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Contested divorce in Georgia, step by step
Summary
A divorce is contested when spouses disagree on at least one issue, such as property, debts, alimony, custody or child support. The court then follows a set process to decide what the spouses can't agree on.
The usual steps are filing and service, the answer, temporary orders if needed, exchanging information (discovery), mediation, and a final hearing or trial. The spouses can settle at any point along the way, and many contested cases do.
Contested cases usually take longer than uncontested ones. How long depends on the issues, how much information has to be gathered, and the court's calendar.
Step 1: Filing and service
One spouse files a complaint for divorce with the Superior Court clerk, usually in the county where the other spouse lives, and pays the filing fee or asks to have it waived. The other spouse is then formally served with the papers by the sheriff or a process server, or signs an acknowledgment of service.
Some courts have a standing order that applies to both spouses once the case is filed. DeKalb County's, for example, bars both spouses from selling, borrowing against or otherwise disposing of property except in the ordinary course of business, changing or canceling insurance or life insurance beneficiaries, cutting off utilities to the home, harassing each other, or removing the children from the court's jurisdiction while the case is going on. Ask the clerk or a lawyer whether your court has one.
Step 2: The answer
The spouse who was served usually has 30 days to file a written answer.[1] The answer says what they agree or disagree with. It can also include a counterclaim, asking the court for things of their own, such as custody, support or a share of property.
If no answer is filed in time, the case can usually go forward without that spouse's input. Georgia doesn't allow a divorce by default, though: the filing spouse still has to prove the case to the judge.[2] A lawyer can explain what that means in your county.
Step 3: Temporary orders, if needed
A contested case can take months, so either spouse can ask the judge for temporary orders that apply while it's going on. They can cover where the children live and the parenting schedule, temporary child support or alimony, who stays in the home, and who pays which bills.
The other spouse usually must get at least 15 days' notice of a temporary hearing. When support, alimony, property or attorney's fees are at issue, each spouse must serve a sworn financial affidavit at least 5 days before it.[3] Some counties require it earlier; DeKalb's standing order, for example, requires 10 days. Temporary orders don't decide the final outcome, but they often set the pattern for how things run until the case ends.
Step 4: Discovery: exchanging information
Discovery is the formal way each side gets information from the other. It can include written questions that must be answered under oath, requests for documents such as bank statements and tax returns, and depositions, where a spouse or witness answers questions under oath in front of a court reporter.
In Georgia's Superior Courts, the discovery period is generally 6 months from when the answer is filed, though the judge can shorten or extend that time.[4] Answering requests fully and on time helps keep the case moving.
Step 5: If children are involved
- Many courts, including DeKalb, require parents to complete a parenting seminar.[5]
- The judge may appoint a guardian ad litem, a person who represents the children's best interests, looks into the family's situation and makes recommendations to the judge. The court sets the guardian ad litem's fee and decides how the parents share it.[6]
- In some cases, the court orders a custody evaluation by a mental health professional.
- Each parent submits a proposed parenting plan, or the parents submit one together.[7] The judge decides custody based on the children's best interests.[8]
Step 6: Mediation
Judges can send contested divorce cases to mediation before trial,[9] and many Georgia courts do. A neutral mediator meets with both spouses, often with their lawyers, and helps them try to reach an agreement. The mediator doesn't decide anything.
If you settle everything, the agreement is written up and the case can finish like an uncontested divorce. If you settle some issues, only the rest go to the judge.
If there has been domestic violence, tell the court or the mediation office. Georgia court mediation programs screen family cases for it, and a case can be handled differently or taken out of mediation.
Step 7: Final hearing or trial
Whatever isn't settled is decided at a final hearing or trial. Each side presents evidence and witnesses. Each spouse serves a financial affidavit, or any changes to one already served, at least 5 days before.[3]
Most divorce trials in Georgia are decided by a judge. If an answer contesting the case has been filed, either spouse can ask for a jury by demanding one in writing on or before the case is called for trial.[9] A jury can then decide financial issues such as property division and alimony. Custody is always decided by the judge, never a jury.[8]
Step 8: The final decree
The judge signs a final judgment and decree of divorce that sets out the outcome on every issue, including any settlement agreement the spouses reached. On the usual no-fault ground, a divorce can't be granted sooner than 30 days after service,[10] though contested cases usually take much longer than that. If you asked to restore a former name, the decree will say so.[11]
A spouse who disagrees with the result may be able to ask the court to reconsider or to appeal, but the deadlines are short. Ask a lawyer right away if you're considering it.
Things that affect how long it takes
- How many issues are in dispute, and whether children are involved
- Property that's hard to value, such as a business or retirement accounts
- How quickly each side answers requests for information
- Whether a guardian ad litem or custody evaluation is needed
- How busy the court's calendar is
Settling along the way
Spouses can settle any issue at any time, before or after mediation, and even during trial. Settling some issues still narrows what the judge has to decide. A settlement agreement is a binding legal document, so it's worth having a family lawyer review it before you sign.
Questions you might ask a lawyer
- Which issues in our case are most likely to be disputed?
- Should I ask for temporary orders, and what would they cover?
- What should I gather now for discovery?
- Does our court have a standing order that applies to us?
- Is our case likely to settle at mediation, and how should I prepare?
Common questions
What makes a divorce contested in Georgia?
A divorce is contested when the spouses disagree on at least one issue, such as property, debts, alimony, custody or child support, and need the court to decide it.
How long does a contested divorce take in Georgia?
It varies. The discovery period is generally 6 months from the answer,[4] though the judge can shorten or extend it, and many contested cases take many months or longer, depending on the issues and the court's calendar.
Can a jury decide a Georgia divorce?
Yes, for some issues. If an answer contesting the case has been filed, either spouse can demand a jury in writing on or before the case is called for trial.[9] Custody is always decided by the judge.[8]
Can a contested divorce become uncontested?
Yes. If the spouses reach an agreement on everything, at mediation or at any other time, the case can usually be finished based on their written settlement agreement.
Sources
- ^ O.C.G.A. § 9-11-12, time to answer (Justia)
- ^ O.C.G.A. § 19-5-8, no divorce by default (Justia)
- ^ Uniform Superior Court Rule 24.2, financial affidavit and temporary hearings
- ^ Uniform Superior Court Rule 5.1, time for discovery (Court Rules Network)
- ^ Uniform Superior Court Rule 24.8, parenting seminars
- ^ Uniform Superior Court Rule 24.9, guardians ad litem
- ^ Uniform Superior Court Rule 24.10, parenting plans
- ^ O.C.G.A. § 19-9-3, custody and the child's best interest (WomensLaw)
- ^ O.C.G.A. § 19-5-1, jury trials and referral to mediation (Justia)
- ^ O.C.G.A. § 19-5-3, grounds for divorce and the 30-day rule (FindLaw)
- ^ O.C.G.A. § 19-5-16, restoring a former name (Justia)
- DeKalb County standing order for domestic cases (PDF)
- Fulton County ADR rules, including domestic violence screening (PDF)
Laws and court rules change. If something here looks out of date, email help@divorce.city.