DIVORCE/LEGAL SEPARATION FREQUENTLY ASKED QUESTIONS
Q. I don’t know the whereabouts of my spouse but I would still like to move forward with a divorce, is this possible?
A. Yes, there are ways that the law permits you to move forward with your divorce even when you don’t know where they are.
Q. I/My spouse did not work during the marriage are they entitled to anything in the divorce?
A. Regardless of whether a spouse worked or not during the marriage anything that is earned or purchased during the marriage can be considered marital property and is subject to equitable division by the court. This could include bank accounts, retirement accounts, personal items, furniture, cars, houses etc.
Q. Am I/My spouse automatically entitled to 50% of everything I have?
A. No, Georgia is an equitable division state not and EQUAL division state. This means that the court does not have to divide assets 50/50. The court will divide base on what it believes is equitable (fair) and that may be 40/60, 90/10 0/100. Every case is different but it is important to have an advocate who will fight for your position in court.
Q. Am I/is My Spouse entitled to alimony (spousal support)?
A. Alimony determinations are made on a variety of different factors. For instance, if the spouse wanting support has the ability to work or work history, what lifestyle has been developed, the length of the marriage and the ability of the other party to pay the support amount.
Q. My spouse/I cheated can I still get alimony?
A. If a spouse cheats and that affair is the cause of the divorce the cheating spouse would be barred from making a claim for alimony in Georgia.
Q. I feel like My spouse abandoned me and my family. Can I file for divorce for that?
A. Yes, abandonment is a ground for divorce in Georgia. However, to use the abandonment clause they must have been gone for 12 months or longer.
Q. I don’t really know why I want a divorce, I just do. Do I have to have a real reason?
A. Sometimes there are a lot of reasons for a relationship ending. Usually too many to even articulate so in Georgia you can always assert that the reason for the divorce is irreconcilable differences.
Q. My spouse makes more money and can afford an attorney but I cannot, what are my options?
A. Georgia law provides protections for the lesser earning spouse in a divorce. When appropriate the court may order your spouse to assist you with your attorney fees in part or in full depending on the financial circumstances in your relationship.
Q. Why is the opposing party asking for all of my personal information? Am I required to give up this information?
A. In Georgia, we do what is called Discovery. It is a time where both parties can request a ton of information from each other. Sometimes you have to turn it over and sometimes you don’t if there is a proper legal ground for making an objection.
Q. My spouse does not want a divorce and refuses to sign anything. Am I going to be forced to be married forever?
A. No, in Georgia it takes two people to marry and only one to move forward with a divorce. Your spouse does not have to sign anything or even participate for you to be able to have your divorce granted. Is that wise of your spouse to do that? Not at all…but nonetheless you can get divorced with or without their approval.
Q. I am not sure I want a divorce but I do want to be separated. What are my options?
A. For spouses who want to stay legally married but also be legally separated you can elect to file for a Legal Separation which is known as a Separate maintenance in Georgia. This will allow you to enjoy the legal benefits of marriage such as filing joint tax returns and staying on the family health insurance plan while enjoying the benefits of being separated.
CHILD SUPPORT FREQUENTLY ASKED QUESTIONS
Q. I have an old child support order, should I look into modifying it?
A. If you have a court order prior to 2007 you should definitely consider the possibility of a modification. The child support laws changed drastically in 2007 and the change could decrease or increase the monthly amount that you should be paying or receiving. Furthermore, the needs of your children may have changed as well as the income of the parents. Anytime there is a substantial change in finances a modification of child support may be in your best interest.
Q. What income is considered in determining child support?
A. The income from both parents are considered in determining child support. Also income received from rental property, stocks, and any other money that is deemed income can be considered.
Q. The non-custodial parent is self-employed and always says that they don’t make any money, what can I do?
A. Having an attorney will ease this process. Just because someone claims that they do not make any money doesn’t mean they should not be paying some type of support. With an attorney you will be able to take non-traditional approaches to making a determination about what their income may be.
Q. What factors other than income are considered in determining child support?
A. Expenses of the children like work related childcare expenses, medical insurance, extracurricular activities and pre-existing child support orders can also be considered.
Q. Is Child Support based on my net income or gross income?
A. Child Support is calculated based on your gross income (pre-taxed)
Q. I pay child support but can’t see my children. What can I do?
A. If your child was born out of wedlock you need to file for a Legitimation to get custody and visitation rights. If you already have a court order giving you rights you need to consider a contempt action to enforce the rights you have been granted.
Q. My child is almost 8, can I get back child support?
A. You have a right to petition the court for child support on day one. Don’t wait several years and expect the court to back date child support. Case law has held that is impermissible and thus only in very limited circumstances can the court consider back support, but not most.
Q. I do pay child support but I pay in cash, is that okay?
A. Never pay child support in cash. Always pay in a way that is traceable such as check or bank transfer to the custodial parents account.
Q. I was ordered to pay $800 in child support but me and the mother agreed to $500 later. Am I okay?
A. No, child support is only modifiable by court order. To make the change official you should file a modification of child support and have the Judge change it. If you do not, you are still on the hook for $300.00 monthly shortage in the event the mother decides to file a contempt action.
CUSTODY/LEGITIMATION FREQUENTLY ASKED QUESTIONS
Q. I have a child born out of wedlock what rights does the father have?
A. In Georgia, the father of a child born out of wedlock has no rights what so ever to the child. In order to establish right’s the father would need to file a Petition for legitimation.
Q. Is my child’s father automatically entitled to a legitimation?
A. No, it is not automatic. There are several elements of the law that must be met before a Judge can grant a legitimation.
Q. I am the mother of the child but I want the father to legitimize, can I file the action?
A. No, only the father has legal standing to bring a legitimation action.
Q. I believe that I am the father of my child but I am not sure, what should I do?
A. You should exercise your right to establish paternity. Either have the child tested on your own or you can petition the court to get a court order requiring that the DNA test be done.
Q. What types of custody are there for me to consider?
A. In Georgia, there is legal custody and physical custody. Those types of custody can be broken down between sole custody or joint custody.
Q. Me and the non-custodial parent get along great, why do we have to do a parenting plan?
A. In Georgia parenting plans are mandatory. While it is great that two individuals have the ability to co-parent the court likes to have a plan in place in the event something ever goes wrong with the co-parenting arrangement. A parenting plan essentially covers every day of the year and determines who has the child when.
Q. I am a grandparent and I think I should have custody of my grandchild, what can I do?
A. In Georgia, grandparents and other third party relatives can seek custody of a child. However, the standard is very high and presumes that a child is best with the biological parent. A grandparent must overcome the presumption in order to win a grandparent custody case.
Q. I do not want permanent custody, just temporary guardianship of a child. Is that possible?
A. Yes, you can pursue this by filing a temporary guardianship. However, be mindful that the biological parents must consent to the temporary guardianship arrangement.
Q. Someone has temporary guardianship of my child and I want my child back, what needs to be done?
A. Temporary guardianships can be terminated at any time upon petition by the biological parent. The temporary guardian will have a limited time period to object. If there is no good cause for the objection then the biological parent will likely be successful in the termination of the temporary guardianship.
Q. What is a Guardian Ad Litem (GAL)?
A. A GAL is a person who has been trained to advocate for children that is appointed by the court to represent the interest of your child in a custody action. The GAL can do a variety of things to conduct a thorough investigation to make a recommendation to the Judge as to what parent is best fit to have custody or visitation with the child. GAL’s are typically not free and payment is typically but not always split between the parents.
Q. The judge issued an order but me and the other party now have a different agreement. Are we in violation for following our own plans?
A. It is always encouraged that you come up with your own settlement agreements before a Judge makes a ruling. Some things are okay to deviate from i.e. like the visitation schedule. However, somethings must be followed strictly or you may be considered in violation of the Courts order. Note that child support and child custody (not parenting plan) are only modifiable by court order.
OTHER/MISC FREQUENTLY ASKED QUESTIONS
Q. I have been ordered to go to Alternative Dispute Resolution (Mediation), what is that?
A. Mediation is an excellent resource and option during a contested case. It is an opportunity for the parties to sit down with a third party neutral to resolve their issues on their own and not in a public courtroom for all the hear. The goal behind mediation is compromise for both parties. Some counties give a few hours of mediation for free (mediator fees only) or at a discounted rate. Ultimately, it is always better for YOU to decide your future vs having a judge decide for you. If you go to mediation, give it your best shot.