Georgia Divorce and the Out-of-State Spouse

Filing for divorce can be a arduous process, especially if you or your spouse lives in a separate state or they cannot be found.  Below are some tips for obtaining a divorce if you find yourself in a similar situation.

My spouse lives in Georgia and I do not, how can we file for divorce?
The important part here is who is filing for divorce.  If you are the one filing for divorce, you need to find out the requirements for divorce in the state you currently live in.  If it is your spouse who lives in Georgia. then they will need to meet the residency requirements to be able to file for divorce in Georgia.  Usually, the divorce case should be filed in the state of residence of the defendant if it a contested case.  If it is an uncontested divorce case, it can usually be filed in the state of the defendant or plaintiff.  Georgia courts usually have no problem with a Georgia plaintiff filing an uncontested divorce in Georgia no matter where the defendant spouse lives.

But in Georgia, at least one of the parties must meet the residency requirements.  The residency requirements of Georgia are that the person must be a verified resident of Georgia for at least six (6) months before the divorce case can be filed.  In order for your divorce to be effective, the court where you file for divorce must have jurisdiction over you and your spouse.  The court gains jurisdiction over your out of state spouse if following have occurred:

  • you have the divorce papers served to your spouse in person, or
  • if your spouse consents to jurisdiction by appearing in the court where you filed the case, or
  • or your spouse signs an affidavit confirming that he or she has received the divorce papers and consents to jurisdiction (called an “acknowledgement of service”)

I live in Georgia and my spouse lives in a different state, how does this affect our divorce?
The first thing that needs to be established are residency requirements, if you meet the residency requirements of Georgia and your spouse does not meet the residency requirements of their new state and you want to begin the divorce process as soon as possible, then you should be the one file for divorce.  Usually time is of the essence in a case like this, and speaking to an attorney as soon as possible is advised.  Once the process has begun, the defendant (the spouse that lives out of state) will be under the jurisdiction of the Georgia court.  If your spouse is in agreement with the divorce, then they can simply sign an ‘acknowledgement of service’ and they will be under the jurisdiction of the court and the divorce can proceed.

But I cannot find my spouse and they will not sign an Acknowledgement of Service.
However, if your out-of-state spouse will not sign an ‘acknowledgement of service’ you will have to turn to the other common methods of service.  One way is the ‘Long Arm Statute’ which allows for jurisdiction over the defendant with respect to proceedings for divorce, if the parties maintained a matrimonial house in Georgia at the time of the commencement of the divorce action or if the defendant resided in Georgia before the commencement of the action, regardless of whether the parties were living in during that time.  This means that if you and your spouse jointly owned the house you lived in while married they are subject to the court’s jurisdiction.  However, your spouse will still need to be served with the divorce papers.  This can be done with a process server or sheriff if you know where they live or through publication if you cannot locate your spouse.

It is also important to note that if none of the above applies and your spouse is not subject to the ‘Long Arm Statute’ the marriage can still be dissolved.  However, any matters regarding the division of marital assets, child support, and alimony will usually not be decided until you actually have service on your spouse.

If you are facing divorce and need an experienced and caring divorce attorney to help guide you through the process, call us at 770-609-1247 to discuss how we can best help you.