THE PROCESS OF DIVORCE
Divorce in a Nutshell
There are only three basic procedural steps to divorce:
- File divorce papers
- Notify Spouse
- Final Divorce Judgment (31 days after service)
Georgia has a 30-day waiting period from the date the respondent spouse is officially ‘served’ the divorce papers, or the date the respondent signs an acknowledgment of service avoiding the requirement of formal service.
Service
Unless the respondent spouse signs an acknowledgment of service, (agreed divorce), he or she is entitled to legal ‘service’ i.e. notice that a divorce has been filed. Personal service may be by either a Sheriff or another person appointed by the court to make legal service. The Sheriff or process server hands the divorce papers to the respondent and completes a return of service stating that they did personally deliver the divorce papers to the respondent. The Return of Service is then filed with the clerk as proof that the respondent was duly served. The respondent is not required to sign anything when they are served with divorce papers. They are entitled to notice. They are not required to sign anything or give their consent to a divorce. (See the section below for the service of a ‘missing’ spouse).
One Spouse’s Whereabouts Unknown
If the filing spouse has made a ‘good faith effort’ to locate the missing spouse and can swear under oath and penalty of perjury that they do not know the current whereabouts of the respondent and have made an effort to locate them, the missing respondent can be ‘served’ by the publication of a notice in a local newspaper.
Filing Fees For Divorce in Georgia
Each county in Georgia sets its fees for filing legal documents. The filing fee for divorce is generally in the range of $65. If service is made to the respondent by a sheriff or process server, there is an additional fee for service of approximately $25. You can call the clerk at the courthouse and find out the exact fees for that county.
Step-by-step process if a divorce goes to trial
1. Filing a Complaint or Summons
Whichever spouse files the complaint or summons is hereafter referred to as the plaintiff (or petitioner). The two primary purposes for filing the complaint are to register the request for divorce with the court, and to notify the spouse via written legal documentation of the intention to divorce. As with any other legal complaint, it is typically the job of the sheriff’s office or a private process server to deliver the necessary paperwork to the interested parties. After receipt of the complaint, the defendant (or respondent) will file an answer to the complaint indicating either agreement or disagreement with the information contained therein. Typically, the filing of the complaint marks the date on which the legal separation of the parties commences.
Basic information required to file a Complaint or Summons:
- Date and location in which the marriage took place.
- The legal residence of both parties.
- The names and birthdates of each child of the marriage.
- The reason for declaring a divorce ( must comply with applicable Georgia laws).
- A list of claims supporting the declared reason.
2. Pretrial Orders
Soon after the complaint is filed, the Plaintiff’s attorney will file Pre-trial Orders. These orders are formal motions that attempt to resolve any disputes that may arise concerning living arrangements, finances, temporary custody, and visitation. This will hasten the entire process, allowing each party’s attorney to concentrate on information pertinent to the actual divorce proceedings. Following the filing of the Pre-trial Orders, the judge will instantly clarify the immediate future for both spouses concerning temporary arrangements. It is important to bear in mind that the temporary arrangements are by no means set in stone, and do not necessarily directly influence the outcome of the divorce settlement.
In certain situations, this is also the point at which an ex parte order may be issued. This temporary orthotics is essential for the protection of an abused spouse or child until a permanent judgment can be made by the court.
3. The Discovery Procedure
This is the process by which the attorney seeks to uncover vital information that the client has yet been unable to provide. There are a variety of legal tools a lawyer can employ to acquire such relevant and vital information. The most common of these would be the deposition.
A deposition is a statement, taken in writing, to be used to reinforce a position on a disputed issue in the divorce at a later date. It allows each side to gain information from one another, as well as, any expert witnesses who may offer opinions regarding the disputed issues. An authorized reporter of the court is always present, to ensure that the questions asked and answers given may be verified at a later date. This is especially valuable, as it provides for the testimony of a witness recorded in a deposition to be presented in court as evidence even if the witness is not present in court at the time of the hearing or trial.
4. Negotiations
Once all of the relevant information desired by each side has been acquired, negotiations may begin to resolve the contested issues. It should not be forgotten that an out-of-court settlement may be reached at any point in time throughout the entire legal divorce process. A good percentage of all divorces are settled out-of-court, usually due to a mixture of negotiations, mediation, and arbitration encouraged and supervised by legal professionals and the court.
5. The Pretrial Hearing
Both sides will be interviewed in front of a judge or a panel of attorneys who will act as a mediator. The issues to be addressed at the trial will be given special attention, by the judge or panel to best provide knowledge and insight that might hopefully encourage both parties to reach an out-of-court settlement.
Oftentimes, during the pretrial hearing, both sides begin to fully realize the emotional and financial expenses of a trial. This usually allows for a more rational approach to the negotiation process to be adopted than perhaps previously possible. As further negotiations develop, more than one pretrial hearing may be held.
Always bear in mind that the attorneys involved are invaluable in advising their clients, but in the end, it is the individuals who must agree to accept the terms of a settlement.
6. The Trial
The following are the common legal procedures which take place at the trial:
- Opening Statements – A summarization delivered to the judge by each attorney stating what they intend to prove in the body of their respective cases.
- The Plaintiff’s (Petitioner’s) Case – The side that originally filed the Complaint for Divorce delivers evidence to support the claims declared.
- The Defendant’s (Respondent’s) Case – The delivery of evidence that denies or contradicts claims presented in the Plaintiff’s case.
- Rebuttal by Plaintiff (Petitioner) – A response to the Defendant’s case.
- Rebuttal by Defendant (Respondent)- A response to the Plaintiff’s case.
- Closing Arguments as presented by each side.
- The Final Decision or Judgment is handed down by the court.
