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Common Misconceptions About Divorce & Family Law

On Behalf of | Jul 23, 2020 | Divorce, Family Law

Divorce can be messy. The complexities surrounding legal issues such as child custody, adoption, division of assets, or spousal support make it easy for one or both parties to have misconceptions about family laws in Georgia. This is why it is important to consult a divorce lawyer in Lithonia, Georgia, before filling out and submitting a petition for divorce.

Misconceptions about family law and how it is applied in specific situations almost invariably lead a party to believe that an outcome can only go one way. Understanding the realities of the divorce process can help an individual feel more at ease with what is already a difficult situation. Below are five common misconceptions about divorce and family law.

1. If The Other Parent Doesn’t Pay Child Support, I Can Withhold Visitation.

Once both parents come to an agreement or a judge decides what will happen with the children, the final decision is legally binding. Therefore, neither parent should withhold visitation for any reason. If the non-custodial parent is failing to pay child support, the custodial parent should consult their attorney or file a complaint with the court.

A parent who ignores the agreement and takes matters into their own hands may face legal penalties from the court. Going through the courts to enforce child support will produce better results than withholding visitation.

2. One of the Spouses Can Deny a Petition for Divorce.

Georgia is a mixed fault state meaning that an individual can file for divorce because the marriage is irretrievably broken (no-fault) or because of the misconduct of your spouse (fault).

The state of Georgia lists 13 grounds for divorce, some of which include:

  • Adultery

  • Impotency

  • Alcoholism or drug addiction

  • Incurable insanity

  • Willful desertion

  • Cruel treatment

Any one of these grounds, if proved, can result in a complete dissolution of the marriage. However, under Georgia’s no-fault provisions, neither party must prove that the other one was at fault for the court to grant a divorce. Therefore, a spouse can get a divorce without the consent of the other spouse.

3. If Adultery Was Involved the Other Spouse Gets Everything

According to GA Code §19-6-1(b), if a spouse committed adultery, and it resulted in separation, the other spouse may deny alimony. The law requires a spouse to provide evidence of adultery and evidence that the adultery is what led to the divorce to support their claim.

No law requires a spouse to hand over 100 percent of alimony and all assets if they cheated on the other spouse. Instead, the court will decide spousal support based on factors such as income, child support, and the current economic circumstances of both parties.

4. The Mother Always Receives Primary Custody of the Children

It should not be assumed that the mother in a child custody case will be given primary or sole custody of the children just because they are the mother. Georgia’s family laws are considered gender-neutral. The court is just as likely to award custody of the children to the father.

The courts review the facts of the case and decide custody based on factors such as:

  • The overall welfare of the child

  • Child abuse

  • Home environment

  • The economic stability of the parent

  • The relationship between the parent and the child

Custody decisions are always made in the best interest of the child.

5. You Have to Get a Divorce in the State You Were Married In

Under Georgia divorce law, at least one party must establish residency in Georgia for at least six months before they can file a petition for a divorce. The law does not require that both parties must live in Georgia. The petitioning spouse can live in Georgia while the other spouse lives elsewhere.

If the receiving spouse is a nonresident or cannot be located in Georgia, the petitioning spouse should file the divorce in the Superior Court of the county in which they reside. The couple does not have to get a divorce in the state in which they were married.

Contact a Divorce Lawyer in Lithonia, Georgia

E.N. Banks-Ware Law Firm LLC offers legal services for those who are seeking a divorce in Georgia. Attorney Noreen Banks-Ware has the knowledge and experience to help you navigate family law matters with diligence and compassion. Call to get a free case assessment from a divorce lawyer in Lithonia, Georgia. Attorney Banks-Ware proudly serves clients throughout Decatur, Conyers, Covington, McDonough, and Lawrenceville, Georgia.