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The divorce process in Georgia can be rather daunting, particularly when children are involved. Before your divorce case is filed, you need to know that there are two bodies of law involved in every divorce action: substantive law and procedural law. This article, and those in this series, will focus on basic procedural law – the system of court rules that must be followed for the substantive law to be declared and enforced by the court. Once you’ve read these materials, you’ll have a clear understanding of how family law cases travel through our Georgia court system.
For quick reference, here is a short summary of the steps involved in a divorce:
GENERAL OVERVIEW OF LITIGATION PROCESS
Phase 1: Draft Pleadings, File Suit, and Notifying the Other Party
In divorce cases, there is a 31 day “cooling off” period starting on the date that the Petition for Divorce is served on the opposing party. The parties cannot be divorced prior to that 31 day period, but they can be divorced anytime after that.
Phase 2: Discovering Information and Motions
During the pendency of the case, various matters may be heard by the Court or the parties may conduct various activities in the case. This is where the bulk of the case will be and the time it takes varies case by case.
Examples:
Temporary Orders (a/k/a the ground rules during the litigation) (see below)
Discovery (including written requests for information, depositions, and subpoenas)
Social Study or Custody Evaluation
Phase 3: Temporary Hearings
In some cases, it may be necessary to set a temporary hearing to decide temporary issues, such as support, custody, and time sharing. During a temporary hearing, the parties may only present one witness for testimony, other than themselves. However at the temporary hearing, witness affidavits may be presented to the court to put forth evidence that supports their claims and allegations in the litigation. Prior to the temporary hearing, a preparation appointment will be scheduled with you and the attorney who will be conducting the hearing on your behalf to prepare testimony and hearing exhibits.
Phase 4: Negotiations
Once sufficient information is gathered, the parties and/or their attorneys may attempt to negotiate terms for settlement or trial. Mediation is usually required prior to trial. During mediation, the parties and their attorneys will meet with an independent third party to determine if a settlement of the litigation may be reached prior to trial. The mediator does not represent either party, and any settlement offers made during mediation are confidential and may not be disclosed at trial if no settlement is reached.
Phase 5: Finalization
If an agreement is reached, then the parties will coordinate a final order (Final Decree of Divorce or Final Judgment) to be submitted to the judge for signature. A short hearing or a motion for judgment on the pleadings is required in divorce cases. Only one party (usually the Petitioner – the person who filed for the divorce first) must attend, but both parties may attend. In custody modifications, legitimations and paternity actions, no such hearing is typically required if the parties have reached a full settlement and agreement.
If an agreement is not reached, then the parties will set a trial date. The trial will either be a bench trial (in front of a judge only) or a jury trial. Only limited issues can be presented to a jury in a family law case, so jury trials are rare in family law.
Once a final order is entered, your file will be closed. As a continuing service to our clients, we generally conduct an exit interview with the client prior to closing the case.
Phase 6: Appeal
If a person is unhappy with part or all of a judge’s or jury’s decision, then he or she has the right to appeal the decision to a higher court. Appeals are expensive and time consuming. Most family law cases are not appealed for those reasons.
However, if a person wants to appeal, he or she must do so within certain timeframes and specific deadlines and must pay for all of the trial testimony to be typed by the court reporter. The attorneys for each side must also submit legal arguments and briefs. This can cost thousands of dollars. The appellate court judges read all of this and then make a decision. Again, this is expensive and takes an average of two (2) years.
Phase 7: Post-Litigation Options
Once a final order is entered, it is not necessarily set in stone. Issues concerning children can still arise over the next few years, so the court system allows for modification of terms regarding child support and visitation and for enforcement of court orders when one of the party is violating them. Feel to ask us questions you may have about these matters.
