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| Copyright ©2006 by Deming, Parker, Hoffman, Green, Campbell & Daly, L.L.C. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include the above copyright notice. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. |
Green, Campbell & Daly, L.L.C. |
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| Family Law |
What are the essential elements to a valid marriage in Georgia? For a marriage in Georgia to be valid there must be parties able to contract, An actual contract, and consummation according to law. |
Parties able to contract means that the persons are of:
(Note- Same sex marriage is not recognized in Georgia. Georgia is also not
required to give full faith and credit to other States same sex marriage.)
Actual Contract: Law of contracts controls. The parties must voluntarily consent
without fraud or duress. Contract does not have to be in writing.
Consummation according to law. For ceremonial or formal marriage,
consummation is accomplished either by:
(Sexual intercourse is not essential to the consummation of a valid ceremonial
marriage).
COMMON LAW MARRIAGE: No common law marriage can be entered into in
Georgia after January 1, 1997, but common law marriage entered into prior to
that date will be recognized.
Common law marriages are created by the three mentioned essentials including
a present intent to marry, in addition must be consummated by cohabitation.
Cohabitation in this sense implies marital intercourse.
All elements must exist at simultaneously in order for valid marriage to exist.
whereby member files joint marital return or where member lists other party as
“spouse” to secure health insurance benefits etc.)
“spouse” to secure health insurance benefits etc.)
Can an invalid marriage become valid? Yes. An invalid marriage may
become a common law marriage if it occurred prior to 1997. A marriage based
on fraud, duress or non-age becomes valid if a child is born.
If I have only been married for a short time can I file for an annulment?
An invalid marriage is said to be “void”. An annulment of marriage is a judicial
declaration that the marital status is invalid from its intended inception. If the
marriage was valid at its inception it will only be dissolved by divorce even if the
marriage was of short duration.
If I am not ready to file for divorce can I file to become legally
separated? In Georgia, “legally separated” is not a status that is recognized by
law. A person is either married or not married. A person that is married but who
is living apart from their spouse may file an action for “separate maintenance” in
situations where the filing spouse seeks an award of spousal support, child
support, child custody, visitation or exclusive use of the marital residence or
other property during the period of separation. The procedures for obtaining
separate maintenance are similar to the procedures for filing for a divorce. The
primary difference in that in an action for separate maintenance a divorce is
neither sought nor granted. The parties remain married until either one file to
obtain a divorce. An action for separate maintenance may be filed regardless of
how long the parties have resided in Georgia.
Who is entitled to file for divorce in Georgia? Any person who is married
according to law and has been domiciled in the state of Georgia for six months
before the filing date is able to file for divorce.
What are the grounds for divorce and do I have to prove fault in order
to obtain a divorce? Prior to 1973 there were 12 grounds for divorce that
were all predicated upon the “fault” concept. A thirteenth ground was added at
that time. A person may now get divorced in Georgia if the party alleges that the
marriage is irretrievably broken. Proof of fault is no longer required to show that
the marriage is irretrievably broken. The parties merely state that the marriage is
broken and that there is no hope for reconciliation. The other 12 grounds involve
some type of fault such as adultery or cruel treatment.
Can the court order that my spouse leave the home and pay support
before the divorce is finalized? Yes. During the period of time following the
filing of the divorce but before the divorce is granted, the courts have authority
to award temporary child custody, visitation rights and may order a party to pay
support. The Court may also order a party to vacate the marital residence during
this period.
If I have reached an agreement with my spouse regarding all issues
including custody, child support, alimony, division of debts and assets,
will the Court approve the agreement and make it an enforceable part of
the divorce? Yes. An agreement that is properly prepared and that includes all
the provisions required by law may be approved by the court and incorporated
or made a part of the parties’ divorce.
After a divorce has become final am I entitled to go back to court if to
change the terms if there has been a change in circumstances
regarding either custody or support? Yes. In certain circumstances a
person may be entitled to go back to court to seek a modification of child custody
if the circumstances have changed that affect the best interest of the child. A
person may also seek a modification of child support if the parties’ financial
circumstance has materially changed since the date of the final divorce.
Is there an age at which a child is entitled to elect which parent he/she
prefers to live with? Yes. In a divorce or modification of custody action if a
child of the parties has reached the age of 14 then that child may elect which
parent the child will primarily reside with. The child’s election is controlling unless
the parent chosen is determined to be unfit. The wishes of children that are
between the ages of 11 and 14 may be considered but are not controlling.
As in every area of law this foregoing information is general and is subject
exceptions based on the specific facts of the case. It is not intended to substitute
for the advise of counsel in any way.
- Sound mind;
- Age of consent: must be at least 16 years old, or if younger have parental
consent. The age limit does not apply if there is proof that the female is
pregnant, or both parties are parents of a living child born out of wedlock,
then they may marry regardless of age; - Proper relationship; may not be related to the prospective spouse within a
prohibited degree; - Previous marriage dissolved.
(Note- Same sex marriage is not recognized in Georgia. Georgia is also not
required to give full faith and credit to other States same sex marriage.)
Actual Contract: Law of contracts controls. The parties must voluntarily consent
without fraud or duress. Contract does not have to be in writing.
Consummation according to law. For ceremonial or formal marriage,
consummation is accomplished either by:
- Obtaining a marriage license and the performance of a ceremony by a
minister or other person authorized to join persons in matrimony, or - By an actual agreement in words of present tense to be man and wife with
the intention of assuming a marital relationship.
(Sexual intercourse is not essential to the consummation of a valid ceremonial
marriage).
COMMON LAW MARRIAGE: No common law marriage can be entered into in
Georgia after January 1, 1997, but common law marriage entered into prior to
that date will be recognized.
Common law marriages are created by the three mentioned essentials including
a present intent to marry, in addition must be consummated by cohabitation.
Cohabitation in this sense implies marital intercourse.
All elements must exist at simultaneously in order for valid marriage to exist.
whereby member files joint marital return or where member lists other party as
“spouse” to secure health insurance benefits etc.)
“spouse” to secure health insurance benefits etc.)
Can an invalid marriage become valid? Yes. An invalid marriage may
become a common law marriage if it occurred prior to 1997. A marriage based
on fraud, duress or non-age becomes valid if a child is born.
If I have only been married for a short time can I file for an annulment?
An invalid marriage is said to be “void”. An annulment of marriage is a judicial
declaration that the marital status is invalid from its intended inception. If the
marriage was valid at its inception it will only be dissolved by divorce even if the
marriage was of short duration.
If I am not ready to file for divorce can I file to become legally
separated? In Georgia, “legally separated” is not a status that is recognized by
law. A person is either married or not married. A person that is married but who
is living apart from their spouse may file an action for “separate maintenance” in
situations where the filing spouse seeks an award of spousal support, child
support, child custody, visitation or exclusive use of the marital residence or
other property during the period of separation. The procedures for obtaining
separate maintenance are similar to the procedures for filing for a divorce. The
primary difference in that in an action for separate maintenance a divorce is
neither sought nor granted. The parties remain married until either one file to
obtain a divorce. An action for separate maintenance may be filed regardless of
how long the parties have resided in Georgia.
Who is entitled to file for divorce in Georgia? Any person who is married
according to law and has been domiciled in the state of Georgia for six months
before the filing date is able to file for divorce.
What are the grounds for divorce and do I have to prove fault in order
to obtain a divorce? Prior to 1973 there were 12 grounds for divorce that
were all predicated upon the “fault” concept. A thirteenth ground was added at
that time. A person may now get divorced in Georgia if the party alleges that the
marriage is irretrievably broken. Proof of fault is no longer required to show that
the marriage is irretrievably broken. The parties merely state that the marriage is
broken and that there is no hope for reconciliation. The other 12 grounds involve
some type of fault such as adultery or cruel treatment.
Can the court order that my spouse leave the home and pay support
before the divorce is finalized? Yes. During the period of time following the
filing of the divorce but before the divorce is granted, the courts have authority
to award temporary child custody, visitation rights and may order a party to pay
support. The Court may also order a party to vacate the marital residence during
this period.
If I have reached an agreement with my spouse regarding all issues
including custody, child support, alimony, division of debts and assets,
will the Court approve the agreement and make it an enforceable part of
the divorce? Yes. An agreement that is properly prepared and that includes all
the provisions required by law may be approved by the court and incorporated
or made a part of the parties’ divorce.
After a divorce has become final am I entitled to go back to court if to
change the terms if there has been a change in circumstances
regarding either custody or support? Yes. In certain circumstances a
person may be entitled to go back to court to seek a modification of child custody
if the circumstances have changed that affect the best interest of the child. A
person may also seek a modification of child support if the parties’ financial
circumstance has materially changed since the date of the final divorce.
Is there an age at which a child is entitled to elect which parent he/she
prefers to live with? Yes. In a divorce or modification of custody action if a
child of the parties has reached the age of 14 then that child may elect which
parent the child will primarily reside with. The child’s election is controlling unless
the parent chosen is determined to be unfit. The wishes of children that are
between the ages of 11 and 14 may be considered but are not controlling.
As in every area of law this foregoing information is general and is subject
exceptions based on the specific facts of the case. It is not intended to substitute
for the advise of counsel in any way.
| Attorneys At Law Since 1974 |
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