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Divorce and Family Law Common Questions and Answers

The following is for basic informational purposes only and should not be relied upon as legal advice.  Every case is unique and you should consult with an attorney as to your particular circumstances.

What is the difference between a contested divorce and uncontested divorce?

     An uncontested divorce is where the parties agree upon all of the issues, such as dividing property and debt, custody, visitation and child support.  Often, an uncontested divorce does not require a court appearance and an order can be obtained in as little as 4-6 weeks from the initial consultation.  The key to an uncontested divorce is that both spouses agree voluntarily.  

     A contested divorce is where a judge or jury must decide some or all of the issues between a divorcing couple.  If a spouse will not agree to an uncontested divorce or simply will not sign it for any reason, the only option is a contested divorce.

Can we agree to anything we want in an uncontested divorce?

     Generally a court will not get involved in your agreement for matters such as dividing property, who pays the debts or alimony.  However, some courts will review custody and visitation agreements and may choose to reject them.  Many judges do not favor a 'week on, week off' custody arrangement, but every situation is unique.

  By law, a divorcing couple cannot agree to a lower child support without the court finding it is best for the children.  The amount of child support a parent must pay is based on a formula based on the parents income, cost of insurance, daycare costs and any extraordinary expenses for a child.

How long does a divorce take?

     For uncontested divorces, the documents can be prepared in less than a week.  By law, the divorce must be filed for 31 days before a judge can sign the order.  From beginning to end, an uncontested divorce usually takes 6-8 weeks.

     Contested divorces take much longer.  After the complaint is filed, a defendant has at least 30 days to answer.  After the answer is filed, there is a six month discovery period to collect information necessary for trial.  The trial will usually be scheduled within a few months following the end of the discovery period.  A typical contested divorce usually takes a year or more to be final.

What is the difference between legal custody and physical custody?

     Legal custody is the right to make decisions on behalf of a minor child and to obtain information from doctors and schools.  The decisions to be made are not usually the day-to-day variety but major decisions relating to medical issues, educational matters and extracurricular activities. Most courts prefer a joint legal custody arrangement.

    Physical custody is where a child will primarily live.

It seems like women always get what they want in court, shouldn't i just save some money and agree to her demands?

     It is my experience that divorced women exaggerate what they got and divorced men exaggerate what they had to give up or pay.  The truth lies in between.

     I have seen more men regret that they signed an agreement without consulting an attorney than those who wish they could take her first offer.

Can my spouse get property that is in my name only?

     Yes. Georgia law considers any property acquired after the date of marriage as marital property that can be divided in a divorce.   This is true even though the property (land, car, etc.) is titled in only one name.   Property acquired before marriage can also become marital property if payments are made during the marriage or if it is improved by the money or effort of both parties.

My spouse isn't doing anything wrong but I still want a divorce, can I do that?

     Yes.  There was a time in Georgia that you had to prove you were entitled to a divorce based on certain fault based grounds (adultery, abuse, etc.), but now Georgia is a no-fault divorce state.  This means that if one spouse wants a divorce, this is sufficient for a court to award a divorce (even if the other spouse doesn't want a divorce).

I want to leave my spouse but I was told not to leave the house as this would be abandonment.  Is this true?

     Every divorce starts with separation.  Separation means not living as husband and wife, but usually includes not living together.  Abandonment, in the legal sense, is a prolonged absence.  Moving out for a few weeks or even months prior to filing divorce would not constitute abandonment in most situations.  Even if abandonment could be established, it doesn't automatically entitle the "abandoned" spouse to more property or alimony.

Can I/she ask for alimony?

   Alimony is designed to keep a spouse in the lifestyle to which he or she has become accustomed and is based on the needs of one spouse and the ability to pay by the other.  There is no minimum length of marriage required to ask for alimony.  Even if both spouses work, one can ask for alimony from the other.   Permanent alimony (paying a spouse for the rest of his or her life) is rare but temporary alimony is awarded often. Alimony can be in the form of payments of money or awards of property.  Property or money that is non-marital (inheritance, premarital, etc.) can be awarded as alimony.  

How is child support determined?

     The amount of child support is based on a formula that uses the income of the parents, the cost of insurance and daycare costs, other children that are supported by one of the parents and other factors.  Any order in a divorce or custody matter must provide for child support and that support must be within the legal guidelines unless expressly approved by the court.  The Georgia child support worksheet can be found on the General Information - Procedures and Forms page located on this website.

She is not letting me have visitation, do I still have to pay child support?

     Yes.  The law is quite clear that visitation and child support have nothing to do with each other.  So even if a parent is not paying support, he or she still have visitation rights.  If a parent will not permit visitation, the other still has a duty to pay support.

What is legitimation?

     Legitimation is the process where a man is declared to be the legal father of a child.  A blood test or DNA test is NOT the same as legitimation.   Paying child support does not make a child legitimate.   A child is rendered legitimate by three ways (1)  the child is born or conceived during the marriage or the parents marry after the child is born; (2)  the father files a legitimation action in court; or (3) the parents sign an acknowledgement of legitimation during the first year after the child is born.   In order to obtain rights of custody or visitation, a father must legitimate his child.