Frequently Asked Questions (FAQs)

How long will a divorce take?
Will I have to go to Court?
Can we both use the same attorney in our divorce?
Are grandparents allowed visitation?
What are the grounds for divorce?
What is a no fault divorce?
What is the difference between a contested and uncontested divorce?
When can I have an order modified?
How much will my case cost?
How much will I have to pay in child support?
If my spouse and I agree on the terms of a divorce, do we still need a lawyer?
Will I have to pay alimony?
Do my spouse and I have to live in separate residences during the divorce?
How is property divided?
How do I file for divorce?



How long will a divorce take?

Legally, a divorce can be granted 31 days after the divorce has been filed and the Defendant served with the Complaint. However, the length of your case depends on the level of cooperation between the parties during the case. Divorces are often the most emotionally charged event a person will endure. This sometimes can get in the way of resolving your case in the quickest manner. While issues may be resolved as the court process plays itself out, it is ultimately up to you and your spouse to determine the length of your case. Generally speaking, if you are able to come to an agreement regarding all the issues of your divorce, the less time it will take for your case to be finalized.

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Will I have to go to Court?

It depends. If you and your spouse are able to resolve your case without litigation, you may never have to appear in a courtroom. Many times, a court will allow your attorney to submit any necessary pleadings by mail. In the event children are involved, or depending upon which court you are appearing in front of, one party may be required to appear before the court to affirm that a divorce is being requested and that the parties have entered an agreement resolving all issues. Obviously, if you cannot reach an agreement regarding all the issues of your divorce, the litigation process will play out in court.

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Can we both use the same attorney in our divorce?

Divorce cases, by nature, are an adversarial process. It involves two people with distinct, and often, complete conflicts of interest. Therefore, one attorney cannot ethically represent both individuals through this process. If the parties reach an agreement regarding the issues in their case, an attorney can represent one spouse, while the other goes unrepresented. However, it is always advisable to retain your own representation.

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Are grandparents allowed visitation?

In Georgia, grandparents do have the rights to seek custody and/or visitation with their grandchildren. However, courts typically place an emphasis on allowing the natural parents to control the rearing of their children.

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What are the grounds for divorce?

In Georgia, there are 13 grounds for divorce. The most common is that the marriage is irretrievably broken. This essentially means that for any number of reasons, you choose no longer to live as husband and wife. A divorce being brought upon the marriage being irretrievably broken with no hopes of reconciliation usually doesn’t require any other evidence to prove to the court that it should grant a divorce. Other grounds, sometimes referred to as “as fault” grounds for divorce, include the following: 1) intermarriage by persons within the prohibited degrees of affinity; 2) mental incapacity at the time of the marriage; 3) impotency at the time of marriage; 4) force, menace, duress, or fraud in obtaining the marriage; 5) unknown pregnancy of the wife by another man at the time of the marriage; 6) adultery; 7) desertion for the term of one year; 8) conviction for a moral turpitude crime; 9) habitual intoxication; 10) cruel treatment; 11) mental illness; and 12) habitual drug addiction.

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What is a no fault divorce?

A no fault divorce is simply one in which the parties allege the break- up of the marriage is due to it being irretrievably broken.

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What is the difference between a contested and uncontested divorce?

An uncontested divorce is one in which all the issues pertaining to the divorce, including custody, child support , visitation, alimony, the equitable division of property, and the equitable division of debt have all been agreed upon. A contested divorce is one in which any issue pertinent to the action has not been able to be resolved between the parties. Contested actions usually require court intervention.

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When can I have an order modified?

Generally speaking, a modification action can occur after any new and material change in circumstances occurs. There are often restrictions on when exactly an order can be modified, or what constitutes a material change. It would be advisable to contact counsel prior to proceeding with a modification action.

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How much will my case cost?

The costs of a domestic matter can vary depending on the circumstances of your case. Typically, the more contentious your case, the more in attorney fees and expenses you will see. As with most professionals, costs will vary from law firm to law firm. In today’s market, flat fees are rare, and attorneys are not allowed to charge a contingency fee for divorces. Thus, you will find that most firms will charge by the hour. In many circumstances, a lawyer will charge a retainer. At the Smith Firm, the retainer serves as an advance payment for services to be rendered and to ensure that your lawyer is available and cannot accept employment by the opposing party. Depending on the complexity of your case, your retainer will usually range from $1,500 to $5,000 with the Firm. Ultimately, in cases that require an hourly fee schedule, it is impossible for an attorney to tell you exactly how long a case will take, and what the outcome will be. The best way to control costs in your action is to arm yourself with the facts of your case, be reasonable, and focus on getting your case resolved equitably.

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How much will I have to pay in child support?

In Georgia, both parents have the obligation to support their children. Typically, child support continues for the non-custodial parent until the child reaches 18 years old if they are not enrolled in high school. Child support goes up until 20 years old if the child is in high. The parents’ income factor heavily into determining the amount of child support due. Other factors that weigh on the amount of child support include the costs for health care, child care, and educational expenses. The child support guidelines can be found in section 19-6-15 of the Official Code of Georgia.

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If my spouse and I agree on the terms of a divorce, do we still need a lawyer?

In Georgia, you are not required to retain an attorney to handle your divorce action. Still, hiring one is strongly recommended, even if you are filing for an uncontested divorce. An attorney may help you get the best arrangements in order to protect your interests. An experienced attorney can also help to ensure that all your issues are resolved, especially those in which an untaught eye is not trained to look for or simply not thinking about.

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Will I have to pay alimony?

In Georgia, alimony is awarded to a spouse based on their needs and the ability of the other spouse to pay. Unfortunately, there are no set formulas the courts use to determine the amount of alimony due. The rationale is that the facts and circumstances in each case can be so different that it is impossible to fix any rule for a precise mathematical calculation. In that regard, the courts have a wide discretion in deciding if to award alimony to a spouse, and what that amount should be. In making this determination, the court will look to several factors which include the length of the marriage, the conduct of the parties during the marriage, the financial resources of each party, the time necessary to educate a party to find appropriate employment, and a host of other factors a court can use to determine what is fair in their eyes.

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Do my spouse and I have to live in separate residences during the divorce?

There is no requirement that the parties to a divorce have to live in separate residences. If the parties are in agreement, and there are no negative situations arising out of your living arrangements, the trial court likely will allow co-occupancy. However, in order for the court to approve your divorce, it will require that you live in a legal state of separation (not necessarily physical). This means that while you may share the same roof, sharing the same bed will likely put your divorce case in jeopardy of moving forward.

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How is property divided?

There is sometimes a presumption in divorce cases that all the assets that have been accumulated by the parties during the course of the marriage (marital property) should be divided equally. Marital property is generally all the property that is acquired during the course of the marriage, minus property received by gift from a third party or by inheritance. However, in Georgia, the courts determine the division of marital property on an equitable basis. This does not necessarily end in a 50/50 split. Each spouse is entitled to an equitable share of that property. There is no set percentage or formula used to determine the equitable split, and the courts are tasked with the responsibility of reviewing the facts in each case and determining what is appropriate.

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How do I file for divorce?

The first thing that is recommended prior to filing a divorce is seeking the advice of competent counsel. The Plaintiff must then file a Complaint, along with any of the other required pleadings, in the appropriate Superior Court. The opposing spouse in your case then needs to either be served with a copy of the Complaint, or acknowledge service of the Complaint. Again, it is important to seek the advice of counsel to ensure that the divorce is filed in the appropriate court with the appropriate supporting documents, and properly served on the Defendant.

If you have been served with divorce papers from your spouse, it is strongly recommended that you immediately seek the counsel of an experienced family law attorney. Once you are served with a complaint for divorce, you have 30 days to provide an answer. Your answer will include your response to the complaint, and can include your own claim for divorce. Failure to provide an appropriate answer to the divorce complaint can put your overall case at a disadvantage.

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Providing legal services to the following Atlanta counties: Cherokee, Clayton, Cobb, Coweta, Dekalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale.

The Smith Firm also provides legal services in Marietta, Georgia.

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The Smith Firm
A Family Law Group, LLC

Email: info@smithfamlaw.com
Phone: 404.855.3500
Fax: 404.855.4041

Please visit us at:
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Suite 200
Marietta, Georgia 30060
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