The Process of Contested Divorce in Georgia
By Travis Andres
If you find yourself in the unfortunate circumstance of needing a divorce you will have to navigate a complex legal process and make many difficult decisions about your family and finances under enormous emotional stress. To explain the process of divorce, it is helpful to begin with the final result. All divorces in Georgia are finalized by a judge’s written order, typically referred to as a Final Judgment and Decree of Divorce, or Final Decree for short. The terms of the Final Decree are either determined by the parties in a settlement agreement, or by the Judge after a trial. The Final Decree must resolve all issues in the divorce, including but not limited to alimony, child custody and visitation, child support, and property division – which includes assets and debts.
There are two basic paths a divorce can take, either contested or uncontested. The contested process is the default. The contested divorce process is long, arduous, and ultimately culminates in a trial. However, most divorces settle prior to trial, even if they begin contested.
A contested divorce means the parties cannot agree on all of the issues of the divorce. One spouse files a formal lawsuit so that the Judge can determine all of the issues in the divorce case at trial. Contested divorces can be extremely expensive. Both parties will often have to hire a lawyer, each charging by the hour and typically requiring a retainer. It is not uncommon for a contested divorce case to last eight to eighteen months. Depending on the complexity of the issues presented in the case and the complexity of the assets and debts contained in the marital estate, it could take even longer. Every divorce case is unique to the circumstances of the family, but a contested divorce case has a general procedure.
The Initial Pleadings – Petition for Divorce and Answer
The first step in a contested divorce case is filing the Petition for Divorce in the correct Superior Court. In a divorce case the parties are often referred to as Petitioner and Respondent. Petitioner and Respondent are the equivalent of Plaintiff and Defendant. The Petitioner (the party filing the Petition for Divorce) must serve the Respondent with the Petition for Divorce. Once the Respondent is served, he or she generally has thirty days to file an Answer to the Petition for Divorce. After the Respondent files his or her Answer to the Petition for Divorce, there is generally a six month discovery period.
The discovery period is generally assumed to last for six months from the date the Respondent files his or her Answer. The discovery period can be shorter or longer depending on the circumstances of the case. The purpose of the discovery period is for both parties to gather evidence that will be used at trial. Many divorce clients find the discovery process to be invasive and irritating. Despite the frustration the discovery process is a very important part of a contested divorce case. In a contested divorce you are essentially asking a Judge that knows nothing about you or your family to decide a fair division of all of your assets and debts, and to determine the best scenario for your children. That requires a lot of information. Your attorney must be able to show the Judge evidence of everything you and your spouse own, every debt owed, and intimate details of your family dynamics in a relatively short period of time.
The Temporary Hearing
At the beginning of a divorce case, there may be a temporary hearing. Temporary hearings are generally limited to issues affecting the children. Custody, visitation, child support, alimony, and which party is entitled to reside in the marital residence are issues that are generally determined in a temporary hearing. A temporary hearing typically occurs in the first month or two of the contested divorce case. The issues decided in the temporary hearing are decided on a temporary basis and are all subject to change at trial. Although the issues decided at this stage are subject to change, the temporary hearing is very important. In practice the Final Decree is often very similar to the Temporary Order.
At trial both parties have the opportunity to present their case. At trial the parties have to educate the Judge about their family. At the end of the trial a Judge will make a final determination of all of the issues that are contested in the divorce. Most divorce trials are bench trials, meaning that both parties present their case to a Judge without a jury. A party can request a jury trial in a divorce, but it is not very common. According to Georgia law, a jury cannot decide the issues of child custody and visitation. Only a Superior Court Judge can decide issues of child custody and visitation.
A contested divorce is an arduous and complex legal process. An experienced family law attorney can gather information, organize evidence, and present your best case at trial.
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