As Georgia divorce attorneys, we know that the divorce process may be intimidating to some. It is often the case that those undergoing the divorce process have had very little exposure to the divorce process in Georgia, and may be unaware of all of the issues that must be considered and resolved in every divorce matter. With this being said, we often introduce new or potential divorce litigants to the divorce process by outlining and explaining the four basic parts of Georgia divorce. Below, each of the four parts is outlined along with a brief explanation. For a more detailed discussion of each of the four parts Georgia divorce, see our upcoming articles addressing each of the below listed topics individually.
Equitable distribution or equitable division is often viewed as one of the most complicated areas of Georgia divorce. Unlike community property states like California, Arizona or Idaho, where each spouse receives an equal share of marital property upon divorce, in Georgia, each spouse is entitled to an equitable share of all marital property acquired during the marriage upon divorce. The primary difference between equitable distribution states like Georgia and community property states like California is that in Georgia, marital property is not necessarily divided equally between the spouses upon divorce, but it is divided equitably or fairly as determined by a judge, jury, or by the agreement of the spouses. O.C.G.A. § 19-5-13; Fuller v. Fuller, 621 S.E.2d 419 (Ga. 2005). In addition to the division of marital property or assets, equitable distribution also involves the division of a couple's marital debts and obligations upon divorce.
During the divorce process in Georgia, each party is required to complete and submit a Domestic Relations Financial Affidavit to the court and to the opposing party to effectuate the equitable division of property. The submission of this affidavit, also known as a DRFA, aids in the division of marital property and debts because it requires each party to list and describe all of their property, assets, income, expenses and debts. This gives the court and the other party a clear picture of what is subject to division.
In Georgia, child custody is broken up into two basic categories, physical custody and legal custody. Physical custody deals with which parent the child will reside primarily. Georgia law allows for three basic models for physical custody of a child: 1) one parent being granted sole physical custody, 2) one parent being granted primary physical custody, with the other being granted secondary physical custody or 3) both parents being granted joint physical custody. O.C.G.A. § 19-9-3. In matters where the second custodial arrangement is implemented, visitation rights are normally granted to the non-custodial parent. Visitation, or parenting time as it is referred to in Georgia, includes set times during which a non-custodial parent may visit with, their child or children. This time is normally limited to certain intervals, like during weekends, or during certain weekdays.
Legal custody is the determination of which parent will have the legal authority to make major decisions regarding the children involved. For example, decisions that may be made by a child's legal custodian include decisions regarding healthcare, education, religion and extracurricular activities. Legal custody may be granted to one parent, as the sole legal custodian, or legal custody may be granted to both parents in a joint legal custody arrangement. If legal custody is shared by both parents, some mechanism must be in place to determine how disputes between parents concerning major decisions will be settled. O.C.G.A. § 19-9-3(a)(8).
Before a divorce is finalized, a parenting plan must either be agreed to by both parties or developed and ordered by the court. The parenting plan sets out, in detail, the physical and legal custodial arrangements and also addresses other issues attendant to child custody, such as who will be the final decision maker in the event legal custody is shared and how the child or children will be transported to and from parenting time.
In Georgia, child support is viewed as a way to ensure that both parents continue to meet the responsibility of financially supporting their children upon the dissolution of a marriage or other relationship. Child support may be defined as payments made by the non-custodial parent to the custodial parent on behalf of their children. Normally, child support is paid in monthly or bi-monthly installments until the child reaches the age of majority. O.C.G.A. §§ 19-5-5; 19-6-4 et seq. In order to determine the appropriate amount of child support in any particular matter, the parties must complete a child support worksheet. Georgia's child support worksheet calculates child support based on both parent's gross (pre-tax) income.
In Georgia, alimony is defined as an allowance out of one spouse's (or ex-spouse's) separate estate for the support of the other spouse, when the spouses are living separately. O.C.G.A. 19-6-1. The purpose of alimony is to provide the support to one spouse or ex-spouse if that spouse is in need of economic support. However, an award of alimony will not be solely based on the needs of one spouse, but the ability of the other spouse to pay alimony will be considered as well. Id. Unlike child support, there is no formula or worksheet used in Georgia to determine the exact amount of alimony warranted in any particular matter. Whether alimony is appropriate, and if so what amount, is a matter to be determined by the judge or jury presiding over the case.