Family Law Frequently Asked Questions
How do you know if your marriage is considered legal?
What is a "Common Law Marriage"?
How do I initiate a divorce?
What should you do after receiving a complaint or petition for divorce?
Is divorce ever easy?
Does the Court need to be involved regarding divorce?
What is a separation agreement, legal separation or separate maintenance?
What are grounds for divorce in Florida and Georgia?
I want a divorce and my spouse will not consent. How can I get a divorce?
Do I need to prove "fault" to get a divorce?
How do you prove a "no-fault" divorce?
Do I need to live in the state of Georgia or Florida to get a divorce in that state?
Can a couple still live together when filing for divorce?
How can you get immediate help from the court?
What is the discovery process?
If my case goes to court, who will preside over it, a judge or a jury?
How long does it take to get a divorce?
If you and your spouse agree on all matters, do you still need a divorce lawyer?
Until the court rules, what happens with the children?
How will the court determine custody in an initial proceeding?
What is the difference between legal and physical custody?
Can we share custody of our children?
What are custody seminars?
What does child support involve?
Are parents required to pay for college as part of child support?
How will the assets and debts be divided?
I work and my spouse doesn’t work. Will I have to pay alimony?
If domestic violence occurs, what should you do?
Is there a way to enforce court orders?
How much will a family law attorney cost?
Where can I find more information about divorce?
A marriage is usually considered legal if the couple that marries is of age, were of sound mind when getting married (not influenced by drugs or alcohol, etc.), were not deceived or coerced and so on. As long as marriage has also been consummated, then it will probably be considered a legal marriage, provided that no laws have been broken, such as bigamy laws, which involve entering into a second marriage while still in a first marriage.
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When a couple co-habit, consider themselves married and represent themselves to the world as married then a Common Law Marriage exists. No wedding ceremony or legal marriage certificate is required. A Common Law Marriage is not considered a legally binding form of marriage at this time in Florida and Georgia. Common Law Marriage existed prior to January 1, 1997 in Georgia and prior to January 2, 1968 in Florida.
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The Complaint for Divorce is the initial pleading in any divorce matter. Either spouse can file. In Georgia, you file a document called a “complaint” or “petition” with the appropriate Superior Court. Information such as children, marital assets and debts, reasons for seeking divorce, living arrangements and other details are contained in the complaint. The complaint is then served on the other spouse.
The responding spouse will need to act quickly because although your spouse cannot obtain a divorce by default in the State of Georgia, you may forfeit your right to notice of a final hearing by failing to respond within the first thirty (30) days after service of the Complaint upon you.
In Florida, you must file a document called a “petition for divorce” with the circuit court in the county where you live. You must also file an anonymous unsigned informational questionnaire with the clerk of court. The petition is served to the other spouse along with a summons.
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After being served a petition or complaint, you have 30 days to answer in Georgia and 20 days to file a responsive pleading in the State of Florida.. Answers are a written response where you may admit or deny each claim within the complaint and give your version of what occurred. You may also file a counterclaim which is a claim for divorce on your part in response to your spouse’s claim for divorce. Our family law attorneys can assist you in answering your petition or complaint and if needed, also provide legal advice and assistance with a counterclaim.
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To the extent that a divorcing couple can agree on terms of the divorce, their divorce will be easier and less expensive than divorces where couples cannot arrive at an agreement on issues involved. The complexity of a divorce is usually based on the degree of conflict and the extent of the couples’ inability to interact well.
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Yes. Even if the couple has agreed upon terms of divorce, the court will need to approve the agreement. If the couple can not come to terms, then the Court will determine the issues. The Court is the only legal authority than can grant a divorce (not the government or a legal official.)
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Legal separation refers to no longer engaging in martial relations. In Georgia, a couple may be living in the same household and still be considered in legal separation. To obtain a legal separation, you must swear that you are in separation, at which point the court will either grant divorce or an Order of Separate Maintenance. An Order of Separate Maintenance is a lawsuit filed similarly to filing for divorce; however, you are not free to re-marry as you are in divorce. For religious reasons or because a couple may find it financially beneficial to stay married, such as drawing social security or enjoying insurance benefits, they may seek a legal separation instead of divorce.
Florida statues do not directly establish guidelines regarding legal separation, but they do address other issues such as child custody, child support and visitation.
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There are 13 grounds for divorce in Georgia. The no-fault ground is termed irretrievably broken and is the most common ground claimed for divorce. Other grounds include adultery, desertion for a year or more, impotence at the time of marriage, cruel mental or physical treatment, force or fraud used to obtain the marriage, too close of a blood relation, mental illness, habitual intoxication or drug addiction, mental incapacity at the time of marriage, pregnancy of the wife at the time of marriage that was unknown to the husband, and conviction and imprisonment for certain crimes.
Florida is a no-fault marriage state, meaning that fault grounds for divorce are not heard by the Florida Courts. The only ground for divorce in Florida is irreconcilable differences resulting in an irreparable marriage.
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Either spouse may obtain a divorce without the consent of the other. In Georgia, you can petition for divorce based on the grounds of amongst others, cruel treatment, adultery, habitual intoxication or drug addiction. However, the most common ground for divorce is that the marriage is irretrievably broken. In Florida, the only grounds for divorce are no fault, based on the fact irreconcilable differences.
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No. In both Florida and Georgia, you may seek and obtain a "no-fault" divorce.
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One spouse must simply provide sworn testimony that the marriage is irretrievably broken / there are irreconcilable differences between the parties, with no hope of reconciliation.
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Yes, generally, at least one spouse must be living in the state (where filing for divorce) for at least six months before filing. This is true for both Georgia and Florida.
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As long as separation exists in a legal sense, which means you are not having sexual relations, you may still live together in Georgia. There are no established guidelines regarding this issue in Florida.
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In Georgia, a standing order is automatically put into effect when a compliant for divorce is filed. The standing order addresses issues such as removing the minor children from the jurisdiction of the court, preventing the sale or transfer of marital assets and more, depending on the court. You may also seek immediate relief beyond the standing order by requesting a temporary hearing. Temporary hearings are held by the court to resolve issues of child custody, visitation, child support, alimony, property possession and debts on a temporary basis until final judgment is rendered on the divorce. Temporary orders can prohibit one spouse from interfering with the other spouse or with their children, and they can also assign responsibility for debt and prevent sale or transfer of assets. You or your spouse may request a temporary hearing. A judge will preside over the hearing and issue a temporary order to address issues until a final hearing can be held.
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Depending on the specific facts of your case, discovery may begin with the initial pleading. Discovery is a fact-finding process where each side learns, through various tools, all of the information that they will need to proceed to a final disposition, whether by agreement or court order. The parties have the right to pursue discovery for a period of 6 months from the date an Answer to the Complaint for Divorce is filed, which time may be shortened or lengthened by the court of proper jurisdiction.
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When couples are unable to come to a mutual agreement regarding child custody, child support, visitation, alimony, debt and property division, then the court will decide for them. In Florida, these issues involved are only heard by a judge. However in Georgia, while only a judge may determine child custody, visitation and attorney’s fees, a spouse can request that a jury decide financial issues, such as property division, handling of debt, alimony and child support. In a jury trial both spouses present evidence and may summon witnesses on their behalf. Either party may request a jury trial, as opposed to a bench trial, at any time prior to a final hearing during the course of the litigation. The final judgment returned by a judge or jury is a binding court order that affects both parties. Temporary hearings are only heard and decided by judges, not juries.
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Some divorces take longer than others, depending on whether or not the divorce is uncontested, meaning parties agree on all issues. After all needed documents are filed, an uncontested divorce may be granted in Georgia after 31 days and in Florida after 20 days. Because the time periods are constantly subject to change, you should check with one of our family law attorneys on the current laws regarding the waiting period. If the divorce is contested, meaning parties do not agree on issues, the case will have to go through the court system. A contested divorce can take many months and even years to be scheduled into court and resolved. Couples that reach an agreement while the case is pending may submit their agreement to the court through their attorney and end the case quickly with the divorce being granted.
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In order for the court to grant a divorce, all matters that need to be covered must be addressed and proper paperwork is required. A divorce lawyer will handle all the paperwork, assist you in making sure that there are no costly errors and can review issues that could possibly come back to haunt you at a later time. Because a lawyer can only represent one party and not both in a divorce, each spouse should consult with their own attorney. In both Florida and Georgia, parties are not required to obtain a lawyer and may represent themselves in a divorce, which is termed “pro se.” However, you will have to navigate the legal system yourself and ensure that all applicable rules are followed and that documents are correctly presented.
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In most cases the couple shares custody of the children until the court delivers a final judgment. However, if the Husband and Wife cannot agree on who will care for the children before there is a final order in the case, the court can issue a “temporary” order that will determine custody and visitation until a final order is reached. The judge will consider what is in the best interest of the child when making a temporary or permanent decision regarding custody or visitation. To determine what is in the best interest of the children the judge will consider among other factors, the age and sex of the child, the ability of each parent to care for and nurture the child, who has traditionally served as the primary care giver to the child and the relative fitness of the parents. Based on these and other factors, the judge will devise a custody plan that is in the best interests of the child. In Georgia, if the child is 14 years of age, then the child usually will choose which parent will have custody. Children that are ages 11, 12 or 13 may tell the judge their wishes, but the judge will ultimately decide who has child custody whether or not it was what the child wished. The new child custody laws scheduled to go into effect on January 1, 2008 will amend the current laws regarding this issue.
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There are many factors that will come into play to determine which parent is entitled to custody. Most notably the court will consider the best interests of the children.
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Legal custody involves decision making authority. Physical custody is the actual physical possession of the children.The child lives with the parent who has physical custody and that parent is responsible for daily care of the child. The parent who is not awarded physical custody will generally be awarded visitation rights and will generally pay child support to the other parent. Legal custody refers to the responsibility for making major decisions regarding the child’s care, such as education, religious upbringing, healthcare and social activities.
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Yes. Child custody that is shared is called joint custody (as opposed to sole custody). The court may rule on joint legal custody and joint physical custody. In both areas of custody the parents would share responsibilities—decisions regarding education, religion, healthcare and so on. The child would live with and spend equal time with both parents in joint physical custody. The court may order only joint legal custody or only joint physical custody. It may order joint custody for both legal and physical custody of the child.
Parents may arrive at their own mutual agreement regarding custody outside of the court. However, when they are unable to reach an agreement, the court will decide.
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In Georgia, parents of minor children are required to take a seminar that educates them on how to deal with the ramifications that divorce has on their children.
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In both Florida and Georgia, both parents may be required to provide child support assistance until the child reaches 18 or graduates high school and in some cases through college education if both parents agree. Child support usually includes monetary support by a non-custodial parent to the parent who has physical custody to help cover living expenses as well as health insurance, medical and dental expense assistance and life insurance.
Child support is calculated in accordance with Florida statutes for divorce cases filed in Florida and in accordance with Georgia statutes for divorce cases filed in Georgia. Each state has specific guidelines to determine the appropriate amount of child support. Both states base the payment amount on factors such as the gross income of both parents, day care expenses, health insurance premiums, extraordinary medical and educational expenses for the child, and other pertinent factors Because child support laws often change, it is important to consult with your family law attorney to understand what guidelines are current.
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No. College expenses are not subject to court order in Florida or Georgia. Both parents can however, arrive at an agreement to continue child support beyond age 18 (or 20 if the children are still enrolled in secondary school) in order to pay college expenses and other living expenses for their children.
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Georgia and Florida both follow an equitable division approach to dividing marital assets and debt. Meaning, the assets and debts will be divided in a fair and equitable manner between the spouses, not necessarily 50/50. In most cases, this does not include property received by gift from a third party or by inheritance. Many factors are considered, including but not limited to the behavior of the parties during the marriage and the cause of the separation. Other factors that may be considered are whether one party contributed separate or premarital property to the marriage. There is no set formula or percentage amount used to divide marital property. Each case is uniquely handled according to the guidelines established by the statutes of the state in which the divorce was filed.
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The answer is it depends. There is no bright line test to determine alimony. The general rule is that one spouse must have a need for alimony and the other spouse must have the ability to pay. However, there are many other factors to be considered in an award of alimony, such as but not limited to, the length of the marriage, the education/employability of the receiving spouse and adultery or abandonment committed by the receiving spouse.
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First you should call the police. Then call your family law attorney to get assistance in filing a lawsuit to prevent domestic violence. Through the court you can get restraining orders and address temporary use of the home, amongst other things. Domestic violence laws may apply to couples whether they are married or not.
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Yes. Monetary court orders are usually enforced through attachments of property, wage garnishment or through contempt actions. There are a number of ways to enforce visitation and custody orders for violations such as wrongfully taking or withholding a child. These orders are enforced through contempt applications and warrants.
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The total cost to pursue or defend your family law issues depends on the facts of your individual case. Each case is unique. You can meet with an attorney at The Siemon Law Firm, P.C. for a free initial consultation to determine your individual retainer.
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Arranging a consultation with an attorney is the best way to find information about divorce. We offer a free initial, no obligation consultation at the Siemon Law Firm, P.C.
With offices in Northern Georgia, the Siemon Law Firm offers legal help to residents of Fulton and Forsyth County including Cumming, Alpharetta, North Atlanta, Gainesville, Roswell and Duluth, GA. Additionally, the firm offers representation in Florida courts. |
