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. If the parties do not meet the residency requirement, they have two (2) options:
- wait till one (or both) of the parties have resided in Georgia for at least six (6) months
- file a Petition for Separate Maintenance, then subsequently file a divorce case when one (or both) of the parties have resided in Georgia for at least six (6) months
Both are viable options. The one you choose will depend on how soon you need the relief of a divorce. The filing of a Georgia separate maintenance case does not have a residency requirement, and can divide assets, debts and establish child custody and child support until a divorce can be filed.
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.
Uncontested Divorce and Family Law Cases
In an uncontested divorce, venue and jurisdiction can usually be acknowledged or all objections can be waived. This is done by the defendant signing a document called an Acknowledgment of Service. The document is usually one page and is filed along with the other uncontested divorce documents, such as the Divorce Settlement Agreement, Complaint for Divorce, etc. An Acknowledgment of Service can also be used in family law cases for the defendant to acknowledge or waive all objections to venue and jurisdiction. Examples of uncontested cases that can utilize an Acknowledgment of Service include (but is not limited to):
- uncontested divorce
- uncontested annulments
- uncontested child support modification
- uncontested child custody modification
- uncontested alimony modification
- uncontested minor child name change
So if the other party in your case is not opposing the relief you are seeking (divorce, modification, minor child name change, etc.) it is best if they will sign an Acknowledgment of Service. It eliminates the cost of having to hire a process server or sheriff to serve the petition. In addition, it eliminates or greatly reduces the risk that the court will object to the jurisdiction and venue for the case as to the defendant. While this is rare, it sometimes does happen. The court has the discretion to do this if there is no signed and notarized Acknowledgment of Service filed with a case. An Acknowledgment of Service will generally state something similar to this:
I, the undersigned Defendant in the above-styled action hereby acknowledges personal service, and affirm that I have received a copy of Plaintiff’s Complaint / Petition for __________________. After being duly informed that I have a constitutional right to a trial by judge or jury on the above matter in the county of my residence, and with that knowledge, I hereby expressly waive my right to venue in the county of my residence, all other and further service of process, and consent to venue and personal jurisdiction in the county of this superior court.
Obtaining Assistance with Your Case