Divorce – Contested Cases
Contested Divorce: Law, facts and frequently asked questions about contested divorce cases. Attorney in Kennesaw – Woodstock – Marietta – Canton – Acworth – Cobb – Cherokee
DIVORCE – Contested Divorce
In general, a divorce suit is just a lawsuit, and its proceedings are subject to most of the same rules and procedures as any other lawsuit. But a divorce case deals with the lives of people, and the law finds and the courts believe that issues like child custody, spousal abuse and family relationships require special attention and handling.
Divorce in Georgia is often though of by the public and by attorneys as being either “contested” or “uncontested”. In a contested divorce, there is no agreement of the parties on all the matters at issue between them prior to the time of filing the case. If there is no agreement, it is becomes necessary for the court proceedings to be initiated by one of the parties, and the case becomes a contested case. Court proceedings are initiated by the filing of a Complaint for Divorce by one spouse (the “plaintiff”) against the other spouse (the “defendant”). Once the Complaint is properly served on the defendant, the court obtains the power or ability to decide those issues which the parties cannot. See: Divorce: Basic Concepts, Laws and Facts.
Contested Issues: The issues typically contested in a divorce case are alimony, division of assets, child custody, child support, and child visitation. The dissolution of the marriage is rarely a real issue in the case. But this list of typically contested issues only scratches the surface. The lives, finances and relationships of married parties are diverse and multi-faceted, and the facts underlying each of the issues is often complex and confusing. Additionally, it is impossible to separate the past, present and even future feelings and emotions of the parties from these facts and issues.
Divorce Proceedings: Typical proceedings in a contested divorce case include the following:
1. Temporary Restraining Orders: Where there emergency issues involving safety of a party, protection of assets, care of a minor child or other matters requiring immediate relief from the Court, then a party may ask the court for a temporary restrain order (TRO). Under some circumstances, the court may grant this relief without the presence of the opposing party (“ex parte”).
2. Standing Orders: Many Georgia Superior Courts now have “Standing Orders” that issue automatically upon the filing of the Complaint for Divorce. These are designed to preserve the status quo existing between the parties at the time the case is filed. They address many of the issues which previously required the issuance of a Temporary Restraining Order. Standing Orders typically prevent the both parties from transferring or disposing of assets, taking children outside the State, harassing the other party, and/or similar conduct.
3. Temporary Hearings: Since there is no agreement existing between the parties at the time the divorce case is filed, it is often necessary for the court temporarily decide how the contested issues. At a temporary hearing, the court will issue a temporary order deciding who will have custody of the children, the amount of child support and/or alimony, which party will pay child support or alimony, visitation rights, possession of residence and possession of personal property.
4. Discovery: As with all litigation, discovery is the process of obtaining information about the facts in the case. This process including obtaining documents and physical evidence from the opposing party, taking depositions of the opposing party and of third parties, and written requests for information. The need for discovery and types of discovery needed in a divorce case varies widely. Where the parties have few assets and no children, there may be almost no need for discovery. Where there is a serious issue concerning child custody or where the parties have substantial assets, it may be necessary to engage in extensive discovery.
5. Mediation, Arbitration and Alternative Dispute Resolution: The courts are increasingly referring divorcing parties to seek to resolve disputed issues by using private means of alternative dispute resolution.
a. Mediation using an impartial neutral (mediator) is now required by most courts prior to placing the case on a trial calendar. Mediation is an excellent opportunity for the parties to settle cases. Both parties have an opportunity to discuss the facts of the case and their needs privately with the mediator, and without fear that these matters will be discussed with the other party or used in court. The mediator can help the parties find common grounds, real needs and alternative solutions. Settlement is voluntary, so each party maintains some control over the outcome of the case.
b. Arbitration can also be used as a means of alternative resolution in a divorce case. Both parties must agree to arbitrate the case, and they will select the arbitrator(s). Arbitration is basically a non-jury trial held in private before an arbitrator or arbitrators. The rules of procedure and evidence can be far less formal than a trial before a judge or jury. Where the parties wish to keep financial matters or sensitive family matters confidential, then arbitration can be an excellent choice for dispute resolution. Child custody and other aspects of the arbitrator’s decision must be reviewed by the court before the decision becomes final.
6. Non-jury Trials: When all else fails, the court will make the decisions on all of the issues in the case after hearing the facts and receiving evidence. A non-jury trial is a trial in which the judge will decide both the law and the facts of the case. Non-jury trials of divorce cases are less formal and less time consuming that jury trials. A non-jury trial will be less expensive than a jury trial, and you will get a non-jury trial date sooner than a date for a jury trial.
7. Jury Trials. Either party can demand a jury trial to resolve their differences. A jury trial follows formal rules of procedure and evidence. The jury will decide the facts including division of assets and amount of alimony (if any). The judge will decide matters of law, and the judge will decide some issues like child custody.
Grounds for divorce:
The grounds for a divorce is the legal theory that the court must have in order to dissolve the marriage. There are thirteen (13) grounds for divorce in Georgia. The first twelve (12) grounds are often said to be fault based, and include adultery, cruel treatment, desertion and other causes for the divorce. The thirteenth (13 th) ground does not designate either party as being a cause of the divorce. It simply says that “the marriage of the parties is irretrievably broken”, and is often referred to as a no fault divorce. Basically and for whatever reason, the parties can no longer live together as husband and wife.
The grounds stated in the Complaint for Divorce is now almost always that the marriage is “irretrievably broken”. However, in a contested divorce case, the Complaint or the Defendant’s Answer may set forth adultery, cruel treatment or one of the other grounds as the basis for the divorce or as an additional grounds for the divorce. The reason for this is that the conduct of one party to the marriage toward the other party can have an effect on alimony, division of assets, custody of minor children and visitation with minor children.
If the parties reach an agreement on all of the issues, a contested can be settled at any time prior during the course of the judicial proceedings. It is not unusual for a case to settle after a temporary hearing, after completion of discovery, at mediation, or just prior to a trial. The parties should always keep an open mind about their needs, the reality of the situation, what is best for minor children, and what is best for his/her future. Settlement may offer the best way to secure those goals.
Final Decree of Divorce:
The entry of a final judgment and decree of divorce with a resolution of all issues is normally entered by the court after either a jury or non-jury trial of the case. Occasionally a court will enter a decree of divorce between the parties prior to holding a trial on other issues like property division, alimony and child custody.
Divorce is a difficult and frequently presents complicated legal and factual issues. An experienced attorney familiar with divorce law will provide you with the advice and guidance you need. We have the knowledge, experience and skill to assist you. We represent individuals in divorce proceedings throughout North Georgia including Woodstock, Canton, Acworth, Kennesaw, Marietta, Cartersville, Dallas, and Johns Creek. Call us today to discuss your situation.