fee, then no, they should not be increasing that after the fact.  ... Read More

You have not provided enough information for an accurate/complete answer.  Are there children involved?  What about any marital property or debts?  Did he file a response when you initially filed for divorce?   There are some circumstances that allow for a judge to issue a final order on a divorce case without input from one of the parties.   Are/were you represented in this divorce?  You should definitely speak with an attorney.... Read More

  If you bought the house, but is claiming that you gave it to her as a gift, then it is her responsibility to prove that.  If the house and all supporting documentation (title, mortgage, insurance, etc.) are in your name, she has an uphill battle to prove that you gave it to her as a gift.    When you say you "bought a house," when it comes to your divorce it matters whether you mean that you paid for it in full, versus making a down payment and making subsequent mortgage payments.  Georgia courts use the "equitable division" approach to divide marital assets upon divorce. Under this approach, each spouse takes their separate assets/property and the court divides the assets/property acquired during the marriage on an equitable basis.  If you paid for the house in full prior to the marriage, it's your separate property (as opposed to marital property).  If you made a down payment prior to the marriage, and then made payments on it during the marriage, the portion that you paid for prior to the marriage is your separate property, and the equity you accumulated by making payments during the marriage is marital property and subject to equitable division.  So, for example, say you made a $50,000.00 down payment on the house.  You then got married and made payments such that you accumulated another $30,000.00 of equity during the marriage.  The $50,000.00 of equity would be your separate property, and the $30,000.00 of equity would be marital property and subject to equitable division.  It's important to note that equitable division does not necessarily mean half - it means what's fair based on the circumstances.    In any event, if the house is in your name alone and she is alleging that you gave it to her as a gift, then she needs to prove that you gave it to her.    ... Read More

  I think you may have misunderstood the judge.  The correct statement is that the court here doesn't have jurisdiction over a Missouri resident.  Generally, the courts of this state do not have jurisdiction over someone who does not reside here.  However, there are scenarios under which the court does have jurisdiction over nonresidents of the state.  It's not a simple or quick answer, but an attorney can assist you with that.   More than likely you cannot use the form he signed when he was served to gain jurisdiction over him.  If you can get him to consent to the jurisdiction of the court, then that should be enough for the court to exercise jurisdiction over him and to finalize the divorce.      ... Read More

  Unless the parties enter into a settlement agreement and present that to the court for incorporation into the final order, Georgia courts use the "equitable division" approach to divide marital assets upon divorce. Under this approach, each spouse takes their separate assets/property and the court divides the assets/property acquired during the marriage on an equitable basis. The courts are generally authorized to effectuate an equitable division all property, real or personal.  This includes pensions or other employment benefits, settlements, etc. acquired by either spouse during the marriage.    Your husband's income received during the marriage would be considered a marital asset, as would a settlement that he received during the marriage for on the job injuries.  Thus, his settlement payment would be subject to equitable division. It is important to note though that equitable division does not necessarily mean half.  It means a fair share based on the facts and circumstances of your particular case.  Some of the factors that the court usually considers include: 1. The parties' standard of living during marriage; 2. The earning capacities of both parties; 3. The education and vocational skills of both parties; 4. The current income of both parties; 5. The age and heath of the parties; 6. The separate assets, debts, and liabilities of the parties; 7. The needs of each of the parties; 8. The contributions each party made towards the acquisition of existing marital assets; 10. Each party's enhancement of the value of existing marital assets; and, 11. Whether either party has dissipated or diminished the value of the martial assets by wrongful conduct.    ... Read More

  As an initial matter, your attorney is your legal representative and he/she owes a fiduciary duty to you. Among other things, your attorney must consult you about all settlement offers/proposals, and they must listen to your opinion. While your attorney may strongly advise you to accept a certain settlement or resolution to your case, if you say no, ultimately they must respect your wishes.   Your question says that you asked your attorney to "change the custody of the children."  An attorney cannot "change the custody of the children."  Custody of the children is ultimately determined by the court, either after a trial or by adopting the custody/visitation arrangements that the parties have agreed to and proposed to the court.  If what you meant was that you wanted your attorney to change the proposed custody arrangement, then yes, your attorney should do so.    ... Read More

You asked:  I JUST WANTED TO KNOW WHERE DO I START... I WANT A DIVORCE BUT MY WIFE WANT SIGN THE DIVORCE PAPERS WE HAVE BEEN SEPARATED FOR ALMOST 6 YEARS..... You should start by talking to a local attorney.  In most states, your wife would not be required to sign any documents.  If she failed to cooperate then the Court may be able to enter a default judgment of divorce.    Stu Shafer... Read More

  I assume what you mean is how do you serve someone who is homeless.  The Georgia Civil Practice Act allows for "service by publication" in certain circumstances.   In general, when the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of the summons, the court may grant an order that the service be made by the publication of summons.  To do that, you will have to comply with certain statutory requirements, like filing an affidavit or a verified complaint stating that a claim exists against the defendant in respect to whom the service is to be made, and that they are a necessary or proper party to the action.  Your attorney can assist you with this.    ... Read More

  The short answer is yes; you do not need your spouse's consent to obtain a divorce.  In Georgia, there are 13 grounds for divorce, and they are as follows: impotence; adultery; conviction/imprisonment of over 2 years for an offense involving moral turpitude; alcoholism and/or drug addiction; confinement for incurable insanity; separation caused by mental illness; willful desertion; cruel and inhuman treatment which endangers the life of the spouse; habitual drunkenness; consent to marriage was obtained by fraud, duress, or force; spouse lacked mental capacity to consent; wife was pregnant by another at the time of marriage unknown to the husband; and, incest. In legal terms, adultery is sexual intercourse between a married person and someone other than that person's spouse.  In Georgia, neither cunnilingus nor fellatio are considered adultery, and thus not grounds for divorce. Proving adultery is not always easy.  If your spouse no longer cares about what you know and is open about the affair, you may be able to catch your spouse in flagrante delicto (Latin: "in blazing offence"), meaning that your spouse is "caught in the act", or "caught red-handed."  However, there is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he/she witnessed. Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had both the disposition and the opportunity to commit adultery.  Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and their lover are usually sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering their lover's apartment at 11 P.M. and not coming out until 8 A.M. the following morning, and that they were alone.  If you can only prove disposition but not opportunity, the courts may not allow your divorce on the grounds of adultery, as the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition. (NOTE - your attorney may likely recommend pleading multiple grounds for adultery.) In a divorce case based on adultery, the adulterous spouse's lover is sometimes named as a co-respondent.  Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person. Generally, if you knew your spouse committed adultery, but resumed marital relations after you learned of the adulterous act, the courts feel that you have forgiven, or "condoned," the act, and adultery would not be allowed as grounds for divorce.    Its important to note that adultery may also hold certain implications for spousal support and custody determination. ... Read More

  You are essentially asking attorneys if they, or another attorney they know, would be willing to testify that a colleague has breached the standard of care that they owed to you, their client.  To be candid, many attorneys are simply unwilling to do this.  Moreover, they will likely be even more reluctant to do so without knowing who the previous attorney was.  Further, you need to know that the type of damages you are attempting to recover for may affect the statute of limitations for filing your claim.  As such, I would recommend that you retain/speak with an attorney who practices malpractice law.  Not only will they be able to evaluate the merits of your case and give you some insight into your likelihood of success, but they will probably be able to help find an expert witness as well.      ... Read More

The short answer is maybe. There's no easy and straightforward answer - it depends on which state has jurisdiction to enter an enforceable order that handles each legal issue involved in the divorce. In order to prevent your case from being dismissed and wasting your time and money, it's important to make sure you meet the Georgia residency requirements. In order to file for a divorce in Georgia, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted, or it will eventually be dismissed. Jurisdiction is the power and authority that a court has to hear and determine a particular type of case and issue. Personal jurisdiction and subject matter jurisdiction are the two types that most frequently come up in an interstate divorce. A court has to have personal jurisdiction over each party to a lawsuit in order to enter an enforceable judgment. This means that each person must have been properly served notice of the pending lawsuit or, in some instances, the person simply submits to the jurisdiction of the court by filing an entry of appearance in the court file. The court must have personal jurisdiction over the defendant if financial relief is to be granted, i.e. issues involving child support, alimony, and/or division of property, etc. As you have indicated there is some jointly held property, this is where you may have an issue. Subject matter jurisdiction is the power of the court to enter an enforceable order regarding the issues in a divorce. Examples of issues are: child custody, disposition of certain types of property, child support, and spousal support. The court must also have the statutory authority to hear a family law case. Georgia courts have subject matter jurisdiction when one of the parties has been a resident of the state of Georgia for at least six months at the time of the filing of the complaint (the document to initiate a divorce action). Ultimately, interstate divorces can be very complex and very costly. It all depends upon the facts of each marriage, the laws of each state, and the issues to be litigated. As such, it is advisable to hire an attorney to help navigate the complexities of jurisdiction, and all other issues, to avoid wasting time and money.  ... Read More

Unfortunately, the answer is probably not.  While you may have given up any rights you have, you can't simply "walk away" from any obligations you have; as far as the bank/mortgage holder is concerned, you are still liable for that debt.   Obviously I don't know exactly what your particular settlement agreement says, but oftentimes attorneys will include language in there that says something like the following:   "Wife shall retain the sole use and possession of the marital residence with all the equity debt associated therewith.  Wife shall assume sole responsibility for the mortgage payable to XYZ Mortgage.  Wife shall endeavor to have said mortgage on the marital residence refinanced immediately, but in any event shall indemnify Husband and hold Husband harmless with respect to the marital residence, including, but not limited to the mortgage payable to XYZ Mortgage."    While this does not relieve you of any responsibility to pay the mortgage, it may give you some recourse against your wife for her failure to keep that current.       ... Read More

  Like Georgia, Virginia has its own divorce laws regarding filing for divorce and jurisdiction.  However, in most states that I am aware of, the defendant or respondent must either currently be a resident of that state or have resided there within the past six (6) months.    So, if you are in Georgia and have lived here for the last six (6) months, unless you consent to jurisdiction in Virginia, it is very likely that the Virginia court would not have jurisdiction over you.  As such, the case will likely not be accepted, or it will eventually be dismissed.  Similarly, if your husband does not live in Georgia and has not in the last six months, and he will not consent to the jurisdiction of the Georgia court, Georgia would not have jurisdiction over him.   However, there are facts and laws unique to servicemembers and their spouses.  For a Georgia court to hear a military divorce, the residency requirement must first be met. A divorce can be filed in Georgia if either spouse lives in the state, the military member is stationed in Georgia or if Georgia is the legal residence of the military member. The legal residence is the state the member uses for tax purposes. However, that does not necessarily mean that the divorce can proceed. Under the Servicemembers Civil Relief Act (SCRA), military men and women are protected from lawsuits including Georgia divorce proceedings to enable them "to devote their entire energy to the defense needs of the Nation." A court may delay legal proceeding for the time that the service member is on active duty and for 60 days following active duty. Another problem may be the service of the divorce complaint if the military member is deployed. You can request that military serve your spouse, but he or she must consent to service.    ... Read More

  Your question is not an easy one to answer.  However, there are some costs that are fairly standard.  The filing fee for divorce in most Georgia counties is approximately $210.00, but that does not include the fee for having your husband served with the divorce papers.  That usually costs about $30.00-$50.00 if done through the local sheriff's department (instead of a private process server).  If your husband will waive service (which is done by signing a waiver of service form), you will not have to pay to have him served.   As far as the legal fees involved, an uncontested divorce will be the cheapest option.  Many attorneys will handle an uncontested divorce for a flat fee, and I have seen where some attorneys advertise doing uncontested divorces for as low as $500.00.  For an uncontested divorce you and your husband will need to come to an agreement on agree on all issues regarding division of marital assets and liabilities, as well as child custody and visitation.  However, whether you want it or not, child support is not something that the parties can simply agree on, as the court views the right to support as belonging to the child.  Child support is calculated based on many factors, but primarily on the gross income of both parents.  Further, there are minimum amounts of child support that are required by law.   If you and your husband are not able to agree on all issues, and the divorce is thereby contested, there's no real way to tell you how much that will cost, as it depends on many factors specific to your situation, the complexity of your case, and your attorney's rate.    ... Read More

Judges are extraordinarily busy.  As such, it is curious, to say the least, that your husband would be requested to go to the Judge's chambers to sign divorce papers.  You need to protect yourself.  First, you need to go to the Superior Court Clerk of the county in which his divorce was allegedly filed.  (Documents filed with the Clerk are public record, and you can obtain a copy without your husband's assistance.)  Check to see if there was even a Complaint (or Petition) for Divorce that was filed.  If no Complaint/Petition was filed, and/or there was no Order entered, your husband is still married and has committed bigamy.  Per Georgia law (OCGA §19-3-2), to be able to enter a valid marriage, a person must have no living spouse of a previous unresolved marriage.  Further, the dissolution of a previous marriage in divorce proceedings must be affirmatively established and will not be presumed.  Knowingly entering into a bigamous marriage is a legal ground for divorce, and any marriage that violates this bigamy provision is void in Georgia (OCGA §19-3-5).   In addition to the possibility of your marriage being void under Georgia law, your husband may have to face a criminal charge of bigamy.  According to the criminal code (OCGA §16-6-20), "[a] person commits the offense of bigamy when he, being married and knowing that his lawful spouse is living, marries another person or carries on a bigamous cohabitation with another person."  If he is convicted of the offense of bigamy, the law says he "shall be punished by imprisonment for not less than one nor more than ten years."     ... Read More

  From your question, it is not entirely clear whether you mean that there are no divorce documents in existence, or he simply does not have any copies of those documents.  If your husband was indeed divorced, there will be documents on file with the Superior Court Clerk of the county in which they were divorced.  Obtaining copies is as simple as a short trip to that county's courthouse.  You will need to go to the Superior Court Clerk's office, and likely pay a small copying fee, and they can provide you with those.  If you do not live close enough to drive there, you can always call the Clerk's office and they can instruct you as to how to obtain those by mail.      ... Read More

  The short answer is no, you do have to hire an attorney.   Under the Constitution, you always have the right to represent yourself in court, which is known as proceeding "pro se."  Having said that, I always recommend that you consult with an attorney any time your legal rights and duties are substantially affected.  Notwithstanding, if you choose to "go it alone," many counties have family law resources, online and/or at the courthouse, to assist people who wish to represent themselves in domestic legal matters or educate themselves about domestic issues.  For example, the Superior Court of Fulton County has excellent resources available through its Family Law Information Center, which can be accessed online at: http://famdiv.fultoncourt.org/  Further, you can also hire a lawyer to help you only with specific parts of the divorce-for example, preparing the paperwork.  Whichever path you choose, it will be much easier if you and your spouse can agree on the terms of the divorce and file it as an uncontested divorce.    ... Read More

  As with most legal issues, the answer depends on the specific factual circumstances.  If I understand you correctly, you are saying that you are joint account owners (e.g. both listed as owners of a checking account), and that he is alleging that you have committed theft by simply removing funds from that account.  Based on that limited information, my answer would be that you could not be prosecuted for that.  However, there are other issues that you need to be aware of. Specifically, if you have made withdrawals from a joint account, without justification, your husband may allege that you have wastefully dissipated marital property.  This can substantially affect your rights regarding the division of marital property.   Georgia uses the "equitable distribution" approach to divide property upon divorce. Under this approach, each spouse takes their separate property and the court divides the property acquired during the marriage on an equitable basis.  However, when one spouse frivolously spends or dissipates a marital account or other asset, he/she will be deemed to have wastefully dissipated that asset.  Under the equitable distribution approach, if a marital asset is no longer in existence because one spouse wasted it, the Courts can require that spouse to pay the other spouse his or her equitable share in the asset. The Court can also order the payment of spousal maintenance to help to alleviate the effect of wasteful dissipation.     ... Read More

You don't provide enough information to allow a complete answer; but, the general answer is that all marital property (i.e. acquired during the marriage) and appreciated value of separate property is subject to division in a fair and equitable manner. Your facts suggest there is an issue as to what is and is not marital property, but it isn't clear what reasoning your wife's attorney is suggesting.... Read More