Every case is different and there are many reasons why a judge is not able to grant a divorce. Sometimes it’s due to an error that you’ve made. There’s an appropriate time for everything, including divorce.
Most states require you to live there for a minimum amount of time before their courts will have jurisdiction to grant your divorce. It’s called a residency requirement and it varies from six (6) weeks to 24 months. In Georgia, the requirement is six (6) months for most, but twelve (12) months for active duty military living on a Georgia post or base. This is also true if you live in another state; your divorce cannot be filed in Georgia unless your partner has lived here for at least six (6) months. Official Code of Georgia, § 19-5-2 (2015 Edition). The American Bar Association published a chart of the residency requirements for every state.
Many states also enforce a waiting period before you can file for divorce (or before a divorce can be granted). This is in addition to the residency requirement. During the waiting period, you and your partner must be living separate and apart. Waiting periods can range from sixty (60) days in Kentucky to five (5) years in Idaho. There is no waiting period in Georgia.
In Georgia, every court is permitted to make its own rules and procedures, and the Superior Courts of Georgia are no exception. They have promulgated the Uniform Superior Court Rules. According to Rule 24.6, if you and your partner have agreed to (settled) all issues, then your divorce can be granted by the judge “any time 46 days after service,” or “any time 31 days after service” if both parties consent in writing. We call this pleading a “Consent to Try” and always have everyone sign it if there is an agreement so that the divorce can be finalized more quickly. An exception applies if your divorce action was served on your partner by publication. In that case, the soonest the judge may grant your divorce is “61 days or more after the date of the first publication.”
The Court Rules are the most likely cause of the problem if a judge cannot grant a divorce due to a timing issue. If that’s the case, then you just need to schedule your next court date to occur after the appropriate time has elapsed. But what is "service"?
Service of the summons and lawsuit.
As an aside, when a judge asks a litigant if the other party has been served, I often hear them say, “yes, judge, I gave him the papers.” That is not legally proper service and the judge has no choice but to turn them away. Legally proper “service” of a lawsuit and summons usually happens in one of these three ways:
- Personal service. By the sheriff or other specially appointed process server hand-delivering the Summons and lawsuit to your partner. This usually costs $50-$200. Official Code of Georgia, § 9-11-4 (2015 Edition).
- Acknowledgement of Service. This is a pleading that your partner will sign acknowledging that s/he has received a copy of the Summons and lawsuit. This is free. Official Code of Georgia, § 9-10-73 (2015 Edition).
- Service by Publication. You should contact an attorney if you think that you need to serve your partner by publication. It should only be used as a last resort. It will limit what the court can do for you. Official Code of Georgia, § 9-10-71 (2015 Edition).
There are other ways to complete service, but these are the most common. You should speak with an attorney to learn which method works best for your situation.
Authored by Cynthia L. Patton, Esq. This blog post is for informational purposes only and does not constitute legal advice. You should consult your own attorney for specific legal advice.