Family Law & Divorce Frequently Asked Questions

What should I do if I receive a complaint for divorce from my spouse?

You should promptly consult an attorney. You have a limited time to contest the reason claimed for the divorce or contest the claims for child custody, child support, alimony or property division by working with The Gunn Firm to file an answer with the court. If you wish to work together with your spouse to move toward an uncontested divorce you still need to avoid jeopardizing your rights should your spouse ultimately change their mind.

If I am considering a divorce what financial information should I gather? 

At some point during the process you will need to assemble copies of the following: tax returns, W-2s, bank statements, including investment and retirement accounts, deeds to real estate, title to any motor vehicles, or recreational vehicles, medical and life insurance policies, any information related to debts, including mortgage and credit card statements. Keep in mind that when you file for divorce you will need to complete a financial affidavit. Having this information in advance will simplify the process and help The Gunn Firm to understand the property and support issues involved in the case.

What is the difference between a "Contested" and an "Uncontested" Divorce? 

An Uncontested Divorce is a divorce in which the spouses agree to the terms of their divorce in, including child custody and support, alimony and the division of their property. The divorce is filed along with an agreement stipulating that both parties agree to the terms of the divorce. A hearing date is set and the Court will determine whether to approve the divorce and settlement. If possible, it is always a good idea to consider an uncontested divorce. Divorce has significant emotional and financial consequences and to the extent that conflict can be avoided, it is always advisable, especially if there are minor children. If the parties cannot agree to the terms of their divorce, then the divorce is "contested." The process for a contested divorce is more complicated and will usually involve more time and emotional and financial capital.

See our Uncontested Divorce page for more information on Uncontested Divorce.

What are the grounds for a divorce? 

Georgia is a no fault state and a divorce may be granted because the marriage is "irretrievably broken." In addition, there are 12 grounds for divorce that assert fault on the part of one party, including:

1. Improper intermarriage:
2. Mental incapacity at the time of marriage;
3. Impotency at the time of marriage;
4. Pregnancy of the wife by someone other than the husband at the time of the marriage and unknown to the husband;
5. Force, menace, duress, or fraud in obtaining the marriage;
6. Adultery of either party after the marriage;
7. Willful desertion continuing for a period of one year;
8. Conviction for an offense of moral turpitude, which results in a prison conviction of two or more years;
9. Habitual intoxication;
10. Cruel treatment;
11. Incurable mental illness
12. Habitual drug addiction

We will discuss whether it is advisable to assert grounds of fault in suing for a divorce. Call today for a free consultation.

What can I expect if my divorce is a contested divorce? 

It's important to remember that no two cases are alike. We will help you become educated about the process and help you to manage your expectations. Our approach is to obtain the best result for you while minimizing the financial and emotional toll that a divorce takes. Conflict usually arises over child custody, visitation, property division, alimony and other issues. The primary difference between a contested and uncontested divorce is "discovery" and "trial." After filing your complaint, we will meet with the judge or magistrate to obtain a temporary order concerning child custody, support, visitation, property and other issues that must be addressed while the case is pending. After your spouse has answered the complaint for divorce, we will proceed with "discovery," the process by which we develop facts and evidence to present to the court at trial to prove your case. Discovery varies from case to case, but it may involve requesting documents, asking questions in writing, asking the other party to admit facts, and deposing witnesses. Discovery can last six months or more depending on the circumstances. After all of the facts and evidence are known to the parties, the parties will meet with a mediator to review the facts and evidence and try to resolve their difference by agreement. If the parties cannot agree, then the matter will proceed to trial and a judge and sometimes a jury will decide the case. Given the highly personal nature of divorce cases, many parties make every effort to reach a settlement and maintain control over these important issues. The outcome of a trial can never be predicted and each party risks losing issues that are important to them. The Gunn Firm will vigorously and forcefully advocate for you every step of the way through trial.

If my spouse and I agree on getting a divorce, do we still need an attorney? 

An attorney will ensure that all matters that should be resolved in a divorce are resolved. Acting without an attorney could end up being a costly mistake both to the parties and to their children. 

What will a Court consider when deciding who gets custody of our children? 

Generally, both parents have equal right of custody and access to their minor children. The Court determines custody based on what would be in the child's "best interest." 

The Court looks at several factors including:

• Each parent?s knowledge and familiarity with the needs of the child;
• The capacity of the each parent to provide food, clothing, medical care, day-to-day needs taking into account child support payments;
• The love, affection, bonding and emotional ties to each parent and to the child?s siblings;
• The capacity of each parent to give love, affection, and guidance and to continue the education and rearing of the child;
• The home environment of each parent with an emphasis on promoting nurturance and safety rather than material comforts;
• The importance of continuity in the child?s life;
• The stability of each parent?s family unit and the presence or absence of community support systems;
• The mental and physical health of each parent;
• Each parent?s involvement in the child?s educational, social, and extracurricular activities;
• Each parent?s employment schedule and the flexibility or limitations of that schedule;
• The child?s health and special needs, including the home, school and community history in meeting those needs;
• Each parent?s past history of parenting and the potential parenting abilities of each parent;
• The willingness and ability of each parent to facilitate and encourage a close and continuing parent child relationship with the other parent;
• Evidence of family violence, including physical, mental and sexual abuse or the criminal history of each parent;
• Evidence of substance abuse.

This list of factors is not exhaustive and the Court will consider all relevant information to determine what is in the best interests of the child as a whole. The Court may also appoint a "guardian ad litem" to investigate the facts and circumstances surrounding the child's needs.

May the parents share custody?

Pursuant to Georgia law, both parents come before the court equally. The court, in its discretion, may award joint custody or sole custody. There are two types of custody. Legal custody is the right to make major decisions regarding the child. Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the child with one parent having final decision-making authority for each of the major decision areas: medical, educational, extracurricular and religion. Physical custody means the actual physical custody of the child by each parent. Joint 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.

How does the court determine parenting time? 

Effective Jan. 1, 2008, the law in Georgia requires all persons divorcing with children to have a parenting plan. Every parenting plan must include that it is important for both parents to continue a close relationship with the child; that both parents recognize that the child's needs will change and grow as the child matures and take the child's changes and growth into account; that a parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with such parent; and that both parents will have access to all of the child's records and information, including, but not limited to, education, health, extracurricular activities and religious communications.

Additionally, a parenting plan must include where and when a child will be in each parent's physical care, designating where the child will spend each day of the year, including holidays, birthdays, vacations, school breaks and other special occasions and when each will begin and end; transportation arrangements and exchange locations and times and costs associated with transportation, and whether supervision will be needed for any parenting time and, if so, the particulars of the supervision.

Finally, a parenting plan must include decision-making authority to one or both of the parents with regard to the child's education, health, extracurricular activities and religious upbringing, and if the parents agree the matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution; and what, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child and the other parent's right to access education, health, extracurricular activity and religious information regarding the child.

What is a Guardian ad Litem?

A Guardian ad Litem can be appointed by the court or the parties may agree to a Guardian ad Litem. The Guardian ad Litem is appointed as an officer of the court to report on the best interests of the child. In order to make a recommendation, the Guradian ad Litem will investigate the background, family relationships, and living conditions of the child. The Guardian as Litem may visit the home, interview family, friends, neighbors, teachers, coaches, or anyone involved in the child's life. It is important to cooperate with the guardian ad litem and to understand the importance of their role. The Gunn firm will ensure that an experienced and thorough guardian is appointed to the case and we will help you prepare for that important step in the process.

What kind of child support can I expect? 

Child support is calculated based on a formula that examines the income available to the parties, the parenting time the parties will spend with the children, and the financial needs of the children. It is a good idea to document the income available to each spouse as well as the cost of supporting and maintaining the children, including any special needs.

Can I obtain Alimony?

Temporary alimony may be awarded to assist one spouse with the training needed to enter the work force. This usually requires a hearing and the court will consider the following: 1) what has the person been trained for in the past; 2) What type of training is needed before the person can again be employable in that field; 3) How long will the training last; 4) What amount of income can be expected upon employment; and 5) How much money is required for the training. The grounds for the divorce may be relevant to the issue of alimony. It is important to discuss this issue with your attorney. Permanent alimony may be awarded in very limited circumstances.

What kinds of behavior should I avoid while my divorce is pending? 

If you have children, you will likely be required to take a parenting class based on the county where you live. These classes can give you excellent tips to avoid behavior that may harm your child. Sometimes in the heat of the moment, people forget how their children perceive conflict between their parents and the significant harm that it can cause. Children involved in custody disputes report feelings of depression, loss of self esteem, anger, anxiety and isolation and it is critical to resolve issues of conflict to avoid harming the child in the short run and in the long run. The divorce will end, but memories of how the divorce was handled by the parents can linger with the children for years to come. Help is available and The Gunn Firm strives to de-escalate volatile and emotionally charged conflicts.

Should I record conversations with my spouse or when my spouse talks with our children? 

Absolutely not. Spouses are protected from recording one another by law in Georgia. While you may be permitted to record others, you are not permitted to record your spouse in Georgia. 

What if domestic abuse is involved? 

The Gunn Firm is extremely sensitive to the dangers of domestic abuse. Contact us today for a free consultation. We will assist you in planning your steps, which may include a temporary and permanent protective order. We can also assist you in obtaining support services. Where domestic violence is involved with a divorce, it is important to seek out help and to know that help is available. Call The Gunn Firm today if you believe that you are the victim of physical, emotional or financial abuse.

What happens if I cannot locate my spouse? 

The Court may allow you to serve your spouse with notice of the petition for divorce by a procedure called "service by publication." First you will need to try to locate your spouse. For example, you may wish to check with your spouse's friends and relatives to find out if they know where s/he is located. The post office may have a forwarding address or the department of motor vehicles may have the information if your spouse has a car that is registered with the state of Georgia. You may also try the phone book, the internet, prior employers, and the county tax assessor's office if s/he owns any property. If after a diligent search for your spouse, s/he cannot be located, we will file an "Affidavit of Publication and Diligent Search." The affidavit requires that you provide the details of your search to the court and affirm under oath that s/he cannot be located despite these efforts. We will then ask the court to order service by publication. An advertisement in a newspaper that prints legal notices will run every seven days for four weeks. Your spouse will have sixty days from the date of the court's order to file an answer.

We are dedicated to providing families throughout Cobb, Fulton, Cherokee and Paulding counties in Georgia with the superior representation they need. This includes the cities of, Atlanta, Acworth, Kennesaw, Marietta, Smyrna, Woodstock, Canton, Roswell, East Cobb, West Cobb, Holly Springs, Austell, Powder Springs, Dallas, Hiram and others. Call us now to discuss your case at 404-969-4505.