A Georgia Divorce Attorney Answers Your Questions
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What is the Difference Between a Divorce and an Annulment?
This is Dave Ward from the Ward Law Firm and I help protect business owner whose facing divorce.
And in this series, we’re talking about the three questions I am asked most frequently as well as the four questions that people should be asking when they sit down with an attorney.
Right now, we are on question number two, and the question number two is: What is the difference between a divorce and an annulment? Frequently when people contact my office, I first ask questions about whether or not they can get an annulment because there is a perception that an annulment is better than a divorce. And in some respects it can be usually for religious reasons but the difference between a divorce and an annulment has to do with what it is the court is actually decide.
In the case of the divorce, the court is ruling that a valid marriage is going to be dissolved and the parties are going to be treated as though they’re no longer bound by the bonds of marriage, so that’s a divorce.
An annulment by contrast is a determination by the court that a divorce isn’t necessary because the marriage itself never actually existed. In other words, it was void right from the beginning. And some of the grounds for that. We talked about a little bit in our first video because they can be both ground for divorce or an annulment and the best example would be a marriage that is procured through fraud upon one of the parties. In that case, fraud, as a general rule, is a defense is a case that involved a contract and marriage is treated by the law as a contract between the two parties. So that can actually be one of the grounds to assert for an annulment if that’s what it is we’re choosing to seek.
As a practical matter, it is interesting to note that Georgia, like virtually all other states does not favor annulments. And the court is going to view a request for annulments with a very skeptical eye. And there are reasons for that and there are actually even circumstances where you keep getting even if you otherwise qualify. And the example of that is if children were born during the course of the period of time that the party’s thought they were married even if it turns that that marriage was void for some technical reason or procure to fraud, etc., thus State of Georgia is not going to allow that to be treated as an annulment. They’re going to require that you go through the divorce process. So that is some of the difference, there are many more differences between a divorce and an annulment but the big overarching one has to do with what it was that the court is deciding that is, are we dissolving, in otherwise valid marriage or we making a declaration that no marriage ever actually existed.
Is Georgia a fault or no-fault Divorce State?
Hi, I’m Dave Ward from the Ward Law Firm and I help protect the business owner who’s facing divorce.
In this series, we’re going to be talking about the three most frequently asked questions I get when people are facing a divorce in Georgia as well as the four questions that people should be asking. The first one that I hear most often is, “is Georgia an at fault or not fault divorce state?” and the answer is both.
In Georgia, there are 13 independent grounds that are recognized for divorce. Twelve of those grounds are considered to be fault grounds. So we’re going to discuss the 13 different grounds that Georgia recognizes for divorce and go very quickly over each one of those.
The first round recognized by Georgia is called the intermarriage by persons within the prohibited degrees of affinity. What does that mean? Well in English, that means the parties were too closely related by blood. We’ve all heard the term kissing cousins. Well, believe it or not, there are such things that the law addresses under what circumstances people are too closely related in order to be married.
The second has to do with the mental incapacity of one of the parties at the time that the marriage occurred and this really impart goes to the validity of the marriage because in order to form the marital “contract,” both parties have to be capable of making sound decisions about that. So when somebody is incapable or mentally incapacitated, they don’t have the right at that particular time to enter into the marriage relationship so that is one of the grounds recognized.
The third ground recognized and it’s pretty self-explanatory is impotency at the time of marriage.
The fourth has to do with force, menace, duress or fraud in obtaining the marriage and again, these are things that can verify the actual validity of the marriage but what this has to do with is taking somebody and compelling them to do something that they otherwise would not have done.
The fifth ground is pregnancy of the wife by a man other than the husband at the time of the marriage unknown by the husband. This is a ground for divorce for situations that have arisen in the past where somebody is told that they are going to be the father of a child they end up deciding that they want to get married only to find out that the child really was not theirs at all to begin with.
The sixth ground is one that is most commonly thought of by people and that’s adultery by either of the parties after the marriage has occurred.
Number seven is desertion by either of the parties for a term of one year or more. What’s important to know about both number six and number seven is there are some specific consequences that relate to alimony if either one of these is determined to be the cause of the dissolution of the marriage. For example if one party commits adultery and that is determined to be the cause for the dissolution of the marriage, that party cannot as a matter of law get alimony. The same would also apply in a desertion case. So those are two particularly interesting things about those two.
The eighth ground for divorce is the conviction of either party for an offense involving moral turpitude and under which he/she is sentenced to a term of imprisonment of two years or more. This often leads to the question what is an offense involving moral turpitude and generally without getting too specific, that has to do with crimes that involve demonstrations of poor character. There are a number of crimes that you can actually commit not intending to and not meaning to that just sort of happened. One example of that’s commonly used is sometimes a speeding ticket or some other type of driving offense because those are strict liability offenses. That doesn’t mean that you’re a bad person, it just means you had violated some provision of law whereas those that involve actual character of flaws.
The ninth and this is actually also related to the 12th is habitual intoxication by one of the parties.
Number 10 is cruel treatment by one of the parties and cruel treatment as defined by the law is treatment that either involves the willful infliction of pain or bodily or mental injury upon the other party whose filing asserting that as a ground provide as such reasonably justifies and apprehension of danger to life, limb or health. These are read extremely broadly by the court and in fact it’s very common for a situation where somebody searched the ground of adultery to also assert cruel treatment because that is considered mental cruelty particularly if the other party’s advertising to the other spouse that they are in the process of committing adultery or have committed it, etcetera.
Number 11 is incurable mental illness and one very interesting thing about this is unlike virtually every other type of ground to assert for divorce when asserting a ground for incurable mental illness, it is often decided by the courts that you never lest have to continue to support that person throughout their life.
Number 12 as I said is related to number 9 and number 12 – the habitual drug addiction by one of the parties. Those are what are considered to be the fault grounds for divorce in Georgia.
Number 13 – is no fault as a practical matter, the one that is usually the basis for almost all of the divorces that are granted in Georgia today – and that is that the marriage is irretrievably broken with no hope of reconciliation.
So in answer to our question about whether or not Georgia is a fault or no fault state, as you can tell from the foregoing list, Georgia is actually both.