Common Divorce Processes
Hiring a Divorce Attorney
Attorneys aren't needed for every divorce, but in many cases, legal assistance can be beneficial, if not crucial. With the complex nature of some divorce procedures and emotions running high, it often helps to have a knowledgeable resource for information and a skilled advocate for negotiations and possible court proceedings. Bergstrom Law can assist you with this knowledge and provide you with personalized legal representation during your divorce proceeding.
Unfortunately, many marriages end in separation or divorce. Getting a divorce can have serious, long-term effects, both emotionally and legally. There are also strict legal requirements that cover everything from choosing a method of legal separation, to selecting where and how to file, to deciding how the property should be divided. The divorce process can be confusing, especially without legal assistance.
"Divorce isn't such a tragedy. A tragedy is staying in an unhappy marriage, teaching children the wrong things about love. Nobody ever died of divorce." – Jennifer Weiner, Fly Away Home
What to expect and how to proceed
When a couple decides to dissolve a marriage, one of the spouses will petition the court for a divorce. This means that the court can legally end the marriage, divide marital assets between the spouses, grant custody of any children to one or both spouses, and impose child and spousal support obligations, if applicable. Before, during, and after a marriage, state (and sometimes federal, and even international) law may affect families.
Types of Divorce
Georgia offers what is known as a “no fault” divorce. A no fault divorce allows a court to enter a divorce decree without one party having to legally prove the other party did something wrong in the marriage. Instead, one spouse may simply allege that the marriage has broken down and there's no reasonable hope it can be preserved, and a divorce can be granted with or without the other spouse's consent. Georgia also allows for a contested or non-contested divorce. Please see the section below for additional information on these types of divorces.
Alternatives to Divorce
Depending on your specific circumstances, you may have other options for ending your marriage besides a divorce. Georgia offers legal separations, which can allow spouses to make some of the same decisions as a divorce regarding their shared property, child custody, and child support. This option doesn't legally end the marriage and is generally used when couples want to retain their marriage status for religious or health care reasons.
“Divorce is a fire exit. When a house is burning, it doesn't matter who set the fire. If there is no fire exit, everyone in the house will be burned.”
An annulment, on the other hand, has the same legal effect as a divorce, but does so by declaring your marriage was never valid in the first place. Reasons for an annulment could be that one spouse was already married, was tricked into the marriage, or was too young at the time to legally marry.
Things to Consider When Getting a Divorce
Questions to ask your Divorce attorney…
I don't want a divorce...can I stop it?
Unfortunately, it is very difficult for one spouse to stop a divorce. In some states, you have the right to ask the judge to order marital counseling. In other fault-based states, the spouse seeking the divorce must prove certain grounds for divorce. Most states, don't require a showing of fault, just a statement that the marriage is “irretrievably broken.”
Should I move out of the house?
Depends. In making that decision keep in mind the following: the person who moves out does not forfeit all claims to any marital equity in the property or entitlement to a division of the furnishings. However, it might be wise to list or photograph the contents before you leave. If you have children and you believe that your children should reside primarily with you, its generally not a good idea to move out unless you have adequate and sage arrangements for your children to go with you.
Can I make my spouse move out of the house?
Generally no, unless there has been a history of violence or child endangerment.
Can I change the locks on the house?
No, unless you have a court order granting you exclusive use and possession of the house. If you have concerns about your safety
in the meantime, consider obtaining a restraining order, which typically would include granting you temporary possession of
Can I continue to use my credit cards?
Typically, it is wise to act in a conservative, financially prudent manner. This means that you should avoid extravagant purchases or consult your attorney first. If you use credit cards in your normal course of business and for your everyday needs, you generally can continue to use them. It is wise, however, to confirm with credit card companies that you have credit in your name and that your spouse hasn't cancelled the credit cards.
Can I make my spouse sign a joint tax return?
Typically, no. During your divorce, get the advice of a good CPA as to what makes the most sense financially. If you are still married as of December 31 of the tax year in question, you can file a “married but separate” tax return
Can I read my spouse's mail/email or tape our telephone conversations?
Before you do anything like this, talk with your attorney. You may be violating federal and state law. Plus, many people are surprised to learn that information gleaned through these actions may not be admissible in a courtroom anyway.
The Answers You Want to Know but Don't Want to Ask?
When Can I date?
In a few states, anything you do up to the date of divorce can be considered by the court. Before dating, ask your lawyer if you live in such a state. In other states, behavior undertaken after separation or filing for divorce cannot be considered by the court. In such states, it is a good idea to be discreet so as not to negatively affect your children.
Can I have my spouse tested for drugs?
Drug testing is not automatic in a divorce. However, it may be appropriate if children are involved and your spouse admits to drug abuse or there is a reason for suspecting drug abuse.
Mediation vs. Non-Mediation
What is the Difference Between a Contested and Non-Contested Divorce?
A contested divorce is the type in which the spouses cannot arrive at an agreement on one or more key issues in order to conclusively and effectively terminate their marriage. When spouses cannot arrive at an agreement, even with the assistance of their legal counsel, they must approach a court to adjudicate their dispute. Contested divorces are commonplace now, especially since there are so many different issues to resolve during the course of terminating a marriage.
An uncontested divorce occurs when the couple agrees on all issues required to conclusively an effectively terminate their marriage, leaving nothing of consequence that is disputed or unresolved. This type of agreement is not equated necessarily with an amicable divorce. Instead, the agreement means that all disputed items raised between the couple were settled out of court and short of the requirement of judicial adjudication.
Obviously, most couples would probably express a preference for an uncontested divorce because of its speed, simplicity, convenience, privacy and inexpensiveness.
Choosing Counsel: Getting What you Need From your Divorce Lawyer
How can I help with my case?
Check with your lawyer before doing anything you think might be helpful to the case to ensure that your actions will be useful and not detrimental to your case. As a general rule, collecting, organizing, and indexing recent financial records may be helpful. Keeping a log of your expenses and expenditures with backup receipts or statements may also assist your lawyer.
Can I being a realtive or friend along when meeting with my divorce lawyer?
That is usually not a good idea. The discussions you have with your lawyer for the purposes of receiving legal advice are confidential. Including another person in the discussions waives that confidentiality and means you, your lawyer or the third person could be compelled to disclose the substance of your conversation in court. Family law matters frequently involve embarrassing or private details of your personal or financial relationships. Your lawyer may need to ask about matters that you would rather not discuss with a friend or relative in the room.
Why do I have to pay, I did not want the divorce?
Statutes and case law govern the principle to be considered in determining how legal fees and costs are paid. However, no recognized rule places the financial cost on the party who initiated the action.
How much will my divorce case cost?
Unfortunately, your divorce lawyer may be unable to answer that question at the beginning of your case, because the total fees will likely depend on the difficulty of the issues and the time involved. As your case progresses, your divorce lawyer may be able to give you estimates as to the cost for particular aspects of the case. Discuss those costs with your lawyer in light of potential benefits to your case. An exhaustive “leave no stone unturned” approach can be costly and may be unwarranted. If a family law attorney has quoted you a flat fee for a particular matter, make sure you understand what that fee does or does not cover.
How soon should I respond to a "Complaint for Divorce"?
If you are served with a divorce you have only thirty (30) days to respond by filing an answer with the Court. Under certain conditions this period of time can be extended – usually by paying additional court fees and a motion. However, you should not delay speaking with an attorney and responding as soon as possible when served with a Complaint for Divorce.
What is a "Standing Order" and how does t affect me?
Most County Superior Courts, but not all, have a Standing Order that goes into effect as soon as a divorce case is filed. If you do not abide by the Standing Order, you can be found in contempt of the Court. A typical standing order prevents either party from removing the parties' children from the jurisdiction, harassing or stalking each other, or from selling or otherwise disposing of the parties' marital property, among other things.
If you are contemplating filing for divorce, have been served a divorce petition or are in the middle of a current divorce, Bergstrom Law can help you. Our attorneys have extensive experience with all facets and stages of divorce and have successfully represented many clients by agreeably resolving their divorce case. Let us help you too! Call us today at 678-648-1794.