The first step in filing for divorce is establishing where to file the paperwork. In Georgia, all divorces all filed in Superior Court. Most often, an individual will file in the county in which the couple resided. However if one or both spouses recently moved from the matrimonial residence, it can greatly complicate the proceeding. There are three components to consider when deciding where is the proper court to file for divorce. Subject matter jurisdiction, personal jurisdiction, and venue all must be established in order to proceed with a divorce.
SUBJECT MATTER JURISDICTION
The Superior Court will not hear any portion of the case if the court does not have subject matter jurisdiction over the marriage itself. 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. It does not mean the marriage had to take place in Georgia. The court will consider whether an individual is domiciled in Georgia to determine what is bona fide residency. Legally speaking, domicile means: (1) there is a physical residence in Georgia; and (2) the individual has intent to remain in Georgia. Domicile does not necessarily mean that a party has resided in the Georgia residence for six consecutive months.
The Superior Court must also have personal jurisdiction over the parties. Personal jurisdiction is easily established if both parties live in the state. The party who files has necessarily consented to personal jurisdiction. In the event the other party chooses not to submit to personal jurisdiction, it may be necessary to acquire jurisdiction by serving the unwilling party with notice of the complaint, either personally or by publication. There are various ways to serve a party with a complaint depending on whether the party is a resident or nonresident of Georgia.
Georgia’s long arm statute may be used to gain personal jurisdiction over a party who has moved away before the divorce proceeding has commenced. O. C. G. A. § 9-10-91. In order for the long arm statute to extend to the out-of-state party, the party must have sufficient contacts with the state so as not to offend “traditional notions of fair play and substantial justice.” International Shoe v. State of Washington, 326 U.S. 310 (1945).
If jurisdiction cannot be obtained over one of the parties, it does not necessarily defeat the court’s ability to dissolve the marriage. However without personal jurisdiction over both parties, the court cannot decide other important controversies relating to the divorce such as: child support, child custody, or alimony. Once personal jurisdiction is established for the purposes of the divorce, the state continues to retain personal jurisdiction over the parties even if one moves out of state. This can make future modifications to the divorce inconvenient for the party that has left the state.
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. The UCCJEA grants personal jurisdiction over an initial custody proceeding to the child’s home state at the time of commencement or the state in which the child resided within six months of the commencement of the proceeding. O. C. G. A. § 19-9-61
Venue refers to the county in which the divorce is initially filed. The proper venue for the filing is the county courthouse in the county of the defendant’s residence. If the defendant cannot be located or does not live in Georgia, the county courthouse in the county of the plaintiff’s residence will suffice. O. C. G A. § 19-10-93
An exception exists for armed forces members who are not Georgia residents. A service member who has resided on a Georgia military base for one year may file in Georgia. Most often, this requirement is not as helpful because the service member is likely to have already met the six month residency requirement.
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 has the potential to make or break a case. This article is meant to be a starting point for your research but it is strongly advised that you discuss jurisdiction requirements further with your attorney.
If you are facing divorce, and have questions about where would be the best place to file your case, call us at 770-609-1247 to discuss how we can best assist you.