Grounds for Divorce in Georgia
“Grounds for divorce” are the legal reasons for a divorce. Georgia, like most states, permits no fault divorces. A “no fault” divorce is simply a divorce for which it is not necessary to prove that there was any fault or wrongdoing by either spouse.
To obtain a no fault divorce, one spouse must refuse to live with the other spouse. That spouse must additionally establish that there is no hope of reconciliation. It is not required that both spouses agree that the marriage is irretrievably broken.
It is also possible to obtain a divorce under fault grounds in Georgia. There are twelve possible fault grounds. Among others, they include mental incapacity, adultery, cruel and inhuman treatment, willful and continued desertion for at least one year, and habitual intoxication.
Legal Separation in Georgia
Georgia law does not require that spouses obtain a “legal separation” in order to divorce. It is not possible for one spouse to sue another for a separation in Georgia. It is possible for one spouse to sue the other for maintenance, however (see the Code of Georgia: 19-6-10).
Spouses can also enter into a written agreement (sometimes referred to as a “Separation Agreement” or “Marital Settlement Agreement”) concerning their rights and responsibilities on issues such as property division, alimony, child support, and child custody.
The primary rationale for suing for maintenance or entering into a separation agreement (instead of merely separating) is generally to make more certain the rights and responsibilities of the parties during the period of separation.
Neither an informal separation nor a legal separation means that the spouses must divorce. They are free to reconcile at any time and resume living together. For some couples, a separation serves as a cooling off period--a method of relieving immediate pressure while they sort out what they want to do with their lives. For other couples (for instance, couples with a religious objection to divorce), a separation may be a more permanent solution to a marriage that is not working out.
Division of Property in Georgia
Georgia is referred to as an “equitable division” state (as opposed to being a “community property state” as are some other states). This means that property is divided “equitably.” This does not necessarily mean “equal” or 50/50. Its meaning is closer to “fair” and “just.”
All property owned by either spouse may be categorized under Georgia law as either marital property or non-marital property. “Marital property” generally means property acquired by either spouse during the marriage, except property acquired by inheritance or gift.
If property is considered to be “marital property” under Georgia law, it is then subject to equitable division between the spouses upon a divorce. There is no predefined formula to divide marital property. Marital property is divided “equitably.”
Alimony or Spousal Support in Georgia
Alimony (sometimes referred to as spousal support or maintenance) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce. According to Georgia law, alimony is defined as “an allowance out of one party’s estate made for the support of the other party when living separately”. O.C.G.A. § 19-6-1(a).
In Georgia, a person who is living apart from his or her spouse can maintenance, regardless of whether or not they plan to divorce (see the Code of Georgia: 19-6-10).
In Georgia, alimony can be awarded to a party in a divorce in two different ways – lump sum alimony and periodic alimony. Lump sum alimony is when a party receives one large sum of money from the parties’ estate as alimony. On the other hand, periodic alimony is where a party receives periodic payments of alimony (usually on a monthly basis) over the course of a certain period of time.
In Georgia, alimony is not mandatory in a divorce or legal separation. The court may grant alimony to either spouse from the income or estate of the other, either as periodic payments or lump sum awards. There are no guidelines for determining alimony, but there are some factors that the court may consider in determining first if alimony is appropriate, and then in what amount. These include:
- • The contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker, in childcare, education, and career-building of the other spouse
- • The duration of the marriage
- • The financial resources of each spouse
- • The age and physical and emotional condition of both spouses;
- • The value of each spouse's separate property
- • The earning capacity of each spouse
- • Any fixed liabilities of either spouse
- • The standard of living established during the marriage
- • The time necessary for a spouse to acquire sufficient education to enable the spouse to find appropriate employment
A court generally may increase or decrease the amount of money paid as alimony if either spouse requests it from a court and if there has been a substantial change in circumstances. However, the parties may agree to make maintenance non-modifiable. Lump sum alimony is not subject to modification. Examples of changes in circumstances that might warrant a maintenance modification might include increased or decreased ability to pay or a substantial change in the needs of either party.
Alimony that has been awarded for an indefinite period of time generally will end at the death or remarriage of the recipient.
More information about alimony in Georgia, including tax implications of alimony, may be found at this link.
Child Support in Georgia
Child support is the court-ordered payment by one parent to the custodial parent of a minor child, generally after divorce or separation.
Calculation:
The amount of child support is calculated using the Percentage of Income formula, which takes into account the gross income of both the custodial parent and non-custodial parent.
| Number of Children |
Percentage of Gross Income paid by
the Non-custodial Parent |
| 1 |
17 to 23% |
| 2 |
23 to 28% |
| 3 |
25 to 32% |
| 4 |
29 to 35% |
| 5 or more children |
31 to 37% |
Continuation of Child Support beyond 18th Birthday:
Child support in Georgia generally continues until a child reaches the age of majority, dies, marries or becomes emancipated, whichever occurs first. Courts, in their discretion, may also direct either or both parents to support the child financially up to age 20, who has not been previously married or has become emancipated, who is enrolled in and attending a secondary school, and who has attained majority before completing his or her secondary school education.
Child Custody in Georgia
In Georgia, child custody is granted based on the “best interest of the child.” Georgia primarily recognizes four forms of child custody: sole custody, joint custody, joint legal custody, and joint physical custody.
Courts generally grant a right to a child that is 14 years and older to select the parent with whom he or would prefer to stay, subject to the determination of the eligibility of the parent to be fit to take the custody of the child.
More information about Georgia child custody law, including information on child visitation in Georgia, may be found at this link.
