Separating & Initiating Divorce
Commonly Asked Questions Regarding Separating and Initiating a Divorce:
The non-initiator spouse may be concerned that he or she will be embarrassed or humiliated by being served with divorce papers at his or her place of employment. Service of divorce papers by a process server is not necessary if the spouse agrees to sign a statement acknowledging that he or she has received the papers and is willing to waive service of process. If the spouse is not willing to sign, formal service will be necessary.
Yes. If your spouse cannot be located after a reasonable search, the court may permit you to serve him or her by publishing a notice in the newspaper. You can get divorced, but the court will not be able to order support or divide any marital property.
You are not legally obligated to tell your spouse in advance that you are planning to seek a divorce. However, the best approach, whenever possible, is for you and your spouse to talk openly about the problems in your marriage and the desire of one or both of your for a divorce. Blindsiding your spouse with divorce papers can damage the trust between you and inflame hostilities making settlement negotiations more difficult and your divorce potentially more costly. However, if you have good reason to fear that announcing your decision to divorce will be met with violence, you should not tell your spouse in advance. First meet with your attorney to discuss your particular situation and develop a plan to ensure your safety and the safety of your children. You may need to plan for a safe haven, money for the safe haven, and secrecy.
In most cases, the answer is no. You both have the right to continue to live in the marital home until the divorce is final and the ultimate disposition of the home has been determined. Although you need to be separated to obtain a divorce, courts typically consider spouses separated when they have ceased sexual relations even though they live in the same home. Some couples choose to remain under the same roof while the divorce is in progress to avoid having to pay for a second household. When parents are contesting custody, they sometimes continue living under the same roof as some judges give preference to the parent with whom the children are residing. However, in cases of domestic violence, the court may order the perpetrator to leave the home. Typically, you will need to prove to the court that the abuse occurred, it will probably happen again, it would be more of a hardship on you (and the children) to move than on your spouse, and your spouse has someplace to go.
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