Where Will My Alpharetta Georgia Divorce Case be Filed?
This is a question we are often asked in consultations. The answer is not always easy and the answer is related to the concepts of jurisdiction and venue. All divorce and family law cases filed in Georgia are filed in the Superior Court (as contrasted with Magistrate, State, Federal Court, etc.). However, the actual county and state the case should be filed can usually be determined by the general guidelines outlined below.
A divorce is generally filed in the county where the defendant resides. For example, if the wife in a case is filing divorce against her husband and the husband lives in Fulton County, then the case generally will be filed in Fulton County. This would be the situation no matter where the wife resides. In this situation, while it is a convenient situation for the wife that the case is also being filed in the county she resides, this is not the determinative factor.
However, if the case is an uncontested divorce, either party can waive jurisdiction and venue, and the case can actually be filed in either party’s county of residence. It is important to consider that Alpharetta is a city that lies in in two counties (Fulton County and Forsyth County). So an Alpharetta divorce case will generally be filed in either Fulton or Forsyth, depending on which county one or both of the parties resides. But if neither party lives in Forsyth County, then neither party can file a divorce case in Forsyth County. Likewise, if neither party lives in Fulton County, then neither party can file a divorce case in Fulton County.
When you have choices as to where your uncontested divorce is to be filed, it is best to speak with an experienced attorney about the local rules for each county to see which jurisdiction is best for you. For example, Fulton County schedules a status conference to be held approximately thirty (30) days after the case is filed. The advantage of this is that if the case is uncontested, the divorce can usually be granted that day. And also, an attorney can frequently work with the court to have the hearing cancelled with no delay in the case being resolved. However, Forsyth County will typically resolve most uncontested divorce cases with no hearing ever being scheduled, but it will usually take longer than the thirty-five (35) days to be resolved.
Lets review another scenario: The husband lives in Forsyth County and wants to file a divorce case against his wife that lives in Gwinnett County. In this situation, the case would need to be filed in Gwinnett county (the county of the Defendant wife) if the case is contested. But, if the case is an uncontested divorce, either party (usually the defendant) can waive jurisdiction and venue, and the case can actually be filed in either party’s county of residence.
Another situation that may come up is that the wife lives in Georgia, but wants to file for divorce against a husband that now lives in another state. In this situation, the wife would normally need to obtain an attorney that is licensed to practice in the state that the husband now resides, and the case would be filed in county or parish that the husband now resides. But similar to the the scenarios above, if the case is an uncontested divorce, the person that lives outside of the state of Georgia can waive jurisdiction and venue and the case can be filed in the county that the Georgia resident spouse resides. Specifically, if one of the parties resides in Alpharetta, and the case is uncontested, then the case can be filed in Fulton County or Forsyth County, depending on which county one of the parties resides.
Uncontested Divorce Cases In Summary
As discussed above, uncontested cases open up the possibility of filing a divorce case in the county that the plaintiff resides, no matter where the defendant resides. This is because the defendant can waive jurisdiction and venue by agreeing to allow the divorce case to proceed in a county other than the one he/she resides. In this situation, the case can be filed in the county of the Plaintiff, but only if the parties both agree in writing on a pleading to be filed with the court. Specifically, this pleading is an Acknowledgment of Service, which will include a waiver of the jurisdiction and venue of the case. In summary, even if one of the parties lives in another country, so long as the other party lives in Alpharetta, if the case is uncontested it can be filed in Fulton or Forsyth County.
Contested Divorce Case Considerations
Contested family law / post-divorce cases involving child support / modifications, etc. can get quite complicated when trying to determine where the case should be filed. If you are experiencing a divorce or family law issue, it is best to speak with an attorney that is experienced with complex jurisdictional issues. This is because a case that is filed in the wrong county / state can usually easily be caused to be dismissed by the defendant, leading to wasted time and expenses. However, if the other party is unlikely to travel to Georgia to make an appearance or contest the case being in Georgia, it may well be worth filing the case in Fulton or Forsyth county. However, the other party will need to be served with the divorce, which can fairly easy if they live in the United States or quite difficult if they live in another country. It any event, the defendant will need to be properly served with the divorce papers in accordance with the state law where the case is filed.
Being incarcerated in a jail or prison presents another unique situation where the case can be filed in the home county of the prisoner, which is also considered their place of residence. This is because that is where they presumably would return once they are no longer incarcerated. However, the case can also usually be filed in the county and state they are incarcerated, so long as it is in the United States. If the person is incarcerated in a foreign county, it is usually best to file in the county that the plaintiff (the person filing the case) resides. However, if the case is uncontested, it can always be filed in the county the plaintiff (the person filing the case) resides.
International cases present additional issues. For example, if a husband wants to file divorce against a wife that resides in another county, the husband can file the case in the county he resides, or he can file in the country that his wife lives in. However, most United States citizens will prefer to file a divorce in the US. And if the case is uncontested, and both parties agree to the case being filed in the US, then if the defendant can either waive jurisdiction and venue, or if the plaintiff lives in another county, he or she can file the case in the U.S. State and County the defendant resides.
Being deployed in the military presents a situation where the case can be filed in the home county of the military personnel, which is also considered their place of residence. This is because that is where they presumably would return once they are no longer deployed. However, the case can also usually be filed in the county and state they are based, so long as it is in the United States. If the person is based in a foreign county, it is best to file in the county they would return to as their permanent home. However, if the case is uncontested, it can always be filed in the county the plaintiff (the person filing the case) resides.
In addition, if a person is incarcerated in another county, service of the case may be very difficult. If this is the situation, “service by publication” may be required. While this process can be difficult and time consuming, it is effective and usually works if the facts of the case support it.
If you are considering divorce or a family law case and need help determining where your case should be filed, call 770-609-1247 to speak with one of our experienced Alpharetta divorce and family law attorneys.