DIVORCE IN GEORGIA GENERALLY

Georgia divorces are still "fault based," allow trial by a jury, and require addressing of the normal issues of custody, child support, alimony (spousal support) and division of property and debts.

1

Divorce Grounds and Jury Trials

Georgia divorces are still "fault based," meaning you can cite one or more of 13 different grounds: Grounds for divorce include: (1) Intermarriage by persons within the prohibited degrees of consanguinity or affinity; (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, at the time of the marriage, unknown to 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, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer; (9) Habitual intoxication; (10) Cruel treatment; (11) Incurable mental illness; (12) Habitual drug addiction; (13) The marriage is irretrievably broken (Georgia's equivalent of a no-fault divorce). O.C.G.A. Section 19-5-3. But there are nuances to each of these grounds that you should discuss with an attorney.) Either party can demand a jury trial to address the normal divorce issues. If either side asks for a jury, there will be a jury at the final hearing. The parties can present evidence of the alleged faults/grounds in an effort to persuade the judge or jury to take their side. But even if there is a jury, they only address the "money issues" - the judge still decides the issue of custody.

2

Divorce Issues

The normal issues in a divorce include (1) the grounds for divorce, (2) child custody, (3) child support, (4) alimony and (5) division of property and debts.

3

Child Custody

Child custody is decided by the judge (and only the judge, even if there is a jury) and is based upon "the best interests of the child(ren)," and, more specifically, the following factors: (A) The love, affection, bonding, and emotional ties existing between each parent and the child;(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;(D) Each parent's knowledge and familiarity of the child and the child's needs;(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;(G) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;(H) The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;(I) The mental and physical health of each parent;(J) Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities;(K) Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;(M) Each parent's past performance and relative abilities for future performance of parenting responsibilities;(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and (Q) Any evidence of substance abuse by either parent. (O.C.G.A. Section 19-9-3). Note, too, that generally a judge will speak with children 11 and older to consider their wishes as to whom they wish to live with, and at age 14 and older, the judge generally must and will abide by the child's wishes.

4

Child Support

Child support is determined using the Georgia Child Support Calculator, which is available online (http://csc.georgiacourts.gov/). The disputes over child support are almost always over what numbers (for income, childcare, etc.) are accurate and appropriate to be entered into the calculator.

5

Alimony/Spousal Support

Permanent alimony is determined by the judge (or jury if there is a jury) based upon the following factors: (1) standard of living during the marriage, (2) marriage length, (3) the parties' age/condition, (4) financial resources, (5) need for schooling to get a job, (6) each party's contributions to the marriage, (7) financial conditions of the parties, (8) and other factors deemed appropriate. O.C.G.A. Section 19-6-5. In a nutshell, there is no formula and it can be a bit of a wild card issue.

6

Division of Property and Debts

The first task is to divide debts and assets into "marital" and "separate" categories. "Separate" assets (like your high school car that was bought and paid for before you married) and "separate" debts (like a credit card you had a balance on when you got married) normally go to the person who had them before the marriage. "Marital" assets (such as the home you bought together) and "marital" debts (such as the Walmart card you bought groceries and things for the family on) are to be "equitably" divided by the judge (or jury if there is a jury), which means "fairly" divided, which does not necessarily mean 50/50. Importantly, retirement benefits and accounts (or so much of them as was earned during the marriage) are usually also subject to being equitably divided.

Additional Resources

Georgia Child Support Calculator: http://csc.georgiacourts.gov/ Georgia Code: https://www.lexisnexis.com/hottopics/gacode/