What to Expect During the Divorce Process
By: Ashley O’Neil, Esq.
For many people, beginning the divorce process can be a very scary thing. Common questions can flood your mind. “How long will it take?” “How will my spouse find out and how will they react?” “What will I need to do?” The answers to many of these questions depend on the issues in the individual case, the county in which the case is filed, and how the opposing party responds to the divorce. They may also depend on the complexity of the issues. However, the process itself is basic enough to give you a general idea of what you can expect during the divorce process.
- My divorce is “uncontested.” What does that look like?
How the divorce begins depends on where the parties are in the timeline of dissolving their marriage. Some people have been separated and/or discussing divorce for a while, have agreed to the terms of their divorce, and simply need an attorney to prepare the paperwork. This is called an “uncontested divorce.” Many people think their divorce is “uncontested” just because they agree to get a divorce. That is not necessarily an “uncontested divorce” for reasons we will explain in this article. Many cases begin as “uncontested” and quickly become “contested.”
In a true “uncontested divorce,” the action is initiated with the filing of a Summons and Complaint for Divorce in the appropriate county by one party. The other party will file an Acknowledgment of Service, a one-page document acknowledging receipt of the Summons and Complaint. The filing of the Acknowledgment of Service (i.e., proof of service) effectively initiates the action. Georgia requires a thirty-one (31) day waiting period, which begins upon the filing of proof of service. Most uncontested divorces involve the opposing party acknowledging service of the action because they are expecting it and they have agreed to terms of the divorce.
Either prior to filing the action or while the 31-day clock is ticking, the parties will need to prepare and file the appropriate documentation reflecting the terms of their agreement, such as the Settlement Agreement (addressing alimony, property division, allocation of debts, and financial terms related to their children) as well as a Parenting Plan, a Child Support Worksheet, and a Child Support Addendum. If the parties have children, they will be required to complete the Families in Transition seminar in the county in which the action is pending. Once these documents have been signed and filed with the Court, the Court can enter the Final Judgment and Decree of Divorce. If the wife wishes to change her name, she can revert to her maiden name by including that in the Final Judgment and Decree of Divorce.
Theoretically, it is possible that the divorce process can conclude within the 31-day waiting period. If the divorce is complicated, that would be unusual, but it can happen. The more you and your spouse discuss and agree prior to beginning the process will help speed the action along. You can also review basic forms through most Superior Court Clerks’ offices or a local Bar association, though it is not recommended to use these basic forms for your final paperwork. They should be used as a guide to help you determine what issues you need to discuss with your spouse.
- “My divorce is going to be contested. What should I expect?”
For the majority of people, divorces are not “uncontested” in the true sense. There are many issues that need to be agreed upon, and discussion of the intricacies of these issues can cause problems and delays in the process. The most common issues causing divorces to be contested are child custody disagreements, alimony, and valuation of complex assets. Even parties who begin an uncontested divorce can easily find themselves in a “contested” divorce situation.
For most, the process begins the same. One party must file for divorce in the Superior Court of the county where the opposing party (the Defendant) resides, which is typically the county of the marital residence. If the Defendant recently moved to a county other than where the marital residence is located, the action may need to be filed in that county depending on how long the Defendant has resided there. The person filing the Complaint for Divorce (the Plaintiff) must have been a resident of Georgia for at least six (6) months prior to filing the Complaint for a Georgia court to preside over the action.
The Complaint for Divorce is a “notice pleading,” meaning it places the opposing party on notice of what relief the Plaintiff intends to seek. The Complaint is very general in nature. It will state the date of the marriage, the grounds for divorce, the names and birth years of any children, and the Plaintiff’s requested relief. This might include a request for legal custody, physical custody, child support, alimony, equitable division of marital property, receipt of separate property, and attorney’s fees. The Complaint will not include specifics such as which holidays you might want, dirty laundry from the marriage, or what specific items of personal property the Plaintiff wishes to keep. It is simply to place the other party on notice of the general claims that will be made.
Upon filing the Complaint, the Defendant must be served with process. The Defendant may acknowledge service of the Complaint. If he/she refuses or the Plaintiff is concerned about a volatile response to the Complaint being filed, the Defendant will need to be served by a process server or Sheriff’s deputy.
The Complaint is filed along with a few important accompanying documents prepared by your attorney:
- Verification – The Plaintiff’s signed statement attesting to the correctness of the information contained in the Complaint.
- The Domestic Relations Standing Order – Each Court has a list of rules that the parties must follow while a divorce is pending, like maintaining the utilities in the marital home and keeping the children within the state of Georgia. You will get a copy of this Order from your attorney so that you are fully aware of the rules.
- Case filing information form – This informs the Court of the parties’ contact information and other needed information for the assignment of a Judge to your case.
- Summons – This alerts the Defendant that a case has been filed and he or she must respond.
- Leave of Absence – Your attorney will likely have a list of days that he or she is unavailable to appear in Court, which will be provided to the Judge’s scheduler.
- Report of Divorce – A form required by the Department of Public Health that will be submitted by the Clerk of Court upon finalization of the divorce.
- Standing Recusal Order- In Cobb County cases only, this form will be filed by The Leonard Firm along with any initial pleadings so the case will not be randomly assigned to Judge Rob Leonard.
Within thirty (30) days of service, the Defendant must file an Answer. The Answer may include a Counterclaim for Divorce (and typically does). Like the Complaint, the Answer and Counterclaim is a notice pleading to place the Plaintiff on notice of the claims the Defendant intends to make. It is important to note that the claims raised in a Complaint and an Answer are simply requests for relief and preserve the party’s right to make such requests in court. They are not guaranteed to be awarded.
The grounds for divorce will be contained in your Complaint but can also be amended later. Most Complaints cite “irreconcilable differences” as the cause of divorce. In Georgia, it is not required to show a fault-based cause of divorce like adultery or habitual intoxication. However, a showing of fault-based grounds can influence alimony and division of assets in the divorce. This is a strategic discussion to have with your lawyer. Remember that these documents are public record.
Once the Answer is filed, the “discovery period” opens and will conclude six (6) months following the date the Answer is filed (or if no Answer is filed, upon the date proof of service is filed). The discovery period can be extended by agreement or by Court Order, but generally will take place following the filing of the initial pleadings. “Discovery” is your opportunity to ask questions and get access to information/documents that you need either to make an informed decision in settlement or present evidence to the court.
Typically, the discovery process includes two pieces: 1) “Interrogatories,” or a list of questions posed to the other party; and 2) “Requests for Production of Documents,” or an itemized list of documents, photos, recordings, records or other physical evidence the opposing party will have to give your attorney. This is one of the most challenging parts of divorce, as each party wants have complete information regarding the income, assets, debts, and conduct of the other party throughout the marriage. If there are significant assets, a business interest, or if one party has limited knowledge of the marital estate, this is the most important part of the divorce process. Discovery can be costly, stressful, and can even result in the involvement of nonparties through depositions and subpoenas. The more cooperative each party is with the discovery process, the smoother it will run. Unfortunately, that is not always the case. If one party does not cooperate, the court will be asked to order that party to participate through a “Motion to Compel.”
Clients regularly ask, “When can we mediate?” You can mediate your case at any time, though timing is important in offering the best chances for settlement. Many counties will require parties to participate in mediation before they are offered a trial date. Also, some counties have court-subsidized mediation programs that will offer reduced fees for certain court-approved mediators once the case is filed. You can participate in mediation before the case is even filed if you choose (though you would not yet be eligible for court-subsidized mediation programs). Whether or not a case settles at mediation and how many mediation sessions it takes to settle the case will depend on many factors, including where the parties are emotionally in the process (i.e., if they are both ready for the process to end), whether or not there are any questions remaining that have not been resolved through discovery, and whether any heavily contested issues (such as the parenting time schedule or alimony amount) can be compromised. Mediation will only finalize your case with your consent.
For the rare cases that do not settle outside of court, the parties must continue to trial. Trial preparation includes hours of planning with your attorney, compiling exhibits, preparing your testimony and cross-examination, and interviewing witnesses. Some cases settle during this process simply as a means to prevent the expense of trial. Each case is different, but your attorney will prepare you for the length and expectations of trial. Your attorney should prepare you so that you will know what questions might be asked, what witnesses will testify, and what you might expect to happen at trial. Regardless of your level of preparation, a trial comes with surprises that no one expects. It is expensive and time-consuming and will certainly conjure emotions from your past. Whatever the case may bring, you can have solace in the fact that you have come this far and the end is in sight. The Judge (or jury, if requested by either party) will soon make a decision and put an end to the extremely stressful battle you have been fighting.
The timeline for a divorce will obviously vary in each case. These are not business transactions—they are emotional cases. The parties are dissolving a family, and there are going to be emotions that go along with that, especially grief. The case will usually not end until both parties are in an emotional place to move along with their lives, and no one can say when that will happen. Based on experience, you can expect that a contested case will take around six (6) months to one (1) year to resolve.
- “I live in Fulton County. How is the process different?”
For parties residing in Fulton County, it is important to note your county has additional requirements for divorcing spouses that will add cost and potentially time to your case duration. Fulton County has a significant number of pro se litigants (people without lawyers). The system is designed to help these pro se litigants provide the correct documentation and paperwork to finalize the case without the need to see a Superior Court Judge. You should think of the process in Fulton County as a filter to resolve most cases without ever seeing a courtroom. If you live in Fulton County, you should expect the following:
- Status Conferences. In Fulton County, upon filing for divorce, you will be scheduled for a series of status conferences. These conferences are meetings with both lawyers, both parties, and a Judicial Officer (not a Judge). The initial status conference will be scheduled to occur approximately thirty days (30) days after the Complaint is filed. The subsequent status conferences will be held approximately sixty (60) days out (called the 60 Day Status Conference) and one hundred twenty (120) days out from filing (called the 120 Day Status Conference). Some judges will conduct their own 120 Day Status Conferences so they can resolve any issues that might be obstructing settlement possibilities. The goal of the status conferences is to resolve minor issues, keep the process moving, and remove any impediments to the case being ready for trial, such as addressing discovery disputes and the like.
- Fulton County Mandatory Discovery. All litigants in Fulton County will be required to complete two forms of discovery: Mandatory Interrogatories and Required Documents to be Produced. These are basic forms of the discovery discussed above to provide generic information such as tax returns, pay stubs, employment information, and expenses that may be addressed in child support. It is common that cases in Fulton County will require discovery in addition to the mandatory discovery to prepare for more complex issues. Mandatory discovery responses are due to be exchanged at the 30 Day Status Conference.
- Late Case Evaluation. In addition to mediation, Fulton County Judges may order parties to participate in late case evaluation, which is another form of dispute resolution only available in Fulton County. Working in connection with the Georgia Chapter of American Academy of Matrimonial Lawyers, the Judge may enter an Order for Late Case Evaluation, which designates one member of the AAML to serve as an evaluator. This typically occurs if the parties are unable to settle by the 120 Day Status Conference. The late case evaluation is subsidized by the court such that the parties are offered services of the evaluator for up to three (3) hours at no charge for the evaluator’s services. If the parties wish to work beyond that three-hour period, they can do so but they must pay the evaluator’s hourly rate.
Generally speaking, the timeline to resolve a case in Fulton County is similar to other counties. There will be a flurry of activity in the first few months due to the status conferences and mandatory discovery, however, the duration is typically the same.