Every case is different and there are many reasons why a judge might not be able to do what you have asked – like grant your divorce.
One common reason that a judge cannot act is because your lawsuit was filed in the wrong place. There’s a proper place for everything, including divorce. You could be in the wrong courtroom or the wrong building. If so, those mistakes are easily fixed.
You might be in the wrong court. That’s unlikely, because the clerks at the Magistrate, Probate, Juvenile or State Courts mostly likely would not allow you to file your divorce there. They know that Superior Court is the appropriate court for divorce.
More often, people have filed in Superior Court and appear at their court date only to get the bad news that they’ve filed in the wrong county and will have to start their divorce all over again in the correct county. If this happens, a lot of time and money has been wasted. Here’s how you can avoid it.
Before you file your divorce lawsuit, be sure that you’re filing it in the correct county (or venue). This can be a little tricky and you should consult an attorney to be sure.
Here’s one way to figure out where to file your divorce. It’s all based on the date that you file the lawsuit.
Let’s assume(*) that:
- You are going to file your divorce today; and,
- Both you and your partner have resided in Georgia for at least the past six (6) months
If these assumptions are met, then ask yourself these important questions, in this order:
What is your county of residence and what is your partner’s county of residence?
If you live in the same county, then you file your divorce in the Superior Court of that county. Georgia Constitution (2013 Edition), Article VI, Section II, Para. 1. Phew, that was easy.
If you reside in different counties, it gets a little trickier. Ask:
What county did the two of you last live in together (eg, the county of your marital residence)?
If neither of you currently resides in the county of your marital residence, then you file in the Superior Court of your partner’s county.
If your partner resides in the county of your marital residence, then you file in the Superior Court of your partner’s county.
If you still reside in your marital residence, then you might have a choice. It is always correct to file in the Superior Court of your partner’s county. But you can ask one more question to see if you have another option.
When did your partner leave the marital residence?
If it was less than six (6) months before you file the divorce, then you can file EITHER in the county of your marital residence OR in your partner’s county.
Which should you chose? It may or may not make a difference. Whether one county is preferable to another depends on a lot of factors. It’s a great question for a lawyer who practices in both counties. Ask for the pros and cons of each county so that you can make the best decision on where to file. Just make sure you do it before the six-month window expires.
Here’s another strategic consideration if the two of you reside in different Georgia counties: because venue is always proper where the defendant resides, then you can choose which of you will be the defendant. In other words, if you want the lawsuit to be heard in your county, then your partner can file it there. And vice versa.
In a contested or litigated divorce, whether to rush to the courthouse to file the lawsuit first, or wait and hope that your opponent files first, becomes a matter of strategy. If you file, the lawsuit will be in your partner’s county; if you wait and your partner files, then the lawsuit will in in your county.
(*)NOTE: these are big and important assumptions. If your situation is different, then the information will not apply. There are many other possible scenarios that have different assumptions and result in a different venue. For example, you or your partner may no longer reside in Georgia, or you or your partner might reside on a military post or reservation in Georgia. There are different rules for those cases.
Authored by Cynthia L. Patton, Esq. This blog post is for informational purposes only and does not constitute legal advice. You should consult your own attorney for specific legal advice.
