COMPLAINT FOR DIVORCE WITH MINOR CHILDREN
[PLAINTIFF] as Plaintiff, brings this Complaint for Divorce against [DEFENDANT] as Defendant, and respectfully shows the Court as follows:
I. SUBJECT MATTER JURISDICTION
Date of Marriage
Before a divorce can be granted, evidence must be presented to the Court of a valid, subsisting marriage between the parties. The Plaintiff and Defendant were lawfully married on [Date of Marriage] in [Location of Marriage].
Subject Matter Jurisdiction
This court has the subject matter jurisdiction to hear this matter. The Georgia Constitution provides: The superior courts shall have jurisdiction in all cases, except as otherwise provided in this Constitution. They shall have exclusive jurisdiction over trials in felony cases, except in the case of juvenile offenders as provided by law; in cases respecting title to land; in divorce cases; and in equity cases. The superior courts shall have such appellate jurisdiction, either alone or by circuit or district, as may be provided by law. Ga. Const. 1983, Art. VI, Sec. IV, Paragraph I
Plaintiff’s Residency Requirement
The applicant in this Complaint for Divorce meets the residence requirements for bringing an action for divorce. Plaintiff is a resident of the State of Georgia and has been domiciled in the State of Georgia for six months prior to the bringing of this Complaint for Divorce.
Non-resident Plaintiff & Resident Defendant
The applicant, though not a resident of this State, is authorized to file this Complaint against the defendant a resident of the State of Georgia. O.C.G.A. Sec. 19-5-2 authorizes a non-resident plaintiff to bring an action for divorce under certain circumstances. A non-resident of this state may file a petition for divorce, in the county of residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of this petition. The defendant has been a resident of the State for more than six months prior to the filing of this divorce. The defendant is further domiciled in Gwinnett County.
Date of Separation
The Plaintiff and Defendant separated on [Type Date of Separation] and since that date have lived continuously in a bona fide state of separation.
II. JURISDICTION OVER THE DEFENDANT
This court has Jurisdiction of the Defendant. The Defendant is a resident of the State of Georgia and can be found in the State of Georgia. The Court can acquire in personam jurisidiction over the Defendant through personal service with a Complaint and Summons pursuant to the Civil Practice Act.
Non-Resident Defendant & Long Arm Statute Jurisdiction
This Court can exercise personal jurisdiction over the Defendant even though he was served outside the State. Pursuant to O.C.G.A. § 9-10-91 the Georgia Domestic Relations Long Arm Statute, “A court of this state may exercise personal jurisdiction over any nonresident or his 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 were a resident of the state, if in person or through an agent, he:… (5) With respect to proceedings for alimony, child support, or division of property in connection with an action for divorce 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.” Further, the Supreme Court of the United States has held that “Due process requires only that in order to sustain a defendant to a judgment in personam, if he not be present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.: See. Shoe v. Washington, 326 U.S., 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
III. JURISDICTION OVER THE RES OF THE MARRIAGE
-Personal Jurisdiction Not Available Over Defendant-
Personal jurisdiction over a Defendant is not necessary for a Georgia court to grant a divorce, award property situated in Georgia, or otherwise resolve issues of the res of the marriage. What is the res of the marriage? See Ennis v. Ennis, 290 Ga. 890 (2012)
Rymuza v. Rymuza 292 Ga 98 (2012) “personal jurisdiction over the defendant spouse is required for the court to rule on alimony, division of marital property outside Georgia, or attorney fees, but it is not required to grant a divorce alone as long as the plaintiff spouse has been domiciled in Georgia for the six-month period preceding the filing of the action”
What about child support and custody without personal jurisdiction? Should you terminate parental rights in juvenile court?
Brine v. Shipp 291 Ga. 376 () the court held that the superior court lacked subject matter jurisdiction to terminate the parental rights of the legal father in the legitimation proceeding that was brought as part of this divorce action and that the superior court lacks jurisdiction to terminate the parental rights in a divorce and child custody case. Must be done in Juvenile Court.
IV. SERVICE OF PROCESS – MANNER OF SERVICE
Service of Process Sheriff
An attempt at Personal service of Process shall be made on the Defendant by the Office of the Sheriff of [Name of County where Defendant resides] at the Defendant’s last known address, [Defendant’s last known address].
Acknowledgement of Service
Personal service has been perfected because the Defendant has signed a valid Acknowledgement of Service that has been filed with this Court.
The Defendant resides outside of the County, and shall therefore be served by second original, as provided under OCGA Sec. 9-10-72. Service shall be made by the sheriff’s department of the county where the Defendant resides.
Private Process Server
Foreign Defendant SOP via Treaty or Convention
Manner Calculated to Provide Notice
Whereabouts of Defendant Unknown
The Defendant was last known to reside at: [Defendant’s last known address]. The Defendant cannot be located at this last known address. The Defendant’s present whereabouts are unknown although due diligence has been exercised in an attempt to locate the Defendant; the Defendant cannot be found within the State. To perfect Service of Process the Plaintiff is seeking an Order of this Court authorizing service upon the Defendant by publication of Summons as provided under OCGA Sec. 9-11-14(e)(1) in the legal organ of the County where this Complaint has been filed.
Article VI Section II Paragraph I of the Constitution of the State of Georgia provides that “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, and provided , further, that any person who has been a resident of any United States army post or military reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States army post or military reservation.”
Venue is residence of the Defendant
[NAME OF COUNTY], Georgia is the correct venue for this action because the Defendant is a resident of the State of Georgia and resides in [NAME OF COUNTY], Georgia.
Waiver of Venue
[County] County is the correct venue for this action because thought the Defendant is a resident of the State of Georgia and not a resident of Gwinnett County she signed a waiver of venue which has been filed with this Court. – [Not so sure this can be done.] 11.
Defendant whereabouts unknown
[County] County is the correct venue for this cause of action because the Defendant cannot be located within the State of Georgia after a diligent search and the Plaintiff is a resident of [County] County.
Out of State Defendant
[County] County is the correct venue for this cause of action because the Defendant resides outside the State of Georgia and the Plaintiff filed this Action in the County of their residence.
VI. GROUNDS FOR DIVORCE
Grounds for Divorce
Plaintiff shows that the grounds for this divorce are the statutory grounds and that the marriage is irretrievably broken, as defined by the laws of the State of Georgia, O.C.G.A. § 19-5-3(13)(Michie 1982); Georgia Code Annotated Sec. 30-102(13)(Harrison 1977). Plaintiff shows that there are irreconcilable differences between the parties, and these differences are such that there is no hope of reconciliation.
Pursuant to O.C.G.A. § 19-5-3 Plaintiff, further shows the following grounds for Divorce.
O.C.G.A. § 19-5-3 (1) Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
O.C.G.A. § 19-5-3 (2) Mental incapacity at the time of the marriage;
O.C.G.A. § 19-5-3 (3) Impotency at the time of the marriage;
O.C.G.A. § 19-5-3 (4) Force, menace, duress, or fraud in obtaining the marriage;
O.C.G.A. § 19-5-3 (5) Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;
O.C.G.A. § 19-5-3 (6) Adultery in either of the parties after marriage;
O.C.G.A. § 19-5-3 (7) Willful and continued desertion by either of the parties for the term of one year;
O.C.G.A. § 19-5-3 (8) The conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer;
O.C.G.A. § 19-5-3 (9) Habitual intoxication;
O.C.G.A. § 19-5-3 (10) Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health;
O.C.G.A. § 19-5-3 (11) Incurable mental illness. No divorce shall be granted upon this ground unless the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party; and he has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and the superintendent or other chief executive officer of the institution and one competent physician appointed by the court, after a thorough examination, make a certified statement under oath that it is their opinion that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party s mental health cannot be expected at any time during his life. Notice of the action must be served upon the guardian of the person of the mentally ill person and upon the superintendent or other chief executive officer of the institution in which the person is confined. In the event that there is no guardian of the person, then notice of the action shall be served upon a guardian ad litem, who shall be appointed by the court in which the divorce action is filed, and upon the superintendent or chief executive officer of the institution in which the person is confined. The guardian and superintendent shall be entitled to appear and be heard upon the issues. The status of the parties as to the support and maintenance of the mentally ill person shall not be altered in any way by the granting of the divorce;
O.C.G.A. § 19-5-3 (12) Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16;
IV. EARNINGS OF THE PARTIES
Earnings of Plaintiff
The Plaintiff hereby pleads a listing of his earnings in accordance with the pleading requirements of O.C.G.A. § 19-5-5.
(a) Plaintiff shows that (she/he) is employed at [Name of Company]. Plaintiff’s gross earnings are approximately [$ ] per month.
(b) The Plaintiff owns real property located at [ ]for which (she/he) petitions this Court to make disposition.
(c) The Plaintiff owns personal property including …for which (s)he petitions this Court to make a disposition.
O.C.G.A. § 19-5-5 (2012)
§ 19-5-5. Petition; contents and verification; demand for detailed statement
(a) The action for divorce shall be brought by written petition and process, the petition being verified by the petitioner.
(b) The petition shall show:
(1) The residence or last known address of the respondent;
(2) That the applicant meets the residence requirements for bringing an action for divorce or that the applicant is bringing a counterclaim and is not required to meet the residence requirements;
(3) The date of the marriage and the date of the separation;
(4) Whether or not there are any minor children of the parties and the name and age of each minor child;
(5) The statutory ground upon which a divorce is sought; and
(6) Where alimony or support or division of property is involved, the property and earnings of the parties, if such is known.
(c) The respondent, at any time before trial, may file with the court a written demand for a detailed statement of the facts on which the grounds in the petition are predicated. The respondent shall cause a copy of the demand to be served upon the petitioner or upon the petitioner s counsel of record and the facts demanded shall be added to the petition in the form of an amendment thereto.
Earnings of Defendant
The Defendant’s earnings are unknown.
Plaintiff shows that during the course of their marriage the Plaintiff and Defendant accumulated other marital assets and debts in addition to those heretofore listed in this Complaint for Divorce. Plaintiff shows that absent the parties entering into an agreement between themselves as to the disposition of their marital assets and debts it will be necessary for this Court to make such a disposition.
VII. MINOR CHILDREN BORN OF MARRIAGE
Jurisdiction to determine custody issues:
Uniform Child Custody Jurisdiction Act and the Uniform Child Custody Jurisdiction and Enforcement Act,
There are no Minor Children of issue of the Marriage.
Identity of Minor Children
There (is/are) [Number of Children spelled out] [(Numeral)] minor (child/children) born as issue of this marriage:
Name of Child Sex Date of Birth
Children’s Current Residence
Parties still living together
The Plaintiff has had, along with the Defendant until the time of the parties’ separation, physical custody of the minor children since birth. The children now reside with the [Location where the children live].
Parties living apart
The following Minor Children of issue of the Marriage reside with the Mother and Father at ________________.
The following Minor Children of issue of the Marriage reside with the Mother at:
The following Minor Children of issue of the Marriage reside with the Father at:
Custody of the Minor Children
This court has the authority to make custody determinations regarding the Minor Children of issued of the marriage based on O.C.G.A. Sec. 19-9-61(a)(1) which provides that a court of this state has jurisdiction to make an initial child custody determination where “(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.”
The Plaintiff seeks primary legal and physical custody of the parties’ minor child.
The Plaintiff seeks sole legal custody of the parties’ minor children.
The Defendant should be allowed reasonable visitation.
Visitation of the Defendant should be limited in the following way, for the following reasons:
To Plaintiff’s knowledge, neither party has participated as a party, witness, or in any other capacity in any other litigation concerning the custody of their minor child, in this or any other State. The Plaintiff has no information of any custody proceeding now pending in a court of this or any other state. The Plaintiff does not know of any person, not a party to these proceedings, who has physical custody of the minor child or who claims to have custody or visitation rights with respect to said minor child.
RESTORATION OF MAIDEN NAME
Pursuant to O.C.G.A. § 19-5-16 the Plaintiff petitions this Court for the restoration of her maiden or prior name: [Insert Maiden Name].
The Plaintiff makes no objection to the restoration of the Defendant’s maiden name should the Defendant petition this Court for the restoration of her maiden name upon the issuance of a Final Order of Divorce in this matter.
The Defendant does not need to avail herself of the provisions of O.C.G.A. § 19-5-16 as the Defendant did not change her name upon the marriage of the parties.
Plaintiff makes this claim for permanent alimony pursuant to O.C.G.A. § 19-6-3 and O.C.G.A. § 19-6-4 respectively.
Plaintiff makes no claim for permanent alimony pursuant to O.C.G.A. § 19-6-3 and O.C.G.A. § 19-6-4 respectively.
Plaintiff further makes a claim for attorney fees pursuant to O.C.G.A. § 19-6-2.
Plaintiff further makes no claim for attorney fees pursuant to O.C.G.A. § 19-6-2.
The parties have entered into a written Settlement Agreement, which has been filed contemporaneously with this Complaint for Divorce.
WHEREFORE, THE PLAINTIFF DEMANDS:
(a) That a hearing be held to determine all issues presented by the Plaintiff’s Complaint for Divorce;
(b) That this Court award the Plaintiff a total divorce from the Defendant;
(c) That this Court issue an order determining the parties respective rights to custody of the (minor child/children) of issue of the marriage.
(d) That this Court issue an order determining the parties respective rights to visitation with regard to the (minor child/children) of issue of the marriage;
(e) That this Court issue an order determining the parties respective obligations with regard to the issue of child support of the (minor child/children) of issue of the marriage.
(f) That this Court issue an order determining the parties respective rights and obligations with regard to the issue of Alimony.
(g) That this Court make an equitable division of the parties’ marital property;
(h) That this Court award Plaintiff reasonable attorney fees; and,
(i) That this Court award Plaintiff such other and further relief as this Court may deem necessary and proper.
Law Office of Martin M. del Mazo
Atlanta Divorce Attorney
750 Hammond Drive
Building 12, Ste. 200
Atlanta, Georgia 30328
(770) 935-8999 Telephone
(770) 935-9119 Facsimile