Divorce: A Guide Through the Process
The purpose of the divorce process is to end the marriage and decide or resolve issues including child custody, parenting time, child support, alimony/spousal support, division of property and debt, and attorney’s fees and costs of litigation.
A divorce judgment can be based on a written settlement agreement between the parties or from a judge at trial. An agreement is preferable, as it involves less stress and confrontation, and is generally far less expensive than a trial. A vast majority of divorce cases are resolved by agreement and without a trial.
A divorce begins with the filing of a Complaint or Petition for Divorce in the superior court which is a formal declaration to the court and your spouse that you are seeking a divorce and sets out other relief you are seeking including, but not limited to child custody, visitation, child support, spousal support, property and debt division, attorney’s fees and costs of litigation if appropriate.
After a Complaint for Divorce is served upon the other spouse, the other spouse is entitled to file a response which admits or denies each paragraph of the Complaint, or it may state that a response to a particular paragraph is not necessary or possible. In Georgia, if one is served with a Petition or a Complaint, you need to file your response within thirty (30) days from being served or acknowledging service or there can be consequences for the delay.
Since the divorce process can take a considerable amount of time, it is often appropriate to request temporary relief, such as temporary exclusive occupancy of a house, temporary responsibility for bills, temporary custody and temporary support. Either party can request temporary relief from the court. Temporary relief can be agreed upon or ordered by a judge.
Each spouse is entitled to information from the other about the case. The legal procedure for obtaining that information is called discovery. The devices used in discovery can be a Notice to Produce certain documents, a set of Interrogatories which are questions that must be answered by the other side under oath, a formal deposition which is the process of asking questions of a spouse or other witnesses directly, under oath, and with a court reporter recording the responses for possible use at trial.
Mediation, Arbitration, and Negotiated Settlement
Most lawyers and judges agree that it is better to resolve a case by agreement and be in control of the resolution of the case than to have a judge decide the final outcome. A negotiated resolution affords parties more control over the outcome and affords them the privacy of resolving it without an audience in a courtroom. Because of the limited number of judges available to hear trials and the sheer volume of pending divorce cases in Georgia courts, most judges require that parties attend a mediation session.
In a mediation, the parties meet with an impartial individual who has had specialized training to help them reach an agreement. It is important to have independent representation throughout the mediation process. The parties should consult with their own lawyers about mediation and the legal ramifications of any proposed agreement. Mediation is required in many Georgia counties.
The parties may choose to submit some or all of their contested issues to an arbitrator who acts as a judge and decides those issues which can be made into a court order. Traditionally, the decision of an arbitrator is binding and final; however, there are methods of appealing an arbitrator’s decision.
If a case simply cannot be resolved by agreement, a judge will set your case down for a final trial. There, each party will be able to tell the judge or jury his and her side of the case and to present witnesses and other evidence supporting your case.
Trial is more expensive and more stressful than a mediated resolution; however, sometimes it is the only alternative if the parties are simply too far apart with no hope of a mutual resolution. Trials are uncertain, and no lawyer, no matter how long in practice, can predict the outcome because all cases are different. A judge has not been involved in the details of your case until the trial date. The judge may have a differing viewpoint, differing temperament and differing values from yours. Giving a judge the power to dictate outcomes for you and your children can be an unsettling prospect.
If you believe an error occurred at trial, you may, under certain circumstances and within a limited time, appeal your case to either the Georgia Court of Appeals or the Georgia Supreme Court.
Below are guidelines to try to follow during the divorce process:
- Try to maintain good communication with your spouse and children.
- Talk to your lawyer before agreeing to any settlement.
- Do not say anything to others that you would not want your spouse or a judge to hear.
- Do not engage in excessive spending on yourself or others.
- Keep all financial records and other potential evidence.
- Do not attempt to hide evidence or assets. Subsequent discovery of this will damage your credibility.
- Always maintain your perspective and try to think and act rationally.
Divorce is very stressful, but you will get through it. How you or your spouse act or react during your divorce can change dramatically as the case progresses. It is perfectly normal to go through stages of denial, anger, guilt, depression and acceptance on the path to a resolution.
After the Divorce
Whether the issues in your divorce are settled by you and your spouse or are decided by a judge, certain parts of your judgment can be modified or changed by a judge after a hearing. Child support, alimony, child custody, and parenting time can be modified under specific circumstances and if you can show that there has been a change in circumstances. Examples of a change of circumstances include job loss, job promotion, remarriage, and subsequent birth of children. Grounds to change child custody can include a party moving or the change in the needs of children as they grow older.
Some aspects of orders are not modifiable which includes the division of property. Also, if you and your spouse have agreed that any alimony is not modifiable, then it will not be.
If you or your spouse disobeys a judge’s order, there are ways to enforce those orders. Examples of failing to abide by an order are failure to pay support, failure to turn over property that was awarded and failure to abide by parenting time provisions.
Orders to pay money can be enforced by having a judge order immediate compliance with the penalty of incarceration, ordering the garnishment of wages or bank accounts and by having a sheriff seize and sell property belonging to the non-compliant spouse. Orders for support, to turn over property and for child visitation can usually be enforced by contempt proceedings. A Motion for Contempt is filed against the non-compliant party and served on him or her, ordering that person to appear in court. After a hearing, the judge can put the person in jail or impose a fine as necessary to make the person obey the order.
Some Questions and Answers about the Divorce Process
Should I be the first to file? That depends. If your case ends up going to trial, the plaintiff, also known as the petitioner, is allowed to open and close the case first; however, in most cases which resolve by agreement, it really makes no difference.
Why did my spouse request so many things in the Complaint? I thought we agreed on some of those things. Before knowing what the issues will be and what might happen under the law and the facts of the case, no one wants to take the chance of asking for too little. People tend to ask for more than they really expect to receive. It is merely aspirational and does not necessarily affect what the end result will be.
What are the chances my case can be resolved without trial? In Georgia, over 93% of all filed divorces are settled prior to trial.
May I date? In some states, the court is not concerned with your private life. In others, a relationship with someone other than your spouse before you are divorced may hurt your case. Whatever your local law, dating someone else may anger your spouse and impede settlement. If you have children, you should get some professional advice about how much your children should know about your love life.
May I spend money on my lover? There are at least two possible reasons why you shouldn’t. You may have to pay back the money when the property is divided. And your spouse may be very angry. That anger could lead to distrust that could complicate the divorce proceedings.
How long will my divorce take? That depends on a lot of things. Every divorce is different. Factors that can make a difference include the schedules of both parties, both lawyers and the court, the cooperation of witnesses, the speed of the appraisers, and the complexity of the case.
Nothing is happening in my case; what can I do? Talk to your lawyer. You are entitled to know the status of your case. There may be a very good reason for a pause or delay. For example, appraisals may not yet be completed. More information may be needed.