Situations often arise where separated spouses desiring to divorce no longer reside in the same county, or even in the same state. Where at least one spouse remains in the state, or the parties have property here, a spouse may wish to file for divorce in Georgia. In order to do so, certain constitutional and statutory prerequisites relating to jurisdiction and venue must be met.[1]
The first hurdle for a Georgia divorce involves residency requirements for the plaintiff or defendant. Either the filing spouse must have been a “bona fide resident” of Georgia for six months before the filing of the petition for divorce or, if the filing spouse resides out-of-state, the defendant-spouse must have been a resident of this state for six months prior to the filing of the petition.[2]
If the residency requirements are met and the defendant-spouse resides in Georgia, then no question exists as to the plaintiff’s right to file for divorce here. The only question concerns where to file. In that regard, the Georgia Constitution specifies the basic rule for venue: “Divorce cases shall be tried in the county where the defendant resides, if a resident of this state; if the defendant is not a resident of this state, then in the county in which the plaintiff resides; provided, however, a divorce case may be tried in the county of residence of the plaintiff if the defendant has moved from that same county within six months from the date of the filing of the divorce action and said county was the site of the marital domicile at the time of the separation of the parties…”[3]
Where the defendant-spouse does not reside in Georgia, the right to file for divorce depends on the relief sought by the plaintiff and the defendant’s ties to this state. If the filer seeks only to obtain a divorce and to equitably divide any marital property located within Georgia, he/she may file a petition for divorce here irrespective of the defendant’s connections to this state.[4] If, however, the filer seeks to divide property located outside of Georgia or seeks to litigate other issues such as child custody, child support, alimony or attorney’s fees, he/she may file for divorce in Georgia only where personal jurisdiction exists over the nonresident defendant.[5] The state’s long-arm statute[6] specifies six grounds for exercise of personal jurisdiction over a nonresident defendant, as follows:
A court of this state may exercise personal jurisdiction over any nonresident or his or her executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he or she were a resident of this state, if in person or through an agent, he or she:
(1) Transacts any business within this state;
(2) Commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act;
(3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(4) Owns, uses, or possesses any real property situated within this state;
(5) With respect to proceedings for divorce, separate maintenance, annulment, or other domestic relations action or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph shall not change the residency requirement for filing an action for divorce; or
(6) Has been subject to the exercise of jurisdiction of a court of this state which has resulted in an order of alimony, child custody, child support, equitable apportionment of debt, or equitable division of property if the action involves modification of such order and the moving party resides in this state or if the action involves enforcement of such order notwithstanding the domicile of the moving party.
Engrafted onto the long-arm standards is a case-by-case analysis to establish whether the nonresident defendant had sufficient minimum contacts with Georgia to reasonably anticipate being haled into court here. The defendant must have committed some act to purposefully avail himself/herself of the privilege of conducting activities in Georgia, and those activities must have had a substantial connection with the subject matter of the suit. In other words, the defendant’s activities in this state must have born a substantial connection to the dissolution of the marriage.[7]
(1) Certain exceptions and variations from the norm exist for military personnel. This article will not delve into those rules.
(2) O.C.G.A. § 19-5-2.
(3) Ga. Const., art. VI, § II, para. I. See also O.C.G.A. § 19-5-2.
(4) Abernathy v. Abernathy, 267 Ga. 815, 819, 482 S.E.2d 265 (1997).
(5) See Strickland v. Strickland, 272 Ga. 855, 856-858, 534 S.E.2d 74 (2000). See also O.C.G.A. § 9-10-91(5).
(6) O.C.G.A. § 9-10-91.
(7) Marbury v. Marbury, 256 Ga. 651, 654-655, 352 S.E.2d 564 (1987). See also Strickland, supra, 272 Ga. at 856-858.