Family Law

Divorce Process

Divorce can be one of the most stressful periods in your life. It is an emotional drain that can sometimes result in physical damage to a person. These factors, combined with the uncertainty of what lies ahead, add to the stress a person is already undergoing when beginning the process of divorce. There are four major issues you will need to resolve in your divorce: alimony, equitable division of property, child custody, and child support. That is why we have developed and are presenting this short guide to the divorce process. Please understand that in reviewing this guide, nothing replaces the assistance of an experienced attorney to help you navigate the difficult path of your divorce.

In general, there are two "types" of a divorce - uncontested and contested. In an uncontested divorce, the parties have come to an agreement on all major issues and just need to properly present a settlement agreement and related required documents to a court for approval (or modification) as the judge requires. Given that this process usually only takes 30-60 days once the proper paperwork is presented, we will not address it in this article. Instead, we will be focusing this material on what happens in a contested divorce.

Contested v. Uncontested

If you are thinking about filing for divorce and you contact an attorney, one of the first questions they will ask you is whether your divorce is going to be contested or uncontested. Often, the answer to that question is not simple.

Uncontested Divorce

Generally speaking, when we ask that question we are trying to determine whether you and your spouse have discussed some (or all) of the issues that may be involved in your divorce and how far apart the two of you have been in those discussions. If you and your spouse have worked out all of the issues, such as equitable division, alimony, and child support, prior to contacting an attorney, then your divorce will most likely be uncontested. From an attorney's perspective, in an uncontested divorce, an attorney for one of the parties will draft a settlement agreement reflecting the agreement, both parties will review it, there will be minimal, if any, changes to the agreement, and then it will be ready for the parties to sign and file with the court.

Often, when people call our office, they will state that the divorce is uncontested just because the parties agree that they both want a divorce. While it may make the process easier if both parties agree to this ultimate outcome, this is not what attorneys are referring to when they ask whether a matter is uncontested. Instead, an uncontested divorce means that the parties have come to an agreement regarding all of the four major items related to a divorce:

1.Child Custody

2.Child Support

3.Alimony

4.Equitable Division of Assets and Liabilities

Of note, another common misconception about an uncontested divorce is that since we have a general idea about how to resolve an issue that means the matter is uncontested. While it is helpful to have general guidelines for how the parties desire to resolve a divorce, it is equally important to understand that the devil is in the details.

A simple example, in terms of child custody, may be that the parties have agreed that the father shall be the primary physical custodian for the minor children. Unfortunately, that does not fully address the subject matter of child custody. A visitation plan must still be put in place, minor details such as who is responsible for driving the children, how holidays and summer vacations will be handled, and who has ultimate responsibility for decisions related to the minor children (along with a host of others) must still be put into place before a matter will truly be considered uncontested.

Based upon our experience, often these minor details can be worked out with relative ease if the parties already have a general framework for the resolution of their divorce. That said, there are a number of cases over the years where the parties find what appeared to be a general agreement does not exactly work out that way when we get into various required details in the divorce.

If you and your spouse are making progress trying to work out the matter on your own, it is still advisable that you seek legal counsel to better understand all of the finer points that must be addressed in your divorce agreement. With a little guidance and perspective, we can help not only highlight the remaining issues that need to be worked out prior to proceeding forward with an uncontested divorce, but we can also offer helpful solutions for addressing differences that may arise. As attorneys that focus exclusively on divorce matters, we have seen numerous examples of these exact situations being addressed before and can offer helpful solutions to allow you to reach the ultimate result of an uncontested divorce.

As an aside, please also don't forget that just because a matter initially appears contested, it does not have to remain that way. Through various alternatives to trial, such as mediation, the parties can narrow their differences and often cause a contested matter to become uncontested.

Finally, regardless of how your reach your uncontested agreement, it is important to retain counsel to review your proposed plan, offer suggestions for changes, and to ultimately draft all of the necessary paperwork to facilitate the filing of the uncontested divorce matter.

Contested Divorce

A contested divorce, on the other hand, generally refers to a situation where you may not have spoken to your spouse about the issues in your divorce or that you have been unable to come to an agreement upon the terms of the settlement agreement. In this type of matter, your attorney will negotiate the terms of the settlement agreement (if possible) with your spouse or, if applicable, the opposing attorney. While certainly some of these types of cases ultimately lead to litigation and eventually a trial, it is important to understand that the vast majority of these "contested" cases result in the parties ultimately resolving their differences outside of a courtroom...(continue reading).

Sometimes, it is difficult to determine whether a divorce is uncontested or contested in the beginning and what may seem to be an uncontested divorce can ultimately turn out to be contested in the end. The key question is not whether you perceive that you and your spouse can work things out over the course of a divorce, but whether you have already done so.

A contested divorce simply means that there are unresolved issues between the parties at the time of filing for divorce. The areas that must be resolved in a divorce are as follows:

1.Child Custody

2.Child Support

3.Alimony

4.Equitable Division of Assets and Liabilities

If any part of the above listed items is in debate, then the divorce will be considered contested.

There are many elements that push a divorce down the contested path - emotions, financial ignorance, and adverse behavior by a spouse are just a few. Regardless of the reason(s) you matter is contested, if you and your spouse cannot resolve your differences (and these four major areas) your case will remain "contested" until such time as it is heard and decided by a judge.

Of note, just because your case starts out contested, it does not mean that it has to remain that way. In particular, there are several options to resolve disputed issues within a divorce. As discussed more in our section on alternatives to trial, the parties can attempt to resolve their differences in numerous formal and informal ways including settlement conferences, mediation, and either (or both) early case and late case evaluations. If these mechanisms are unsuccessful, however, your contested case will continue through the litigation system. To learn more about the divorce process, especially as it relates to a contested divorce, please see our section on the divorce process which discusses discovery, motions, hearings and final trials that happen in contested divorce cases.

We wanted to take a brief moment to highlight that a highly contested divorce naturally become litigious. This can be a very expensive proposition and the costs involved in a long term, contested case can be staggering - often resulting in one, or perhaps both, wasting some or all of the marital estate fighting about various issues listed above that need to be resolved. Although there are a number of cases that require litigation, whenever possible, it is strongly advised that the parties work to resolve these issues as soon as possible and without the need for court intervention.

Complaint

A contested divorce starts when one party files a "complaint" for divorce. A complaint is a formal legal document that explains to the court that you are seeking a divorce and generally lays out your requests as part of that process.

In order to begin proceedings, the plaintiff, usually through his or her attorney, must file the original complaint or petition with the Clerk of Court in the appropriate county, along with the appropriate filing fee. Additionally, a copy of the complaint or petition must be served on the defendant. To be legally sufficient, a complaint must contain.

A Complaint for Divorce (also called a Petition for Divorce) is the legal document that initiates divorce proceedings. In order to begin proceedings, the plaintiff, usually through his or her attorney, must file the original complaint or petition with the Clerk of the Court in the appropriate county, along with the appropriate filing fee. Additionally, a copy of the complaint or petition must be served on the defendant. To be legally sufficient, a complaint must contain or allege the various elements.

For example, a complaint must allege:

•That the court has jurisdiction over the parties.

•That the action is being brought in the proper venue.

•The date of the marriage.

•The date of separation.

•The grounds for divorce.

•Verification by the plaintiff.

•A specific demand or prayer for the relief sought.

•PLEASE NOTE THIS LIST IS NOT INTENDED TO BE A COMPLETE LIST OF THE VARIOUS ELEMENTS REQUIRED AND THE REQUIREMENTS VARY FROM CASE TO CASE. IT IS ADVISABLE THAT YOU SEEK THE ADVICE OF AN ATTORNEY (AT LEAST TO REVIEW THE DRAFT OF THE COMPLAINT) PRIOR TO FILING.

The requirements regarding Jurisdiction, Venue, and Grounds for Divorce will be discussed subsequently. However, the requirements of verification by the plaintiff and specific demand or prayer for relief deserve further explanation.

In Georgia, every petition or complaint for divorce must be verified. For a verification to be legally sufficient there are three requirements that must be met: 1) there must be a written oath embodying the facts as sworn to by the affiant. This oath normally takes the form of an oath stating that everything in the complaint or petition is true and accurate to the best of the plaintiff's knowledge; 2) the verification must be signed by the plaintiff; and, 3) the verification must be notarized.

In addition to the verification, Georgia law requires that every complaint state a specific demand or prayer for relief. Satisfying this element normally involves providing a short statement at the conclusion of the complaint that states what the plaintiff would like the court to grant or to order. Prayers for relief normally include requests that the court grant the plaintiff a total divorce, that child support be awarded to the plaintiff, etc.

Grounds for Divorce

In Georgia, there are thirteen statutory grounds for divorce according to O.C.G.A. § 19-5-3. These grounds include:

1.Intermarriage by persons within the prohibited degrees of consanguinity.

2.Mental incapacity at the time of the marriage.

3.Impotency at the time of marriage.

4.Force, menace, duress, or fraud in obtaining the marriage.

5.Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown by the husband.

6.Adultery in either of the parties after the marriage.

7.Willful and continued desertion by either of the parties for a term of one year.

8.The conviction of either party for an offense involving moral turpitude and under which he or she is sentenced to imprisonment in a penal institution for a term of two years of longer.

9.Habitual intoxication.

10.Cruel treatment.

11.Incurable mental illness.

12.Habitual drug addiction.

13.The marriage is irretrievably broken.

Many of the statutory grounds for divorce listed above are not often alleged or relied upon by parties seeking a divorce in Georgia. These lesser relied upon grounds include: Intermarriage between close relatives, mental incapacity, impotency at the time of marriage, force in obtaining the marriage, pregnancy of the wife by a man other than her husband at the time of the marriage, conviction and imprisonment of one spouse for a term over two years, incurable mental illness, and habitual drug addiction or intoxication. On the other hand, the most often relied upon grounds for divorce include adultery, desertion, cruel treatment, and that the marriage is irretrievably broken.

Adultery

In Georgia, legally speaking, a person commits adultery when he or she has sexual intercourse with a person other than his or her spouse. Owens v. Owens, 247 Ga. 139 (1981). Adultery may serve as a ground for divorce, even if committed after the parties have separated. Adultery may be proven by direct or circumstantial evidence. However, as adultery is often committed in secret, it may be difficult to gather evidence sufficient to prove this allegation.

Cruel Treatment

According to O.C.G.A. § 19-5-3(10), in order to constitute a ground for divorce, cruel treatment must consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health. Cruel treatment has been defined in Georgia case law as the wanton, malicious, and unnecessary infliction of pain upon the body or feelings and emotions of an individual; abusive treatment; inhuman or outrageous treatment. Mills v. Mills, 218 Ga. 686 (1963).

Desertion

In order to successfully allege desertion as a ground for divorce in Georgia, a party must prove three elements:

1.Willful and intentional absence of the at fault spouse, which was not caused or justified by the conduct of the other spouse nor with the other spouse's consent.

2.A cessation of cohabitation either by physical absence or by the denial of conjugal relations without justification.

3.The willful absence and cessation of cohabitation must endure for a period of one year continuously.

As with adultery and cruel treatment, the grounds of desertion and cruel treatment are not inconsistent. Both grounds may be alleged in the same petition and based on the same facts, as cruel treatment may be proven by showing the denial of conjugal rights or the refusal of one spouse to cohabit with the other. See Phinizy v. Phinizy, 154 Ga. 199 (1922); Harkness v. Harkness, 228 Ga. 184 (1971); Pinnebad v. Pinnebad, 134 Ga. 496 (1910).

Marriage is irretrievably broken

An irretrievably broken marriage is one where "either or both parties are unable or refuse to cohabit, and there are no prospects for a reconciliation." Harwell v. Harwell, 233 Ga. 89 (1974). In order to obtain a divorce predicated on the ground that the marriage is irretrievably broken, it is not necessary for the parties to show that there was fault on the part of either party. The parties must merely state that their marital differences are insoluble, that there is no hope for reconciliation and that they request a change of status. Seeing that this ground for divorce is based on the premise that the marriage is broken beyond repair and there is no hope for reconciliation, if a complaint for divorce is brought upon the sole allegation that the marriage is irretrievably broken, subsequent reconciliation and cohabitation of the parties will terminate the action for divorce.

Jurisdiction

In Georgia, the superior courts have jurisdiction to hear all domestic relations matters to include divorce, alimony, child support, and child custody. Before a superior court may grant a decree in a domestic relations matter, three elements of jurisdiction must be established. In Georgia, the superior courts have jurisdiction to hear all domestic relations matters to include divorce, alimony, child support, and child custody. Before a superior court may grant a decree in a domestic relations matter, three elements of jurisdiction must be established: 1) jurisdiction over the subject matter of the action; 2) jurisdiction over the parties to the action; and, 3) the proper venue. Venue will be discussed in a separate section. However, the first two jurisdictional elements, subject matter and personal jurisdiction, will be fully discussed below.

Jurisdiction over the subject matter

The first element that must be present in order for a Georgia superior court to have jurisdiction over a divorce is that a valid, subsisting marriage must exist. If for some reason the marriage that the parties are attempting to dissolve is not valid, the court would not have jurisdiction to grant a divorce.

The second element that must be present is that the plaintiff must have been a "bona fide" resident of the state of Georgia for at least six months prior to filing for divorce. The residence requirement does not refer to residence alone but requires that the party seeking the divorce be domiciled in the state for six months. What this means is that a party need not physically reside in the state for six months in order to meet the requirement. A party who is currently living outside of the state may qualify under the residence requirement if he or she has established a residence in the state and intends to return to Georgia.

Jurisdiction over the parties

The Superior Court obtains personal jurisdiction over the plaintiff in an action for divorce by virtue of the plaintiff filing the complaint. A defendant may likewise submit himself or herself to the jurisdiction of the court by acknowledging and waiving service or by failing to object to personal service and responding to the plaintiff's claim.

Although it is not necessary for the superior court to have personal jurisdiction over the defendant in order to grant a divorce or to award property located in Georgia, personal jurisdiction over the defendant is necessary to award alimony, child support, or property that is not located within Georgia. If the defendant does not choose to submit to the jurisdiction of Georgia courts, according to O.C.G.A. § 9-11-4, a court may only acquire jurisdiction over the defendant by one of the following methods listed below:

1.Personal service of the complaint upon a defendant who resides in or who is found within the state.

2.Service of the complaint and summons upon the defendant by publication, only if the defendant is a resident of the state and his address or whereabouts are unknown to the plaintiff.

3.Service of the complaint and summons by publication upon a defendant who is not a resident of the state of Georgia and who cannot be found within the state, only if the address of the defendant is unknown to the plaintiff.

4.Personal service upon a non-resident defendant while that defendant is within the state of Georgia.

5.Service by publication upon a non-resident defendant who owns property within the state. This method of jurisdiction allows the court to take jurisdiction over the defendant's property located within the state for the purposes of granting a divorce and alimony judgment against the defendant to the extent of the value of the seized property.

In addition to the five methods listed above, personal jurisdiction over a defendant may be obtained by virtue of Georgia's long arm statute. Georgia's long arm statute allows Georgia court to exercise jurisdiction over non-resident defendants in divorce cases involving child support, alimony, or division of marital property if the non-resident maintains a matrimonial domicile in Georgia or resided in Georgia prior to the commencement of the divorce action. See O.C.G.A. § 9-10-91.

In sum, jurisdiction is a very complex legal topic that can not fully be addressed by a short article. Hopefully, this article serves as a starting point for your understanding of the court but please keep in mind that the law in this area is incredibly complex and it is strongly advisable that you discuss your concerns in this area with your attorney.

Venue

As discussed in the section entitled "The Complaint for Divorce: Jurisdiction," in order for a Georgia court to grant a decree of divorce or enter a valid judgment in any other domestic relations matter, the court must not only have personal and subject matter jurisdiction, but venue must be proper as well.

As discussed in the section entitled "The Complaint for Divorce: Jurisdiction," in order for a Georgia court to grant a decree of divorce or enter a valid judgment in any other domestic relations matter, the court must not only have personal and subject matter jurisdiction, but venue must be proper as well. Venue determines the most appropriate location for the proceedings to occur. In order for venue to be proper, certain requirements of the Georgia constitution must be complied with. Georgia's constitutional requirements regarding venue in divorce cases are set out in Article 4, Section 2, Paragraph 1, which states:

Divorce cases shall be tried in the county where the defendant resides, if a resident of this state; if the defendant is not a resident of this state, then in the county in which the plaintiff resides, provided that any person who has been a resident of any United States army post or military reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States army post or military reservation.

Ga. Const. 1983, Art. VI, § II.

Older case law suggested that venue, unlike personal jurisdiction, may not be waived by the defendant. Thus, improper venue would cause any judgment rendered in the case to be void. See Rice v. Rice, 223 Ga. 363 (1967) and Johnson v Johnson, 222 Ga. 433 (1966). However, more recent case law has made clear that under certain circumstances venue may be waived or conferred by consent as well. See Williams v. Williams, 256 Ga. 788 (1990).

There are often several appropriate choices for venue in a case. Therefore, if you are considering filing for divorce, you should confer with a knowledgeable divorce attorney to ensure that you have chosen the correct and most appropriate venue for your case.

Failure to Respond

Upon being served with a complaint and summons for divorce, a defendant has 30 days in which to respond. Thus, it is important for a defendant to act quickly in retaining an attorney, or gathering the necessary information to submit an answer on their own behalf so that they may meet this deadline.

As discussed in our section: "What do I do if I have been served with a Complaint for Divorce?" - Upon being served with a complaint and summons for divorce, a defendant has 30 days in which to respond. Thus, it is important for a defendant to act quickly in retaining an attorney, or gathering the necessary information to submit an answer on their own behalf so that they may meet this deadline. Another possible issue of concern for individuals who have been served with a complaint and summons is what may happen if they fail to respond to the complaint.

If a defendant fails to file an answer or other defensive pleadings within 30 days of being served with the complaint, they waive all future notices regarding the trial of the case, including the time and place of the trial, the entry of judgment, and any notification of the decision. See O.C.G.A. §§ 9-11-5(a); 15-6-21(c); 5-5-25. Therefore, it is important for a defendant to file defensive pleadings in their case because failure to do so may lead to a judgment being entered without their knowledge. Additionally, it may be difficult or even impossible for the defendant to reopen the case or to have this judgment set aside after the fact. Hill v. Hill, 234 Ga. 836 (1975).

Even though a defendant may waive the right to receive notices concerning the case if they fail to answer within the mandated time period, a defendant's right to demand a jury trial or to fully defend against the plaintiff's claims for divorce or alimony, are not waived. The defendant may submit defensive pleadings, including counterclaims, at any time prior to the entry of a final judgment. Todd v. Todd, 231 Ga. 647 (1974). This is possible because in Georgia, a default judgment will not be granted in a divorce action, because Georgia's public policy favors the continuation of marriage. O.C.G.A. 19-5-8.

However, in domestic relation cases that do not involve actions for divorce, like child support or child custody modification actions, a default judgment may be entered. In the event that a default judgment is entered in one of these types of cases, the plaintiff is entitled to a verdict and judgment in their favor. However, if the plaintiff's allegations are not well-pled, are the result of forced inferences, or are erroneous conclusions of law, a default judgment will not result in the admission of these allegations. See O.C.G.A. § 9-11-55 (a); Grand v. Hope, 274 Ga. App. 626 (2005).

Another reason that it is essential to file an answer in a divorce action is that the defenses of insufficient service, lack of personal jurisdiction and improper venue, must be raised before or at the time of pleading. If these defenses are not raised prior to or at the time of pleading, these defenses will be waived. Filing an answer to a claim of divorce or alimony and responding to the allegations asserted in the action generally waives all defects in the service of process. Thus, it is important to assert these defenses in your answer or prior to submitting an answer in your case. Contact an attorney specializing in family law or divorce to discuss whether these defenses would be appropriate in your case.

Does it Matter Who Files First in Georgia Divorce Action?

Does it matter who files for divorce first? The answer, like so many in the law, is maybe. In actuality, there are times when you want to file first and other times that it is better to wait. While you should always discuss an important strategy decision like this with an attorney, here are certain tactical advantages and disadvantages to consider before being the first to file for divorce.

Possible advantages:

Although being the party to initiate the divorce action will not necessarily increase your likelihood for success or predict the outcome of the case, there are some advantages to being the plaintiff or petitioner in a divorce action. One advantage, which is likely the most important, is that the plaintiff in a divorce action has more control over when the proceedings begin and where they will occur. The party who files first may choose when to file, thus choosing when the proceedings begin. Additionally, the party who files first will have more control over where the action occurs. Although the location of divorce proceedings are regulated by Georgia law, if there is more than one possible venue where the proceeding may be held, the plaintiff may have the ability to choose which forum is more convenient. This may be important, especially in a divorce between two individual who are currently residing in different states.

Another possible advantage that a plaintiff in a divorce action may have is that through their complaint, a plaintiff is allowed to proceed forward first and last at trial. While attorneys will debate for years which position is best at trial, it is worth noting and considering that being both the first and last person to speak may have its advantages at trial.

In addition, from a non-legal perspective, there may be some emotional advantage (or disadvantage) of being able to say I filed for divorce (rather than my spouse) to family and friends.

Possible disadvantages:

In addition to the possible advantages that may result from filing for divorce first, there are possible disadvantages as well. One major disadvantage that is often overlooked is that in order to initiate a civil action, a plaintiff must pay filing fees to the clerk of court in the county in which he or she files. In Georgia, the fee to file a domestic civil action is upward of $200.00, depending upon the county.

Another disadvantage associated with filing for divorce first is that the plaintiff, by filing first, gives the defendant an opportunity to respond to his or her claims and assert counterclaims of his or her own. Thus, by filing first, the plaintiff risks that the defendant may take her by surprise and counter with claims that were not anticipated by the plaintiff. Fortunately for plaintiffs, Georgia allows the amendment of complaints so that a plaintiff in this position will not be harmed by failing to address all possible claims in the initial petition. Additionally, in Georgia it is not necessary for a plaintiff to answer counterclaims for divorce as counterclaims for divorce automatically stand denied. See O.C.G.A. § 9-11-12(a).

If you have been served with a complaint for divorce, read our section entitled, "What do I do if I have been served with a Complaint for Divorce?" Regardless of whether you are the plaintiff or the defendant in a divorce action, it is important to seek the guidance and representation of an attorney who specializes in the practice of family law.

Service

Once filed, a complaint must be served upon the other spouse to formally start the process. In order for service of process to be considered proper, the plaintiff must comply with the procedural rules of the Georgia Civil Practice Act.

What is "Service of Process"?

In Georgia, "Process" consists of the summons and the complaint. Both documents must be served on the defendant in order to initiate a divorce action.

How may the Defendant be served?

In order for service of process to be considered proper, the plaintiff must comply with the procedural rules of the Georgia Civil Practice Act. According to the Civil Practice Act, if the defendant is a known resident of the State of Georgia:

Process must be served personally upon the defendant. In order to be valid, personal service upon a defendant must be made by 1) delivering a copy of the summons attached to a copy of the complaint to the defendant personally, or 2) by leaving copies at his or her dwelling house or usual place of abode with some person of suitable age and discretion residing therein, even though notice of such is not received by the defendant. However, for service made outside the state upon a Georgia resident, the service must be in person to the person served.

O.C.G.A § 9-11-4.

If the defendant is not a resident of Georgia, the following rules of the Civil Practice Act apply regarding serving process upon a defendant:

If the defendant is a nonresident but found sojourning within the state, he may be personally served with process [...]. Generally, however, a nonresident is immune from service 1) while in attendance upon a court where he is a suitor or witness or 2) in going to or returning from the court; but this general rule would not apply if the person is in the state for some other purposes, or if the proceeding is not a "new" action.

Id.

Service of process may also be accomplished via what is known as "Acknowledgement." Acknowledgement of service may be accomplished by having the defendant sign a written acknowledgement, in the presence of a notary, that he or she has received a copy of the complaint and that he or she waives all other and further service, including further service of summons. See Jones v. Jones, 209 Ga. 861.

Who May Execute Service of Process?

One of the primary questions raised by those who are seeking a divorce is: May I serve my spouse with the divorce complaint and summons? The mandates of the Georgia Civil Practice Act answer this question (short answer "no") and set out specifically who may serve process upon a defendant according to Georgia law.

According to the Civil Practice Act:

Process shall be served by the sheriff of the county where the action is brought or where the defendant is found, or by such sheriff's deputy, or by the marshal or sheriff of the court, or by such official's deputy, or by any citizen of the United States specially appointed by the court for that purpose, or by someone who is not a party and is not younger than 18 years of age and has been appointed as a permanent process server by the court in which the action is brought. Where the service of process is made outside of the United States, after an order of publication, it may be served either by any citizen of the United States or by any resident of the country, territory, colony, or province who is specially appointed by the court for that purpose. When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.

O.C.G.A. § 9-11-4 (c).

The Civil Practice Act does not permit one spouse to serve the other spouse with the complaint and summons for divorce as this would constitute a party to the case executing process. However, there are several other options that a plaintiff to a divorce action may avail himself of including service by sheriff or court appointed process server. For example, the parties could acknowledge service thereby mooting the need for formal service of process. Contact your divorce attorney to discuss the specific local rules that may apply to your case as some counties have more specialized rules regarding who may serve process.

Service by Publication

As discussed in "The Complaint for Divorce: Service of Process," Georgia has specific rules regarding how process may be served upon a defendant. Although it is more common to effectuate service either personally or by acknowledgement, service may also be accomplished by "Publication."

According to Georgia's Civil Practice Act, if "the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, [...] the judge or clerk may grant an order that the service be made by the publication of summons." Service by publication may only be used as a means of service if the address or location where the defendant may be found is unknown.

O.C.G.A. § 9-11-5(f)(1)(a).

The Civil Practice Act goes on to provide that:

When the court orders service by publication, the clerk shall cause the publication to be made in the paper in which sheriff's advertisements are printed, four times within the ensuing 60 days, publications to be at least seven days apart. The party obtaining the order shall, at the time of filing, deposit the cost of publication. The published notice shall contain the name of the parties plaintiff and defendant, with a caption setting forth the court, the character of the action, the date the action was filed, the date of the order for service by publication, and a notice directed and addressed to the party to be thus served, commanding him or her to file with the clerk and serve upon the plaintiff's attorney an answer within 60 days of the date of the order for service by publication and shall bear teste in the name of the judge and shall be signed by the clerk of the court. [...].

O.C.G.A. § 9-11-5(f)(1)(c).

Answer

Once a party is formally served with a complaint for divorce, he/she usually has 30 days to respond to the filing with an answer. The filing of the answer formally starts the discovery period.

What do I do if I have been served with a Complaint for Divorce?

The first question that enters the mind of an individual who has been served with a complaint and summons in a divorce action is: "What should I do now?"

The answer to this question is rather simple: upon being served, an individual must file an answer to the complaint. The answer is the defensive pleading in a divorce action. Essentially, the answer is the defendant's response to the plaintiff's complaint or petition for divorce. The purpose of the answer is to respond to the plaintiff's allegations and to assert any defenses or counterclaims the defendant may have against the plaintiff. The answer may either be prepared and filed by the defendant or prepared and filed by the defendant's attorney.

It is important to timely respond to a complaint for divorce. Do not ignore it. A defendant has only 30 days in which to file an answer with the court upon being served with the complaint and summons. If the defendant fails to file an answer, he or she may be subject to penalties.

Counterclaims

A counterclaim is a claim made by a defendant, normally in an answer, in response to a plaintiff's complaint.

What may be alleged?

In divorce or other domestic relations matters, the particular counterclaims that are most appropriate depend upon the action. For example, in a divorce action wherein a plaintiff seeks a divorce based on the ground that the marriage is irretrievably broken, requests alimony and sole custody of the minor child, the defendant may counterclaim for divorce based upon the ground of adultery and request alimony and joint custody of the minor child. Essentially, counterclaims are tools that the defendant uses to protect their interest by seeking the relief of the court system regarding certain issues. For information regarding which counterclaims may be the most appropriate in your case, speak with a divorce attorney.

When may they be made?

Counterclaims are generally allowable in response to any action. However, there are some situations where a counterclaim is not allowed to be filed. For example, a counterclaim may not be filed in response to an application for contempt. McNeal v. McNeal, 233 Ga. 836 (1975); O.C.G.A. 19-9-23.

Defenses

A defendant in an action for divorce may defend herself in many ways. These ways include (for example) filing an answer, submitting a motion to dismiss, or alleging one or more of the defenses to divorce listed below:

1.Prior existing marriage

2.Insanity

3.Recrimination

4.Collusion

5.Condonation

6.Connivance

You may read more regarding answers and motions to dismiss in our separate pages covering those topics. However, a more detailed analysis of the defenses listed above follows below.

Prior existing marriage

A defendant to a divorce may defend on the ground that one of the parties is still legally bound by a previously un-dissolved marriage. A previously un-dissolved marriage of one of the parties renders their current marriage void. Thus, a petitioner seeking a divorce in this case would not be entitled to a divorce, as there is no current valid marriage between the parties to dissolve. O.C.G.A. § 19-5-1.

Insanity

A defendant may defend against a divorce action by relying on the defense of insanity. An insane spouse is not capable of committing cruel treatment or desertion, seeing that both of these grounds for divorce require willful and intentional acts. Thus, this defense is available to defend against these allegations in a divorce action. See Hilburn v. Hilburn, 210 Ga. 497 (1954) and Zeigler v. Zeigler, 149 Ga. 508.

Recrimination

If a plaintiff alleges any ground for divorce other than that the marriage is irretrievably broken, a defendant may defend themselves with the defense of recrimination. A party is not entitled to a divorce if they are guilty of the same conduct that alleged in the complaint. See O.C.G.A. § 19-5-4. Thus, if both parties are guilty of the same conduct, adultery for example, a defendant may successfully defend against the divorce action, as neither party would be entitled to a divorce on the grounds of adultery.

Collusion

If "the adultery, desertion, cruel treatment, or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing a divorce," a divorce will not be granted. O.C.G.A. § 19-5-4. If a plaintiff files a complaint for divorce alleging the grounds listed above, and there is evidence that the parties agreed to seek a divorce on those ground, a court will not grant the divorce. Thus, collusion may be asserted by a defendant in order to defend against an action for divorce.

Condonation

If "there has been voluntary condonation and cohabitation subsequent to the action complained of, with notice thereof," no divorce may be granted." O.C.G.A. § 19-5-4. This statement simply means that where one spouse voluntarily forgives the other spouse of marital misconduct, with full knowledge of that spouse's wrongful action, this forgiveness constitutes condonation. Condonation is a complete bar to a divorce based on that specific instance of conduct. Therefore, a defendant may assert a plaintiff's condonation of his or her actions as a defense to divorce.

Connivance

If, "the party complaining of the adultery, desertion, cruel treatment, or intoxication of the other party was consenting thereto," a court will not grant a divorce to that plaintiff. O.C.G.A. § 19-5-4. Connivance is the consent of the plaintiff to the commission of the marital misconduct that the plaintiff now asserts as cause for the divorce. Connivance is not the same as condonation, even though they may seem similar. Connivance is where one party consents to the other parties misconduct, and condonation is simply where one party forgives the other party after the commission of marital misconduct. Seeing that a plaintiff who consents to a defendant's misconduct is not entitled to a divorce as a result, a defendant may rely upon connivance as a defense to the divorce action.

Motions to Dismiss

Prior to or contemporaneous with an answer, a defendant may wish to file a motion to dismiss in response to a complaint for divorce. A motion to dismiss should only be filed and will only be granted by a court, if:

1.The allegations of the plaintiff's complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts asserted in support thereof, and

2.The movant established that the plaintiff could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

Put plainly, the burden is in on the defendant submitting the motion to dismiss to show that the plaintiff's complaint lacks factual or legal merit or the motion to dismiss will be denied by the court. Mooney v. Mooney, 235 Ga. App. 117 (1998).

A defendant may choose to submit a motion to dismiss for one of two reasons: 1) to allege a lack of jurisdiction over the defendant; or 2) to show that the plaintiff's claim is without legal or factual merit. As such, motions to dismiss are powerful tools that defendant's possess in order to protect themselves against meritless claims made by a plaintiff. If you believe that a motion to dismiss may be appropriate in your case, contact an attorney and speak with him or her about your options.

Failure to Respond

As discussed in our section "What do I do if I have been served with a Complaint for Divorce?" - upon being served with a complaint and summons for divorce, a defendant has 30 days in which to respond. Thus, it is important for a defendant to act quickly in retaining an attorney, or gathering the necessary information to submit an answer on his/her behalf to meet this deadline. Another possible issue of concern for individuals who have been served with a complaint and summons is what may happen if they fail to respond to the complaint.

If a defendant fails to file an answer or other defensive pleadings within 30 days of being served with the complaint, he/she waive all future notices regarding the trial of the case, including the time and place of the trial, the entry of judgment, and any notification of the decision. See O.C.G.A. §§ 9-11-5(a); 15-6-21(c); 5-5-25. Therefore, it is important for a defendant to file defensive pleadings because failure to do so may lead to a judgment being entered without their knowledge. Additionally, it may be difficult or even impossible for the defendant to reopen the case or to have this judgment set aside after the fact. Hill v. Hill, 234 Ga. 836 (1975).

Even though a defendant may waive the right to receive notices concerning the case if he/she fails to answer within the mandated time period, a defendant's right to demand a jury trial or to fully defend against the plaintiff's claims for divorce or alimony are not waived. The defendant may submit defensive pleadings, including counterclaims, at any time prior to the entry of a final judgment. Todd v. Todd, 231 Ga. 647 (1974). This is possible because in Georgia a default judgment will not be granted in a divorce action because Georgia's public policy favors the continuation of marriage. O.C.G.A. 19-5-8.

However, in domestic relation cases that do not involve actions for divorce, like child support or child custody modification actions, a default judgment may be entered. In the event that a default judgment is entered in one of these types of cases, the plaintiff is entitled to a verdict and judgment in his/her favor. If the plaintiff's allegations are not well-pled, are the result of forced inferences, or are erroneous conclusions of law, a default judgment will not result in the admission of these allegations. See O.C.G.A. § 9-11-55 (a); Grand v. Hope, 274 Ga. App. 626 (2005).

Another reason that it is essential to file an answer in a divorce action is that the defenses of insufficient service, lack of personal jurisdiction, and improper venue, must be raised before or at the time of pleading. If these defenses are not raised prior to or at the time of pleading, these defenses will be waived. Filing an answer to a claim of divorce or alimony and responding to the allegations asserted in the action generally waives all defects in the service of process. Thus, it is important to assert these defenses in the answer or prior to submitting an answer in the case. Contact an attorney specializing in family law or divorce to discuss whether these defenses would be appropriate in your case.

Discovery

The discovery process generally lasts for six months, subject to shortening or lengthening by the court. During this time period both parties can send written questions to each other (called interrogatories), request documents from the other person (requests to produce), ask the other party to admit that certain statements are true (requests to admit), and formally sit down with a court reporter and ask the other party (and others) questions that are relevant to the divorce (depositions). The goal of this process is to learn information related to the case.

Discovery is the process by which parties gather critical case relevant information and evidence from the opposing party. In a divorce or other domestic relations proceeding, discovery is conducted according to Georgia's Civil Practice Act. The Georgia Civil Practice Act governs all civil proceedings in Georgia. In Georgia, there are several methods of discovery. These methods include: Interrogatories, Request for Production, Requests to Admit, Depositions, and various forms of informal discovery. See O.C.G.A. § 9-11-26 et seq. For more specific information regarding each of these forms of discovery, see our remaining pages on discovery.

The discovery period generally lasts for six months from the time the defendant files his/her answer. However, if the court in a particular case deems it appropriate, that court may shorten or extend the discovery period. Uniform Superior Court Rule 5. Generally, according to Georgia law regarding discovery, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." O.C.G.A. § 9-11-26(b)(1). During the discovery period, information may be gathered from the opposing party in the litigation and from third parties who may have case relevant information.

While the scope of what is discoverable seems wide, the privacy of all parties, including opposing parties and third parties, must be respected. Abusive or overly invasive discovery may be sanctioned or result in the oppressed party obtaining a protective order against the requesting party. O.C.G.A. § 9-11-26. If the parties fail to resolve the disputes on their own, discovery disputes will be resolved by the court. Uniform Superior Court Rule 6.4(B).

Although a party's privacy is considered, it is important for all parties to respond to proper discovery requests and to do so in a timely manner. Normally, a party has 30 days (or 45 days for certain types of discovery) in which to respond to a discovery request after that party has been served with the request. O.C.G.A. § 9-11-26 et seq. If a party fails to respond to discovery, that party may be subject to penalties and sanctions.

Interrogatories

Interrogatories are one of several methods of discovery available to litigants in domestic relations proceedings in Georgia. Interrogatories are especially important and useful as they require the responding party to answer a set of questions prepared by the requesting party fully and under oath. In some Georgia counties, including Fulton County, parties are required to prepare and submit responses to interrogatories that are a part of county mandated discovery at the outset of litigation. Speak with a Georgia divorce attorney to learn if mandatory discovery is applicable in your case.

According to Georgia law, interrogatories may be served upon the plaintiff after the commencement of the case, and may be served upon the defendant with or after service of the summons and complaint on the defendant. The number of interrogatories that may be served upon a party is limited. Currently, only fifty (50), including subparts, may be served upon any party unless the requesting party shows the court that the litigation is complex or that the requesting party would be unduly burdened if not allowed to submit more. O.C.G.A. § 9-11-33 (a)(1).

Once served with a set of interrogatories, a party generally has 30 days in which to respond, subject to a few exceptions. If the receiving party believes that certain interrogatories are improper, are outside the scope of litigation or are in excess of the 50 question maximum, that party may object to those particular questions in lieu of responding to them. O.C.G.A. § 9-11-33 (a)(2).

In addition to being useful tools for gathering information and evidence during the course of litigation, interrogatories are also useful tools for litigants at trial. Responses to interrogatories may be used at trial as evidence if the responses otherwise conform to the rules of evidence in Georgia. O.C.G.A. § 9-11-33 (b).

Requests for Production

Requests for the production of documents are another form of discovery available to litigants in Georgia. This method of discovery allows one party to gather evidence by serving upon another party requests:

"1) To produce and permit the party making the request, or someone acting on his behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things ... which are in the possession, custody, or control of the party upon whom the request is served; or

2) To permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon...."

O.C.G.A. § 9-11-34 (a).

Similar to interrogatories, requests for production may be served upon the plaintiff after the commencement of an action and upon the defendant with or after service of the complaint and summons on the defendant. Generally, a party has 30 days in which to respond subject to a few exceptions. A defendant may respond 45 days from the date of service of process if the requests are included with the service of the Complaint for Divorce.

Requests for production are valuable tools for litigants because not only can they be served upon parties to a case but also upon nonparties as well. For example, requests may be served upon individuals, firms, corporations, healthcare facilities, and medical practitioners who are not parties to the litigation. As such, they can become invaluable in tracking down bank account statements, retirement statements, cell phone records, etc.

In the event that one party chooses to serve requests to produce on a nonparty, the opposing party in the litigation must be served with a copy of the request as well. Additionally, according to Georgia law, parties should make all reasonable efforts to ensure that any responses to nonparty requests are made available to all parties in the litigation. O.C.G.A. § 9-11-34 (c).

Requests for Admission

In addition to requesting that a party produce certain documents or other pieces of evidence, a party may request that the opposing party make certain factual admissions regarding the pending litigation.

According to O.C.G.A. § 9-11-36(a):

"A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters ... which are set forth in the request and that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request."

Like requests for the production of documents, requests for admission may be served on the plaintiff after the commencement of the action, and requests for admission may be served with or after the complaint and summons upon the defendant.

It is important for parties who have been served with requests for admission to reply promptly to such requests because any matter that is not replied to within 30 days of service of the request is deemed admitted. In order to constitute a valid response, the responding party must serve upon the requesting party a written response or objection to the request or requests. All admissions or denials must be definitive and an answering party may not give lack of knowledge as a response unless he/she has made all reasonable inquiry into the matter probed and the information discovered is not sufficient to allow her to respond. Any objection made must include the reason for objection. The responses must be signed by the party or his/her attorney and, in general, must be served on the requesting party within 30 days after service of the request. However, if served with the summons and complaint, a defendant has 45 days from the time of service in which to respond. See OCGA § 9-11-36(a)(2). Failure to respond to request for admissions can be deemed an admission by the responding party that the request is true.

Upon application by the requesting party, a court may inquire into the sufficiency of a party's answers or objections. If the court determines that an objection is not justified, it can order the answering party to furnish an answer to the requesting party. Additionally, "if the court determines that an answer does not comply with the requirements of this subsection, it may order either that the matter is admitted or that an amended answer be served." O.C.G.A. § 9-11-36(a)(3).

Not only is it important to respond to requests for admission to prevent inadvertently admitting any important and/or relevant case fact, it is also important to respond in a timely manner, because "any matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission." O.C.G.A. § 9-11-36 (b).

Depositions

Depositions are one of the most important tools in a litigant's discovery tool kit that allow one party's attorney to examine and confront the opposing party in person. In Georgia, depositions may be conducted anytime during the discovery period (that 6 month period of time after the filing of an answer, subject to adjustment by court).

After an action has been initiated, any party may take the testimony of any person, including that of a party, by deposition via oral examination. If a party desires to take the deposition of a person via oral examination, that party must give reasonable written notice to every other party to the action of the deposition. The notice must give the details concerning the circumstances of the deposition, including the time and place of the deposition and the name and addresses of each person to be examined. Additional information may be required for certain types of depositions. The attendance of witnesses may be compelled by subpoena. O.C.G.A. § 9-11-30(a)-(b)(1).

During the deposition of a witness, examination and cross-examination are conducted as they would be at trial. The witness is placed under oath prior to the examination, and the witness's testimony is recorded. Additionally, attorneys representing the parties to a deposition may make objections regarding the evidence presented, the conduct of a party, or to the manner of taking the deposition among other things. At any time during the deposition, a party or the witness may petition the court in which the action is pending to terminate or limit the scope of the deposition. A court will only make such an order if the petitioning party shows that: "the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party." O.C.G.A. § 9-11-30(c)(d).

After the deposition is complete, the witness may, upon request, review the transcript or recording of the examination for accuracy and make any necessary changes. If changes are made, the witness must sign a statement reciting the revisions and provide reasons as to why the transcript was incorrect. O.C.G.A. § 9-11-30(e).

Although depositions are extremely useful tools, they are often not widely used because of the costs associated with them. One of the most common costs associated with the taking of depositions is the transcription or stenographic fee. Georgia law requires, unless the court orders otherwise, that the testimony at a deposition be recorded by stenographic means or recorded via audio or audiovisual means in addition to stenographic means. The party taking the deposition bears the cost of the recording. O.C.G.A. § 9-11-30(b)(4). Additional costs related to depositions include penalties associated with failure to attend or failure to secure the presence of a witness at a deposition. If a party fails to attend a deposition, that party may be sanctioned by the court. O.C.G.A. § 9-11-30(g).

At a trial or a hearing in the action all or part of a deposition may be used against any party who was present, represented at or had notice of the deposition, so long as the rules of evidence allow it, for either of the purposes listed below:

1.To contradict or impeach the testimony of the witness; or,

2.For any other purpose that the court approves such as if the court finds that the witness is dead; the witness is out of the country, the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; the party offering the deposition has been unable to procure the attendance of the witness by subpoena; the nature of the business or occupation of the witness makes it impossible to secure his personal attendance without manifest inconvenience to the public or third persons; or the witness will be a member of the General Assembly and that the session of the General Assembly will conflict with the session of the court in which the case is to be tried. O.C.G.A. § 9-11-32.

The above listed ways in which depositions may be used at trial do not constitute an exhaustive list. There may be additional benefits to conducting depositions that are more applicable to your particular case. If you have question regarding whether depositions are necessary or appropriate for your case, speak with an experienced divorce attorney in your area.

Informal

Often times, it is necessary to investigate matters and issues concerning a divorce action prior to the initiation of the action or shortly thereafter. It may be necessary to conduct such investigation in order to substantiate allegations of adultery or some other ground for divorce in Georgia or to prove the assets of a spouse (for example for equitable division, child support or alimony). In this case, there may be less expensive and more informal methods of obtaining this information as opposed to conducting formal discovery.

Specifically, information gathered from a party's own personal records may also be useful to that party or her attorney in substantiating any legal claims made on that party's behalf. For example, a party wishing to substantiate a claim of adultery against his spouse in a divorce action may provide his attorney with text messages, letters, emails or cellphone records or other records or documents in his possession that provide evidence for the claim.

Informal discovery may also be conducted by virtue of interviewing and gathering information from third parties. If the third party is cooperative, that third party may be willing to provide a statement, affidavit, or any documents or records that he or she may have in their possession relevant to the action. However, as discussed in our section entitled "Discovery: Requests for Production" non-cooperative third parties or nonparties may be served with certain formal discovery requests to compel them to provide the requesting party with relevant evidence in their possession.

So what types of information can you gather informally? Just about anything is fair game. You can request the IRS to provide any tax return that is in your name, you can pull your credit report, you can pull joint bank statements, etc. Honestly, the list is only limited by your imagination and its relevancy to the case.

In sum, informal discovery can be as valuable or perhaps even more valuable to you and your attorney in preparing, prosecuting and defending your case. Do not ever forget just because there is a formal process for discovery, the informal process can often be more useful if used correctly. Speak to an attorney regarding which method of discovery is most fitting for your case.

Failure to Respond

Although in a perfect world it would not happen, in practice it is common that a party either does not respond to discovery or gives evasive "non-answers" to discovery that is propounded by the either party. In these types of cases, what is a party to do if they really need the information that they requested? The short answer is attempt to work it out with the opposing party and, if that fails, turn to the court for guidance and possible sanctions.

First, as common sense should tell you, the parties themselves should attempt to work out any discovery disputes. There is a formalized process for doing so in Georgia, however, in short it is to explain to the opposing party what it is about their responses that you believe are insufficient and to request that they reconsider their answer and provide the requested response or documents requested.

In the event that the parties cannot work it out, Georgia law does provide a formalize process for a party to force the other party. Specifically, in Georgia if a party fails to respond to a discovery request, or fails to respond to a question propounded during a deposition, the requesting party may "move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request." O.C.G.A. § 9-11-37(a)(2). Additionally, if a party provides evasive or incomplete answers in response to a deposition question or other discovery request, that answer may be treated as a failure to answer. If the motion is granted, the party whose conduct necessitated the motion, or her attorney, may be ordered by the court to pay the moving party's reasonable expenses incurred in obtaining the order, including attorney's fees. O.C.G.A. § 9-11-31(a)(4)(a).

If a party fails to obey a court order to provide or permit discovery in a matter, the court in which the action is pending may enter one of the following orders:

(A) "An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders, or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; or

(E) Where a party has failed to comply with an order ... requiring him to produce another for examination, such orders as are listed in subparagraphs (A), (B), and (C) of this paragraph, unless the party failing to comply shows that he is unable to produce such person for examination."

O.C.G.A. § 9-11-37(b)(2).

In addition to, or in lieu of entering any of the above cited orders, a court may require the disobedient party or his attorney to pay the reasonable expenses, including attorney's fees, caused by his failure to comply with the discovery order. Id. A party may also be ordered to pay the reasonable expenses incurred by the opposing party in efforts to obtain a response if that party failed to admit the genuineness of any document or the truth of any matter as requested in a request to admit or if that party fails to attend a deposition after receiving notice, failed to serve answers in response to interrogatories or failed to serve responses to requests for the production and inspection of documents. O.C.G.A. § 9-11-37(c)(d).

Temporary Hearing

As an important side note, anytime along the way, either party can request a temporary hearing to address immediate concerns prior to a final trial. Often, questions of who will live in the marital residence, interim child support or alimony, and temporary custody/visitation decisions are made at this type of hearing.

Alternatives to Trial

In addition, anytime during the course of a case, the parties can attempt to reach a settlement. Often, the formalized process of mediation is used to help the parties resolve their disputes themselves without the need for court intervention.

The phrase "Alternative Dispute Resolution" or "ADR" refers to any method of resolving a legal dispute other than litigation. In Georgia, several counties have established alternative dispute resolution programs pursuant to the Georgia Court-annexed Alternative Dispute Resolution Act. According to this act, "a judge may, prior to trial, refer all contested petitions for divorce or permanent alimony to the appropriate alternative dispute resolution method. In counties in which an alternative dispute resolution program has not been established, a judge may nonetheless refer any disputed divorce case to an appropriate alternative dispute resolution method if a method is reasonably available without additional cost to the parties." O.C.G.A. § 19-5-1(b).

The ADR method that is most appropriate for any case depends on the facts and circumstances of that particular case. Fortunately there are several methods of ADR that may be chosen. Some common ADR methods include: Case evaluations (or alternatively referred to as late case evaluation or early neutral evaluation); Arbitration; and, Mediation.

Georgia courts offer alternative dispute resolution for two main reasons: 1) to help the judiciary handle more cases with fewer resources; and, 2) to offer litigants lower-cost, faster and effective ways to resolve their differences without resorting to trials. Since the inception of the program in the 1990's the ADR system has benefitted taxpayers, litigants, attorney, judges, juries and the court system as a whole by offering effective, empowering alternatives to litigants, which in turn saves money and increases judicial efficiency.

Mediation

Mediation is a form of alternative dispute resolution where a neutral or impartial person, aka a mediator, facilitates settlement discussions between the parties. The mediator's purpose is to focus the parties' attention on their needs and interests and not on their rights and positions. The mediator has no authority to make a decision or impose settlements upon the parties.

So if you are like a number of our clients, you might find yourself skeptical about whether mediation actually could work to resolve your case. I mean the two parties have tried to work out a case themselves to no avail and they even hired attorneys on each side and both of the attorneys do not appear to be able to settle the case. Really, how could a neutral third party that does not have any authority to render a decision actually resolve the dispute if it has failed before?

Well the surprising answer for some is - yes it can work - and it has worked many times in very difficult cases that have litigated for months and even years. So what is it about mediation that enables the parties to settle disputes that they were never able to settle themselves?

First, it is the focus of the mediation session itself. Everyone is there and everyone is focused on trying to resolve their differences. Second, it is communication. Many times parties do not fully disclose their true desires and concerns to each other and these communication walls prevent the actual resolution of their matter. An impartial mediator and the confidentiality of each session allow the neutral to find common ground and address concerns in a different and often more effective way. Third, it is immediate disclosure - addressing random concerns immediately and alleviate fears and concerns. Actually, I could go on and on about why mediation is effective, but regardless of the reason, time and time again it proves itself to be effective by the results it achieves.

How does mediation actually work? Every mediator and mediation is different so there is not an exact procedure for the process. That said, generally the process starts with all parties in a room while the mediator explains the process and hears opening statements from both sides. In family law, however, the parties often do not start in the same room given the emotions involved. Regardless, generally speaking, the mediator will split the two parties into separate rooms and listen to each side, take offers back and forth, and addresses each parties concerns. Often the process involves some reality testing by the mediator - asking questions and forcing the parties to consider risks and rewards of proceeding forward with litigation, etc. The process generally continues until some or all of the issues in the case are addressed and resolved or until the parties reach an impasse and the session is ended.

Of note, even in cases where the mediation session fails to result in a final settlement agreement on the date of mediation, its effectiveness at narrowing down the issues (and gaps between the parties) often leads to the ultimate resolution of the case at some point in the future.

Do you need an attorney to go to mediation? Technically the answer is no. That said, the mediator is an impartial party that cannot provide legal advice. Without attorneys in the process to help guide each party towards a resolution, identify the relevant (and irrelevant) issues, provide a framework for what issues need to be decided, and provide clients with projections for likely outcomes at trial regarding the various issues in the case, it would seem to be ineffective and potentially lead to very costly mistakes.

Arbitration

Arbitration is the opposite of mediation in many ways. Arbitration is a form of adjudication where one arbitrator or a panel of arbitrators renders a decision in the case as presented by each party or their attorneys. Arbitration may either be binding upon the parties involved or non-binding. Binding arbitration means that the parties are legally bound by the arbitrator's decision. In non-binding arbitration, either party may demand a trial within a specified period, otherwise the non-binding decision becomes binding. The essential difference between arbitration and mediation is that in arbitration the arbitrator or arbitrators make decisions for the parties while in mediation the parties are empowered to make their own decisions and craft their own settlement terms.

As with mediators, in order to become a court registered neutral or a court registered arbitrator, an individual must meet certain requirements and obtain certain training. In Georgia, arbitrators are required to either be attorneys or experts in the field which is the subject matter of the arbitration. In some circumstances, arbitrators are required to be attorneys with at least five years of experience. Additionally, arbitrators in Georgia must complete at least six hours of qualifying arbitration training. See Georgia Supreme Court ADR Rules Appendix B. The Georgia Supreme Court's rules regarding arbitrator qualification are necessary because of the nature of arbitration. Seeing that arbitration involves the arbitrator making decisions which may potentially have a lasting effect on the parties, it is crucial for the arbitrator to be knowledgeable and experienced. If you would like more information regarding whether arbitration is the best alternative for your divorce case, contact one of our divorce attorneys.

Settlement Conference

The term "Settlement Conference" can mean one of two things: A judicially hosted settlement conference or an informal settlement conference.

A judicially hosted settlement conference is a form of alternative dispute resolution, and operates in a similar manner as mediation but is held before a senior judge. The parties attend with their attorneys and plead their cases and positions before the senior judge. Unlike a mediation, often the senior judge expresses their opinion on the unresolved issues and often provides insight to the risks that each party will face should trial go forward. The parties are under no obligation to accept the recommendations of the senior judge and may choose not to settle and continue forward to trial. A partial settlement may be reached at this time which will streamline the issues for trial.

An informal settlement conference is a form of alternative dispute resolution where the attorneys facilitate settlement discussions between the parties with no third party neutral present. The parties gather at an agreed upon location with their attorneys and discuss the issues of the case in an attempt to resolve their differences outside of a formal mediation, arbitration, hearing or trial. There is no standard that needs to be met; and, therefore, if the parties are too far apart on specific issues, a settlement does not have to occur.

Post Divorce

Once discovery is completed, the court will schedule the case for a final trial. Even after a trial, the case may not be over as parties can file post-trial motions such as a motion for a new trial or a motion for reconsideration and even appeal the trial results to a higher court, such as the Court of Appeals or Supreme Court of Georgia.

Finally, please note that most counties in Georgia have slight variances that can significantly impact this timeline. The most notable one is Fulton County (where downtown Atlanta is located). The process in that county is partially governed by additional rules and procedures.

After the long process of a divorce is complete, you can relax because the entire process is over, right? Well, depending upon the case, not exactly.

Is your case truly over? Despite a final order of divorce from a trial court, your case may actually have a long way to go before it reaches its final conclusion. Either party may file post-trial motions such as a Motion to Reconsider, a Motion for New Trial, a Motion to Set Aside the Judgment, etc. All of these motions may cause the trial court to reconsider its decision, and potentially even change its final judgment. In addition, even if the trial court does not change its opinion, the parties to a divorce in Georgia may have rights to an appeal to either (or eventually both) the Georgia Court of Appeals or the Supreme Court of Georgia (and in certain rare case to the United States Supreme Court).

Even if your case is finally over and past the period of any motions or appeals, there are potentially several key things you should still be thinking about in relation to your divorce. In particular, there are at least three major areas that typically needs attention post-divorce: 1) effectuating the division of retirement accounts; 2) quitclaim deeds to transfer property; and, 3) processing the change of your last name, if applicable. Because the issue effectuating the division of retirement accounts is rather complex, we have decided to discuss it in our article regarding QDRO's which you can see from this link.

Depending upon future changes in circumstances, it may also be appropriate to consider a modification of Alimony, Child Support, or even Custody. In addition, in the event one of the parties to the decree does not follow the final order of the court in regards to your divorce, it may also be necessary to consider using the contempt powers of the court to effectuate the actual terms of the final decree. In respect to name changes and quitclaim deeds, the following should provide a brief summary of some of the things to keep in mind.

Changing Your Name

In a divorce action, a party may seek the restoration of his or her prior last name or maiden name. A party may accomplish this by requesting the restoration of the prior name in the petition or answer. If a divorce is granted, the court will grant a party's request for name restoration by ordering in the final judgment and decree for divorce that the party's prior name be restored and specifying said name. O.C.G.A. §§ 19-5-12 and 19-5-16. For example, if a wife chose to take on her husband's last name of Smith during the marriage, her prior last name of Jones may be restored via a decree in the court's order that will resemble the following:

"The court restores to Petitioner her prior or maiden name, to wit: Jones."

A parent may seek to change a child's last name consequent to a divorce action as well. However, a court has broad discretion regarding the change of a child's last name and will not change a child's last name based solely upon the request of a parent. See Johnson v. Coggins, 124 Ga.App. 603 (1971) and Palmer v. Pinkston, 228 Ga.App. 514 (1997). The court will only do so if the change would serve the best interests, welfare and happiness of the child or children involved. Id.

Once your name change has been granted in the Final Judgment and Decree, you may take a certified, file-stamped copy to the Social Security and administration and other agencies, as appropriate, to legally change your name.

Quitclaim Deeds

Real estate titled in both parties' names but awarded to one party during the process of the divorce will need to be retitled appropriately. Georgia allows the transfer of property pursuant to a divorce settlement to be accomplished tax-free via a Quitclaim Deed. The Quitclaim Deed is a legal instrument that is signed by the spouse relinquishing his/her right to the property and filed with the land records of the county where the property is located by the spouse gaining the property. This step is an important one that must not be overlooked once the divorce has been finalized.

QDRO

In a divorce, oftentimes one of the most significant marital assets to be divided is a party's retirement savings or pension. In order to divide or transfer this interest in a divorce, irrespective of the size of the account or interest, you may be required to obtain a separate order from the Judge compelling the division and transfer from one spouse to another.

Why is an order required?

In 1974, congress passed the Employee Retirement Income Security Act ("ERISA"), which requires, in relevant part, that certain retirement plans not transfer or assign their employees' retirement funds or benefits. An exception to this anti-assignment and anti-alienation rule is if the transfer or assignment takes place pursuant to an order. If a transfer occurs without an order, one of the primary consequences would be that the retirement plan would lose their status as a plan covered by ERISA, as well as many tax benefits. In some cases, a retirement plan is not covered by ERISA, but an order is required by the employer.

Why shouldn't I just have my spouse cash out my portion and give it to me?

Although your spouse could just cash out your portion of their retirement, there would be serious tax consequences. A distribution from a qualified plan pursuant to a properly drafted order, however, is exempt from a 10% early withdrawal penalty. Depending on the size of transfer, this could result in a savings of hundreds or thousands of dollars.

Do I need an order?

In order to determine whether you need an order, you will need to identify and determine the type of retirement account or benefit being divided and transferred. Not every retirement interest will require an order. For example, to divide and transfer an Individual Retirement Account, typically does not require a separate order. Nevertheless, most defined contribution plans, such as a 401(k) account, 403(b) savings plan or profit sharing plans, and pension plans do require an order.

What type of order do I need?

Unfortunately, there is not a one-size-fits-all order to divide retirement interests. There are several different types of orders, and the type you require depends on the nature of the retirement account or benefit being divided and transferred. The most common type of Order required by private retirement plans is a Qualified Domestic Relations Order "QDRO." Another type of order is a Court Order Acceptable for Processing "COAP," which is required to divide any federal pension, except military. A Military Pension Division Order "MPDO" is the type of order that is required to divide a military pension.

How long will it take before my portion of my ex-spouse's retirement interest is transferred into my name?

The time frame to prepare, submit and process an order will depend on the employer and the type of the order. In most cases you can expect that it will take at least several months, but in some rare cases it may take a few years.

My divorce is already final, but my attorney never prepared an order to transfer the retirement I was awarded. Is it too late?

Many people going through a divorce are unfamiliar with this area of the law and are unaware of how important it is to have an order prepared at the time of the divorce. Nevertheless, it is likely not too late to have an order prepared.

Miscellaneous

For many, the first time that they are ever exposed to our litigation system is with a divorce. Without having any background, the divorce process itself can seem overwhelming. This section attempts to address a few basic common questions we hear on a daily basis about the divorce process from picking out an attorney to changing your name.

The divorce process varies with each individual case. You will want to begin your case by carefully selecting the best attorney for your needs and then provide them with enough paperwork in the beginning to adequately assess your case. The divorce statistics and articles you read about online can often be misleading, and it is very important to avoid particular behavior that will damage your case. If children are involved, each county requires that you attend a parenting seminar to assist in the transition. Another item for consideration that should be addressed in the beginning of the action is whether or not you are considering reverting to your prior name. These topics are discussed in more detail in the following subtopics.

How long is the divorce process in Georgia?

The complexity, circumstances and facts of each case are different. Thus, the length of the divorce process varies case by case. If the parties have already come to an agreement regarding the issues concerning the divorce, the divorce is considered uncontested. An uncontested divorce may be granted thirty (31) days after the defendant has been served with the complaint for divorce. Of course this 31 day projection is subject to two major variances: 1) the parties have already come to a formal agreement; 2) the judge is able and willing to sign on the 31st day. In practice, the process of coming to a formal agreement often takes an additional 30-60 days (or even longer) as parties negotiate the exact terms and conditions that will be included in the formal divorce agreement. Similarly, judges have numerous cases before them so realistic expectations need to include the fact that your particular judge probably is not just sitting around waiting for the 31st day to arrive and likely will not be able to get to review your divorce filing immediately after the 31st day has past.

If the divorce is contested, meaning that there is a disagreement as to any matter pertaining to the divorce agreement, the divorce will be obtained once the case is heard, reviewed and decided by the court. In general, assuming thirty (30) days to have an answer filed, six (6) months of discovery, potential motions to be heard by a court prior to a trial being able to be granted and some additional time waiting for your final trial date, it is not uncommon for the entire process to take six (6) months to several years. In practice, the six (6) month discovery period is often extended by the parties to enable all relevant documents to be obtained and all relevant witnesses to be interviewed. This period may be further elongated if either party files additional motions, or seeks a continuance of the proceedings, or if the matters concerning the case, like child support, custody or alimony are passionately disputed. In addition, in child custody cases, there are often additional individuals involved in your case (such as GALs and custody evaluators) that may need additional time to perform their investigations and give their recommendations to the court.

Another factor that may cause a delay in a divorce action is the county in which the action is filed. Some Georgia courts handle heavier case volumes than others and as a result have more backlogged cases. If a divorce is filed in a county with a backlogged court system, this could increase the amount of time it takes the parties to obtain a divorce.

If you are currently considering filing for divorce, or if you have already initiated the process and you would like more information regarding the length of time your particular case may take, it is advisable to discuss the matter with an experienced divorce attorney so they can weigh all of the particular factors of your case to provide a more accurate estimate for the actual projected length of your divorce matter.

Motions to Set Aside & Motions for New Trial

As mentioned in our article titled "Post Judgment Review in Georgia: Appeals" there are three main remedies for those who believe that the judge presiding over their family law matter made an error of law in coming to the final judgment in their case: 1) Appeals; 2) Motions for New Trial; and, 3) Motions to Set Aside. This article will primarily address Motions for New Trial and Motions to Set Aside under Georgia law. For information specific to appeals in Georgia, see the above mentioned article.

Motions for New Trial

In Georgia, a Motion for a New Trial may be used by either the respondent or the petitioner in a domestic relations or family law matter to challenge the court's final judgment. A Motion for a New Trial may be asserted validly when the final judgment is inconsistent with the evidence presented during the trial and contrary to the law governing the issues contested in the trial. O.C.G.A. §§ 5-5-20 and 5-5-21. Essentially, a Motion for New Trial asks the court to reexamine issues and findings of fact made by the trial court in the initial trial. Eldridge v. Ireland, 259 Ga.App. 44 (2002).

When presented with a Motion for a New Trial, the court that entered the final judgment may grant the motion and a new trial in the matter. It is not necessary for a higher court to intervene or to grant the motion for new trial. See Ga. Const. 1983, Art. VI, § I, ¶ IV. If a Motion for New Trial is granted, the court order entered at the conclusion of the prior trial would be set aside, and the matter will be completely re-litigated. McKay v. McKay, 93 Ga.App. 42 (1955). However, any temporary awards or temporary orders that were in effect prior to the final order will remain in effect until the final resolution of the matter. Id. A successful Motion for New Trial is risky as a new trial will occur in the matter. Although the new trial could possibly benefit the party seeking the new trial, a new trial could also negatively impact the party seeking the new trial, as the outcome of trial ultimately may not be in the favor of the party who sought the new trial.

Motions to Set Aside

Motions to Set Aside, if granted, operate to set aside the final judgment entered in the matter. What this means is that the final judgment in the matter will no longer be operative or effective. In Georgia, a Motion to Set Aside a judgment may only be granted by the court under the following circumstances:

1.The judgment being attacked was based on a lack of personal or subject matter jurisdiction. Riersgard v. Morton, 267 Ga. 451 (1997).

2.The judgment was based on fraud, accident or mistake. O.C.G.A. § 9-11-60(d)(2) and Scott v. Scott, 282 Ga. 36 (2007).

3.The judgment was based on a non-amendable defect that appeared on the face of the record or pleadings in the case. O.C.G.A. § 9-11-60(d)(3).

Essentially, in order for a final judgment to be set aside as a result of a valid Motion, there must have been some type of defect in the final judgment, or the final judgment must be based on some legal defect. It is important to note, however, that even if there is a valid legal basis for a Motion to Set Aside, if a party has received benefit from a final judgment, like alimony, he or she must return those benefits prior to asserting the Motion. Otherwise, that party would be estopped or legally prevented from asserting the Motion. White v. White, 274 Ga. 884 (2002).

Seeking post judgment relief in any matter is a very complex matter, so it is very important for anyone seeking any form of post judgment relief in their matter, whether it is an Appeal, a Motion to Set Aside, or a Motion for New Trial, to consult with one of our Georgia family law lawyers to ensure that every possible outcome is evaluated.

Appeals

In general, Georgia law provides three main remedies for those who believe the judge presiding over their family law matter made an error of law in deciding to the final judgment in their case: 1) Appeal; 2) Motions for New Trial; and, 3) Motions to Set Aside. The appeals process, which is often the most commonly sought after remedy, is discussed in more detail below. The other two topics are covered in our article entitled "Post Judgment Review: Motions for New Trial and Motions to Set Aside."

Once a final order is entered in their family law matter, many people often wonder whether it is possible to appeal the court's decision in their case. The answer to this question depends on many factors, including the type of family law case that the party is seeking to appeal and why the party is seeking the appeal. In Georgia, a party's ability to file an appeal, and the procedure that party must follow in order to file an appeal in a family law matter, depends on the type of case the party wishes to appeal. Certain family law cases are subject to a direct appeal procedure. This means that under Georgia law the party seeking the appeal will automatically be granted an appeal in his or her matter if one is sought. Other cases, however, are subject to a discretionary appeal procedure. With the discretionary appeal procedure, the following requirements must be met before an appeal will be granted:

1.The party seeking to appeal must file an application for leave to appeal;

2.The application must be filed within the time allotted by law (generally 30 days from the entry of the final order); and

3.The application must be determined to be meritorious by a majority of the justices presiding over the appellate court.

See Sup. Ct. R. (34)(4), O.C.G.A. §§ 5-6-34(a)(1) and 5-6-34(d).

Generally, divorce, alimony and child support matters are appealable under the discretionary procedure outlined above. However, child custody matters are directly appealable. See O.C.G.A. 5-6-35(a)(2). It is important for any party seeking to appeal his or her matter, especially if the discretionary appellate procedure applies, to note that if the appellate court finds the application for leave to appeal to be frivolous, a monetary sanction may be imposed for seeking the appeal.

If you are seeking an appeal in your matter, it is essential for you to have a candid discussion with a Georgia family law attorney. Appeals are very complicated legal matters, even for attorneys, and it is strongly recommended that you discuss your situation and concerns with one of our attorneys as soon as possible because the right to appeal is very time sensitive and even a meritorious appeal can be denied if it is untimely.