INSTRUCTIONS FOR FILING A COMPLAINT FOR DIVORCE WITHOUT MINOR CHILDREN

Transcription

1 INSTRUCTIONS FOR FILING A COMPLAINT FOR DIVORCE WITHOUT MINOR CHILDREN GENERAL COMMENTS This is the packet fr peple wh want t file their wn divrce in Cbb Cunty, and wh d nt have any minr children tgether with their spuse. If yu and yur spuse have minr children tgether, yu must nt use this frm packet. Instead, yu must use the versin called Cmplaint fr Divrce with Minr Children. Please read these instructins and each individual frm very carefully. Missing r misreading a wrd culd cause yu t make serius errrs in yur case, putting yur rights and the directin f yur divrce case in jepardy. INTRODUCTION In the State f Gergia, if yu want t end yur marriage, yu must file a Cmplaint fr Divrce in the Superir Curt. There are tw ptins available t yu fr filing a divrce case: (1) yu can hire a lawyer wh will prepare yur paperwrk and represent yu in curt, r (2) yu can use the frms included in this packet and represent yurself in curt. After a curt grants yur divrce and issues a Final Judgment and Decree f Divrce, yu will be legally able t remarry. It is advisable t speak with a lawyer befre filing any actin with the Curt; this divrce is n exceptin t that rule. There are ften mre issues invlved in a divrce than yu might realize if yu fail t get legal advice. Hwever, yu may want t review the frms and instructins in this packet befre yu talk t a lawyer, s that yu will be able t make the best use f yur time with the lawyer. Disslutin f a marriage can be a very cmplicated prcess. If dcuments are nt cmpleted, signed, ntarized and filed as prescribed by law, the divrce pleadings are nt in cmpliance with the law, a judge cannt grant yur request fr divrce, and may dismiss yur case. If yu want a curt t grant yur divrce, yu must fllw the law and yu must cmplete each and every paragraph that applies t yur case (but nt any paragraph that des nt apply t yur case). Please read and cmplete the steps listed in this packet in rder t finalize, file, and serve yur cmplaint fr divrce. State law, O.C.G.A , prhibits curt persnnel (including staff attrneys, law clerks, calendar clerks, Clerk s Office staff, and Sheriff s Department staff) frm giving legal advice r answering legal questins. This rule als applies t the Cbb Cunty Law Library. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 1 f 14

2 YOU MAY ESPECIALLY NEED AN ATTORNEY IF: The case is cntested OR an attrney represents yur spuse. Yu r yur children are victims f family vilence against yu by yur spuse. Yu are unable t lcate yur spuse fr purpses f having him/her served with this actin. Yu and yur spuse have a huse, pensin, r large amunt f prperty r incme t be divided. Yu think yu may have difficulty getting financial infrmatin frm yur spuse. Whether yur case is cntested r uncntested, yu shuld speak with a lawyer befre signing a Settlement Agreement r filing any ther dcuments with the Curt. FORMS NEEDED TO START YOUR DIVORCE: If this divrce actin may be cntested (meaning that yu d nt have a signed Settlement Agreement), yu must file the fllwing dcuments alng with the Cmplaint: (a) Cmplaint fr Divrce (b) Verificatin (c) Summns (d) Dmestic Relatins Financial Affidavit (f) Dmestic Relatins Case Filing Infrmatin Frm (g) Sheriff s Entry f Service OR Acknwledgment f Service OR All f the fllwing publicatin paperwrk: (1) Affidavit f Diligent Search (2) Ntice f Publicatin, and (3) Order f Publicatin, Return f Service, Order Perfecting Service (h) Ntice f Lis Pendens (if applicable) We suggest that yu cnsult an attrney if yu think yu need this frm. (i) Rule Nisi (nly if yu want a hearing n temprary issues) (j) Affidavit f Pverty and Order n Affidavit f Pverty (if applicable) Nte: Only use this frm if yu are indigent and cannt affrd t pay the filing and service fees. See the list f fees enclsed with this packet. All f these frms are included in this packet r are available frm the Cbb Cunty Law Library, except fr Sheriff s Entry f Service and Dmestic Relatins Case Filing Infrmatin Frm, which are available at the Superir Curt Clerk s Office. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 2 f 14

3 If this actin is uncntested (meaning yu have a signed Settlement Agreement), yu must file the fllwing dcuments with the Cmplaint: (a) Cmplaint fr Divrce (b) Verificatin (c) Summns (d) Dmestic Relatins Financial Affidavit (f) Dmestic Relatins Case Filing Infrmatin Frm (Clerk s Office) (g) Acknwledgment f Service, Cnsent t Jurisdictin and Venue, and Cnsent t Present Case (riginal signed by Defendant and ntary public) OR Acknwledgment f Service (riginal signed Defendant and ntary pubic) (h) Ntice f Lis Pendens (nly if applicable) Nte: It is unlikely that yu will need this dcument if yu have a signed Settlement Agreement (see instructins fr Paragraph 9 f the Cmplaint). We suggest that yu cnsult an attrney if yu think yu need this frm. (i) Rule Nisi (nly if yu want a hearing n temprary issues) Nte: It is unlikely that yu will need this dcument if yu have a signed Settlement Agreement. (j) Affidavit f Pverty and Order n Affidavit f Pverty (nly if applicable) Nte: Only use this frm if yu are indigent and cannt affrd t pay the filing and service fees. See the list f fees enclsed with this packet. (k) Settlement Agreement (signed befre ntaries by bth parties) All f these frms are included in this packet r are available frm the Cbb Cunty Law Library. FORMS NEEDED AT THE FINAL HEARING TO FINISH YOUR DIVORCE: If yu d nt have a signed Settlement Agreement, yu will need the fllwing frms when yu g t the final hearing in yur divrce: (a) Final Judgment and Decree f Divrce With Minr Children (Withut Settlement Agreement) (b) Dmestic Relatins Case Dispsitin Frm (Clerk s Office) If yu have a signed Settlement Agreement, yu will need the fllwing frms when yu g t the final hearing yur divrce: (a) Final Judgment and Decree f Divrce Incrprating Settlement Agreement (b) Dmestic Relatins Case Dispsitin Frm (Clerk s Office) All f these frms are included in this packet r are available frm the Cbb Cunty Law Library r the Clerk s Office. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 3 f 14

4 The fllwing are detailed instructins n hw t cmplete and file this Cmplaint fr Divrce Withut Minr Children, as well as sme f the related dcuments. (Read these instructins carefully and mre than nce, if necessary). STEP 1: PETITION FOR DIVORCE Captin (Heading): Fill in yur name as the Petitiner and yur spuse s full name as the Defendant. Leave the Civil Actin Case Number blank. The clerk will assign a number t yur case when yu file yur Petitin in the Clerk s Office. After cmpleting the heading, write yur full name again in the space prvided just befre Paragraph 1. Paragraph 1: Subject Matter Jurisdictin (a) (b) Check bx a if yu have been a resident f the State f Gergia fr at least six (6) mnths immediately befre filing yur Petitin fr Divrce. (It is nt gd enugh if yu used t live in Gergia in the past, mved away, and have returned mre recently than six mnths ag.) Check bx b if yu are nt a resident f the State f Gergia, but yur spuse has been living in Gergia fr at least the past six (6) mnths. (It is nt gd enugh if yur spuse used t live in Gergia in the past, mved away, and has returned mre recently than six mnths ag.) Paragraph 2: Venue Nte: If yu live in Gergia, but nt lived here fr a full six mnths, but yur spuse has been living here fr at least the past six mnths, yu may still use this Cmplaint and file in Gergia. If this is the case, yu shuld check bx b and crss ut the first eleven wrds ( I am nt a resident f the State f Gergia, but ), s that the sentence is accurate. The issue f venue in a divrce actin is very cmplicated. It is als very imprtant since the divrce may be defective if venue is nt addressed prperly. Read these instructins very carefully. If yur situatin des nt seem t fit any f the chices exactly, yu shuld talk t a lawyer. Yu may nt be able t file yur case in Cbb Cunty r yu may need t make particular changes t this frm. (a) (b) Check bx a if the Defendant currently resides in Cbb Cunty. Check bx b if all f the fllwing are true: (1) The Defendant is nt a resident f Cbb Cunty, but resides in Gergia; (2) The tw f yu lived tgether in Cbb Cunty at the time yu separated; (3) Yu still live in Cbb Cunty; and (4) The Defendant has mved ut f Cbb Cunty nly within the past six (6) mnths prir t yu filing this Cmplaint fr Divrce. (c) Check bx c if the Defendant des nt live in Cbb Cunty and did nt live with yu in Cbb Cunty at yur time f separatin, but currently resides in Gergia. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 4 f 14

5 (d) Check bx d if yu live in Cbb Cunty and the Defendant des nt live in Gergia. Then check number (1), (2), r (3) in the same paragraph. (If bth 1 and 3, r 2 and 3 apply, check nly 3.) (1) Check bx 1 if the Defendant was a resident f Cbb Cunty, but currently resides in anther state (enter the name f the state in the space prvided), and the Defendant is subject t the persnal jurisdictin f the Curt under Gergia s Lng Arm Statute. (See O.C.G.A [5]). (2) Check bx 2 if the Defendant has never resided in the State f Gergia and currently resides in anther state. Enter the name f the state in the space prvided. (3) Check bx 3 if the Defendant des nt live in Gergia, but has acknwledged service f prcess and has cnsented t the jurisdictin f the Curt. If yu check this bx, yu must file the riginal signed and ntarized frm entitled Acknwledgment f Service, Cnsent t Jurisdictin and Venue, and Cnsent t Present Case (this is ne frm) with this Cmplaint. (e) Check bx e if yu reside in Cbb Cunty, but yu d nt knw where the Defendant lives. Yu must prve t the Curt that yu have tried t lcate the Defendant and cannt find him r her. Yu must als file the riginal signed and ntarized Affidavit f Due Diligence with this Cmplaint. In that Affidavit, yu will explain t the Curt abut the steps yu tk t try t find the Defendant. Nte: In this situatin, yu will have t serve the Defendant by publicatin. (See Paragraph 3-c belw). That means yu will nt be able t get certain kinds f relief as part f the divrce, such as child supprt and alimny. Hwever, if the Defendant later acknwledges service, gets served by the Sheriff, r files an Answer t the divrce, then yur case will nt be limited by the restrictins that apply t publicatin cases. Paragraph 3: Service f Prcess (a) Check bx a if the Defendant has acknwledged Service f Prcess. If yu check this bx, yu must als file the riginal signed and ntarized Acknwledgment f Service. (b) Check bx b if yu want the Sheriff s Department t serve the Defendant with this Cmplaint and the ther curt papers. Yu must fill in the address where the Defendant shuld be served and circle whether this is a hme r wrk address. (1) Check bx b-1 if the Defendant lives utside f Cbb Cunty and yu want the Sheriff s Department t serve him r her. If yu check this bx, yu must infrm the Clerk s Office (when yu file the case) that the ther party must be served by secnd riginal. The clerk will stamp the service cpy f yur papers as a secnd riginal. (c) Check bx c if yu d nt knw where the Defendant lives and yu are serving him r her by publicatin. Write the Defendant s last knwn address n the lines prvided. Yu must als file the riginal signed and ntarized Affidavit f Due Diligence with this Cmplaint. In that Affidavit, yu will explain t the Curt abut the steps yu tk t try t find the Defendant. T find mre infrmatin abut Service f Prcess, read Step 7 f these instructins. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 5 f 14

6 Paragraph 4: Date f Marriage (a) Check bx a if yu and the Defendant were married with a license and a ceremny, such as ne by a clergyman r by a judge at the curthuse. Write the date f the marriage in the space prvided. (b) Check bx b if yu and the Defendant did nt have a marriage license and a ceremny, but yu believe yu have established a cmmn law marriage. Under Gergia law, this generally means that yu and the Defendant lived tgether and held yurselves ut as husband and wife befre January 1, Write the date yu began yur cmmn law marriage in the space prvided. Paragraph 5: Date f Separatin In the space prvided, write the last date that yu and the Defendant separated and remained separated up t the present time. Prvide nly ne date. If yu and the Defendant have separated, gtten back tgether, and then separated again, use the date f the mst recent separatin. Paragraph 6: Settlement Agreement Check this bx nly if yu and the Defendant have signed a Settlement Agreement telling the Curt the arrangements cncerning yur minr children (such as custdy, visitatin, child supprt, medical expenses, r insurance), hw yu will divide yur jint and marital prperty and debts, and hw yu will reslve any ther issues between the tw f yu. The parties must agree vluntarily and this dcument must be signed by bth parties in frnt f a ntary public. Paragraph 7: Minr Children (a) Check bx a if yu hand the Defendant d nt have any minr children tgether (by birth r adptin). (b) Check bx b if yu and the Defendant have minr children tgether. STOP HERE. If yu and the Defendant have minr children tgether, yu must use a different cmplaint frm, entitled Cmplaint fr Divrce With Minr Children. Paragraph 8: Alimny Nte: If yu want alimny, but d nt have prf f the Defendant s incme, yu shuld see a lawyer. There are prcedures called discvery that may be used t try t determine the incme. The key issue in deciding alimny is the incme f bth parties. (a) Check bx a if yu are financially dependent n the Defendant and want the Curt t rder the Defendant t pay alimny fr yur supprt. (b) Check bx b if yu are nt asking the Curt t rder alimny payments fr yur supprt. (c) Check bx c if this issue cannt be decided by the Curt in this divrce actin because the Curt cannt get persnal jurisdictin ver the Defendant. (See the instructins abve fr Paragraph 2-e.) Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 6 f 14

7 Paragraph 9: Marital Prperty Ntes: All prperty that was acquired by either party during the marriage is cnsidered marital prperty (n matter whse name is n the title), except fr gifts and inherited prperty. If the marital hme r ther real estate is titled in the Defendant s name alne (r yu are nt sure whse name is n the prperty deed), yu must file a separate dcument called a Ntice f Lis Pendens. If yu d nt file a Lis Pendens, and the prperty is sld befre the divrce becmes final, yu will nt be able t get the hme (r a share f it) as part f the divrce because it will be gne. See a lawyer if this may apply t yur case. If the marital hme belnged t ne f the parties befre the marriage, it still may be claimed as marital prperty if its value has increased (r the mrtgage has decreased) during the marriage. See a lawyer if this may apply t yur case. If yu r the Defendant have rights t a pensin that have built up during the marriage, the pensin may be cnsidered marital prperty. Figuring ut the value f a pensin (and writing the prper QDRO rder if it is distributed in the divrce) is very cmplicated. See a lawyer if this may apply t yur case. If yu think the Defendant may have acquired assets during the marriage that are unknwn t yu, the law has prcedures t use (called discvery ) t try t find ut abut thse assets. If it is imprtant t yu t try t learn mre abut the Defendant s assets, yu shuld see a lawyer. (a) (b) (c) Check bx a if yu and the Defendant have already divided yur marital prperty and yu are bth satisfied with the divisin. Check bx b if yu and the Defendant did nt acquire any prperty during yur marriage (r if the prperty is already all gne). Check bx c if yu and the Defendant did acquire prperty during yur marriage and yu are asking fr a fair divisin f that prperty. Nte: If yu check this bx, yu must prvide the Curt with infrmatin abut the prperty that yu and the Defendant have acquired at any time during the marriage. Use the spaces prvided under bx c t describe the prperty and check each bx that applies. Use additinal paper if necessary, and attach the paper t this Cmplaint, between pages 8 and 9. Carefully read the Ntes abut Marital Prperty sectin at the beginning f the instructins fr Paragraph 21. (d) Check bx d if this issue cannt be decided by the Curt in this divrce actin because the Curt cannt get persnal jurisdictin ver the Defendant. (See the instructins abve fr Paragraph 2-e.) Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 7 f 14

8 Paragraph 10: Jint r Marital Debts Nte: Creditrs are nt parties in yur divrce cases. Cnsequently, the Curt cannt take away creditrs rights in the divrce. This means that the Curt cannt prevent creditrs frm trying t cllect frm any persn wh is liable t a particular debt. Hwever, the Curt can enter an rder in the divrce case that says ne party r the ther must pay a particular martial debt. If the respnsible party des nt pay as rdered, s/he may be held in cntempt. (a) (b) (c) Check bx a if yu and the Defendant d nt have any jint r marital debts. Check bx b if yu and the Defendant have jint r marital debts. In the spaces prvided, list each creditr (fr example, Visa, MasterCard, etc.), the balance wed, and wh yu believe shuld pay each debt. Use additinal paper if necessary, and attach it t the Cmplaint between pages 9 and 10. Check bx c if this issue cannt be decided by the Curt in this divrce actin because the Curt cannt get persnal jurisdictin ver the Defendant. (See the instructins abve fr Paragraph 2-e.) Paragraph 11: Restraining Order Where Vilence Has Occurred D nt check this bx if there has nt been any histry f vilent acts against yu by the Defendant. Check this bx nly if there has been a histry f vilence by the Defendant tward yu, and yu are afraid that the Defendant will cntinue the vilent acts r harassment against yu. The restraining rder in a divrce is nt enfrceable by warrantless arrest. It can nly be enfrced by a Mtin fr Cntempt. Nte: If there has been recent vilence (r past vilence plus a recent threat t renew that vilence), yu shuld cnsider filing a Temprary Prtective Order (TPO) immediately. A TPO prvides much strnger and faster prtect than a restraining rder in a divrce case. There is n charge fr filing a TPO petitin, and free help is available fr filing ne. Cntact the Wmen s Resurce Center at t get mre infrmatin abut TPOs. Paragraph 12: Restre Frmer Name Check this bx nly if yu want the Curt t restre yur frmer r maiden name. On the space prvided, write the name yu want t have restred. Nte: This is nt a name change actin and cannt be used fr anyne except the wife r husband in this divrce actin. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 8 f 14

9 Paragraph 13: Grunds fr Divrce Check nly the bxes that yu can prve in curt if yur case ges t trial. (a) (b) (c) (d) (e) Check bx a if there is n hpe that yu and the Defendant can save this marriage. This is the language fr grunds in mst cases, and may be the nly grunds yu chse. It is the basis fr granting a divrce when fault is nt prven. It can and shuld als be used as a back-up, if yu check ther grunds based n sme kind f fault. Check bx b if the Defendant has cmmitted acts f cruelty against yu. On the spaces prvided, yu must tell the Curt what cruel acts the Defendant did t yu. Check bx c if the Defendant had sexual relatins with smene else while yu have been married t each ther. Check bx d if the Defendant left yu intentinally and has nt cme back fr at least a year. Check bx e if yu can prve and want t state ther grunds fr divrce. Yu must research the law under O.C.G.A , and tell the Curt what ther grunds fr divrce yu are asserting. Use the space prvided r attach additinal paper between pages 10 and 11. Final Paragraph: Request fr Relief Check nly the bxes that apply. (a) (b) (c) (d) (e) (f) Check bx a if yu want the Curt t grant yu a ttal divrce frm the Defendant. Make sure yu have als cmpleted Paragraph 13. Check bx b if yu want the Settlement Agreement signed by yu and the Defendant t be incrprated in the Final Judgment and Decree f Divrce. Make sure yu have als cmpleted Paragraph 6 and that bth parties have signed the Settlement Agreement in frnt f a ntary public. Check bx c if yu want the Curt t rder the Defendant t pay alimny fr yur supprt. Make sure yu have cmpleted Paragraph 8. Check bx d if yu want the Curt t divide the marital prperty as described in Paragraph 9. Make sure yu have crrectly and cmpletely filled ut Paragraph 9, after carefully reading the ntes at the beginning f the instructins fr that paragraph. Check bx e if yu want the Curt t assign respnsibility fr payments f jint r marital debts as described in Paragraph 10. Make sure yu have crrectly and cmpletely filled ut Paragraph 10, after carefully reading the ntes at the beginning f the instructins fr that paragraph. Check bx f if yu want the Curt t temprarily and permanently restrain the Defendant frm harassing yu r cmmitting any further acts f vilence tward yu. Make sure yu have cmpleted Paragraph 11. (g) Check bx g if yu want the Curt t restre yur frmer r maiden name accrding t Paragraph 12. Make sure yu have cmpleted that paragraph. (h) (i) Check bx h if yu want the Curt t schedule a Rule Nisi (hearing n temprary issues). Cmplete a Rule Nisi frm fr the Curt t cmplete and sign. See additinal infrmatin abut this in Step 8 belw. Check bx i as a back-up t allw fr any ther relief the Curt finds apprpriate in yur case. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 9 f 14

10 Signature and Date T finish the Cmplaint frm, add the date n which yur are signing it, sign yur name in the space prvided n the last page, write yur address and a daytime telephne number where the Curt staff culd reach yu if necessary. Hwever, if yu are living in a shelter fr victims f family vilence, d nt list the address f the shelter. Instead, yu shuld write anther address where yu can be sure that yu will receive any infrmatin that is mailed t yu by the Curt r the Defendant. STEP 2: VERIFICATION FORM The Verificatin frm must be filled ut with the Cmplaint fr Divrce. In the captin, insert yur name as the Plaintiff and yur spuse s name as the Defendant. D nt fill in the Civil Actin Case Number. The clerk will assign a number t yur case when yu file yur case in the Clerk s ffice. Insert yur name in the space underneath the wrd Verificatin, which is the title f this dcument. In the next space, insert the title f the dcument yu are verifying as true, which is Cmplaint fr Divrce Withut Minr Children. Befre yu sign this Verificatin, remember that yu will be swearing under ath that the infrmatin yu have prvided in the Cmplaint fr Divrce is true. Yu shuld re-read the Cmplaint ne mre time, frm start t finish, t make sure it is all true. Then take the Cmplaint and this Verificatin t a ntary public. (See pages 2 and 3 abve t find ut the ther frms yu will need t have ntarized.) Sign yur name in frnt f the ntary public in the space prvided, and check the bx t indicate that yu are the Plaintiff. The ntary must cmplete the rest f the Verificatin frm after yu sign it under ath. The staff at the Cbb Cunty Superir Curt Clerk s Office can ntarize this dcument fr free, but yu must have prper identificatin. STEP 3: OTHER DOCUMENTS & COPIES T start yur divrce case, yu must cmplete and file several ther frms in additin t the Cmplaint and Verificatin. Sme f these frms need t be signed in frnt f a ntary public. (The frms yu will need are listed n pages 2 and 3 f these instructins.) After yu have finished filling ut all f the required papers t start yur case, and all have been signed (in frnt f a ntary public where required), make tw (2) cmplete sets f cpies f all papers that yu are ging t file. Then, separate the cpies int three packets: (1) all f the riginals fr the curt, (2) ne set f cpies fr yur spuse (called the service cpy ), and (3) ne set f cpies fr yu t keep fr yur wn recrds. STEP 4: FEES The curt filing fee fr a divrce actin may be btained frm the Superir Curt Clerk s Office. Yu shuld cntact smene in that ffice t determine what frms f payment are acceptable. The phne number t the Superir Curt Clerk s Office is In additin, there is a service fee f $25.00, if the Cbb Cunty Sheriff s Department is ging t serve this actin. Please nte that this fee is subject t change. Nte: If yu have a lw incme and feel that yu cannt affrd t pay these fees, yu can ask the Curt t waive the curt filing fee and service fee. T d this, yu shuld file the Pverty Affidavit and Order n Pverty Affidavit frms alng with yur ther frms that yu have taken t the Clerk s Office. A judge must sign the Order apprving the Pverty Affidavit, befre the filing f yur case can be cmpleted by the Clerk s Office staff. If the judge signs the rder f apprval, bth the filing fee and the service fee are waived. If the judge des nt apprve yur Pverty Affidavit, yu must pay all fees befre yu case will prceed. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 10 f 14

11 If yu are serving the Defendant by publicatin (because yu d nt knw where she r he can be fund fr service), there is a publicatin fee charged by the newspaper that publishes the ntice. This fee will have t be paid separately frm the Clerk s Office fees. Even if the judge apprves yur Pverty Affidavit, yu will have t pay this fee f $80.00 (subject t change) t The Marietta Daily Jurnal. Please nte that the fee amunt is subject t change. STEP 5: FILING After yu have cmpleted, signed (in frnt f a ntary, where applicable), cpied, and srted all f yur paper wrk, yu are ready t file yur case. Take all three (3) sets f frms (with the Curt s set n tp), alng with yur case r mney rders t pay the fees, t the Cbb Cunty Superir Curt Clerk s Office. Give all three sets f dcuments t the clerk. Tell the clerk if there have ever been cases abut yu in this curt s that the case can be assigned t the prper judge. If yur paperwrk is cmplete, the clerk will keep the riginals fr the Curt s file. Once yur fees have been paid r a Pverty Affidavit has been apprved by the judge, the clerk will write the case number n the tp f the set f yur cpies, stamp them, and return them t yu. Keep these cpies fr yur recrds. Yur divrce case has nw been filed, but yu still need t arrange fr service (unless yu have filed an Acknwledgment f Service). Yu shuld use the third set f cpies fr service. STEP 6: SERVICE Service is the required frmal prcess f ntifying the Defendant that the divrce actin has been filed. There are three ways fr service t be cmpleted: (1) the Defendant signs an Acknwledgment f Service, (2) service by the Sheriff s Department r ther apprved prcess server, r (3) by publicatin. Service by Acknwledgement f Service This is the easiest and least expensive methd, but nly if the Defendant is cperative and willing t sign an Acknwledgment f Service frm in frnt f a ntary public. Yu cannt sign fr the Defendant, and yu cannt sign as the ntary witnessing the Defendant s signature, nr is it gd enugh fr the Defendant t sign withut the signature being witnessed by a ntary public. There are tw different Acknwledgment f Service frms available frm the Cbb Cunty Law Library: (1) The Acknwledgement f Service, Cnsent t Jurisdictin and Venue, and Cnsent t Present Case is apprpriate if yu and the Defendant have reached an agreement and will be signing a Settlement Agreement. This frm is best because it includes the cnsent t the present case in the same frm with the acknwledgement, s yu are saved a step later. (2) The plain Acknwledgment f Service frm is apprpriate if yu and the Defendant have nt reached a cmplete agreement yet, but the Defendant is willing t acknwledge service. This saves the Defendant the pssible embarrassment r incnvenience f being served by the deputy sheriff, but des nt give up the Defendant s right t file an Answer and have a trial if an agreement is nt reached. T use this methd f service, yu need t cmplete the apprpriate frm and have the Defendant sign it in frnt f a ntary public. Yu shuld then file it with yur ther papers, as explained in Steps 3, 4, and 5 abve. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 11 f 14

12 Service by Sheriff s Department This is the usual way fr service t be cmpleted. It is smetimes called Persnal Service, which means that the deputy sheriff r ther curt-apprved prcess server hands the papers t the Defendant in persn. The frms prvided by the Superir Curt f Cbb Cunty d nt include the special mtin and rder required t have a special prcess server appinted. Therefre, if the Defendant will nt sign an acknwledgement, and yu knw an address where the Defendant can be served, yu shuld make arrangements fr the Sheriff s Department t serve the papers. If the Defendant can be served in Cbb Cunty, then the Cbb Cunty Sheriff s Department can serve the papers. Yu may pay the service fee at the Clerk s Office when yu file the case, and leave the service cpy f the papers with the clerk. The clerk will frward yur payment and legal dcuments t the Sheriff s Department fr service. Nte: If yu prefer, yu may take the fee and service cpy f the papers directly t the Sheriff s Department yurself (after yu have cmpleted Step 5 abve). The Sheriff s Department is nt at the jail; it is lcated in the Superir Curt building. If the Defendant must be served in anther cunty r state, the Cbb Cunty Sheriff s Department cannt serve the papers. Yu will need t arrange fr service directly with the Sheriff s Department f the prper cunty. Yu shuld find ut the amunt f the fee, and take r send it t the prper Sheriff s Department, alng with the service cpy f the papers. Whether yu have service cmpleted by the Cbb Cunty Sheriff s Department r sme ther Sheriff s Department, yu shuld make sure the service cpy includes the Sheriff s Entry f Service frm. After the Sheriff s Department cmpletes service, they will send the white and yellw cpies t the Clerk s Office, which will then send the yellw cpy t yu (if yu have prperly filled ut the frm). Service by Publicatin This is a methd f last resrt. If yu can find the Defendant, yu must use ne f the ther tw previusly described methds f service. If yu d nt knw where the Defendant lives r wrks, and yu cannt find that infrmatin ut, this is yur nly chice f service methd. Yu must prve t the Curt that yu have tried t lcate the Defendant and cannt find him/her. Using service by publicatin places special limitatins n yur divrce case, because the Curt will nt have persnal jurisdictin ver the Defendant. Yu will nt be able t get certain kinds f relief, such as child supprt and alimny, as part f the divrce. Hwever, if the Defendant later acknwledges service, gets served by the sheriff, r files an Answer t the divrce, then yur case will n lnger be limited by the restrictins that apply t publicatin cases. T serve by publicatin, yu will need t prepare and file the fllwing three (3) frms: Affidavit f Diligent Search Ntice f Publicatin, and Order f Publicatin, Return f Service, and Order Perfecting Service In the Affidavit f Due Diligence, yu will explain t the Curt the steps yu tk t try t find the Defendant. Yu must make reasnable effrt t find the Defendant befre yu fill ut this frm, which is available thrugh the Cbb Cunty Law Library and has its wn set f instructins. The ther tw frms are available thrugh the Clerk s Office. If yu knw yu must use service by publicatin when yu prepare yur Cmplaint fr Divrce, then yu shuld prepare all three abve listed frms at that time. Hwever, if yu have already filed yur divrce case, and have tried t cmplete service by a different methd, yu can still request the Curt s permissin t serve by publicatin. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 12 f 14

13 After yu file the frms and if the Curt grants permissin, the judge will then sign an Order f Publicatin. Yu will need t pay the cst f publicatin ($80.00) at the Clerk s Office. The Ntice f Publicatin will then be published in the cunty s fficial legal newspaper, called The Marietta Daily Jurnal, fur times (usually fur weeks in a rw). The Defendant will then have 60 days t file an Answer if s/he wants t cntest the case. T be n the safe side, yu shuld als mail a set f all the papers, called the service cpy, t the Defendant s last knwn address. Be sure t put enugh pstage n it, and be sure t list a return address s that the pst ffice can return it t yu if they are unable t deliver it. After the Ntice f Publicatin has been published all fur times, yu shuld receive an Affidavit f Publicatin frm The Marietta Daily Jurnal stating that publicatin is cmplete. Yu must bring this Affidavit f Publicatin with yu t yur hearing in rder t prve that service by publicatin has been cmpleted. Usually the judge will then sign the Order Perfecting Service (part f the three-part frm listed abve) at the hearing, shwing that the Curt has reviewed the service and finds that it was dne prperly. If yu later find ut where the Defendant lives r wrks (befre the case is ver), yu shuld arrange fr the Sheriff s Department t serve the Defendant r fr the Defendant t acknwledge service. STEP 7: HEARINGS After yu have filed yur case, and the Defendant has been prperly served, yu are ready fr the next step, which is either a temprary hearing (called a Rule Nisi) r the final hearing. Temprary Hearing (Rule Nisi) A temprary hearing is nt required. Hwever, if yur case will nt be ready fr a final hearing (because yu d nt have a signed agreement and d nt expect t have ne sn), there may be issues that need t be decided n a temprary basis befre the final hearing. In that situatin, yu may ask the Curt t schedule a Rule Nisi temprary hearing. In a divrce withut minr children, temprary issues may include alimny, living arrangements, use f an autmbile, r wh is respnsible fr certain payments while the divrce is pending. T schedule a Rule Nisi temprary hearing, yu shuld cmplete a Rule Nisi frm which has its wn separate instructins. If yu knw yu want a temprary hearing when yu are getting ready t file yur divrce case, yu can cpy, srt, and file the Rule Nisi frm with yur ther paperwrk. (See steps 3, 4, and 5 abve). After yur case is filed with the Clerk s Office, yu shuld take the riginal cpy f the Rule Nisi and at least ne cpy t the ffice f the judge assigned t yur case. The judge s staff will schedule a date fr the Rule Nisi and fill ut that part f the Rule Nisi frm Final Hearing With a Signed Settlement Agreement If yu have a signed Settlement Agreement, yu may arrange t have the final hearing take place any time at least 31 days after the Defendant was persnally served (r the Acknwledgment f Service was filed with the Clerk). Mst f the judges and ther curt persnnel call this type f hearing an uncntested divrce hearing. The judges schedule them in different ways. Yu shuld check with the staff fr the judge assigned t yur case t find ut hw that particular judge schedules these hearings. If the Defendant signed the frm called Acknwledgement f Service, Cnsent t Jurisdictin and Venue, and Cnsent t Present Case, then yu are nt required t give the Defendant ntice f the date and time f the final hearing. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 13 f 14

14 If the Defendant signed the ther Acknwledgement f Service frm (which des nt waive the right t ntice f the hearing), then yu shuld mail a ntice t the Defendant, telling the date, time, and place f the final hearing. Then, yu shuld file a Certificate f Service with the Superir Curt Clerk s Office (shwing that yu mailed r delivered prper ntice t the Defendant). Sme judges will even finalize a divrce actin withut any final hearing. This is thrugh a prcess called Judgment n the Pleadings. The Cbb Cunty Law Library des nt yet have a frm mtin fr this purpse, but yu shuld check with yur judge s staff t find ut if ne is required. Withut a Signed Settlement Agreement If yu d nt have a signed Settlement Agreement, then yur final hearing may take place any time at least 46 days after the Defendant was persnally served (r the Acknwledgment f Service was filed with the Clerk). If the service was by publicatin, the hearing may take place any time after 61 days frm the date f the first publicatin. The judges schedule these final hearings in different ways. Yu shuld check with the staff fr the judge assigned t yur case, and make sure yu make it clear t them that there is nt a signed settlement agreement. Smetimes the judge s staff will mail ntice f the hearing date t bth parties. Hwever, t be n the safe side, yu shuld als mail a cpy f the hearing ntice t the Defendant. Then, yu shuld file a Certificate f Service with the Superir Curt Clerk s Office (shwing that yu mailed r delivered prper ntice t the Defendant. Befre Hearing Dates Whether temprary r final, yu must prepare yur case t be presented t the Curt befre yur hearing dates. Yu are yur main witness. Yu must als gather ther evidence (such as dcuments and phtgraphs), and yu must arrange fr any ther witnesses that yu want t have testify at the hearing. Yu must als prepare the prper dcuments t be prvided t the judge at (r sn after) the hearing. Fr a temprary hearing, yu may use Affidavits frm witnesses, s that they d nt have t testify in persn. Hwever, there are special prcedures fr this. See Unifrm Superir Curt Rule At the final hearing, Affidavits are nt prper evidence. Yur witnesses (if any) must testify in persn at the hearing. If yu have a Final Divrce Hearing set n a case invlving minr children, be sure t bring ne f the fllwing t the hearing: (a) Settlement Agreement cmpleted, signed, and ntarized by bth parties. Be sure that the Settlement Agreement includes the attached Parenting Plan, which is cnsistent with the prvisins fr visitatin cntained in yur Settlement Agreement. (Exhibit A Visitatin Schedule). (b) Final Judgment and Decree f Divrce With Minr Children cmpleted fr the judge t review. Be sure t attach a Parenting Plan with yur Final Judgment, which is cnsistent with the prvisins fr visitatin included in yur Final Judgment and Decree. (Exhibit A Visitatin Schedule). The Cbb Cunty Law Library has materials t help yu prepare fr the hearings. Yu shuld als talk t a lawyer abut the hearing t learn mre abut hw t present yur case. Instructins fr filing a Cmplaint fr Divrce Withut Minr Children Page 14 f 14