What is an “uncontested divorce?”
A divorce is considered “uncontested” once the parties have agreed upon all of the issues, including custody, visitation or parenting time, division of all assets and debts, child support, and alimony, if any. There are additional issues which may need to be addressed by couples, but these are the general categories.
What is a “no fault divorce?”
Almost all divorces granted in Georgia (and elsewhere in the U.S.) are “no fault.” The term simply means that you may obtain a divorce without showing any fault on your spouse’s part. In Georgia, we call the grounds for such a divorce “irretrievably broken,” meaning that the marriage is broken, and there is no longer any hope of reconciliation.
How long does it take to get a divorce in Georgia?
Legally, a couple must be separated for a period of thirty days after the plaintiff (the party seeking the divorce) serves the defendant (the other party) with a Complaint for Divorce. In most cases, after thirty days have passed, if the parties have agreed upon all of the issues, and signed a Settlement Agreement, the court will grant the divorce. Unlike some states, Georgia does not require a longer waiting period for couples with children.
Do we have to live in separate homes in order
to begin the process of getting divorced?
No, but you must cease having “marital relations” (sex). If you do have marital relations after the case has begun, you will have to re-file the case with the Court.
What is “joint custody?”
There are two types of custody–Physical Custody, which concerns where the child lives, and Legal Custody, which concerns who makes the major decisions in the child’s life. It is possible for both of these to be “sole” or “joint” and there are often grey areas which are not purely either.
What are the options for physical custody?
Traditionally, one parent (most often, the mother) had sole or primary custody of the child or children, and the other parent had visitation. Society, psychology, and the law are leaving that model in favor of a pattern permitting both parents to have custodial time with their children. Studies are showing that, with the possible exception of very young infants, most children can benefit from and can handle moving between two parents’ homes. The important thing is to create a schedule that will work for you, the other parent, and your child or children.
Increasingly, we are abandoning the old language of “custody” and “visitation” in favor of more inclusive terms such as “parenting time” or “custodial time.” The ultimate goal is to create what is called a “Parenting Plan.” If you and your spouse are unable to easily reach a plan you are confident will work for each member of the family, I strongly advise working with a child specialist or co-parenting counselor to help you with your Parenting Plan. I am happy to provide excellent referrals to professionals who can help you with this most important endeavor.
What are the options for legal custody?
It is rare, today, for parties not to agree upon joint legal custody. The areas covered by “legal custody” are sometimes abbreviated with the acronym “HEAR” for: Health (which includes mental health), Education, Activities, and Religion. If you have joint legal custody, it means that you will discuss these issues together prior to either of you making a final decision. However, it is important that your Parenting Plan address what you will do when, after careful and thoughtful discussion, you still cannot agree. In most cases, it is necessary to agree upon a “tie-breaker” who will make the final decision in the event you cannot reach an agreement. It is not necessary that the same parent be the “tie-breaker” for all issues, and in some cases the parties agree upon a third party who would be the tie-breaker.
What about mediation?
Mediation, in which a trained neutral third party helps the parties reach an agreement, is a very useful tool in divorce. Mediation is often the best way to reach an agreement if the parties have difficulty communicating directly. Many counties require mediation before you can have a trial, and several will even pay for the mediator. It is strongly recommended that you not go to mediation without an attorney. As a general rule, if you do not have an attorney with you, your agreement will be incomplete and/or you will have agreed to terms you do not fully understand.
How much will it cost?
My fees are based on the time expended on your case. As of January 1, 2016, my hourly rate is $385 and, like most lawyers, I bill in tenths of an hour. Before I begin work on your case, I will require a signed fee agreement and a retainer. The initial retainer will depend upon the complexity of your case, but will usually be between $1800 and $8,000. Each month, I will send you a detailed statement and deduct the amount earned by me from your retainer, which is kept in an escrow account. If your retainer balance gets too low, you will be required to add an additional sum to escrow. In addition to my fees, you will be charged for expenses associated with paralegal time, court filing fees (a one-time fee between $200-260), copies, postage, etc.
What if I can’t afford to pay a retainer?
If you would like to represent yourself, but would like my assistance in providing advice, preparing documents for you, etc., I can provide what is known as “unbundled legal services.” This is sort of an “a la carte” form of legal assistance. I do not represent you, but can assist you on an hourly basis, in representing yourself. Be aware that representing yourself will take considerable time, so do not attempt to do this unless you will have the time to devote to your case. Please let me know if you are interested in this option.
Do you charge for initial consultations?
Yes. I consider the advice I give in an initial consultation at least as valuable as any other time I am working for you. I will consult with you briefly by email or telephone, at no charge, in order for us both to determine the usefulness of a regular consultation. For normal consultations, you are billed in tenths of an hour. If you are interested in having me review a document for you (other than a prenuptial agreement), I charge a one hour ($385) minimum. I do not review prenuptial or postnuptial agreements for non-clients; you will need to retain me to represent you in such cases.
Where do you practice?
I practice in Fulton, DeKalb, Gwinnett, Cobb, Forsyth, and Cherokee counties. I will represent a client from any county if it is a Collaborative case.
What are my options for how to proceed with a divorce?
There are two models for divorce in Georgia–the traditional negotiation/litigation method, and Collaborative Divorce.
In the traditional model, each party (usually) retains an attorney. A suit is filed, and the parties and attorneys begin to either negotiate or gather information. If there are matters of immediate concern which cannot be settled, a Temporary Hearing may be held. Mediation is often a part of the negotiation process; sometimes voluntary, sometimes court-ordered. Both parties will normally conduct what is known as “discovery”–the gathering of evidence through interrogatories, formal Requests for Production of Documents, and depositions. In some cases, if you and your spouse still have not reached an agreement after 6-8 months of trying, you will attend a “Late Case Evaluation” in which a very experienced attorney will listen to both sides, consider any relevant evidence, and advise the parties and their attorneys what s/he thinks the Judge is most likely to do. If this last effort does not result in a settlement, the parties will have a trial. (In Fulton County, the process differs somewhat, in that the Family Division requires the parties and attorneys to go to court at approximately 30, 60, and 120 days after the filing of the suit.) Most, if not all, of the documents filed in a traditional divorce are public record.
The better model, if the parties are right for it, is Collaborative Divorce. The Collaborative process is based upon a commitment by the parties and their attorneys not to go to court. It is a client-centered process which emphasizes respect, trust, and a focus on moving forward. If there are children, they will be the primary focus of a collaborative divorce. The work of reaching a settlement is done in confidential meetings with the attorneys, clients, and other specialists who are part of the Collaborative Team formed specifically for this divorce. For more about Collaborative Divorce, please review the information on the Collaborative Divorce tab.
I can represent you in either a traditional or collaborative divorce, though I strongly believe that Collaborative Divorce is much better for the parties in every respect.
Will I have to go to Court?
It depends. If you and your spouse are unable to reach an agreement, you will have to go to court for a trial. Trials are very expensive and time-consuming, so it is always in your best interest to exhaust all other options before going to Court.
If you have a Settlement Agreement, most Judges will not require either party to appear in court, but will allow us to present a “Motion for Judgment on the Pleadings” with an affidavit signed by you. Some judges do not permit this procedure, and you will have to go to court for a very brief hearing. Only the plaintiff has to appear; the defendant does not.