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:
- Personal service of the complaint upon a defendant who resides in or who is found within the state.
- 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.
- 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.
- Personal service upon a non-resident defendant while that defendant is within the state of Georgia.
- 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.