Getting an Uncontested Divorce in Georgia

Divorce is never easy. Not only is it extremely emotionally difficult and complex, it can also be very expensive. The price of a divorce usually depends both on the complexity of a couple’s financial and family situation and how much disagreement there is between the parties. For couples who agree on the particulars of their divorce, filing for an uncontested divorce can be a great option. A Georgia family law attorney usually will provide assistance with an uncontested divorce for a reasonable flat fee rate. On the other hand, contested divorces are usually billed on an hourly basis and usually result in being much more expensive.

What Must Be Agreed Upon?

Just like in any divorce action, the same elements must be resolved. For couples without children, this includes alimony, debt, and asset division. These two areas broadly come down to money — who gets what and who gets paid. For couples with children, child custody, visitation, and child support also must be decided. In an uncontested divorce, all of these issues can be agreed upon by each spouse and submitted to the judge for approval. Uncontested divorce is a much more affordable option for divorce because it usually does not require hearings, argument, testimony, and evidence to determine the outcome of all of these issues.

What Documents are Needed to File for an Uncontested Divorce?

In any divorce in Georgia, one party must file a complaint alleging the proper grounds for divorce. To make things easier the respondent usually waives service of process and his or her right to trial on the matter. The next essential document is the settlement agreement. This is a contract, usually drawn up by one of the parties’ attorneys, that lays out the agreement over alimony, property division, and debts.

For couples with children, issues of child custody, child support, and visitation must be addressed and agreed to by both parties. These issues should also be included in any settlement agreement. In addition to including these issues in the settlement agreement, the court also requires that the parties complete a child support worksheet, parenting plan, and sometimes other associated documents.

Can You Put Anything You Want in a Settlement Agreement?

The short answer is yes. As described above, you can include terms of child support and visitation, asset division, alimony, and anything else related to the ending of the marriage. However, for the settlement agreement to be enforced by the court, the judge in the case must approve it and incorporate it into the final decree. If the agreement appears to be fundamentally unfair or problematic in some other way, the judge may choose to incorporate only part of the agreement or reject the agreement altogether.

Bottom Line

For couples who want to be divorced and can agree on the terms of the divorce, seeking an uncontested is a financially sound option. While parties can represent themselves, it crucial that you hire a Georgia family law attorney who can explain your options to you and make sure you file all the appropriate paperwork correctly. Call us today for a free consultation!

The Legal Consequences of Family Violence Battery

A family violence battery in Georgia is identical to a battery except that it contains an additional “family relationship” element. While battery and family violence battery are very similar, the consequences are not. Family violence battery has very serious consequences that many do not know about. Both family violence battery and battery occur when someone “intentionally causes substantial physical harm or visible bodily harm to another.” See Georgia Code 16-5-23.1. Any type of slap, punch or physical contact, that leaves a mark, is generally enough to constitute a battery charge. A simple battery charge results when there is no mark or evidence of injury.

What is Family Violence?

A family violence crime is one that occurs between the following people:

  • Spouses or former spouses
  • People who have a child together
  • Parents and children
  • Step-parents and step-children
  • Foster-parents and foster-children
  • Roommates or former roommates

A family violence crime can involve simple battery, battery, aggravated assault, simple assault, and more. When a crime involves “family violence,” there are different consequences associated with it.

Family Violence Battery Consequences

The first major consequence of a family violence battery conviction is that any future conviction for the same crime is an automatic felony. Likewise, if you have been convicted of a felony family violence crime, a subsequent family violence battery automatically becomes a felony. This is true no matter who the victim is. With a normal battery, the charge is always a misdemeanor unless it is the third battery committed against the same victim. Repeat offenses escalate very quickly with family violence battery. This rule, however, does not apply to simple battery, family violence. A second misdemeanor simple battery, family violence is still a misdemeanor.

The misdemeanor/felony distinction is important. A misdemeanor carries a maximum of 12 months of jail or probation with a $1000 fine. A felony carries a sentence of up to 5 years prison or probation. In addition to fines, jail, and probation, many judges assign lengthy and expensive family violence classes. In some places, these classes are up to 24 weeks and cost $30 dollars or more per class.

Losing Gun Rights

Federal law restricts gun rights for those convicted of a “misdemeanor crime of domestic violence.” The statute’s definition includes Georgia crimes of battery and simple battery family violence and more. It defines domestic violence as,

“the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current          or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

While it is not illegal to possess a gun under Georgia law after conviction, it is illegal under federal law. You could be subject to federal charges for possessing a firearm after pleading guilty to a family violence battery or simple battery.

Given the serious consequences of pleading guilty to a family violence battery, it is crucial that you consult with an experienced Georgia criminal defense attorney. At Wosnik Law, we will carefully analyze the details of your case. If you have been charged with a family violence crime, contact us today for a free consultation.



What is Retroactive First Offender?

Just recently, the Georgia Legislature passed a bill, now Georgia Code 42-8-66, known as the retroactive first offender statute. This statute is geared towards providing first offender treatment to first-time offenders who pleaded guilty to a felony but did not know about first offender treatment. Normally the courts’ plea forms include a question about whether first offender treatment has been explained and requested. Thus, most people arguably had notice about first offender who plead guilty. However, if you were convicted of a felony and you never knew you were entitled to first offender, you may still be able to get it retroactively.

The Requirements

The first requirement to getting first offender retroactively is getting the prosecutor onboard where the original conviction took place. The statute requires that the prosecutor consent to the petition requesting retroactive first offender. Once the prosecutor consents, your attorney should prepare a motion asking the judge for a hearing on the matter.

At the hearing, the court will consider any evidence you or the prosecutor provide as well as any other relevant evidence. If possible, you should be prepared to present evidence you never knew you could plead guilty using first offender. You may also consider presenting witnesses who can vouch for your good character. The judge will also have to make sure that you would have qualified for first offender originally. To qualify generally, you must have never been convicted of a felony in any place or at any time (outside the felony you are requesting first offender for). What’s more, the felony in question must not be a serious violent felony or other statutorily prohibited felony. Lastly, whether you were revoked on your probation will also influence the judge’s determination.

In making the determination, the judge must first determine that you would have qualified for first offender when you were originally sentenced. Second, she must determine whether the “ends of justice and the welfare of society are served by granting such petition.”

The Bottom Line

Having your attorney request retroactive first offender is a great avenue for those convicted of a felony who didn’t know their options. Unless you are granted a pardon, there is virtually no way to remove a felony conviction from your record in Georgia. This statute is one of the only ways to get an “exoneration of guilt and discharge” for a felony conviction. Talk with an attorney today if you think retroactive first offender may work for you.

How to Keep Your Record Clean in Georgia (Pt. 1): First Offender and Conditional Discharge

Being charged with a felony in Georgia and pleading guilty to it can easily lead to you becoming a convicted felon. A felony conviction can stay with you long after you have been convicted — potentially for life — and can continue to negatively affect many areas of your life including employment, housing, education, gun rights, voting rights, and much more. Before you plead guilty to a felony (or a serious misdemeanor), you need to explore ways with your lawyer to have the guilty plea not enter in as a conviction on your record.

The two primary ways to do this in Georgia is either through the First Offender Act (O.C.G.A. 42-8-60) and Conditional Discharge (O.C.G.A. 16-13-2). These two statutes operate differently in Georgia, but lead to the same important result: No felony conviction on your record. However, the downside is that if you violate probation while you are on it (such as by committing a new crime) the court can bring you back in, adjudicate you as guilty, and re-sentence you. If you are someone who is committed to complying with probation and avoiding any future arrests, First Offender and Conditional Discharge could be a great option for you. Now, lets discuss the differences between Conditional Discharge and First Offender.

Conditional Discharge

This statute is geared specifically toward first-time drug offenses, or property offenses that were caused by an underlying drug problem — it doesn’t apply to other kinds of felonies. You can qualify for Conditional Discharge if you have never been convicted of any drug offense in Georgia or any other state or federal court. If the court chooses to use conditional discharge in your case, they may put you on probation for a period not to exceed three years and mandate any treatment they see as necessary. If you complete that probation without violating any terms and conditions, no conviction will enter in on your record. You are only allowed to plead guilty under this statute once.

First Offender

First Offender is like Conditional Discharge, but can be used for virtually any felony except for with more serious felonies such as murder, rape, armed robbery, and sex crimes etc. It is important to remember that the granting of First Offender is within the trial judge’s discretion, and the judge can choose not to give it for any reason. However, if a Defendant in Georgia has never been convicted of a felony in any state, and has committed a less serious felony such as drug possession or a property crime, most Defendants can expect to be treated as a First Offender. Another thing to be aware of is even if you have never committed a felony before but have an extensive misdemeanor criminal history, this may be a reason that a judge chooses not to give you First Offender. Your attorney should be prepared with an argument for the Judge as to why you should get First Offender or Conditional Discharge.

Which One Is Best?

If you are pleading guilty to a first-time drug offense, it is probably better that you use the Conditional Discharge statute rather than First Offender. This is for two reasons. First, the Conditional Discharge statute does not say anything about the judge sentencing you to any jail or prison time, and, in fact, most people get straight probation when being sentenced to Conditional Discharge. The First Offender statute allows the judge to sentence you to probation, jail/prison, or a split sentence. Second, and most importantly, you can conceivably use the First Offender statute after having used the Conditional Discharge already. Once you have used First Offender, it is probably less likely you would get Conditional Discharge. But, again, all of this is up to each individual judge.

In conclusion, remember that while First Offender and Conditional Discharge are great options to keep your record clean in Georgia, there are serious downsides if you violate the terms of your probation or commit a new crime while on probation. In coming posts we will be discussing pre-trial diversion, accountability courts, and record sealing as other ways to keep your record clean in Georgia.