Divorce Laws in Georgia
A marriage can end through an annulment or a divorce in Georgia. Separate maintenance, which is similar to legal separation, is also allowed and permits couples to decide many of the issues related to a divorce without actually going through the actual divorce itself.
There are 13 grounds for divorce in Georgia. To go through a no-fault divorce, which most people do, all that must be stated is that there are irreconcilable differences in the marriage that has caused an irretrievable breakdown. There are also 12 fault-based reasons that can be cited as well, including adultery, substance abuse, and others.
Georgia is an equitable distribution state, and courts will attempt to distribute assets in a divorce in a fair and equitable way, but not necessarily with a 50-50 split. There are several factors governing the division of assets that can impact the final outcome in many possible ways.
Here are some additional important legal questions and major issues that are common to most Georgia divorces.
Property Issues
Marital Property and Division of Assets in Georgia
Georgia is an equitable distribution state. This does not mean that property division will be equal. After taking many factors into consideration, the courts will decide on a division of assets that is fair after taking many factors into consideration.
The first step in this process is determining what is marital property in a divorce and what is separate property. Gifts, inheritances, and assets that a spouse owned before a marriage are considered separate most of the time, although there are exceptions such as when assets are commingled.
Factors impacting a division of assets that will be considered include:
- The duration of the marriage
- The current economic circumstances of each spouse
- The circumstances that contributed to the divorce. This is where fault-based reasons may have an impact on how assets are divided.
- The age and physical and mental condition of each spouse
- The earning capacities of each spouse
- The assets, debts and liabilities of each spouse
- The standard of living during marriage
- The education and vocational skills of both spouses
- Provisions for custody for any minor children in the marriage
- How and why specific marital property was acquired including the effort expended by each party in acquiring the asset
- The impact of other awards the court has made such as the family use of personal property or the family home, and any award of alimony
- Other factors the court deems appropriate and should consider to arrive at a fair and equitable division of assets
Debts
Any debts you or your spouse incur after marriage in Georgia is considered marital debt and both parties are responsible for those amounts. If you incurred debt before you were married, then that will be your sole responsibility and the court will not order your spouse to help you pay it back.
When it comes to splitting payment of the debt in a divorce, the debt will be split fairly but not necessarily 50-50. Courts may take into account who was responsible for accumulating most of the debt, the ability of one party to pay a debt more readily, and other factors.
Secured debts are usually treated differently than unsecured debts in a divorce. Paying secured debts, such as mortgages or car loans, may rest only with the spouse who is keeping the home or the car. Refinancing is usually necessary to put the asset solely in the name of the spouse who is retaining it.
Gifts
In Georgia, any gift from a third party to an individual spouse is considered separate property, as long as the gift was never commingled in a joint marital account. But if you commingle by depositing a separate gift into a joint account, or put a spouse on title of a property, then it is likely that the asset will be considered a marital asset.
In cases where one spouse gives a gift to the other spouse, when acquired by marital funds, it will remain marital property. There are some exceptions that are based on the concept of “donative intent” which can define the property as separate property if it can be proved it was a valid gift and meets all the elements of this type of transfer.
Inherited Property
Property that is inherited by one spouse or the other during a marriage in Georgia is considered separate property and is not subject to equitable division during a divorce.
However, there are a couple of exceptions. If the value of the property appreciates in value during the marriage due to the efforts of the other spouse, then the appreciated amount may be subject to equitable division.
The other exception is when inherited assets are commingled with other marital assets. This might happen when inherited funds are deposited in a joint bank account or investment account with other marital funds.
To protect an inheritance you receive, you can either take steps to make sure the assets are not commingled in any way or you can consider executing a pre-nuptial or post-nuptial agreement to ensure the assets remains separate under all circumstances.
Pensions, IRAs, 401Ks and Retirement Plans
In Georgia, all contributions to any retirement account during a marriage are considered marital property and subject to equitable distribution laws. A spouse can claim that any pre-marital balance is separate.
Because of Georgia’s equitable division laws, a spouse may not receive any of the retirement funds if the court rules that it would be an inequitable split based on the overall financial circumstances of both parties. Judges in Georgia divorces usually try to adjust and not split the award of retirement accounts so that they balance against other assets, such as a house.
Legally splitting pensions and other retirement funds is a multi-step process. After the dissolution of marriage has been granted, an attorney or a specialized firm must create a qualified domestic relations order, more commonly referred to as a QDRO.
The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
Separate Property
Most property accumulated during a marriage in Georgia belongs to both spouses and is considered marital property. To be considered separate property, a spouse must present appropriate documentation in a divorce.
The instances where property can be considered separate in Georgia includes:
- Property acquired before the marriage.
- Property received as a gift from a third party or an inheritance
- Property acquired after the execution of separate maintenance
- Property excluded by a pre- or post-nuptial agreement
- Property acquired through a valid judgment against the other spouse
- Income from non-marital property or an increase in the value of non-marital property
To ensure that separate property remains separate property, it is best to not commingle any gifts or inheritance with marital assets. Executing a pre- or post-nuptial agreement is also a good way to protect assets in question.
Laws concerning separate property during a divorce can be complicated and there are certain exceptions that may come into play. When in doubt, it is best to consult with a lawyer to see what rights you have.
Support Issues
Alimony in Georgia
Alimony is granted in Georgia only in limited situations in comparison to other states. It can either be rehabilitative or permanent.
Rehabilitative alimony is granted in the short-term and is intended to help a spouse get back on their feet by giving them the ability to go back to school or seek training or skills that will make them competitive in the job market. A spouse who has been a homemaker throughout a marriage is typically the recipient of rehabilitative alimony.
Permanent alimony is awarded long-term and may continue until the death of the person who receives it. It is usually awarded when one person can no longer work due to age, physical or mental illness. When permanent alimony is awarded, it is terminated when the receiving spouse remarries.
There is no specific formula for deciding how much alimony may be awarded and for what period of time. Judges have a fair amount of leeway when deciding this issue.
According to the Georgia Annotated Statutes, the following factors are considered when determining in alimony should be awarded:
- The standard of living established during the marriage
- The duration of the marriage
- The age and the physical and emotional condition of both parties
- The financial resources of each party
- Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment
- The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career-building of the other party
- The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties
- Such other relevant factors as the court deems equitable and proper.
Learn More: Everything You Need to Know About Alimony
Child Support in Georgia
Child support in Georgia is established based on Georgia Child Support Guidelines that consider the income of both parents and the number of children who are involved. Other factors may also come into play such as how much time each parent spends with the children and if there are any medical issues that require ongoing expenses to be paid, among others.
The Georgia Child Support Commission offers an online calculator based on Georgia’s child support guideline statutes. You can access the calculator to get an estimate of how much you might be required to pay or how much you can expect to receive. Keep in mind this is an estimate only. A judge will make the final decision on an amount based on your individual situation.
In cases where the non-custodial parent does not pay the full amount of child support, the custodial parent can see assistance through enforcement actions. The Georgia Department of Human Services, Division of Child Support Services administers child support enforcement throughout the state.
If a parent does not pay the required amount, they can be found in contempt of court. The offending parent can be fined, sentenced to jail, or both. Other enforcement actions may include:
- Withholding child support from paychecks or unemployment insurance payments or weekly worker’s compensation benefits.
- Intercepting federal and/or state income tax refunds.
- Reporting delinquent parents to major credit bureaus.
- Suspending or revoking driver’s, professional or occupational licenses for failure to pay child support.
- Reviewing and modifying child support orders periodically.
- Intercepting lottery winnings up to amounts allowed by Georgia Law.
- Filing liens to seize matched bank accounts, lump sum worker’s compensation settlements and real or personal property.
- Denying, suspending or revoking passports issued by the State Department.
- Requiring the posting of bond to secure payment of overdue support.
Child support ends when the child turns 18 unless the child is still attending high school. In this case, support will continue until the child turns 20 or graduates from high school, whichever comes first.
Custody and Visitation
Child Custody in Georgia
Like most other states, child custody in Georgia is guided by the best interests of the child when making custody determinations.
In Georgia, both parents are considered equal when it comes to custody and as such, the court may award joint custody or sole custody depending on the circumstances of each individual case.
Joint legal custody means that both parents will have decision-making power over important issues that will affect a child. Physical legal custody is different and is a determination of which parent the child will live with. Joint physical custody rarely means that children will live with each parent and equal amount of time. The actual amount of time each parent spends with the children are determined by a visitation schedule that the parents can work out.
When children turn 14 in Georgia, they after often allowed to make a custody decision about which parent they want to live with. But a judge can overrule this decision if it is decided that living with that parent is not in the best interests of the child.
A parenting plan is required as part of a divorce settlement and any custody agreement. The plan will outline where the children will spend each day of the year, how holidays and vacations will be spent, transportation arrangements, what type of supervision is required and how it will be provided, how parents will make decisions about the children’s health, education, religious issues, extracurricular activities, and other related matters.
If parents disagree about an issue related to the child’s upbringing, then the parent with primary physical custody will make the decision. In some cases, judges will order that one parent has sole power to make certain decisions while the other parent has sole power to make other decisions.
Modifications to custody arrangements can take place if there are significant changes to circumstances that affect the welfare of the children. The parent seeking the modification must file a petition to have the proposed modification heard by the court.
Substance Abuse
Because Georgia is both a no-fault and fault-based divorce state, habitual drug addiction can be cited as one of the reasons for getting a divorce in the state. The spouse making the claim must be able to prove the addiction in court and that the addiction is to one of the controlled substances listed under Georgia law.
Substance abuse can have a significant impact regarding child custody. A court will not allow a parent to take custody of a child if there is a danger to the child, as there would be with drug or alcohol abuse being present. Courts will always take the best interests of the child into primary consideration and this type of problem represents a clear and present threat to the well-being of the child.
Process
Bifurcation of marital status
Bifurcation means that both parties in a divorce can legally divide their divorce into two stages. The first part satisfies the grounds for the divorce and the second part addresses the financial aspects of the divorce such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
Reasons for bifurcation vary from case to case, but most commonly it is because a spouse wants to remarry or there are tax implications involved when filing returns as a single person.
Georgia does allow bifurcation to take place, making a couple legally single again, and allowing for remaining issues to be settled by a trial at a later date.
Disclosing Assets
As part of the divorce process in Georgia, each spouse is required to complete a Domestic Relations Financial Affidavit (DRFA). After they have been completed, these affidavits must be filed with the court and served on the other spouse. The purpose of this document is to make sure that each spouse and the court are fully away for the assets and income of each spouse.
This is so there can be an equitable division of those assets as part of the final divorce decree. Accurate and complete financial disclosures are essential to making sure there is a fair division of assets. In addition, financial disclosures are also used to gauge the financial health of each spouse and will help to determine if spousal maintenance is required and what amount of child support should be awarded.
Unfortunately, some spouses are reluctant to release this type of information and in some cases, it may be necessary to subpoena information directly from financial institutions to get the information needed. Forensic accountants are sometimes retained to also assist with uncovering all assets.
If a spouse lies on a financial disclosure document, then they may be liable for both criminal and civil penalties. The amount of those penalties will depend on the extent and severity of the falsified information and could have an adverse impact in many areas of a divorce settlement.
Spouse’s Default
After a petitioner files for divorce in Georgia, a defendant has 30 days to respond to the action after they receive paperwork. If they do not reply during that time frame, then a judge may enter a default judgment.
In a default judgment, a judge will usually grant a divorce in favor of the petitioner, approving some or all of the requests made in the original complaint.
If a spouse does respond to a complaint but does not show up a subsequent hearing where decisions are made regarding the terms of the divorce, a judge may make decisions regarding any contested issues. The court will most likely grant the divorce without a spouse’s agreement and the petitioner may receive all the relief requested in the complaint.
In some cases, it may be possible to seek an extension, such as if there is a health emergency, there was a family emergency, or a respondent was on active military duty.
Other Issues
Domestic Violence
In Georgia, domestic violence is one of the 13 grounds for divorce and citing this reason could have an impact on important elements of your divorce such as alimony, child custody and a division of assets.
In divorces where domestic violence is present, any divorce actions are secondary to the immediate safety of a spouse or children who may be in immediate danger.
Domestic violence can include any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other.
Law enforcement has strong safeguards against domestic violence and when it is present in a marriage, the first goal is for a spouse to take steps to make sure they are safe above all else. This means the first thing a spouse must do is leave the residence where the abuser is living and if the threat is imminent, call the police.
You can also petition Georgia courts for a civil order of protection to legally keep a spouse away from you either before a divorce action begins or during a divorce already in progress. These orders can last up to five years, if needed.
Under the Family Violence Act, domestic violence is considered a criminal offense. An abuser can be charged criminally for violating the law, and also for breaching an order of protection.
Domestic violence is a more important issue when dealing with child custody. If domestic violence can be documented, then the abuser may not be allowed any custody privileges, because courts always put the best interests of children first when it comes to all issues in a divorce. In other cases, visitation may be granted, but under strict supervision and on a limited basis.
Read: Financial Abuse in Marriages: Warning Signs and How to Get Help
Health Insurance
There is no law on the books in Georgia that prevents one spouse from dropping the other spouse from coverage while a divorce is pending. However, the spouse in danger of losing coverage can petition the court for continued coverage if they are vulnerable and the court may enter an order preventing termination. Children can also be covered under this order, and settlements after the fact will always address the issue of healthcare for any children as well.
After a divorce, the vast majority of employers dictate that a spouse may no longer remain on the other’s health insurance plan and they must seek out their own healthcare coverage. In some instances, a settlement may include that one spouse pay for the other’s health insurance as a form of support.
As another option, an ex-spouse can apply for COBRA benefits. This is a law that protects people from losing health coverage during major life transitions. It allows you to continue with your spouse’s current coverage for up to 36 months as long as you pay the premiums.
The only drawback is that this can be very expensive because an employer will no longer cover any portion of the premium. A better option may be to purchase health insurance on an exchange as part of the Affordable Care Act.
Read: A Guide to Health Insurance During and After a Divorce
Infidelity and Adultery
Georgia is both a no-fault and fault-based divorce state. Although most spouses choose the no-fault option when filing for divorce, there are also 12 grounds that can be used as a basis for divorce. Adultery is one of those grounds.
Adultery is sometimes stated as a reason if a spouse hopes to gain an advantage in child custody or a spousal support order. The court places a primary concern on the well-being of children in a marriage and if it can be shown that adultery has created a negative environment, then custody may be affected to some degree.
Military Divorces in Georgia
If you or your spouse are a member of the U.S. armed forces and you want to get divorced in Georgia, one of you must be a resident of Georgia for at least six months prior to filing a divorce action. The six-month requirement is extended to one year if you live on a military base. You can also qualify to file for divorce if Georgia was the last place that you and your spouse lived together.
After divorce paperwork has been filed in Georgia, copies must be served on a spouse to give him or her a chance to respond. However, when that spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act. This allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments.
The Servicemembers Civil Relief Act eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty. A service member may choose to waive delaying the divorce by signing off on paperwork which will then allow the divorce to proceed uncontested.
Normal property division laws apply for a military divorce in Georgia, but the federal government also protects military personnel through the Uniformed Services Former Spouses Protection Act that governs how military benefits are calculated when a divorce takes place.
Federal laws will not allow a military members retirement to be distributed to a spouse unless the couple has been married for 10 years or more while the service member was on active duty.
Child support and spousal support are determined by Georgia state guidelines, but federal law dictates that child and spousal support awards may not exceed 60% of a servicemember’s pay and allowances.
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