Family Law (10)

What are the essential elements to a valid marriage in Georgia?

For a marriage in Georgia to be valid, there must be parties able to contract, an actual contract and consummation according to law.

Parties able to contract means that the persons are of:

A. Age of consent: must be at least 16 years old, or if younger have parental consent. The age limit does not apply ifthere is proof that the female is pregnant, or both parties are parents of a living child born out of wedlock, then they may marry regardless of age;

B. Proper relationship; may not be related to the prospective spouse within a prohibited degree;

C. Previous marriage dissolved.

Actual Contract: Law of contracts controls. The parties must voluntarily consent without fraud or duress. Contract does not have to be in writing.

Consummation according to law. For ceremonial or formal marriage, consummation is accomplished either by:

A. Obtaining a marriage license and the performance of a ceremony by a minister or other person authorized to join persons in matrimony, or

B. By an actual agreement in words of present tense to be man and wife with the intention of assuming a marital relationship. (Sexual intercourse is not essential to the consummation of a valid ceremonial marriage).

COMMON LAW MARRIAGE: No common law marriage can be entered into in Georgia after January 1, 1997, but common law marriage entered into prior to that date will be recognized.

Common law marriages are created by the three mentioned essentials including a present intent to marry, in addition must be consummated by cohabitation. Cohabitation in this sense implies marital intercourse.

All elements must exist at simultaneously in orderfor valid marriage to exist.

Can an invalid marriage become valid?

Yes. An invalid marriage may become a common law marriage if it occurred prior to 1997. A marriage based on fraud, duress or non-age becomes valid if a child is born.

If I have only been married for a short time can I file for an annulment?

An invalid marriage is said to be “void”. An annulment of marriage is a judicial declaration that the marital status is invalid from its intended inception. lfthe marriage was valid at its inception it will only be dissolved by divorce even if the marriage was of short duration.

If I am not ready to file for divorce can i file to become legally separated?

In Georgia, “legally separated” is not a status that is recognized by law. A person is either married or not married. A person that is married butwho is living apart from their spouse may file an action for ”separate maintenance" in situations where the filing spouse seeks an award of spousal support, child support, child custody, visitation or exclusive use of the marital residence or other property during the period of separation. The procedures for obtaining separate maintenance are similar to the procedures for filing for a divorce. The primary difference in that in an action for separate maintenance a divorce is neither sought nor granted. The parties remain married until either one file to obtain a divorce. An action for separate maintenance may be filed regardless of how long the parties have resided in Georgia.

Who is entitled to file for divorce in Georgia?

Any person who is married according to law and has been domiciled in the state of Georgia for six months before the filing date is able to file for divorce.

What are the grounds for divorce and do I have to prove fault in order to obtain a divorce?

Yes. During the period of time following the filing of the divorce but before the divorce is granted, the courts have authority to award temporary child custody, visitation rights and may rder a party to pay support. The Court may also order a party to vacate the marital residence during this period.

Can the court order that my spouse leave the home and pay support before the divorce is finalized?

Yes. During the period of time following the filing of the divorce but before the divorce is granted, the courts have authority to award temporary child custody, visitation rights and may rder a party to pay support. The Court may also order a party to vacate the marital residence during this period.

If I have reached an agreement with my spouse regarding all issues including custody, child support, alimony, division of debts and assets, will the Court approve the agreement and make it an enforceable part of the divorce?

Yes. An agreement that is properly pepared and that includes all the provisions required by law may be approved by the court and incorporated or made a part of the parties’ divorce.

After a divorce has become final am I entitled to go back to court if to change the tems if there has been a change in circumstances regarding either custody or support?

Yes. In certain circumstances a person may be entitled to go back to court to seek a modification of child custody if the circumstances have changed that affect the best interest of the child. A person may also seek a modification of child support if the parties' financial circumstance has materially changed since the date of the final divorce.

Is there an age at which a child is entitled to lect which parent helshe prefers to live with?

Yes. in a divorce or modification of custody action if a child of the parties has reached the age of 14 then that child may elect which parent the child will primarily reside with. The child’s election is controlling unless the parent chosen is determined to be unfit. The wishes of children that are between the ages of 11 and 14 may be considered but are not controlling.

As in every area of law this foregoing information is general and is subject exceptions based on the specific facts of the case. It is not intended to substitute for the advice of counsel in any way.

Estate Planning (14)

What are the requirements to make a Will?

You must be at least fourteen (14) years of age and of sufficient mind and memory to realize you are making a Will disposing of your property at death. The Will must be in writing (unless made on the deathbed), and be witnessed by at least two (2) witnesses. It is important to have a Will done by an attorney because the formal execution and proper format is just as important as the content.

What if you die without a Will?

Georgia's inheritance statute will determine who gets your property. The court will appoint an administrator to manage and settle your estate.

When should you make or review a Will?

As soon as you have property or children to be cared for, you should make a Will. Whenever there is a change in your legal circumstances, including marriage, divorce, birth or adoption of a child or death of a beneficiary you should also review your Will so that your Will is still valid. 

How long is a Will valid?

A Will is not valid until death and may be changed or amended by signing a new Will.

What is a Living Will?

The State of Georgi recognizes the right of a competent adult to make a written directive, known as an Advanced Directive For Health Care, instructing his/her physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition.

What is a Power of Attorney For Asset Management?

A Power of Attorney For sset Management appoints someone to handle your assets if you become incapacitated. You do not need to transfer assets at the time you sign a Power of Attorney, but you should keep the person appointed informed of your financial matters.

What is an Advanced Directive For Health Care?

An Advanced Directive For Health Care appoints someone to make health care decisions for you when you are unable to do so yourself This person can provide informed consent for treatment, or refuse treatments for you.

What is Probate?

Probate is the public process of filing and validating a Will in court, paying all the debts and taxes of the deceased person and dividing up the assets according the Will or Georgia law.

What is Estate Planning?

Estate planning is being diligent in the care and maintenance of all that you have worked for during your lifetime. It is making sure your spouse, children and you are provided for. Estate Planning is taking responsibility to ensure that your estate or everything you own is preserved and used for the benefit of those you love.

What is a Living Trust?

A revocable Living Trust is established by transferring assets to the trust while you are alive. The individual then acts as the trustee and maintains control over the assets during his/her lifetime. At death, the successor trustee takes over and manages or distributes the assets in accordance with the directions contained in the document that created the trust; therefore, it avoids the need for Probate.

How can I provide for my young children?

The most common trust is one set up for minor children for their care after you are gone and until they are old enough to take care of themselves. A parent can name a trustee to be in control of the finances and decide whether to sell or keep property and manage assets such as real estate. The trustee, usually a family member or close friend, can be paid an hourly rate or a set monthly amount for their services, out of the trust assets. You should also appoint a guardian for you children, someone who would have physical custody and take care of your children on a daily basis.

Is a life insurance policy a substitute for a Will?

No. Life insurance is only one kind of property that a person may own. A Will is still needed to dispose of the rest of one’s property.

Is placing all property in joint ownership a substitute for a Will?

No. A joint tenancy does not provide for the distribution of the joint property in the event of a common disaster.

Is a Will signed in another state valid in Georgia?

A Will signed and witnessed in another state is usually valid in Georgia. If you have moved to Georgia from another state, it is wise to have your Will reviewed by a Georgia attorney to ensure that it is properly executed and that the executor is qualified in this state. A11 improperly executed Will is void.



These materials have been prepared by Jerry L. Stepp, P. C. for informational purposes only and are not legal advice. The information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online reader should not act upon this information without seeking professional counsel. You should consult an attorney for individual advice regarding your own situation. Do not send confidential information until you speak with our attorney and get authorization to send the information to Jerry L. Stepp, P.C. All information on the website is only generalized statements thought to be accurate at the time the web page was published. Please do not rely on any advice on the website; rather, use the information to help you compose questions for a lawyer and then speak to a lawyer about your particular situation. Jerry L. Stepp, P. C. offers no legal advice until a contract for legal employment is signed by the attorney and the client and, in specific cases where a retainer is required, until the requested retainer is paid.