Standing Orders – Georgia Uncontested Divorce

Posted by on Apr 3, 2018 in Divorce | 0 comments

Standing Orders - Georgia Uncontested Divorce Attorneys

Many clients ask us about the reference to a “Standing Order” when filing for an uncontested divorce in Georgia. 

Although their case is uncontested, the Standing Order still technically applies.  This is because in Georgia, when a domestic relations action (divorce or family law case) is filed, a Standing Order will be issued by the superior court in which it is filed.

Although the parties will usually agree it is unnecessary, in an uncontested divorce proceeding, a Standing Order usually addresses several issues important to the case and safety of the individuals involved.  For example, a Standing Order issued during a Georgia uncontested divorce proceeding will generally prohibit either of the parents from removing the children from the jurisdiction, harassing/stalking one another, selling or otherwise disposing of/moving marital property, etc. The standing order also prohibits either party from employing another person on their behalf that would violate the standing order.

The order applies to the plaintiff when the action is filed, but does not apply to the defendant until he or she is served with the Complaint for Divorce and Standing Order.  The Standing Order can vary from county to county in Georgia.  However, the general requirements are usually similar.

If either you or the other party were to violate the requirements of a Standing Order, you could be found in contempt of court. That being said, exceptions to the standing order may be made after court approval, so if you are not sure that you will be able to obey all of the Standing Order rules for a valid legal reason, you could ask for an exception by filing a motion with the court.

The full text of O.C.G.A. 19-1-1 providing for the issuance of Standing Orders in Georgia divorce and domestic relations case is below.

 

O.C.G.A. 19-1-1. Issuance of certain standing orders in domestic relations cases

 

(a) As used in this Code section, the term “domestic relations action” shall include any action for divorce, alimony, equitable division of assets and liabilities, child custody, child support, legitimization, annulment, determination of paternity, termination of parental rights in connection with an adoption proceeding filed in a superior court, any contempt proceeding relating to enforcement of a decree or order, a petition in respect to modification of a decree or order, an action on a foreign judgment based on alimony or child support, and adoption. The term “domestic relations action” shall also include any direct or collateral attack on a judgment or order entered in any such action.

(b) Upon the filing of any domestic relations action, the court may issue a standing order in such action which:

(1) Upon notice, binds the parties in such action, their agents, servants, and employees, and all other persons acting in concert with such parties;
(2) Enjoins and restrains the parties from unilaterally causing or permitting the minor child or children of the parties to be removed from the jurisdiction of the court without the permission of the court, except in an emergency which has been created by the other party to the action;
(3) Enjoins and restrains each party from doing or attempting to do or threatening to do any act which injures, maltreats, vilifies, molests, or harasses or which may, upon judicial determination, constitute threats, harassment, or stalking the adverse party or the child or children of the parties or any act which constitutes a violation of other civil or criminal laws of this state; and
(4) Enjoins and restrains each party from selling, encumbering, trading, contracting to sell, or otherwise disposing of or removing from the jurisdiction of the court, without the permission of the court, any of the property belonging to the parties except in the ordinary course of business or except in an emergency which has been created by the other party to the action.

(c) Upon written motion of a party, the standing order provided for in this Code section shall be reviewed by the court at any rule nisi hearing.

Examples of Standing Orders throughout Georgia are linked below:

In summary, all Georgia uncontested divorce cases are usually filed under a Standing Order prohibiting the parties from certain conduct and actions.  However, in the context of an uncontested divorce, the protection of the Standing Order is not usually necessary, or a concern to any of the parties.  The court does not generally presume that either of the parties are violating the standing order.  However, if the court does learn that either party is violating the standing order and causing harm in anyway, that party may be found in contempt of the court.

How would the court learn that one of the parties is in violation of the Standing Order?  Almost always, the other spouse would file a Motion for Contempt or a Citation for Contempt against the offending spouse.  Again, in the context of an uncontested divorce, this is unusual.  Usually, contempt issues would become a factor months or years after the uncontested divorce is finalized.  But hurt feelings, anger, and a desire for revenge and to cause legal problems for another spouse could lead to a one spouse filing for contempt under the Standing Order.

Navigating a Georgia Uncontested Divorce and Standing Order

If you are facing an uncontested divorce in Georgia and have questions about the cost, process, or requirements under the Standing Order – call us today at 770-609-1247.  Our Georgia uncontested divorce attorneys have experience in all types of cases, including: complex, simple, with and without minor children, same-sex, and case with immigration issues.  Contact >

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Divorce, Annulment and Separate Maintenance in Georgia

Posted by on Mar 22, 2018 in Divorce, Family Law | 0 comments

Divorce, Annulment and Separate Maintenance in Georgia | Georgia Attorneys

Should the time come that a married couple no longer wants to be together, they may have some questions about their options regarding divorce, annulment or separate maintenance. Some couples automatically assume that divorce is the only way, but there is also the option of legal separation – and is some rare instances an annulment of the marriage is possible.  Below are some frequently asked questions our clients ask in regard to Georgia legal separation, annulment and divorce cases that can help you make an informed decision about your future.

What is a divorce in Georgia?

Simply put, a divorce is the legal termination of a marriage between two people.  The grounds for a divorce in Georgia are listed in O.C.G.A. § 19-5-3.

What is an annulment in Georgia?

It is the undoing or voiding of a marriage, as if the couple was never married.  Georgia’s law regarding when an annulment can be granted is listed in O.C.G.A. § 19-4-1.

Do we have to be living separately before getting a divorce, separation or annulment in Georgia?

No, you do not have to be living at separate addresses to get a divorce, separation or annulment.  However, there is a residency requirement (6 months) for divorce – and their is an expectation that the parties have not had sexual relations within thirty (30) days of the granting of the divorce or separation.  A divorce or separation can be dismissed if the parties reconcile – even if it is just for a short time.

What is legal separation / separate maintenance in Georgia?

Legally speaking, there is no legal separation in the state of Georgia, there is something called separate maintenance. Separate maintenance is the separation of spouses without the marriage being legally terminated. There are still decisions made about child support, custody and alimony just like a divorce. This means that the couple is still married but not responsible for each other.  The general provisions for separate maintenance are listed in O.C.G.A. § 19-6-10.

Why would I choose to still be married but be separated?

There could be some factors that don’t let you be fully divorced at the time. For example, should you not meet the residency requirement of Georgia to be divorced (which is 6 months) but you don’t want to be together with your spouse, you can for for separate maintenance (a separation) until you meet the requirements to for for divorce. The potential divorce filer may not be ready for divorce, but still needs financial support, or to maintain health insurance.  After a person has resided in Georgia for six (6) months, they can file for divorce.  Many cases start off as a separate maintenance action are later dismissed and refiled as a divorce case before the original case is completed.

Can I marry someone else if I am legally separated from my spouse in Georgia?

No, since you are not actually divorced, it is not possible for you to remarry while separated or under a “separate maintenance” order. In addition, it is against the law in Georgia to marry someone unless your existing marriage has been terminated by divorce or annulment, and Georgia will treat this as bigamy, which is a serious criminal matter, which includes arrest and imprisonment if convicted. If arrested for bigamy, you may need to prove your previous marriage was terminated by divorce or annulment to be released from jail. Previous marriages include marriages in other countries and states. See O.C.G.A § 16-6-20 for more information.

What happens to our children?

Just like in a divorce, there has to be determinations made about who gets custody of the children, visiting times, and child support.  Custody: See O.C.G.A. § 19-9-3. Child Support: See O.C.G.A. § 19-6-15.

What are the requirements to get a separate maintenance order in Georgia?

In Georgia, all that is required for a separate maintenance is that you have a valid marriage and live in a state of separation and the other spouse must be personally served (deliver the documents). If the other spouse cannot be personally served, the filing spouse will have to get a divorce instead.

Do I or my spouse have to move out?

In Georgia, it is possible to live in the same house but the spouses cannot share the same bed or have ongoing sexual relations. In general, their lives should be separate. A divorce or separate maintenance case can be dismissed if the court finds out that the parties have reconciled since the case was filed. While this is not common, it is sometimes used as a reason for one spouse to ask the court to dismiss the case if they do not want it to proceed. If a case is dismissed, it can be refiled later if the parties are separated again, but the whole case will need to start over.

Where do I file for divorce, separate maintenance or an annulment in Georgia?

Usually a case is filed in the county of the defendant’s (the spouse being served) residence.  But this is not always necessary; many divorce cases can be filed in Georgia by the plaintiff even if their spouse lives in another state or country.  However, the other party will need to be properly served with the divorce, separate maintenance or annulment case.  Proper service can include Service by Publication for parties that cannot be found.  Also, a case can almost always be filed in the county either party lives if the case is uncontested.  See O.C.G.A. § 9-11-4 for more information regarding service of process.

Do we still have to go to court in Georgia?

If it is a Georgia uncontested divorce or separate maintenance action  (meaning that the spouses can reach agreements), the only reason to see a judge would be to get approval for the agreements made. However, with the help of an experienced divorce and family law attorney, most court hearings for uncontested divorce and separate maintenance cases can be avoided.  In a contested case (the spouses cannot reach an agreement on some issues) the judge will have to make the decisions on issues that cannot be agreed upon by the couple.  This will almost always require the person bringing the case (the plaintiff) to appear in court.  Annulments in Georgia cannot be filed as an uncontested matter.

What if we want a divorce later?

You can get a divorce after a separate maintenance, however, the agreement signed during the separation will be used to for the divorce agreement, so be sure to carefully examine it before signing.

Who should I call for help?

It is best to start with an experienced divorce and family law attorney that practices in the jurisdiction and county you live, or your spouse lives.  If you have questions about a Georgia divorce, separate maintenance action, or annulment case, call us at 770-609-1247 to speak with one or our experienced attorneys.

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Georgia Divorce – Service by Publication

Posted by on Mar 20, 2018 in Divorce | 0 comments

Georgia Divorce - Service by Publication - Coleman Legal Group, LLC

What do I do if I want to get a Georgia divorce but I cannot find my spouse?  

The answer is  Service by Publication.  When one spouse wants to call it quits but cannot find his or her missing partner, or when he or she is hiding, divorce by publication comes into play. Divorce by publication happens only after a judge has been convinced, based on a sworn declaration, of the serving party’s inability to find the other spouse after trying hard. Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without a leaving a forwarding address. When the other spouse cannot or will not be found and fails to respond to the summons, the Petitioner must conduct what is known as a diligent search followed by Service by Publication ( See O.C.G.A. § 9-11-4 )

Service by Publication Search Requirements and Process

Courts in the state of Georgia require a good faith effort by the Petitioner to prove that he or she has made a genuine search for his or her missing partner. This search consists of:

  • checking the telephone book and directory assistance for the missing spouse in the area where the Petitioner (person asking for the divorce) lives;
  • checking the telephone book and directory assistance in the area where the missing spouse is last known to have lived;
  • asking friends and relatives who might know the location of the missing spouse;
  • checking the post office for any forwarding address of the missing spouse;
  • checking records of the tax collector and property assessor to see if the missing spouse owns property;
  • contacting the department of motor vehicles for registrations in the name of the missing spouse;
  • checking any other possible sources that might lead to a current address.

In order to be eligible for a divorce by publication, you must complete and submit an Affidavit of Diligent Search to the court. This document clearly outlines all of the actions you have taken to locate your spouse, essentially proving to the court that your spouse absolutely can’t be found. If you actively pursue locating your spouse through the methods outlined in the Affidavit of Diligent Search, and still can’t locate your spouse, then a divorce by publication is your likely method of getting a divorce.

Filing for Divorce by Publication in Georgia

If nothing results from the search, the petitioner files an Affidavit of Publication and Diligent Search, a notarized statement affirming that the petitioner has checked with the other spouse’s friends and relatives, his or her landlord and searched telephone directories and information. When the court is satisfied with the effort, it issues an Order of Publication, which gives the petitioner permission to publish a Notice of Publication four times within 60 days, with each publication being seven days apart. The publication is often in the county where the action is filed. If the missing spouse fails to respond within one week of the last publication of the notice, the court considers the action uncontested. The Plaintiff can schedule a hearing to finalize the action. The clerk of the court usually sends the notice to the newspaper to be published, but the petitioner pays the cost which varies on price. This is in addition to the average $75 divorce filing fees. Generally, from start to finish, service by publication takes about three to four months. The court can grant the divorce in a publication action, but it cannot make any decisions regarding child custody, child support or division of property.

If you need to speak with an attorney about a divorce in the Alpharetta, Roswell, Johns Creek, Milton, Atlanta, Cumming, and Metro-Atlanta area about a divorce, call us at 770-609-1247 to speak with one of our experienced attorneys.  Contact >

 

 

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Georgia Divorce Advice for Women – Things to Do Now

Posted by on Mar 15, 2018 in Divorce | 0 comments

Georgia Divorce Advice for Women – Things to Do Now

Start a War Chest.

You are going to need your own money for a divorce in order to maintain yourself and your children for a while, especially if your spouse decides to cut off support to the rest of the family. You will also probably need funds to hire a lawyer. If there is any way to start a separate account to guard against future financial contingencies, now is the time to do it. If you have to borrow money from a relative or friend, be sure to sign a promissory note so the court will look at this as a loan that you have to repay and not as a gift.

Note: as of 2016, O.C.G.A. § 19-5-7 states that after a petition for divorce is filed, property transfer from the marital party to another party is prohibited except for bona-fide debt payments. Be careful not to gift marital property to other parties, and be sure to certify all transactions in writing.

Keep a Divorce Calendar.

If you are currently using a desk calendar or day planner, you will now need to include your divorce events. There will be meetings with your lawyer and court deadlines to keep track of, and even scheduling discussions with your spouse may be helpful. At the very least, if your spouse misses appointments or meetings, you can use the instances as compelling evidence in court, as long as the meetings are well recorded. Visitation dates with children and individuals close to your children need to be dated in order to show up as evidence of your participation in your children’s lives in your divorce.

Make a To Do List.

Making a to-do list is the easiest way to stay organized and keep priorities in check during a divorce. List all the items you have to accomplish and mark them off as you go through the list.

Prepare a Divorce Notebook.

A divorce produces a lot of paperwork, and it can be overwhelming. The simplest way to keep track of all the papers is with a chronological three ring binder.

Set up a Divorce File.

You may prefer to set up individual files for various categories of divorce papers. Some examples are correspondence with your attorney, drafts of agreements, financial information and pleadings. Organized files can reduce a lot of headache.

Cut / Reduced Expenses – Make a Budget.

If your family is like most American families, you have been spending close to your entire income, if not more, and when one household becomes two, there will not be enough money to pay the expenses of both unless something changes. If you have debt in your name, such as credit cards or student loans, you will want to pay those debts down as much as possible before a divorce. You may have to cut expenses, downgrade a car, or even sell the house. If your spouse does not voluntarily support you and the children, your remedy is to ask the Court to order support, which may not always occur. Regardless, it’s important to settle finances.

Stick to a Routine.

It will help if you try to keep things as normal as possible in your life. Do not skip meals or change sleeping habits. Positive routines like to-do lists, regular exercise, and frequent social interaction will help you keep focus.

Be Constructive.

Try to maintain a positive outlook and do not let yourself be lured into needless conflicts with your spouse. You will need his signature on a settlement agreement before your divorce is over, and you’ll still be parents together for years after the divorce.

Make a Plan.

Divorce can be very stressful times in one’s life, so take it one day at a time. Focus on the present, not the past. You have to realize that not everything in a divorce is within your control, so remember to keep your cool. Make a plan detailing how you want to handle your divorce, and stick to it.

Gather Financial Information.

The more you can organize your financial documents, the more you will reduce your attorney fees and improve your chances of success in court procedure. You are going to have to gather and organize a lot of information for your attorney or your case. A good way of organizing the information you find is a financial statement which can be used as a checklist. Many courts have a form financial statement available both at the court clerk’s office and online. Filling out this form can be very valuable organizationally. Give it to your lawyer at the first meeting to save time and expense.

Note: You will need to do this anyway to present all your financial statements to the court, usually starting with the Domestic Relations Financial Affidavit. Keeping important financial information secret can be heavily penalized in a divorce case.

Do Your Research.

It is valuable for you to learn everything you can about divorce early in the process. If you know little or nothing about the process, you may not make the best decisions or choices. Most people are uncomfortable with the unknown. You can raise your comfort level and your odds of success by finding out what is going to happen before it happens. The Internet is a convenient way to obtain summary and detailed information about divorce, but you can learn through bookstores, libraries, friends’ experiences, and support groups. Keep in mind that every divorce is different. It’s a good idea to learn about the basics of divorce law in your state early in the process, and state statutes / case law is readily available on the internet.

Obtain Legal Advice from and Experienced Divorce and Family Law Attorney.

If you are facing divorce,  call us at 770-709-1247 to have a helpful discussion with one of our highly experienced divorce attorneys today. We offer free consultations to qualifying potential clients and offer weekend appointment, so don’t hesitate. Contact >

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Divorce – Separate Property Becoming Marital in Georgia

Posted by on Feb 26, 2018 in Divorce | 0 comments

Divorce – Separate Property Becoming Marital in Georgia

In a divorce, it is a court’s job to ensure that marital assets are split in the most fair manner possible. When making such a ruling, courts consider factors such as who the property is technically owned by (also known as the property’s title), how the family uses the property, who put most of the funds into the property, and more. However, when it comes to matters like the family usage of the property, sometimes the court can decide that even property owned separately can be transmuted into marital property. This article details how separate property can often become marital property.

Please note: divorce cases have different constraints and regulations depending on the U.S. state in which you’re currently residing. The article below details the particulars of divorce cases under Georgia law. It is always recommended to have an attorney present when dealing with bankruptcy and other legal matters.

What is Marital Property?

Marital property is property that is owned jointly by the spouses involved in a marriage. Marital property includes almost all property acquired during the marriage and may include property acquired beforehand. Marital property includes gifts between spouses, jointly-owned property, property used by the family as a whole, etc. In order for property to be designated non-marital property, it must almost always have been acquired before the marriage and not fallen under the category of possible transmuted property.

Transmutation of Property

Property that was previously owned by the individual spouses can become marital property if owned jointly during the marriage under a process called transmutation. Transmutation can occur many ways:

  • Uniting the property with a piece of marital property in some method of practice.
    • If your spouse begins working on your old car by giving it an engine upgrade, starts helping to pay off the car loan, or otherwise starts combining it with marital property or infusing it with marital funds, the property can become marital property.
    • This is known as commingling property, and it’s the most common way separate property can become marital property.
  • Implicitly or explicitly gifting a piece of property to a spouse.
    • If you gift your old car to your spouse, even implicitly and even if the car was originally in your name and your name only, it can become marital property. The main issue here is if the property was actually gifted or not, and these cases can become very complicated.
  • Re-titling the property from an individual ownership into a joint ownership.
    • If you legally change the title of your car from your name to you and your spouse’s name, then it becomes marital property.
  • Using the property for family purposes.
    • If you or your spouse start using your old car to drive your children to school, then it can become a family car.

Tracing – Financial / Forensic Accounting

If one wished, one could distinguish between marital property and separate property in a divorce case by a process known as “tracing”. Tracing is the act of going through old financial documents (such as receipts, deposits, bills of sale, etc.), usually with a financial expert such as a legal accountant, in order to prove that the property was at least originally separate property. Tracing can be very complicated, and some judges still may not even put importance on the original state of the property.

Source of Funds Ruling

In Thomas v. Thomas (GA. 1989), the husband owned a home pre-maritally that was later contributed to with marital funds. The court implemented the “source of funds” rule, which stated the source of the funds put into the property must be greatly considered when ruling ownership of the property. Therefore, the marital unit was entitled to an interest in the home equitable to the amount of money it had put into the house, including the house’s estimated appreciation. This shows the grand importance of fund contribution over titling in Georgia law.

How can I Avoid my Separate Property from Marital Property?

  • Prenuptial Agreements – The easiest way to protect your property from becoming marital property is by signing a prenuptial agreement with your spouse.
  • Keep Separate Funds Separated – Only use separate funds or separate property to pay off separate debts. Using separate funds to pay off a home or a family car can result in the separate funds becoming marital funds. Of course, in cases such as bankruptcy, one may need to use separate funds to pay off marital loans.
  • Have a Separate Bank Account – Only deposit funds into a joint account if you want the funds to be considered marital funds to be used on marital property.
  • Consult with an Attorney – Legal expertise always goes a long way.
  • Record Properly – Keeping accurate books and records of all your financial proceedings, especially the chronological information of such proceedings, can help a court from distinguishing what’s yours from what’s the family’s.

Divorce is a tricky, strenuous decision in one’s life; don’t go through it alone. Classification of property is subject to change, and there’s a strong chance that what you may believe to be individual property can actually be considered in the equitable division process. Call us at 770-709-1247 to have a helpful discussion with one of our highly experienced divorce attorneys today. We offer free consultations to qualifying potential clients and offer weekend appointment, so don’t hesitate. Contact >

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Child Custody – Frequently Asked Questions (FAQ’s)

Posted by on Nov 7, 2017 in Divorce, Family Law | 0 comments

Child Custody – Frequently Asked Questions (FAQ’s)

Who will typically get custody?

In most cases, both types of custody (legal and physical) are shared by the parents. The court determines custody by deciding what type of arrangement is in the best interest of the child.

What is joint custody?

This is when parents share decision making authority over the child. Typically, there are four areas in which the decisions are to be made jointly: religious upbringing, education, medical care and extracurricular activities.

If both parents share custody does anyone pay child support?

Child support is calculated based upon income, so the parent with the higher income will most likely need to pay child support regardless of the custody situation. However, in an uncontested divorce, usually the parties can settle / agree on a child support amount, and if its reasonable the court will likely approve it.

Can a parent refuse to allow visitation if child support is not paid?

No, these are two separate issues. In addition, withholding visitation can cause you

Can my child decide who to live with?

If your child is fourteen or older, they can elect to live with one parent. If the court believes their election is not in their best interest, it can overrule it.

Do grandparents have custody / visitation rights?

No. Absent death, mental incapacity of both parents, or other special circumstances the grandparents will not be awarded custody and have no visitation rights in Georgia.

Do I need a parenting plan?

Yes! It should detail parenting time, set forth a visitation schedule as well as designate responsibilities for care of the child. It should also cover visitation for holidays and extended visitation time during the summer.

Will the terms of my separation agreement carry over into my divorce?

Georgia does not typically recognize legal separations. But the general answer is yes. Most courts will keep the status quo unless a burden of proof that circumstances have significantly changed can be met.

When is child custody typically decided?

Generally, custody will be decided twice – once at the temporary hearing and again at the trial of the case.

When can I file a modification action?

There are no time restrictions; however, there must be significant evidence as to the need for modification.

What if my spouse and I cannot agree?

The judge will make the determination in this case. The court can appoint a guardian ad litem to represent the child’s interests.

If you facing child custody issues or just have questions about family law issies in general, call us at 770-609-1247 to speak with an attorney.

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