FAQs

Divorce

Is my marriage valid?
If you meet the legal requirements of being able to form an enforceable contract with someone (i.e. you are of age, you are not under the influence of drugs, etc.), you enter into a contract to marry, and you consummate the marriage, your marriage will likely be considered valid. Certain obvious exceptions exist, of course, such as when an individual tries to enter into an existing marriage while still married to another. A lawyer can give you a more complete explanation if you are concerned that your marriage may not be valid.

Is divorce easy?
The divorce process can be complicated or simple, based in large part on how you and your spouse interact. The more the two of you can agree upon, the easier (and less costly) it will be.


What is “Common Law Marriage”?
Common Law Marriage is a term which generally meant that if you lived with someone, considered yourself married and held yourself out to the world as a married couple, then you were considered married under the concept of “Common Law Marriage”. To be considered married under this theory, you did not need to have gone through a wedding ceremony. If you were indeed married under this theory, you remained married until a court granted you a divorce. In Georgia, this concept was eliminated as of January 1, 1997. However, if you were married under this theory prior to January 1, 1997, you may still be considered married under Georgia law.

Does the Court have or need to be involved at all?
Yes. The Court will have to either determine the issues, or, if all issues are agreed upon, the Court will need to approve the final result. More importantly, only the Court (not the legislature or the mayor or governor) has the authority to grant you a divorce and thereby free each party to marry again.

What grounds do I need for a divorce?
In Georgia there are 13 grounds for divorce. One ground is “irretrievably broken” (also known as the “no-fault” ground) which has become the most common (and least contentious) ground for divorce. The remaining 12 grounds for divorce are considered the “fault” grounds.

Do I need to prove “fault”?
No. You may seek and obtain a “no-fault” divorce in Georgia.

What is a legal separation or separate maintenance?
In Georgia, you are legally separated if you are no longer engaging in marital relations and you consider yourself to be in an actual state of separation. You can be separated even if you are living in the same household as your spouse. To file a case for divorce, you must be in such a state of separation. The court will not grant you a “legal separation”. Rather, you must swear that you are in an actual state of separation and then the court can grant a divorce or an Order for “Separate Maintenance”. “Separate Maintenance” is a lawsuit which may be filed in Georgia to address all issues which could be addressed in a divorce case except for the granting of a divorce. Oftentimes people file a case for Separate Maintenance instead of a Divorce for differing reasons. Some of those reasons include religious or moral opposition to divorce or a desire to remain married for a legal benefit (to maintain insurance, social security, etc.) or other various reasons which a lawyer can discuss with you in detail.

What is a “no-fault” divorce?
To obtain a “no-fault” divorce (irretrievably broken), one party must simply prove that, to them, the marriage is over. This can be proven through sworn testimony of one party, even if none of the “fault” grounds exist.

What is a “fault” divorce?
To obtain a “fault” divorce which is neither required, nor necessarily advantageous, one must establish that there was some misconduct by one of the parties which actually caused the divorce. An example of such misconduct is adultery. Adultery in Georgia includes heterosexual and homosexual relations between one spouse and another individual. Other “fault” grounds include desertion; mental incapacity at the time of marriage; impotency at the time of marriage; force or fraud in obtaining the marriage; conviction and imprisonment for certain crimes; mental or physical cruel treatment; habitual intoxication or drug addiction; and mental illness.

Do I need to live in the state of Georgia to get a divorce here?
Yes, generally, at least one spouse must be living in Georgia and have lived in Georgia for at least six months.

What if we still live together when I file for divorce?
That is fine, but spouses must be considered “separated” in a legal sense. Spouses may generally be considered separated even if they live under the same roof as long as they are not having sexual relations.

How do I actually file for a divorce?
The person seeking the divorce (the “plaintiff” or “petitioner”) must file a document in the appropriate Superior Court. This document is called the “complaint” or “petition.” The complaint contains information concerning the marriage such as current living arrangements, children of the marriage, description of marital assets and debts, and the specific reason(s) for seeking divorce. A copy of the complaint will be served on the other spouse (the “defendant” or “respondent”) by a sheriff of the appropriate county, or that spouse may acknowledge service by signing a specific document in the presence of a notary public.

Where do I file for divorce?
Generally, a complaint for divorce should be filed in the Superior Court of the defendant’s county of residence or, if the defendant no longer resides in the state of Georgia, in the county of the plaintiff’s residence. With the defendant’s consent, or if defendant had previously lived with plaintiff and has been gone for less than 6 months, the complaint may be filed in the plaintiff’s county of residence.

I just received a complaint for divorce from my spouse, now what?
Quickly contact and consult a family lawyer. You have 30 days to “answer” the complaint in writing. The answer allows you to give “your side of the story” and to admit or deny each claim in the complaint. You may also file a “counterclaim” and seek a divorce in response to your spouse seeking a divorce.

Can I get the court to help me immediately?
Either spouse may request a temporary hearing where issues of child custody, visitation, child support, alimony, debts and possession of property may be resolved on a temporary basis until final resolution. The judge will issue a temporary order that applies only until the time of the final trial. The temporary order may also prohibit the transfer or selling of assets, or prevent one party from interfering with the other party, or from interfering with the party’s children.

What if there is violence?
Call the police. Additionally, either a lawyer, or a social agency can assist a party in filing a lawsuit to prevent family violence. The court can immediately address issues such as temporary use of a home and restraining orders even if the parties are not married.

Will a judge or jury decide my case?
If parties are not able to resolve their issues by mutual agreement, questions of child custody, visitation and attorney’s fees can only be determined by the judge (not a jury). However, the judge or, if one of the parties requests, a jury, will resolve the financial issues of the marriage (i.e., division of property, division of debts, alimony and child support). Both spouses may introduce evidence by their own testimony and may also summon other witnesses to the final trial. The decision returned by a judge or jury is written into a court order that is binding upon both parties. At any temporary hearing, only the judge (not a jury) makes the decisions.

What about my children?
Typically, until a court ruling or agreement, married persons share custody. The judge will try to fashion a custody plan which is in the “best interests of the child.” The judge will consider many factors including the age and sex of the child, and the ability of each parent to care for and nurture the child. A child who has reached 14 years of age may generally choose which parent will have custody. A child who is age 11, 12, or 13 may speak to the judge, but the judge is not required to follow the child’s wishes.

Can I share custody?
Yes. The court can award joint custody instead of sole custody. There are two types of joint custody: (i) Joint legal custody, where both parents have equal rights and responsibilities for major decisions concerning the child; and (ii) joint physical custody, where physical custody is shared by the parents in such a way to assure the child substantially equal time and contact with both parents. In awarding joint custody, the court may order joint legal custody, joint physical custody or both. Regardless of the label, the parties should attempt to agree upon (or the court will decide) who has the right to make a decision affecting a child if the parties cannot agree.

I have heard about “custody seminars.” What are they?
Many courts now require that parties to a case involving minor children attend a seminar to help them cope with the ramifications of the case for children. You should check with the court system in your county to see if this applies to you.

What are my (or the other person’s) child support obligations?
In Georgia, both parents can be required to provide assistance to their children until a child reaches the age of 18 years if not in high school, graduates from high school if eighteen (18) years or older, reaches the age of 20 years and is still in high school, dies, marries, is emancipated or joins the military, whichever event occurs first. The non-custodial parent will generally be required to provide a reasonable amount of child support to the custodial parent to assist with living expenses. Child support may also include health insurance, payment of medical and dental expenses, and life insurance.

Child Support Guidelines are in effect in Georgia. The guidelines are located in the Official Code of Georgia in section 19-6-15. A calculation will need to be made to determine the appropriate amount of child support. The amount can vary based on various factors including time the non-custodial parent spends with the child(ren), the ages of the child(ren), day care costs, medical costs, education costs, significant income or debt of either party, and obligations to another household. Each year the legislature considers revising these guidelines, so check with a lawyer to be sure these guidelines are still in effect at the time your case is filed. There is a good chance these laws will change by the time your case begins.

Additionally, the court will look at the budget of each party. Each party is required to prepare a Domestic Relations Financial Affidavit (see sample on web site: ). The court can then balance the income and expenses of each party when determining the appropriate level of child support (and/or alimony).

What about college?
The court cannot force parents to pay for college expenses. However, parents can agree between themselves to pay support beyond the age of 18 and/or to pay for college expenses.

What is alimony?
Alimony is a support payment by one spouse to another which, based upon various factors may be appropriate in a particular case. Alimony is generally not available to a spouse who caused the dissolution of the marriage by their adultery or desertion. Alimony may be for a limited time period or until the spouse receiving alimony dies or remarries, or may be paid in one lump sum. Again, the court will review the Domestic Relations Financial Affidavit (see sample on our web site under “client forms”) when determining the issue of alimony. Factors the court will consider in determining alimony include the length of the marriage; health of each party; assets of each party; and the contributions of each party to homemaking, child raising, and career building of the other party.

What happens to “our” possessions now?
Marital property is generally all property acquired during the marriage, except for that property received by gift from a third party or by inheritance. Each spouse is entitled to an “equitable” (which does not mean equal) share of all marital property acquired during the marriage. There is no set formula or percentage amount used to divide marital property; however, credit may be given to a party who has contributed “separate” or “premarital” property to the marriage. Georgia case law sets forth a complicated formula to determine how the contribution of “separate” property to the marriage is to be handled. Contact a lawyer to discuss this matter if it is an issue in your situation.

How will the court orders be enforced?
Court orders for money can generally be enforced by garnishment, attachments of property or by a contempt action. Custody and visitation orders may be enforced in a variety of ways from contempt applications to warrants for wrongfully taking or withholding a child.

How long will the whole process take?
It depends. If you reach an agreement on all issues, the divorce is considered “uncontested,” and may be granted 31 days after everything is filed (barring a change in Georgia law; check with an attorney as laws change and this time period is constantly subject to change). If disagreement exists regarding any matter involved in the divorce, the divorce will be obtained when the case reaches the court, which can take many months or even years depending on the court’s schedule. Of course, if you reach an agreement while the case is pending, you can submit that to the court almost immediately and the case will be over and the divorce will be granted.

My spouse and I agree on all matters concerning the divorce, do we still need a lawyer?
Hiring a lawyer, even when parties are in agreement on all terms, will ensure that all matters which should be covered in a divorce are addressed. Acting without a lawyer could end up being a costly error, both to the parties and to their children. Also, a lawyer may only represent one party, so each party should consult with a lawyer of their own choosing. Even if you agree on all issues, you may not recognize or realize potential, even unintended pitfalls which a lawyer may help you avoid. However, Georgia law does not require that you have a lawyer and if you can navigate the legal system and file the appropriate documents while following the applicable rules, it is possible to file and complete a divorce without lawyers involved. This is known as proceeding “pro se.”

How much do lawyers cost?
As is the case with any professional, cost varies from law firm to law firm. Lawyers cannot charge a “contingency fee” in a divorce case, so they charge either by the hour or a flat fee. Flat fees are rare, except when the case is truly “uncontested” and all terms have been agreed upon. In a flat fee case, the cost may range from a few hundred dollars to a few thousand dollars, depending on the lawyer and the complexity of the issues (transfers of real estate, retirement funds and the like). For a contested case, most lawyers require a retainer which is an up-front payment which may serve either or both of two purposes: to ensure the lawyer is available and cannot accept employment by the opposing party and to serve as an advance payment for services to be rendered. Most lawyers then bill against that retainer and ask that it be replenished when it runs low or is depleted. Retainers can range from $1,000.00 (or less) to $25,000.00 (or more), depending on the complexity of the case and the law firm’s usual practice. Hourly rates charged by lawyers and paralegals vary, but will usually be $100.00 per hour or more for paralegals and from $150.00 to $500.00 per hour for lawyer time.

Where can I find more information about divorce?
There are many resources available. You might consider visiting the Fulton Family Court Website for information about the Fulton County Family Division Court. The best way to learn more about divorce or family law is to arrange a consultation with a family law attorney. You may also purchase “Divorce: Protect Yourself, Your Kids and Your Future” written by the firm’s founding partner. For more iinfo or to purchase a copy, go to www.divorceprotectyourself.com.


Child Custody Visitation

Child Support

What is Joint Custody?
Joint custody means that both parents have the right to make decisions affecting the children and the right to have the children live with them. Obviously this is vague. Thus with respect to decision making, the court (or the parties if they can reach an agreement) will either award sole legal custody to one side so that if the parties do not concur about a child related decision, one parent can make the decision, or, the court may award joint legal custody, but designate one party to make the final decision on some or all of the decisions (education, medical, religious, extra curricular and so on). With respect to physical custody, there must be more specificity than just “joint” or “sole” custody, so regardless of the label, the court (or the parties if they can reach an agreement) will specify dates and times for the child(ren) to be with each parent. These times will be termed periods of custody, parenting time or visitation depending on the court. The parent with the majority of time is the custodial parent, but may be referred to as the primary custodial parent.

What is Legal Custody?
Please review the answer to the FAQ about Joint Custody. Legal custody is the term used for the parent who is authorized to make the decisions regarding the child’s welfare (education, medical, religious, extra curricular and so on). Usually there is a requirement that the parties try to cooperate to reach mutual decisions, but if this is unsuccessful, the legal custodian makes the decisions. It is often helpful to designate both parents as joint legal custodians so that physicians, school administrators and the like will have no reason to withhold copies of the children’s records from either party.

What is Physical Custody?
Please review the answer to the FAQ about Joint Custody. Physical custody is the term used for the parent with whom the child(ren) are to live with the majority of the time. Regardless of whether a parent is awarded sole or joint physical custody, a schedule of dates and times for the child(ren) to be with each parent should be prepared and made a party of any custody order. As mentioned in the earlier FAQ, there must be more specificity than just “joint” or “sole” custody, so regardless of the label, the court (or the parties if they can reach an agreement) will specify dates and times for the child(ren) to be with each parent. These times will be termed periods of custody, parenting time or visitation depending on the court. The parent with the majority of time is the custodial parent, but may be referred to as the primary custodial parent.

How does the Court decide custody?
In an initial custody proceeding (such as a divorce, or legitimation case), the court must look at what is in the best interest of the chidren. Once the Court has awarded custody, it can only be changed if there is a change of conditions (which has a legal definition spelled out in various cases).

Can the court use a Guardian Ad Litem (GAL) in custody cases in Georgia?
Yes. See our FAQs on Guardian Ad Litem (GAL) .

Can the court use a psychologist to help in it’s decision?
Yes. The court may appoint a psychologist to do various types of evaluations such as a custody evaluation or fitness evaluation.

Can grandparents be awarded custody or visitation rights?
Yes, but the legal burden is much higher for grandparents which means it is harder for grandparents to achieve custody or visitation rights than parents. If either or both parents are fit, grandparents will likely not be awarded custody and may have a hard time achieving visitation rights.

Where can I read the new custody statute?
Click here for (HB369 – Custody Bill).

My fourteen (14) year old daughter told me that she now wants to live with me instead of her mother. Can she?
A child fourteen (14) years or older may elect the parent with whom he or she wants to reside, and the court will likely defer to his or her election, so long as the Court agrees that this is in the best interests of the child. For cases filed before January 1, 2008, the Court had to honor the election unless the chosen parent was unfit.

How often can a 14 year old change their mind?
After January 1, 2008, such an election can only be made once every two years.

Can I seek a modification of custody requesting that all three of my children live with me based on my fourteen (14) year old (oldest) child’s election?
With respect to the younger siblings, if they also desire to live with you, your older child’s election in addition to the younger children’s desires may provide the basis for a change of custody of all three (3) children. Each case is fact specific, and it will depend on the details of your situation.

My twelve (12) year old son has told me that he wants to live with me instead of his father. Is his desire sufficient to change custody to me?
His desire alone is probably not sufficient to change custody. While Georgia courts are authorized to consider the desires of a child between the ages of 11 and 13, in order to authorize a change of custody, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody award. The desire of a 12 year old child standing alone would probably not meet this test.

ecently, my eight (8) year old son, who lives with his mother, has been doing poorly in school and his teachers have reported to me that he often comes to school in dirty clothes and wet hair. Can I seek a change of custody for these reasons?
Generally, in a case between parents, to authorize a change of custody, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody award. If your son’s performance and appearance in school has changed since custody was awarded to his mother, you may have a basis to file for a change of custody. Each case is fact specific, and it will depend on the details of your situation.

What factors does the court consider when determining whether to change a prior custody order?
Generally, in a case between parents, to authorize a change of custody, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody award. A slight change in condition will not authorize a change of custody, and each case is fact specific.

What factors does the court consider when determining whether to change a prior visitation order?
Generally, in a case between parents, to authorize a change of visitation, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody and visitation award. However, the court has the authority to review and modify visitation rights once every two years from the date of the original order without the necessity of proving any change in condition, whether slight or substantial, of either party or the children.

How often can I file to change custody? Visitation?
An action to change custody and/or visitation can be brought at any time following the most recent custody order, provided you can prove that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody and visitation award. With respect to visitation only, the court has the authority to review and modify visitation rights once every two years from the date of the original order without the necessity of proving any change in condition, whether slight or substantial, of either party or the children.

My ex-husband recently, within the last 6 months, moved from Georgia to California with our 3 year old daughter. Where should I file an action to change custody to me?
Generally, if a court in the State of Georgia issued the most recent order regarding the custody and visitation of your child, Georgia is the proper place to file. However, the Georgia court may decide that Georgia should not handle the case if there is no longer a significant connection with Georgia and substantial evidence is no longer available in Georgia.

If I file an action to modify custody, can my ex-spouse be ordered to pay my attorney’s fees?
For cases filed before January 1, 2008, generally, no. Unless your ex-spouse has made a frivolous claim, been stubbornly litigious, or has otherwise acted in bad faith during the litigation, in which case the court has the power to award attorney’s fees and expenses of litigation, the court had no authority to award attorney’s fees in an action solely to modify custody and/or visitation. However, if your case includes a claim for modification of child support incident to the change of custody, the court may award attorney’s fees, costs and expenses of litigation to the “prevailing” party with respect to the child support claim, regardless of who files the case, and can also require the party seeking a modification of child support to pay your ex-spouse’s attorney’s fees and expenses for having to defend the case. Ultimately, it’s entirely within the court’s providence to award fees or not in such a case. For cases filed on or after January 1, 2008, attorney’s fees may be awarded by the court from one party to the other.


Alimony & Spousal Support

What is alimony?
Alimony is a support payment by one spouse to another which, based upon various factors may be appropriate in a particular case. Alimony is generally not available to a spouse who caused the dissolution of the marriage by their adultery or desertion. Alimony may be for a limited time period or until the spouse receiving alimony dies or remarries, or may be paid in one lump sum. Again, the court will review the Domestic Relations Financial Affidavit (see sample on our web site under “client forms”) when determining the issue of alimony. Factors the court will consider in determining alimony include the length of the marriage; health of each party; assets of each party; and the contributions of each party to homemaking, child raising, and career building of the other party.

Alimony Guidelines Podcast and transcript
Show Me the Money: Helping Clients Find and Protect Assets in a Divorce

Prepost Nuptial Agreements

What is a prenuptial agreement?
A prenuptial agreement is a contract entered into by two people who are to be married. The purpose of a Prenuptial Agreement is to set forth certain rights for each party in the event of a divorce. Sometimes provisions for property distribution upon death are included, but such provisions are better placed in a Last Will and Testament.

Why do people get prenuptial agreements?
The most common reason for a Prenuptial Agreement is to protect property that one or both parties owned before the marriage from becoming divided upon divorce.

What is an “antenuptial agreement” or a “premarital agreement”?
These are all synonyms for a Prenuptial Agreement. They all refer to the same concept, the same type of document.

Can I sign a prenuptial or post-nuptial agreement after I get married?
Yes. It would be called a “Post-Nuptial Agreement” and Georgia law does currently recognize such documents.

Does everyone getting married need a Prenuptial Agreement?
Prenuptial agreements are not for everyone. Prenuptial Agreements are generally utilized by parties who have considerable assets prior to the marriage and want to keep those assets separate or those who have been through a divorce and want to minimize the cost and time if they unfortunately go through another divorce. Without a prenuptial agreement, it is possible in certain circumstances for separate or premarital property to lose its separate quality and it can then become marital property or can be used to pay alimony.

Can a Prenuptial Agreement cover alimony?
Sometimes, Prenuptial Agreements are used to limit, establish or eliminate alimony in the event of a divorce.

Can a Prenuptial Agreement affect child custody or child support?
Generally speaking, Prenuptial Agreements do not deal with child custody or child support. Judges make the final decision on custody, and parties cannot pre-determine child support because the law regards child support as being a right for a child, and parties cannot override that right. Custody also must be determined AT THE TIME OF THE DISPUTE since no one can predict all the circumstances which will exist at the time of a custody dispute.

I already have a house and property and I want to protect it. Will a Prenuptial Agreement help?
Yes. If you own property before the marriage and you want to protect that property in the event of divorce, a well drafted and enforceable Prenuptial Agreement can make it easier for you to keep that property in the event of a divorce.

Do I need my own lawyer if my fiancé’s attorney prepared a Prenuptial Agreement?
Yes. It is important to have your own counsel explain fully the proposed Agreement and the potential pitfalls that could affect you in the event of a divorce. Your attorney can suggest changes to the proposed Agreement that can dramatically affect to your benefit what happens in the event of a divorce.

Does my fiancé need their own lawyer if my attorney prepares a Prenuptial Agreement?
Yes. Not only does it make it more fair (each side has independent advice), it also makes it more enforceable since neither can later argue that they did not understand what they were signing.

Even if my spouse and I have a Prenuptial Agreement, can we change the terms later?
Yes. You can “re-up the Prenup” by having your attorney prepare an addendum to the original Agreement. After that has been properly signed and witnessed, it becomes a part of the original Agreement and will reflect the new terms you have changed.

What if my spouse and I decide, after years of marriage, that we no longer want to have the Prenuptial Agreement in effect?
Most well-written Prenuptial Agreements will contain a provision that dictates exactly how to cancel the Prenuptial Agreement so that it is no longer in effect. Further, your attorney can build in “sunset” provisions to the original Prenuptial Agreement that provide for its automatic cancellation after an agreed-upon amount of years.

Will a Prenuptial Agreement determine how my spouse’s property is distributed after his/her death?
Not unless you insist on such a provision. It is strongly recommended that you each have a Last Will and Testament to cover what happens to property upon the death of a spouse. Generally, a good Prenuptial Agreement will contain language that says that either of you are free to give or will away any property you want to the other party.

Are Prenuptial Agreements expensive?
As is in most cases, the cost is based on how long it takes your attorney to prepare the Agreement. Prenuptial Agreements take a lot of time to prepare since they are an attempt to resolve disputes which have not yet occurred and which are based upon factors which do not yet exist (changes in income, assets, the birth of children, etc.) In some limited cases, Prenuptial Agreements can be prepared on a “flat fee” basis. See your attorney for more complete fee and cost information.


Legitimaiton & Paternity

Am I required by federal or state law to readopt my child after completing an international adoption?
If your child was issued an IR-3 immigrant visa, you are not required under federal law to readopt your child, although your state law may require you to do so.

What if my child enters the United States on an IR-4 visa? Do I still need to readopt?
Yes. Re-adoption or adoption is a requirement for all children entering the United States with an IR-4 visa, where the adoption was not completed overseas.

Are there other reasons I might want to consider readopting my child once we are back home?
Even if you’re not required to complete a readoption by law, you may still want to do so for practical reasons. For example, readoption enables you to obtain a U.S. birth certificate from your state of residence for your child. This will make obtaining certified copies of your child’s birth certificate much easier in the future. A legal name change can also be completed during readoption in the U.S.

What happens if my family moves to a different state after international adoption or readoption?
Not all states in the U.S. recognize a foreign adoption decree. If you live in one of the states that does recognize the foreign decree, you should be fine. However, if you subsequently move to a place that does not recognize foreign adoption decrees, you could experience complications. For example, your child might not legally be recognized as your heir. Readopting in your state prevents such issues, as all states recognize final adoption decrees from other states.

Restraining & Protective-orders

My spouse or significant other has pushed me, what can I do?
Unwanted touching is a crime. If someone has touched, pushed or restrained you against your will, you should consider calling the police. Obviously if it was truly harmless such as a tap on the shoulder to get your attention, you should not call the police. But any touching meant to cause harm or intimidate should be reported.

What are the laws on “Family Violence”?
Aside from the criminal process of arrest and trial, there exists a civil process. This process allows you to proceed to court and ask for an immediate restraining order to prevent the other party from coming near you. If the court grants such an order, the other party will be delivered notice of the order together with notice of a court date at which time each side will present their side of the case and the court will decide whether to dismiss the suit or to extend the restraining order beyond the court date. Also, such a restraining order carries other consequences such as impacting the defendant=s ability to carry a firearm.

What about “Stalking”?
Stalking (constantly following, calling or even emailing someone for the purpose of intimidation or harassment) is a crime, but it can also be the basis for the same type of relief sometimes granted in a Family Violence case (see FAQ on Family Violence).

What if someone files a false family violence claim against me?
This does happen. If you are accused of committing an act of family violence, you should hire an attorney and decide the best way to defend yourself in court. If the judge is convinced that you were falsely accused, the judge will dismiss the order and may even assess costs against the plaintiff.

What happens to the children after a Family Violence case?
The court, in a Family Violence proceeding, can also determine issues of custody, visitation and support. Be prepared with a suggestion for the court of what you would like to see happen after the trial.


Grandparents & Third-party Custody/Visitation

Do grandparents have any rights of custody or visitation with their grandchildren in Georgia?
Yes, grandparents and third parties (aunts, uncles, other relatives and sometimes even non-relatives) do have rights in Georgia to seek custody or visitation with their grand children (or with the children of others for a “third party”), but there is a very strong preference for natural parents to have custody of their own children.

My grandson has lived with me for the past three years. His parents (my son and his wife) have had little or no contact with him during that time, but now, they want my grandson to live with them. Is there anything that I can do to ensure that my grandson
In a custody proceeding between the parents and a grandparent, the court will determine custody based on the best interest of the child standard. This standard requires the grandparent to show that (1) parental custody would harm the child; and (2) granting custody to the grandparent will promote the child’s health, welfare and happiness. A grandparent has a more difficult legal standard to meet than does a parent when seeking custody of a child.

My grandchildren have lived with me for the past three years. Their parents (my son and his wife) have had little or no contact with the children during that time, and now, they want the children to live with them. What can I do to ensure that I will be a
Georgia law allows grandparents to seek visitation rights with their grandchildren in any case involving custody of the grandchildren, including a divorce between a child’s parents. In such cases, the court may grant visitation rights to the grandparent if the court finds by clear and convincing evidence that (1) the health and/or welfare of the children would be harmed unless the visitation was granted and (2) granting the visitation would be in the best interest of the children.

How have grandparent visitation rights expanded under new law?
A new law could make it easier for grandparents to persuade judges to grant visitation rights with their grandchildren – Read Full Article

Grandparents, purse strings and divorce
Grandparents, purse strings and divorce – Reuters Article

Contempt Actions

What is Contempt?
Contempt means the willful violation of a Court Order.

What are the defenses to Contempt?
Either that you did not violate the Court Order, or that the violation was not willful.

What are Contempt cases usually about in family law?
They are usually about failure to comply with an Order requiring support payments (either alimony or child support). They can also be about the failure to follow Orders relating to custody or visitation.

What happens if the Court finds that someone is in Contempt?
The offender can be ordered to cooperate or face incarceration The Court can even order incarceration until cooperation begins. This may mean payment of all or part of the support owed, or cooperation on terms of custody or visitation. The Court can also require the offender to pay the other side’s attorney’s fees.

Can the Court punish someone for Contempt?
Yes. The Court can not only take steps to ensure cooperation, it can also hold someone in criminal Contempt and punish them by making them pay a fine and/or serve up to twenty days in jail for each violation, as punishment (even if they decide to cooperate or pay all owed monies).

Is Contempt the only way to enforce a Court Order?
For the collection of arrears (past due support), there are other methods for collection such as garnishment of bank accounts, wages and other assets. Property of the payor can also be attached.

How long does a Contempt case take?
Typically Contempt cases are quicker than divorce or other family law cases since they focus on one or two straightforward issues (was there a violation of an Order and what should the Court do about it).

What if I am falsely accused of Contempt?
If the Court believes you have been falsely accused, the Court may order the opposing party to pay your lawyer’s fees.

How do I prevent being falsely accused?
Keep good records and receipts. Bring witnesses to visitation exchanges.

Is it worth filing for Contempt?
It depends on how important it is to you that the other side abide by the Court Order. You should not rely on the other side being ordered to pay your fees. This way, you can decide if it is worth it to you to pay a lawyer (or try yourself) to file a Contempt.

Do I need a lawyer if I am accused of Contempt?
It is almost always better to have a lawyer, especially when you stand a chance of going to jail or being ordered to pay money. You should at least consult with a knowledgeable attorney to determine your risks.

Does the same judge who heard the original case also hear the Contempt case?
Usually the same judge who dealt with the case which resulted in the Order now possibly being violated will handle the Contempt case. Some exceptions exist for instance, when both parties move and a Court in another state is asked to enforce the Order. Or when a modification is being held in a new county in Georgia and the person filing the Contempt asks to have a Contempt handled in that new county in Georgia in conjunction with the modification.