The first step in filing for divorce is establishing the jurisdiction, which is where the paperwork can be filed. Under Georgia law, all divorces are filed in Superior Court. Generally, individuals interested in getting a divorce file in the county where the couple resides. However, the case proceeding can become complicated if one or both spouses recently moved from matrimonial residence. To determine the proper court to file for divorce, three (3) components must be considered:
- Personal Jurisdiction,
- Subject Matter Jurisdiction, and
To hear a divorce case, the Superior Court must have personal jurisdiction over the parties in the case. Personal jurisdiction can be established if both of the parties reside in the same state. The party filing the divorce consents to personal jurisdiction. If however, the other party chooses not to submit to personal jurisdiction, personal jurisdiction may be established by serving the party with a notice of the complaint personally or by publication. Party can be served in various ways, depending on if the party is a resident or Georgia nonresident.
Under the long arm statute, personal jurisdiction may be established over a party who has moved away before the divorce proceeding has commenced. O.C.G.A. § 9-10-91. However, for long arm statute to extend to the out-of-state party, the party must have sufficient contacts within the state of Georgia as to not offend “traditional notions of fair play and substantial justice.” International Shoe v. State of Washington, 326 U.S. 310 (1945).
Regardless, the Superior Court has the ability to dissolve the marriage, even if it cannot obtain jurisdiction over one of the parties in a limited manner. The Superior Court will not have the jurisdiction to decide big issues relating to divorce such as: child support, child custody, or alimony. It is important to keep in mind, however that once personal jurisdiction is established for the purposes of divorce, the state retains personal jurisdiction even if one moves out of the state.
PERSONAL JURISDICTION TO DETERMINE CHILD CUSTODY
In issues of child custody in Georgia, and in every other state but Massachusetts, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is the governing law. UCCJEA gives jurisdiction for custody cases to the location that is closely associated with the child. In Georgia, the circuit (Superior Court) court has the jurisdiction to hear child custody cases. However, the Court has the power to override the jurisdiction if the Court believes it will not be in child’s best interest.
To determine jurisdiction for a child custody case in Georgia, several guidelines are established under O. C. G. A. § 19-9-61:
- Georgia is the home state of the child, as the child lives in the state, goes to school in the state, and the parent has sufficient contact with the state. The parent works, votes, lives, and pays taxes in Georgia.
- Georgia is child’s home state within last sixth months and parent filing for child custody continues to live in Georgia and child is absent from the state because another person took them out of Georgia claiming custody.
- The child and at least one of the parents have significant connection with Georgia. Georgia is the state where most records and witnesses are present to give evidence of child’s present or future care, protection, and training and personal relationships.
- The child is physically present in Georgia and was abandoned or emergency protection is necessary (the child was threatened or subjected to abuse or neglect).
- No other state would have jurisdiction based on 1,2,3, or 4 above.
- Another state says Georgia has jurisdiction.
SUBJECT MATTER JURISDICTION
Unless the court has Subject Matter Jurisdiction over the marriage itself, the Superior Court will not hear any portion of the case. The state of Georgia requires: (1) a valid marriage; and (2) six months of bona fide residency preceding the commencement of the filing in order for the Superior Court to have jurisdiction over the proceeding.
A valid marriage refers to a marriage recognized by the state of Georgia. A valid marriage is not required to take place in Georgia. To determine what is called as Bona Fide residency, the court will consider whether an individual is domiciled in Georgia. Domicile simply means: (1) there is a physical residence in Georgia; and (2) the individual has intent to remain in Georgia. However, domicile does not necessarily mean that a party has resided in the Georgia residence for six (6) consecutive months.
The Court also looks at the proper venue when determine divorce proceedings. Under O.C.G.A. § 9-10-93, venue refers to the proper county within the State of Georgia to hear a particular case. As a constitutional mandate, the defendant is entitled to be sued in the county where he or she resides. However, exceptions do exist sometimes. A divorce may be filed in the county of residence of the plaintiff if the defendant has moved from that same county within six month from the date of filing and this county was the site of the marital residence at the time of separation).
It is important to keep in mind that personal jurisdiction and venue defenses can be waived expressly by agreement or by failing to file a timely answer or motion. In uncontested divorce cases, this is frequently done by the signing of an “Acknowledgment of Service” by the defendant. Although jurisdiction is one of the most basic elements of a proceeding, it can be quite confusing and is a complicated aspect of the law. Jurisdiction can make or break a case; and when not seriously considered it can be a costly and time consuming mistake.
Interested in getting a divorce, and do not know where to start? This article is written as a starting point for your research, and it is strongly advised that you discuss jurisdiction and venue requirements further with your an experienced divorce and family law attorney. Call us today at 770-609-1247 to speak with one of our experienced divorce and family law attorneys.