Uncontested vs. Contested Divorces
At the heart of every
divorce are three issues:
1. How to divide the
marital property,
2. Who
will have custody of the children, and
3. How much child and
spousal support should be paid.
While no divorce is truly "uncontested"
in the sense that there are no disagreements, these disagreements do not always
have to be resolved in court. That's what I mean by an uncontested divorce -
one where the spouses can reach a decision as to the terms of the divorce
without legal intervention or going to trial. Uncontested divorces move much
faster through the court system and are therefore less expensive. I
recommend that every couple
seeking a divorce first use all means possible to work out mutual terms for the
separation, without going to court.
Contested divorces, on the
other hand, often involve complex issues, high financial stakes and technical
legal procedures in court.
What is an uncontested divorce?
An uncontested divorce is one
in which both parties agree to the divorce and the terms of the settlement,
without going to trial. This does not mean that there are no arguments or
disputes between the spouses - it simply means that the spouses were able to
reach an agreement without going to court and having the judge rule one way or
the other. Uncontested divorces move much faster through the court system and
are therefore less expensive. In addition, by bypassing the lengthy litigation
and trial process, an uncontested divorce typically leads to reduced hostility
and resentment among the ex-spouses, and both are able to resume their lives
more quickly.
If both parties are in full
agreement on all the major issues in a divorce, they can typically proceed by
filing an uncontested divorce in
Property Division
Debts
Generally, spouses are
equally liable for debts incurred during the marriage. However, a spouse is not
responsible for debts incurred by the other spouse both prior to marriage
(separate debts) and in the period of separation before dissolution (as long as
the debt did not benefit the family).
Spousal Support
Permanent or temporary
spousal support, also known as alimony, may be awarded to either spouse in an
uncontested divorce in
Temporary Court Orders
A spouse may apply for the
court to issue certain temporary orders such as spousal support, child support,
and child custody.
Spouse’s Name
If
requested, a spouse's name may be restored.
One of the most important
aspects of any divorce in which children are involved is the determination of
child custody and support. You can tell the court what agreements you and your
spouse have come to regarding these topics in your
Child Custody
Joint or sole custody is
granted, based upon the best interests of the child and a consideration of such
factors as the suitability of each parent as custodian, the psychological,
emotional, and developmental needs of the child, prior and continuing care that
the parents have given the child, wishes of the child (if over 14 years of
age), safety of the child, geographic proximity of the parents, any custodial
agreements of the parents, and any history of domestic abuse. There is a
presumption against awarding joint custody in
Child Support
Both parents are
responsible for the support of their children. The court may award child
support from either parent based on the child’s needs and the parents' ability to
pay. In cases where the parents are not able to reach an agreement, the court
will consider the age of the children, a child's medical costs or extraordinary
needs, educational costs, daycare costs, shared physical custody arrangements,
a parent's support obligations to another household, hidden income of a parent,
income of the parent with custody, any extreme economic circumstances, a
parent's own extraordinary needs, the cost of health and accident insurance
coverage for the child, and any extraordinary visitation travel expenses. You
can tell the court what agreements you and your spouse have come to Child
Support in your
· Residency:
To get a divorce in
· Venue:
To get a divorce in Georgia the petitioner spouse must file for divorce in Georgia
Superior Court within the county where he/she resides or where Respondent
spouse resides.
· Waiting
Period: 31 days if uncontested.
· Legal
Grounds: In
· In
1. Impotence;
2. Adultery;
3. Conviction
of and imprisonment of over 2 years for an offense involving moral turpitude;
4. Alcoholism
and/or drug addiction;
5. Confinement
for incurable insanity;
6. Separation
caused by mental illness;
7. Willful
desertion;
8. Cruel
and inhuman treatment which endangers the life of the spouse;
9. Habitual
intemperance (drunkenness);
10. Consent to
marriage was obtained by fraud, duress, or force;
11. Spouse lacked
mental capacity to consent (including temporary incapacity resulting from drug
or alcohol use);
12. Wife was pregnant
by another at the time of the marriage unknown to the husband; and
13. Incest.
Basic Procedure
· The
Petitioner spouse must file a
· The
Petitioner spouse must serve Respondent spouse with a copy of the petition and
a
· The
Respondent spouse must answer the petition within 30 days after being served.
· The
Georgia Divorce form that is used to finalize a
The Divorce Process
A divorce starts with a
divorce petition, which is written by one spouse (the petitioner) and served on
the other spouse and filed in the proper court. A divorce petition is filed in
a superior court in the county where the petitioning spouse resides -- it does
not matter where the marriage occurred. The petition includes all the important
information regarding the marriage. It contains facts regarding the names of
the husband and wife, names of any children, whether there is any separate
property or marital property, child custody, child support, spousal support and
other information.
The petition must be served
on the other spouse, which means presenting him or her with the divorce papers
and giving notice that the papers have been filed. If both spouses have agreed
to the divorce, then the other spouse only needs to sign an acknowledgement of
the receipt of service. However, if the other spouse refuses to sign the
acknowledgement or is difficult to locate, then a professional process server
should be hired to personally hand them the papers.
Completing the service of
process starts the clock running on the time to answer the Petition. It also
sets automatic restraining orders on the spouses and helps establish the date
of separation. This prevents spouses from removing any children from the state,
selling any property, borrowing against property, and borrowing or selling
insurance held for the other spouse.
The other spouse, known as
the "respondent", then has the opportunity to file a response to the
petition. Although not required, the filing of a response could effectively
shorten the actual dissolution dates, plus it allows the respondent to
participate in the action and shows that he or she agrees with the action.
Thus, by filing a response, it is more likely that the case will proceed
without a court hearing, which could end up taking longer and costing more. If
a response is not filed within approximately 30 days, the petitioner may
request that a hearing be set to present evidence to the Judge so a divorce may
be finalized. if
no response if filed the Judge may determine that the Respondent chose not to
participate any longer in the process of the divorce and enter a final order
and decree. Therefore, it is always a good idea to file a response. Of course,
the responding spouse may disagree with the information presented in the
petition and would so state in the response called the Answer.
Next, both spouses are
required to disclose information regarding their assets, liabilities, income
and expenses to each other. If the divorce is uncontested and the spouses can
agree on the terms of the divorce without the need for a court, then there is
just a little bit more paperwork to file.
Custody of Minor Children
Both parents must decide on
custody of minor children under the age of 18. Divorce courts are very
concerned regarding the Ill-being of any children born naturally to both
parents or adopted by the parents. There are four basic types of child custody
recognized under state laws:
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1. |
Sole Physical Custody: Sole physical custody
means the children shall reside with and under the supervision of one parent,
subject to the power of the court to approve the parent's plan for visitation
rights granted to the other parent. |
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2. |
Joint Physical Custody: Joint physical custody
means that each of the parents shall have significant periods of physical
custody. In other words, the physical custody of the children shall be such
that both parents have more or less continuing contact with the children. |
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3. |
Sole Legal Custody: Sole legal custody means
that one parent shall have the right and the responsibility to make decisions
relating to the health, education and welfare of the children, subject of
course to the visitation rights of the other parent. Although courts favor
joint legal custody, sole legal custody continues to be the leading type of
custody for most children when there is a marital breakup. |
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4. |
Joint Legal Custody: Joint legal custody
means that both parents share the right and the responsibility to make decisions
relating to the health, education and welfare of the children. The law
presumes that joint legal custody is in the best interest of the minor
children when the parents have agreed to joint legal custody and submitted a
workable "parenting plan." However, joint legal custody is not for
everyone. It requires the parents to cooperate and lay aside all differences
for the benefit and interest of the children. |
Visitation Rights
In recent years, lawmakers
have come to recognize that visitation rights are not something that can be
easily made into law. Nonetheless, law states that any person having an
interest in the welfare of the children is entitled to reasonable visitation.
What is reasonable in one circumstance is not necessarily reasonable in another;
therefore, discretion is left with the parents to implement standards of
visitation that are reasonable under their circumstances.
Child
Support
Child support is mandatory
in all actions involving minor children. Petitioners with minor children must
include an order for child support, even if the other parent is unemployed or
cannot be found.
Under most State Laws, a
standard uniform guideline is used to determine child support payment amounts.
It is based on the incomes of the non custodial parent. The guidelines do
provide for add-on amounts for the following:
Child support orders can be
modified at any time in case of special circumstances or substantial changes in
the income of a parent immediately after the divorce and then every two years
thereafter. The parties can agree in writing to the changed amount or can
motion the court to change the amount. You should seek an attorney to change
the amount in the future if needed.
Any order for child support
payments must include an order for the assignment of wages called an Income
Deduction Order , unless it is agreed in writing that no wage assignment will
be filed with an employer and if the spouse is not in arrears by more than a
specified time or is current on his/her payments.
If a parent does not pay
child support or is late by a significant factor, he or she can be sued for
contempt of court, have wages attached, have tax refunds attached, or have drivers licenses blocked. These actions should be handled by
an experienced attorney.
Spousal Support (Alimony)
Spousal support, as it is
now commonly called, has in the past been known as "alimony". Spousal
support is not mandatory in most states. However, if the circumstances are such
that a spouse will face hardships if he or she does not receive financial
support after the divorce, than spousal support should be considered. The
deciding factor regarding spousal support is the need to maintain the spouse at
his or her customary standard of living. In other words, the law recognizes
that a wife (or husband) should not be forced to live at a level below that
enjoyed during the marriage.
However, other factors also
need to be considered. For example, spousal support should most likely not be
considered if:
1. the marriage was for a
short duration (under two or three years), and
2. both
spouses are employed and self-sufficient.
This does not mean that the
parties cannot agree on spousal support, which the court is, more or less,
bound to accept.
Spousal support can run for
an unlimited period, subject to the death or remarriage of the recipient
spouse, or it can be fixed to terminate on a specific date.
Spousal support can be
waived by the recipient spouse, but it should be in writing signed by both
spouses. If the higher income earner is the petitioner for the divorce, it is
generally not enough to simply allege in the divorce petition that the other
spouse waives spousal support. The other spouse must acknowledge the waiver in
writing. If the lower income earner is the petitioner for divorce, then the
waiver can be included in the petition, and subsequently entered into the
judgment
Marital Settlement Agreements
A marital settlement
agreement spells out the terms of the divorce and the relationship between the two
spouses after the divorce. These agreements usually cover property division,
child custody and child plans, debt division, spousal support, and any other
relevant issues related to the divorce.
Although not required,
filing a marital settlement agreement has many advantages. First, because it
lays out all of the agreements in writing, there are no ambiguities. Second,
the spouses will probably never have to go to court because the judge will most
likely honor the written agreement if written correctly and if it covers all
material aspects of the divorce. Third, it shows the court that the issues Ire
thought out, and the case will move more quickly
through the system.
Marital settlement agreements
can be entered into at any time before the final judgment. They are typically
filed with the final judgment.
Marital Property and Separate
Property
One of the primary issues
in a divorce is how to split up the marital property assets. Marital property
is everything that a husband and wife OWN TOGETHER. This means that both the
husband and wife are deemed to equally own all money earned by either one of
them from the beginning of the marriage until the date of separation. In
addition, all property acquired during the marriage with "marital"
money is deemed to be owned equally by both the wife and husband, regardless of
who purchased it.
Like marital property, all
debts contracted from the beginning of the marriage until the date of separation
are marital debts, and thus, each spouse is each equally liable for these
debts. In most cases, this includes any unpaid balances on credit cards, home
mortgages and automobile loan balances. It is important to close out all credit
cards, bank accounts, and all other "joint" accounts as soon as
possible after a divorce has been decided. It is not enough to remove names
from the account, or both with still remain liable.
Separate property, on the
other hand, is everything that a husband and wife OWN SEPARATELY. Separate
property does not need to be divided between the spouses. In most cases,
separate property is:
1. Anything
owned prior to marriage,
2. Anything inherited or
received as a gift during the marriage, and
3. Anything either spouse
earned after the date of separation.
Separate property can also
include anything that one spouse gives up to the other spouse in writing. In
certain cases, separate property can become mixed with marital property. In
this case, it is important be able to trace the payments and show where certain
money came from. For example, a husband may have put in the down payment for a
house, got married, and then paid off the mortgage with marital property. In
this case, the husband would be reimbursed for the downpayment
if he could prove that his separate funds Ire used to pay it. No interest would
be payable on the downpayment amount.
Similar to separate
property, separate debts belong to one spouse. All debts incurred before
marriage are separate debts. Thus, for example, educational loans or job
training loans incurred before marriage are separate debts.
Date of Separation
The date of
"separation" is the date when both husband and wife finally decide
that the marriage is over, with no intention to stay together as husband and
wife. This is a very important date because it marks the end of when property
is characterized as marital property. Unfortunately, the date of separation is
subjective and often open to debate. Courts will look for physical evidence as
to a final breakdown of family relations, such as moving out of the house.
Retirement Benefits
Accrued or vested
retirement benefits are marital property, thus subject to division in a
dissolution action. The retirement benefits which are subject to this marital
property application include military pensions, veterans educational benefits,
ERISA funds, IRAs, Keoghs, Employee Stock Option Plans (ESOPS), 401K and 403K
plans, etc.
In all dissolution actions,
no matter the length of the marriage, the issue of retirement benefits should
be settled one way or the other. For example, the petition, marital settlement
agreement and judgment should all provide either for the spouse's waiver of
retirement benefits or the division of any such benefits.
In the case of a division,
there are two options: (1) the presents-day valuation buy-out, and (2) division
into two accounts. In the former, the spouse without the retirement benefits
takes the present-day value of his or her interest in the retirement benefit
and trades it for something else of equal value, such as cash or other assets.
Note that stock options and pension plans where a person must work for a
certain number of years may be worth more than you think, and it may be
advisable to retain a professional pension actuary or appraiser. This will cost
$150 to $300, but will be
If the retirement account
is to be divided, special attention must be paid so that the tax advantages of
retirement benefits are not lost. A Qualified Domestic Relations Order (QDRO)
will be required to transfer a share of retirement funds from the spouse
participating in the retirement plan to the other spouse. Please contact the
retirement plan administrator or a qualified attorney for more information
regarding QDROs.
Tax Implications
Divorce can be a very
challenging period in your life. Which spouse owes tax? What forms and returns
need to be filed? When do I need to file? How do I file? What is the best tax
planning strategy for my divorce?
Tax Filing status
A taxpayer is considered to
be unmarried at the end of a tax year if his spouse is legally separated from
the taxpayer under a decree of divorce or separate maintenance contract at the
close of the tax year.
A married taxpayer will be
considered unmarried and eligible for head of household status if the taxpayer's
spouse was not a member of the household for the last six months of the year
and the household is the home of a dependent child.
Liability on Joint Return
You may request relief from
liability for tax, plus related penalties and interests for which you believe
that your spouse (or former spouse) should be liable.
Innocent Spouse Relief is
available if you: (1) filed a joint return and (2) are no longer married to, or
are legally separated from the spouse with whom the joint return was filed.
Dependency Exemptions
In general, the dependency
exemption for children of divorced taxpayers will go to the parent who has
custody of the child for the greater part of the calendar year.
Alimony
In general, alimony and
separate maintenance payments are income to the recipient and are deductible by
the payer. Different rules apply to payments made under post-1984 divorce or
separation instruments and payments made under pre-1985 instruments.
Child Support Payments
Payments for child support
are not deductible for tax purposes. If you have specific questions concerning
the tax implications of a divorce, I recommend that you seek a licensed tax
expert to assist you.
Other
Issues
DISCLOSURE: It is required under law
that both spouses provide the other with all information related to their
property, income, assets, and debts. This is called Full Disclosure. Failure to
fully disclose all relevant information or concealing information can lead to
serious problems, so be very precise in listing all assets, debts, income, and
property. There are two disclosure forms which will be generated:
HEALTH INSURANCE: Unless it
is agreed and included in a marital settlement agreement, one spouse covered by
health insurance is not required to pay health insurance premiums for the other
spouse upon the dissolution of the marriage.
FILING COST: Mandatory court filing
fees for divorces cost an average of $100.
ComPLEX ISSUES: If your
divorce involves complex issues, you should seek an attorney or other professional
to assist you. Examples of complex issues are:
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Assets and Debt |
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One
spouse transferring assets to themselves without permission |
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An
unequal division of assets |
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Assets
being sold without permission |
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The
possibility of hiding assets |
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Valuing
stock options and pension plans which require a certain length of employment |
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Lots
of debt |
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Considering
bankruptcy |
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Spouse |
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Immediate
threat of harm to you or your children, |
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One
spouse does not agree that a child is theirs, |
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You
and your spouse cannot agree to divide property or decide on the best
interest for your children, even after numerous attempts, |
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You
or your spouse are active in the military |
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The
spouses cannot agree on a date of separation |
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If
one spouse put the other through school or training. |