Divorce is a very personal matter that is highly regulated by the State of Georgia. There are certain requirements that are more easily navigated by an attorney than a layperson.
Marriage is a special bond between two individuals that, generally, they did not see ending in a Divorce. Marriage to the State of Georgia is a contract. However, the state will not recognize a dissolution of the contract simply by a mutual consent of the parties. This is where a divorce action comes in.
Georgia law provides for thirteen grounds sufficient to authorize the granting of a total divorce under O.C.G.A section 19-5-3:
- Intermarriage by persons within prohibited degree of consanguinity and affinity.
- Mental incapacity at the time of marriage.
- Impotency at the time of marriage.
- Force, menace, duress, or fraud in obtaining the marriage.
- Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown by the husband.
- Adultery in either of the parties after marriage.
- Willful and continued desertion by either of the parties for the term of one year.
- The conviction of either party for an offense involving moral turpitude and under which he or she is sentenced to imprisonment in a penal institution for a term of two years or longer.
- Habitual intoxication.
- 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.
- Incurable mental illness.
- Habitual drug addiction.
- The marriage is irretrievably broken
The claim that the marriage is irretrievably broken is most common ground for divorce today.
The case of Harwell v. Harwell defined what is for the marriage to be irretrievably broken:
- Proof of fault is not required to show that a marriage is "irretrievably broken". The parties do not specifically complain of each other's conduct. They merely state their marital difference are insoluble and request a change of status. The only question is whether there is prospect for reconciliation. It is a candid way of describing their problem.
Further, there is no requirement that both parties agree that marriage is irretrievably broken. One party asserting that the marriage is irretrievably broken with no hope of reconciliation is enough, if the finder of fact concludes that there is in fact no prospects of reconciliation.
Marital property in a divorce action will be subject to equitable division. It is important to note that equitable does not mean equal. Property in a divorce, generally, falls into two categories. It is necessary for the equitable division of property to determine what is marital property and what is separate property.
- Generally, real or personal property acquired during the course of the marriage is subject to equitable division. However, property acquired during the marriage by either party by gift, inheritance, bequest, or devise remains separate property unless it is converted into marital property by the spouse who received it. If there is not an agreement on whether a specific piece of property is separate or marital in nature, then the finder of fact will determine whether that individual piece should be classified as separate property or marital property.
- One of the more common issues we deal with in the equitable division of property is the division of mixed property, both separate and martial, relating to real property. Example: the Husband purchases a home prior to the marriage and over the course of the marriage the parties service the mortgage with money earned during the marriage.
- Source of Funds Rule: in the above example, the Source of Funds Rule should be applied and a Thomas analysis should be done to determine what interest the spouse contributing non-marital property is entitled to in the property in the ration of the non-marital investment to the total non-martial and marital investment in the property. The remaining property is marital property subject to equitable division. Thomas v. Thomas, 259 Ga. 73, 76 (1989).
- While an increase in property value solely due to market forces alone will not convert property from separate to marital in nature, a proper Thomas analysis is now more important than ever with the rising market values and is critical to determine what percentage of equity is separate property and what percentage is marital in nature.
Thomas v. Thomas, the home was purchased by the wife prior to the marriage. In round figures:
- Purchase price: $260,000.00
- Down payment: $75,000.00
- Original loan amount: $185,000.00
- House sold for: $351,000.00
- Amount of Original loan left at the time of sale: $: 177,000.00
- Appreciation of value of the home since purchase: $91,000.00
- In Thomas v. Thomas the court concluded that the parties had reduced the loan amount with marital funds in the amount of a little over $6,000 dollars and determined that constituted roughly seven percent of the total equity paid into the home by both parties, over $82,0000.000. Therefore, seven percent of the market appreciation of $91,000.00 was subject to marital distribution, leaving only a little over $12,000.00 to be divided equitably. The remaining portion of the home proceeds were the separate property of the wife.
Jurisdiction and Venue
The Superior Court of the state of Georgia have exclusive Jurisdiction over the granting of divorce, alimony, and child support.
Jurisdiction should be considered over three elements:
- Jurisdiction over the Subject Matter:
- Is there a valid marriage to dissolve.
- Has the Plaintiff been a resident of the State of Georgia for 6 months.
- Jurisdiction over the Parties:
- Jurisdiction over the parties is not required if there is jurisdiction over the marriage based upon the six months of residency of one of the parties.
- It is important to note that Personal Jurisdiction over the defendant is mandatory for the Court to award most kinds of monetary relief such as child support, alimony, or property situated outside of the State of Georgia.
- After subject Matter Jurisdiction and Personal Jurisdiction are considered, the next element to consider is venue. Generally, Divorce action must be brought in the county where the Defendant resides, if he or she is resident of the State of Georgia. If the Defendant resides in another state, then the action can be brought in the county where the plaintiff lives. However, the action can also be brought in the county the Plaintiff resides if the Defendant moved from that county within six months prior to the case being filed, and that county is where the marital residence was prior to the separation of the parties.
- NOTE: incarceration is not a voluntary change in domicile for the Defendant and the county residence prior to incarceration is proper venue.