Divorce in Georgia is referred to as a Total Divorce.
Residency Requirement:
To file for divorce in Georgia, one party must be a resident of the state for at least six months prior to filing.
Military Personnel:
Any person who has been a resident of any U.S. army post or military reservation within the state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the U.S. army post or military reservation.
Filing:
The Petitioner, filing party, may file a Petition for Divorce in a superior court of the county where a party has been a resident for the prior six months.
The same rules of pleading and practice applicable to ordinary civil actions shall apply to actions for divorce, alimony, and custody of minor children.
If one of the parties requests it, the divorce action may be heard and decided by a 12-person jury. However, only a judge shall make a determination of custody of a child.
Spouse’s Name:
In all divorce actions, a party may request the restoration of a maiden or prior name in his/her pleadings. The final judgment of divorce shall then specify and restore to the requesting party the name requested in the pleadings.
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Legal Grounds for Divorce
Georgia provides for several fault-based grounds for divorce and one no-fault method. The legal grounds for dissolution in the state are as follows:
1. Intermarriage by persons within the prohibited degrees of consanguinity or affinity (parent and child or stepchild, brother and sister – whole or half, grandparent and grandchild, aunt and nephew, or uncle and niece);
2. Mental incapacity at the time of the marriage;
3. Impotency at the time of the marriage;
4. Force, menace, duress, or fraud in obtaining the marriage;
5. Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;
6. Adultery in either of the parties after the marriage;
7. Willful and continued desertion by either of the parties for the term of one year;
8. The conviction of either party for an offense involving moral turpitude, under which he/she is sentenced to imprisonment in a penal institution for a term of two years or longer;
9. Habitual intoxication;
10. Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health;
11. Incurable mental illness;
12. Habitual drug addiction; or
13. The marriage is irretrievably broken.
Grounds due to mental illness may only be alleged if the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party, and he/she has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and a chief executive officer of the institution and one competent physician appointed by the court make a certified statement under oath that recovery of the party’s mental health cannot be expected at any time during his/her life.
Regarding the grounds that the marriage is irretrievably broken, the court shall not grant a divorce until not less than 30 days from the date of service on the Respondent.
For a divorce to be granted on the grounds of adultery, desertion, cruel treatment or intoxication, neither of the following may be true:
The adultery, desertion, cruel treatment or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing the divorce;
The complaining party consented to the adultery, desertion, cruel treatment or intoxication;
Both parties are guilty of like conduct; or
There has been a voluntary condoning of the act(s) complained of and subsequent cohabitation.
Annulment
Annulments of marriage declared void by law may be granted by the superior court, unless children are born or are to be born as a result of the marriage.
Actions for annulment are filed in the same manner as those for a divorce, including jurisdiction, residency requirements. However, a decree of annulment may be ordered at any time, in open court or in chambers, when personal service is had at least 30 days beforehand and no contest or answer is filed.
In Georgia, if a divorce is granted for a cause rendering the marriage void originally, it will annul the marriage from its inception. Voidable marriages include the following:
Intermarriage between parties within the prohibited degrees of consanguinity or affinity, as in divorce grounds;
Either or both parties did not have the mental capacity to enter into a contract;
One of the parties was under the age of 16 at the date of the marriage;
One of the parties was forced to enter into the marriage;
One of the parties was fraudulently induced to enter into the marriage; or
Bigamy.
In Georgia, an annulment can only be granted to the innocent party.
Although a decree of annulment has the effect of a total divorce between the parties and returns them to their former single status, it will not relieve the parties of criminal charges or responsibilities incurred by the marriage.
