Pleadings and Service in a Contested Georgia Divorce

Usually, the parties to the divorce are only the husband and wife. However, third parties, such as wholly owned corporations, may be included or joined in the action were marital property is commingled with corporate property or where they are otherwise are necessary to the action, to prevent fraud for example. See, Gardner v. Gardner, 276 Ga. 189 (2003).

A divorce is filed in the Superior Court of the county in which the defendant resides. This is usually in the county of the marital residence. However, if your spouse has moved, and has been living in another county for more than six (6) months, you will need to file in the county of his or her residence. Also, the plaintiff has to have been a Georgia resident for the preceding six months. (You can't move to Georgia and immediately file a divorce action.)

The divorce complaint must set forth the basic facts of the marriage and divorce, date of marriage, date of separation, children, ages, the grounds for divorce, and prayers for relief (for example that the clerk put down a standing order). Typically, the parties cite “irreconcilable differences” as the grounds in their pleadings but there are other grounds – for example adultery, cruel treatment, abandonment, etc. See, O.C.G.A. section 19-5-3. Special equitable claims - requests for a court to order your spouses to take certain action or refrain from certain action - may be included, in additional to the traditional claims for divorce (custody, child support, alimony, property division).

Service of the complaint and a document called a summons (which is the clerk of court's instruction to the defendant to file an answer within 30 days and serve the plaintiff's attorney) will be made by sheriff or private investigator. Your spouse can be served at the marital home or anywhere in Georgia he or she is personally located by the process server. Service has to be personal – that is on the person - unless your spouse is not home and the documents are left with someone who lives in the home (a non-party adult or child over the age of 14). This is called “substitute service”. Often, in a divorce case, the spouse will simply sign a legal document called an "acknowledgment" that simply confirms he or she has received the complaint and summons and waives further personal service.

The defendant will ordinarily file an answer within 30 days of service and will typically file his or her own counterclaim for divorce. Although there is no "divorce by default", it is prudent to file an answer to any complaint on time, as the defendant can otherwise be argued to have admitted the well plead facts of the complaint (which may not be true).

If your spouse has moved out of state, or the country, or otherwise can't be located, Sandy Springs Divorce Attorney Russell Hippe can secure a termination of the marriage via service by publication. This is a process - a diligent search has to be had first - but he can get you divorced, even without personal service - there just ordinarily cannot be any financial awards. The is because personal jurisdiction over a defendant (which is conditioned upon service) is not necessary for a Georgia court to grant a divorce or to award property situated in Georgia. But personal jurisdiction is required to award alimony, child support, or property situated outside of Georgia. Abernathy v. Abernathy, 267 GA. 815 (1997).