Filing for divorce is usually a big deal for the couple involved. It can be a highly emotional process, but it is also important to follow the proper steps. One of the most common misconceptions about divorce is that the couple has to file for divorce in the state they got married. That is not true, as long as you meet the requirements to be eligible to file, you are able to file for divorce in any state. Each state has their own requirements for filing for divorce; the state of Georgia is not an exception. Failure to follow these requirements could lead to a dismissal of your case. Some of the things we will be going over are residency requirements, venue, and jurisdiction.
The residency requirement of the state of Georgia is that the petitioner (the person filing for divorce) be a verified resident of Georgia for at least six months before filing for divorce. Once that is met the residency requirement is completed.
The Constitution of the state if Georgia states that the defendant (spouse that did not file for divorce) is entitled to be sued in the county in which he/she is residing. If the defendant is a nonresident or cannot be located in Georgia .and all other aspects of jurisdiction have been or can be established, the divorce should be filed in the Superior Court of the county in which the plaintiff (spouse filing for divorce) resides. It is also important to keep in mind that personal jurisdiction and venue issues defenses can be waived either expressly by agreement or by failing to file a timely answer or motion to dismiss raising these defenses or otherwise in failing to properly object to a court’s lack of personal jurisdiction or improper venue.
Jurisdiction is also a very important part of this, because if the court does not have jurisdiction over the case, then it cannot make a ruling on it. There are two types of jurisdiction, subject matter and personal. Subject matter jurisdiction is the whether the court has control over the object of litigation; in this case it would be the marriage itself. To prove that there subject matter jurisdiction there must be valid residence established in Georgia and a valid marriage. As mentioned earlier, to establish residency your or your spouse must live in Georgia for at least 6 months.
Personal jurisdiction, however, refers to the court having jurisdiction over both of the spouses involved in the divorce. Personal jurisdiction can be proven by in different ways. The petitioner submits themselves to the jurisdiction of the court by the action of filing for divorce; establishing jurisdiction for the defendant can be done in different ways. The most frequent is by serving them with a Complaint for Divorce and a Summons; this can be done if you know where the defendant lives. Another method is if the defendant personally submits to the court’s jurisdiction by signing an acknowledgement of service.
If you don’t know where the defendant is, you can also try to establish personal jurisdiction for them having them served through publication, however the publication will be made in the last known county of their residence and there are two possible outcomes. If you are successful in service by publication, you establish limited personal jurisdiction and the court can only award a divorce and division of property that is located in the State of Georgia; the court cannot grant alimony or child support.
If the defendant is no longer a resident of Georgia, then it might be possible to use the Long Arm Statute. By using the Long Arm Statute, Georgia courts may establish jurisdiction over someone who is nonresident if that person owns, uses, or possesses any real property situated within this state or If that person maintains a matrimonial domicile in this state at the time the divorce is filed or if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This means if you and your wife own any real estate in Georgia or you lived with your wife in Georgia prior to her leaving the state, then the court can have personal jurisdiction however that person will still need to be served.
If you have questions about starting the divorce process in Georgia, call us at 770-609-1247 to discuss with one our experienced divorce lawyers how we can begin helping you.