Decide whether to hire an attorney
The first step in filing for divorce is deciding whether or not to hire an attorney. Many county courts offer pro se litigant divorce packets to assist in filing your own case. However, the clerk's office cannot give any legal advice on how to complete the packet or how to proceed with your case. Divorce is a legal process with long-term implications and only an experienced attorney can provide the guidance and advice to navigate you through the legal system. If you have minor children, hiring an attorney is extremely important to ensure that your rights as a parent are protected and that the child's rights are protected as well. Divorces involving minor children require additional paperwork, including the child support worksheet, permanent parenting plan and child support addendum, all of which can be very confusing and difficult to complete without the assistance of an attorney.
Uncontested or Contested
There are two types of divorces in Georiga - uncontested and contested. An uncontested divorce requires that the parties come to an agreement on all issues pending in the case, including, without limitation, division or real and personal property, division of debt, custody, child support, visitation, alimony and attorney's fees. If you and your spouse have an agreement before hiring an attorney, you can legally employ one attorney to handle the matter and the cost is typically much less than a contested divorce. A contested divorce is a case where the parties cannot agree on one or more issues pending before the Court. If you do not have an agreement when you hire an attorney, your case will most likely be considered a contested divorce and you will proceed with the discovery process, mediation or directly to trial to resolve the issues that cannot be agreed to.
Filing the Case
Filing the complaint for divorce is the first step in the case. The cost of filing depends on the county in which the defendant resides, or where the plaintiff resides, if the defendant resides out of state, cannot be located or consents to jurisdiction. The filing fee can range from $204 to $220 and is paid to the clerk of court at the time of filing. All necessary paperwork must be submitted to the clerk at the time of filing and failure to properly submit required documents may result in the delay or ultimate dismissal of the case.
Serving the Defendant
The Defendant must be served in accordance with Georgia law. There are several ways in which to accomplish service. First, the Defendant can acknowledge service of the complaint by executing an affidavit confirming his or her receipt of the documents. There is no service fee assessed when the Defendant acknowledges service. Second, the Defendant can be served by the sheriff's department in the county where he or she resides. The standard service fee in Georgia is $50. Out-of-state service by sheriff varies by county. Third, the Defendant can be served by private process server. The cost of service by process server varies and can be high if the Defendant attempts to avoid service. Typically, you must also file a motion to appoint private process server and receive permission from the Judge prior to completing service. Lastly, the Defendant can be served by publication. The cost of publication varies by newpaper and must be approved by the Court prior to publication.
After the Defendant has been served, he or she has 30 days (45 with payment of court costs) to file an answer to the complaint. If the Defendant is served by publication, he or she has 60 days to file the answer. After the initial period of time has expired, the case will either be scheduled for a hearing, if no answer is filed, or the case will enter the discovery period. The parties have a right to request information, documents and other materials from each other to be used at any hearing or trial in the case. If a party fails to respond, the Court can compel responses and sanction a party who refuses to comply with any such order.
Emergency or Temporary Hearing
If the case involves minor children or a party who is in need of support during the pendency of the case, the Court can schedule a hearing, upon motion of one of the parties, to decide certain issues on an emergency or temporary basis. If the parties can reach an agreement on such issues, the Court will accept a consent temporary order in lieu of having a hearing. Some standard issues that are addressed at temporary hearings include: custody, child support, visitation, alimony, use of the marital residence, possession and use of vehicles, and attorneys fees for litigation. Failure to comply with a temporary order may have serious adverse affects on the eventual outcome of the case.
The parties may elect to utilize mediation as a means to resolve the case, and in some cases, the Court may order the parties to participate in mediation. Mediation is a voluntary process where each side is present along with a mediator and each side makes offers and counteroffers in an attempt to reach a resolution. Studies have shown that parties who reach an agreement in their case are typically much happier with the outcome than those who proceed to trial and are subject to the ruling of the Court. The parties are much better suited to address issues of visitation, custody and division of assets than is a judge who has limited time to hear each case and is forced to make a decision based on a small glimse into the lives of the parties. Mediation expenses are generally divided between the parties, with each party paying his or her own attorney. If an agreement is reached, the case can typically be resolved without either party having to appear in Court.
Guardian Ad Litem
If the case involved minor children and a custody dispute, a guardian ad litem may be appointed by the Court to represent the interest of the children. The guardian may be a court employee, if the case is transferred to a juvenile court that has staff guardians, or may be a private attorney either selected by the parties or appointed by the Court. If the guardian is a private attorney, the cost of the guardian would generally be divided between the parties. The guardian would then investigate the case, including any allegations of abuse or neglect, visit the home of each party, interview witnesses, request school and/or medical records and at the completion of the investigation, would make a recommendation to the Court regarding custody and visitation.
If the parties cannot reach an agreement, either by themselves or through mediation, the case will proceed to trial. The parties can elect to have a bench trial, where only a judge is present and decides all issues in the case, or a jury trial. If one of the parties elects to have a jury trial, a jury trial demand must be properly filed. The cost of a jury trial can be extremely high due to the length of the actual hearing and trial preparation. The decision to demand a jury trial should be made carefully, weighing the possible risks and rewards associated with allowing 12 independent people to decide your case. The parties remain free to settle the case at any point prior to a verdict being rendered by the jury or a final determination being made by the Judge.
Final Judgment and Decree and After
If the case is resolved by agreement, most judges will allow the parties or their attorneys to file a motion for judgment on the pleadings and the divorce is granted without the need to appear in court. There are some courts that still require an appearance to prior to granting the final decree. Once the final decree is granted, either on the pleadings or after a hearing, the settlement agreement (or court order) is a binding obligation on each party and failure to comply with the terms of the agreement (or order) can result in the filing of a petition for contempt. If a party is found to have violated the agreement (or order), the court can sanction the party by placing him or her in jail and/or ordering payment of attorney's fees.