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When a marriage is ending, it can be one of the most difficult and trying times in an individual’s life. A person is asked to face a major life change and at the same time expected to focus on all of their future interests and the interests of their children. This is why you need counsel when going through this process.
A divorce is a civil lawsuit and all of the laws and procedures inherent in a lawsuit will apply, in essence, it is not small claims court and you will need to know how to proceed through your lawsuit.
Don’t go to court without an attorney, especially if the other party has counsel, you will never be happy with the result nor how you are treated by the system. There are a multitude of elements to consider in a divorce from the division of property and assets to the custody of the children. There are procedures for transferring the home and retirement accounts and there are significant considerations when determining visitation and custody.
The first step in the divorce process is deciding if you are emotionally and financially ready for the process and how you wish to approach the process. Many times you hear of a contested and uncontested divorce. This simply means how much of a fight is the process going to be. I always recommend that if the parties can negotiate a mutual agreement that they can live with then that is what they should do; it will always be less expensive both emotionally and financially. This is an uncontested matter, one that simply does not involve litigation. However, if your issues cannot be negotiated without the involvement of the courts your matter is what is called contested and then you must proceed with litigation.
If you are certain you wish to end the marriage and you cannot negotiate the issues between yourselves, then you must file a complaint that clearly states what relief you seek from the court regarding the issues referenced above. This complaint will be served on the non-filing party and they will have thirty days to file an answer and possibly counter claim. During this time if there are issues of custody, support, housing and/or alimony you may move for a temporary hearing. This is a trial involving yourself and only one additional witness and is essentially a consolidated hearing to determine issues of urgency as the process moves forward.
Most courts in Georgia require mediation during the divorce process. The mediation process is informal and non-binding on the parties participating. The matters discussed in the mediation process cannot be used in court but the parties are expected to act in good faith in attempting to reach a resolution. This is simply a process in the contested divorce that allows the parties an additional opportunity to consent to some or all of the issues involved in their divorce. Many times this is beneficial as the parties have litigated for some time and the realities of their particular situation are becoming much clearer.
If this process is unsuccessful there will be a full trial and this trial could take hours or days depending on the complexity of the issues involved. Remember, Georgia is a no fault state, which means that the court is not determining if you are getting a divorce, the court is determining how property and children will be divided based on equitable determinations and current statutes. Sadly, all of these issues need to be considered while an individual is trying to figure out how they will move on with their lives, this is why you should never go through this process nor enter this system alone.
Often people wonder if they should wait to file their divorce and one issue to consider is the issuance of the standing order. A standing order is an order issued by all Superior Courts in Georgia at the time of filing of a divorce action. What this order essentially does is protect the property, utilities, asset and children of the parties as they begin the sometimes contentious process of divorce.
The courts realized that many issues are common in all divorce matters and will by necessity need to be ruled on as the situation evolves. Often people attempt to leave the jurisdiction with the children or they decide to disconnect utilities and insurance policies. Often people decide to stop paying mortgages or other necessary obligations.
Because of this the courts began issuing a general order that is attached to the complaint which clearly states that none of the above shall occur. The importance of this is that is protects you immediately upon service on the defendant. It provides an avenue of relief through a contempt action and serves as notice that vindictive behavior will not be tolerated. The insurance policies will not be cancelled, the 401K plans will not disappear and the children will not be removed from the home. However, if you wait to file your action, this protection will not be there.