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Divorce in Georgia when your spouse lives in another state
Summary
You can usually file for divorce in Georgia if you've lived here for at least 6 months, even if your spouse lives in another state. You file in the county where you live.1, 2
A Georgia court can end the marriage without your spouse ever living here. But to order your spouse to pay alimony or child support, or to divide property that's outside Georgia, the court also needs power over your spouse personally. It may have that if Georgia was your married home when you filed, or your spouse lived here before you filed, though courts also ask whether that connection is enough in your case.3
Custody is decided separately. As a rule, it belongs to the state where the children have lived for the last 6 months.4
Can you file in Georgia?
To get a divorce in Georgia, the person filing must have been a Georgia resident for 6 months before filing. Georgia courts read "resident" as your legal home, the place you live and intend to stay or return to, so a short trip or job assignment elsewhere doesn't by itself end it.2
Your spouse doesn't have to live here. If it's the other way around, and you live in another state but your spouse has lived in Georgia and in one county for 6 months, you can file against your spouse in that county.
There's a special rule for military families: someone who has lived on a U.S. Army post or military reservation in Georgia for a year can file in a county next to the post.
Which county to file in
When your spouse doesn't live in Georgia, the case is filed in the county where you live. The fee is that county's Superior Court filing fee.1
What a Georgia court can and can't decide
Ending the marriage is one thing; ordering your spouse to pay is another. A divorce decides your marital status, so a Georgia court can grant it even if your spouse lives elsewhere and was served only by newspaper notice. An order to pay alimony or to divide property needs power over your spouse personally.5
- Georgia was your married home: if you and your spouse lived together in Georgia as a married couple, and that was still your married home when you filed, or your spouse lived in Georgia before you filed, a Georgia court may be able to decide alimony, property and support against your spouse, depending on the facts.3
- Your spouse takes part in the case: if your spouse files an answer without objecting to the Georgia court's power over them, or otherwise agrees to it, the court can generally decide these issues. For child support, Georgia law says so directly.6
- Child support: Georgia law lists other ways a court can reach a parent in another state, such as the parent living with the child in Georgia, or the child living here because of what that parent did.6
- Your spouse is served in person while in Georgia: that generally gives the court power over them. For child support, Georgia law says so directly.6
- Property in Georgia: a Georgia court may be able to rule on property located here, such as a house, even without power over your spouse personally. Ask a lawyer whether that works in your case.
If none of these apply, you may be able to get the divorce in Georgia but have to ask a court in your spouse's state for support. Whether a court can reach your spouse depends on the facts, so ask a lawyer before you file.
If you have children
Custody follows the children, not the parents. A Georgia court can usually make the first custody order only if Georgia is the children's "home state": the state where they lived with a parent, or someone acting as a parent, for the 6 months right before the case was filed, or since birth for a baby under 6 months. Short trips away count as time at home.7
If the children have lived in Georgia for less than 6 months, the court in the state where they lived before may be the one to decide custody, even if the divorce itself is in Georgia. Georgia can still decide if it was the children's home state within the 6 months before filing and you still live here, even though the children have since left.4
If a child is in Georgia and has been abandoned, or needs protection right away because the child, a brother or sister, or a parent has been abused or threatened with abuse, a Georgia court can make a temporary emergency order while the case goes forward where it belongs.8
If a court already made a custody order for the children, that court's state usually keeps control over changes to it while the child or a parent still lives there. Georgia follows that rule for its own orders.9
How to serve a spouse in another state
- Your spouse signs: if your spouse cooperates, they can sign an acknowledgment of service after the case is filed, and you file it, so no one has to deliver papers.
- Personal delivery in their state: a spouse covered by Georgia's long-arm law can be served outside Georgia in the same way as here, by someone allowed to serve papers in that state.10
- Publication: if your spouse lives outside Georgia or you can't find them, you file a sworn statement saying so, and a judge or clerk can order service by publishing a notice in the county's legal newspaper four times within 60 days. If you know your spouse's address, the clerk also mails them a copy. Once publication is ordered, having the papers delivered to your spouse in person outside Georgia can take the place of the newspaper notice.11
Publication is enough for a divorce, but on its own it generally isn't enough for an order making your spouse pay alimony or child support, or dividing property outside Georgia. A divorce based on publication that wasn't done properly can be set aside, so follow the steps carefully.
If your spouse already filed in another state
Don't ignore the papers. A case filed in another state has its own deadline to respond, which may not match Georgia's.
For custody, if a court in another state with proper authority already has a custody case for the children, a Georgia court must pause any custody case here and contact that court, and must dismiss the Georgia case unless that court decides Georgia is the better place for it.12
Which state handles the rest depends on where each of you lives and where the case was filed first. Talk to a lawyer licensed in the state where the case was filed as soon as you can.
Child support across state lines
If you need child support from a parent in another state, Georgia's Division of Child Support Services handles those cases through a central office that works with other states. Start with the case manager at your local child support office.
If you moved to Georgia to get away from abuse
If you're in danger right now, call 911. Georgia's statewide domestic violence hotline is 1-800-334-2836. An advocate can help you make a safety plan and ask a Georgia court for a protective order. When you fill out court papers, ask an advocate or lawyer about keeping your new address private.
Questions you might ask a lawyer
- Can a Georgia court decide alimony, property and child support against my spouse, or only the divorce?
- Which state decides custody of our children?
- What's the best way to serve my spouse in their state?
- My spouse filed in another state first. What should I do, and by when?
- Would it make sense to file in my spouse's state instead?
Common questions
Can I file for divorce in Georgia if my spouse lives in another state?
Usually, yes, if you've lived in Georgia for at least 6 months. You file in the county where you live.2, 1
Can a Georgia court order my out-of-state spouse to pay alimony or child support?
Only if it has power over your spouse personally. It may, for example, if Georgia was your married home or your spouse lived here before you filed, your spouse was served in person in Georgia, or your spouse takes part in the case. Otherwise you may need to ask a court in your spouse's state.3
Which state decides custody if the children just moved?
Usually the state where the children lived for the 6 months before the case was filed. That may be the state they just left, if a parent still lives there.4
What if I don't know where my spouse lives?
You can ask the court to let you serve your spouse by publication in a newspaper, after you show you tried to find them. That can be enough for the divorce, but generally not for alimony or child support orders.11
Sources
- ^ Georgia Constitution, Art. VI, Sec. II, Para. I, where divorce cases are filed (Justia)
- ^ O.C.G.A. § 19-5-2, residence requirements (Justia)
- ^ O.C.G.A. § 9-10-91, personal jurisdiction over nonresidents (Justia)
- ^ O.C.G.A. § 19-9-61, which state makes the first custody order (Justia)
- ^ Axtell v. Axtell (Ga. 1935), divorce by publication but not alimony, as summarized in Justia's annotations to Georgia's service-of-process statute
- ^ O.C.G.A. § 19-11-110, child support jurisdiction over a nonresident parent (Justia)
- ^ O.C.G.A. § 19-9-41, definition of a child's home state (Justia)
- ^ O.C.G.A. § 19-9-64, temporary emergency custody orders (Justia)
- ^ O.C.G.A. § 19-9-62, continuing control over a custody order (Justia)
- ^ O.C.G.A. § 9-10-94, serving a nonresident outside Georgia (Justia)
- ^ O.C.G.A. § 9-11-4, service of process, including service by publication (Justia)
- ^ O.C.G.A. § 19-9-66, custody cases already filed in another state (Justia)
- Georgia Division of Child Support Services, intergovernmental cases
Laws and court rules change. If something here looks out of date, email help@divorce.city.