Georgia Divorce Laws
Title 19 Domestic Relations
Chapter 4 Annulment Of Marriage
19-4-1. When annulments may be granted.
Annulments of marriages declared void by law may be granted by the superior court, except that annulments may not be granted in instances where children are born or are to be born as a result of the marriage.
19-4-2. Right to file for annulment or divorce.
Parties who enter into a marriage which is declared void by law shall have the right to file:
(1) A petition for annulment; or
(2) A petition for divorce, if grounds for divorce exist.
19-4-3. Petition by next friend.
A petition for annulment may be filed by next friend for minors or persons of unsound mind.
19-4-4. Procedure.
All matters of service, jurisdiction, procedure, residence, pleading, and practice for obtaining an annulment of marriage shall be the same as those provided by law for obtaining a divorce, with the exception that a decree of annulment may be ordered at any time, in open court or in chambers, when personal service is had at least 30 days beforehand and no contest or answer is filed.
19-4-5. Effect of annulment.
A decree of annulment, when rendered, shall have the effect of a total divorce between the parties of a void marriage and shall return the parties thereto to their original status before marriage. However, a decree of annulment shall not operate to relieve the parties to a marriage of criminal charges or responsibilities occasioned by the marriage.
Chapter 5 Divorce
19-5-1. Total divorces authorized; how tried; referral for alternative dispute resolution.
(a) Total divorces may be granted in proper cases by the superior court. Unless an issuable defense is filed as provided by law and a jury trial is demanded in writing by either party on or before the call of the case for trial, in all petitions for divorce and permanent alimony the judge shall hear and determine all issues of law and of fact and any other issues raised in the pleadings.
(b) In any county in which there has been established an alternative dispute resolution program pursuant to Chapter 23 of Title 15, known as the "Georgia Court-annexed Alternative Dispute Resolution Act," the judge may, prior to trial, refer all contested petitions for divorce or permanent alimony to the appropriate alternative dispute resolution method. In counties in which an alternative dispute resolution program has not been established, a judge may nonetheless refer any disputed divorce case to an appropriate alternative dispute resolution method if a method is reasonably available without additional cost to the parties.
19-5-2. Residence requirements; venue.
No court shall grant a divorce to any person who has not been a bona fide resident of this state for six months before the filing of the petition for divorce, provided that any person who has been a resident of any United States army post or military reservation within this state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the United States army post or military reservation; and provided, further, that a nonresident 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 the petition.
19-5-3. Grounds for total divorce.
The following grounds shall be sufficient to authorize the granting of a total divorce:
(1) Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
(2) Mental incapacity at the time of the marriage;
(3) Impotency at the time of the marriage;
(4) Force, menace, duress, or fraud in obtaining the marriage;
(5) Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;
(6) Adultery in either of the parties after marriage;
(7) Willful and continued desertion by either of the parties for the term of one year;
(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;
(9) Habitual intoxication;
(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;
(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;
(12) Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16;
(13) The marriage is irretrievably broken. Under no circumstances shall the court grant a divorce on this ground until not less than 30 days from the date of service on the respondent.
19-5-4. Effect of collusion, consent, guilt of like conduct, or condonation.
(a) No divorce shall be granted under the following circumstances:
(1) The adultery, desertion, cruel treatment, or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing a divorce;
(2) The party complaining of the adultery, desertion, cruel treatment, or intoxication of the other party was consenting thereto;
(3) Both parties are guilty of like conduct; or
(4) There has been a voluntary condonation and cohabitation subsequent to the acts complained of, with notice thereof.
(b) In all such cases, the respondent may plead in defense the conduct of the party bringing the action and the jury may, on examination of the whole case, refuse a divorce.
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.
19-5-6. Grant of divorce to respondent without necessity of counterclaim.
When a petition for divorce is filed, the respondent may recriminate in his answer and ask a divorce in his favor. If, at the trial, the court or jury believes that the respondent rather than the petitioner is entitled to a divorce, they may so find upon legal proof.
19-5-7. Transfer of property after filing of petition; lis pendens notice.
After a petition for divorce has been filed, no transfer of property by either party, except a bona fide transfer in payment of preexisting debts, shall pass title so as to avoid the vesting thereof according to the final verdict of the jury in the case; provided, however, that the title to real property shall not be affected by the filing of an action for divorce unless a notice of lis pendens, as provided for by Code Section 44-14-610, is filed in the office of the clerk of the superior court of the county in which the real property is situated and is recorded by the clerk in a book kept by him for that purpose.
19-5-8. Pleading and practice.
The same rules of pleading and practice applicable to ordinary civil actions shall apply to actions for divorce, alimony, and custody of minor children, except as otherwise specifically provided in this chapter. No verdict or judgment by default shall be taken in any such case but the allegations of the pleadings shall be established to the satisfaction of the court by the verified pleadings, by affidavit, by evidentiary hearing, or otherwise, as provided in Code Section 19-5-10.
19-5-10. Duty of judge in undefended divorce cases; appointment of attorney; evidentiary hearings; evidentiary attacks on prior judgments.
(a) In divorce cases which are not defended by the responding party, the judge shall determine that the asserted grounds for divorce are legal and sustained by proof or shall appoint an attorney of the court to discharge that duty for him. An evidentiary hearing for the determination of the existence of the grounds for divorce and for the determination of issues of alimony, child support, and child custody and other issues is authorized but not required. If no evidentiary hearing is held, the determination of such matters may be made upon the verified pleadings of either party, one or more affidavits, or such other basis or procedure as the court may deem proper in its discretion.
(b) The provisions of subsection (a) of this Code section shall apply to proceedings pending on July 1, 1987, as well as to proceedings filed on or after that date.
(c) Any motion to set aside or other proceeding to attack a judgment which attacks a judgment entered in a divorce case prior to July 1, 1987, and which is based upon an alleged failure to properly establish evidence supporting the judgment must be commenced prior to July 1, 1988, or thereafter be totally barred. The bar established by this subsection is in addition to and not in lieu of any other statute or rule of law which would operate as a bar to such a motion or other proceeding; and this subsection shall not operate to revive any otherwise barred right to prosecute any such motion or other proceeding.
19-5-11. Use of confession as evidence; corroboration.
The confessions of a party to acts of adultery or cruel treatment shall be received with great caution; if unsupported by corroborating circumstances and if made with a view to be evidence in the case, such confessions shall not be deemed sufficient to grant a divorce.
19-5-12. Form of judgment and decree.
(a) A final judgment of divorce shall be prepared so as to conform to the pleadings and the evidence and may restore a maiden or prior name, if requested. It shall be prepared in form substantially as follows:
FINAL JUDGMENT AND DECREE
Upon consideration of this case, upon evidence submitted as provided by law, it is the judgment of the court that a total divorce be granted, that is to say, a divorce a vinculo matrimonii, between the parties to the above stated case upon legal principles.
It is considered, ordered, and decreed by the court that the marriage contract heretofore entered into between the parties to this case, from and after this date, be and is set aside and dissolved as fully and effectually as if no such contract had ever been made or entered into.
Petitioner and Respondent in the future shall be held and considered as separate and distinct persons altogether unconnected by any nuptial union or civil contract whatsoever and both shall have the right to remarry.
Decree and order entered this ______ day of _________, ____.
________________________________ Judge, Superior Court
(b) Where applicable, any one or more of the following clauses shall be included in the form of the judgment:
The court restores to (Petitioner/Respondent) his/her prior or maiden name, to wit: ____________________________________________________________.
The court awards custody of the children of the parties as follows:
_________________________________________________________________.
The court fixes alimony as follows: ____________________________________.
(c) In any case which involves the determination of child support, the form of the judgment shall also include provisions indicating both parties' incomes, the number of children for which support is being provided, the presumptive award calculation, and, if the presumptive award is rebutted, the award amount and the basis for the rebuttal award.
(d) Where applicable, the court shall also include in the order the provisions of Code Section 19-6-30 concerning continuing garnishment for support and language in compliance with Code Section 19-6-32 concerning income deduction orders.
19-5-13. Disposition of property in accordance with verdict.
The verdict of the jury disposing of the property in a divorce case shall be carried into effect by the court by entering such judgment or decree or taking such other steps as are usual in the exercise of the court's equitable powers to execute effectually and fully the jury's verdict.
19-5-14. New trials.
New trials may be granted in actions for divorce as in other cases.
19-5-15. Effect of divorce.
A total divorce annuls a marriage from the time of the rendition of the decree, unless the divorce is granted for a cause rendering the marriage void originally, in which case the divorce serves to annul the marriage from its inception. However, the issue of the marriage shall not be rendered born out of wedlock by a divorce, except in cases of pregnancy of the wife by a man other than the husband at the time of the marriage, unknown to the husband.
19-5-16. Restoration of maiden or prior name.
In all divorce actions, a party may pray in his pleadings for the restoration of a maiden or prior name. If a divorce is granted, the judgment or decree shall specify and restore to the party the name so prayed for in the pleadings.
19-5-17. Determination of parties' rights; disability preventing remarriage forbidden.
When a divorce is granted, the jury or the judge, as the case may be, shall determine the rights of the parties. No person shall be placed under a disability that would prevent remarriage.
CHAPTER 6 ALIMONY AND CHILD SUPPORT GENERALLY
19-6-1. Alimony defined; when authorized; how determined; lien on estate of party dying prior to order; certain changes in parties' assets prohibited pending determination.
(a) Alimony is an allowance out of one party's estate, made for the support of the other party when living separately. It is either temporary or permanent.
(b) A party shall not be entitled to alimony if it is established by a preponderance of the evidence that the separation between the parties was caused by that party's adultery or desertion. In all cases in which alimony is sought, the court shall receive evidence of the factual cause of the separation even though one or both of the parties may also seek a divorce, regardless of the grounds upon which a divorce is sought or granted by the court.
(c) In all other cases in which alimony is sought, alimony is authorized, but is not required, to be awarded to either party in accordance with the needs of the party and the ability of the other party to pay. In determining whether or not to grant alimony, the court shall consider evidence of the conduct of each party toward the other.
(d) Should either party die prior to the court's order on the issue of alimony, any rights of the other party to alimony shall survive and be a lien upon the estate of the deceased party.
(e) Pending final determination by the court of the right of either party to alimony, neither party shall make any substantial change in the assets of the party's estate except in the course of ordinary business affairs and except for bona fide transfers for value.
19-6-2. Attorney's fees; when granted; grant of final judgment; how enforced; action by attorney.
(a) The grant of attorney's fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights, shall be:
(1) Within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party; and
(2) A final judgment as to the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not.
(b) Nothing contained in this Code section shall be construed to mean that attorney's fees shall not be awarded at both the temporary hearing and the final hearing.
(c) An attorney may bring an action in his own name to enforce a grant of attorney's fees made to him pursuant to this Code section.
19-6-3. Temporary alimony; petition and hearing; factors considered; discretion of judge; revision and enforcement of order; effect of failure to comply.
(a) Whenever an action for divorce or for permanent alimony is pending, either party may apply at any time to the presiding judge of the court in which the same is pending, by petition, for an order granting the party temporary alimony pending the issuance of a final judgment in the case. After hearing both parties and the evidence as to all the circumstances of the parties and as to the fact of marriage, the court shall grant an order allowing such temporary alimony, including expenses of litigation, as the condition of the parties and the facts of the case may justify.
(b) In arriving at a decision, the judge shall consider the peculiar necessities created for each party by the pending litigation and any evidence of a separate estate owned by either party. If the separate estate of the party seeking alimony is ample as compared with that of the other party, temporary alimony may be refused.
(c) At a hearing on the application for temporary alimony, the merits of the case are not in issue; however, the judge, in fixing the amount of alimony, may inquire into the cause and circumstances of the separation rendering the alimony necessary and in his discretion may refuse it altogether.
(d) On application, an order allowing temporary alimony shall be subject to revision by the court at any time and may be enforced either by writ of fieri facias or by attachment for contempt.
(e) A failure to comply with the order allowing temporary alimony shall not deprive a party of the right either to prosecute or to defend the case.
19-6-4. When permanent alimony authorized; how enforced.
(a) Permanent alimony may be granted in the following cases:
(1) In cases of divorce;
(2) In cases of voluntary separation; or
(3) Where one spouse, against the will of that spouse, is abandoned or driven off by the other spouse.
(b) A grant of permanent alimony may be enforced either by writ of fieri facias or by attachment for contempt.
19-6-5. Factors in determining amount of alimony; effect of remarriage on obligations for alimony.
(a) The finder of fact may grant permanent alimony to either party, either from the corpus of the estate or otherwise. The following shall be considered in determining the amount of alimony, if any, to be awarded:
(1) The standard of living established during the marriage;
(2) The duration of the marriage;
(3) The age and the physical and emotional condition of both parties;
(4) The financial resources of each party;
(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;
(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
(8) Such other relevant factors as the court deems equitable and proper.
(b) All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided.
19-6-6. Liability after grant of alimony.
(a) When permanent alimony is granted, the party liable for alimony shall cease to be liable for any debt or contract of the former spouse of the liable party.
(b) Upon the grant of permanent alimony, the property of the liable party set apart for the support of the former spouse shall not be subject to the liable party's debts or contracts as long as the former spouse of the liable party shall live.
19-6-7. Interest in deceased party's estate after grant of permanent alimony.
After permanent alimony is granted, upon the death of the party liable for the alimony the other party shall not be entitled to any further interest in the estate of the deceased party by virtue of the marriage contract between the parties; however, such permanent provision shall be continued to the other party or a portion of the deceased party's estate equivalent to the permanent provision shall be set apart to the other party.
19-6-8. Voluntary separation, abandonment, or driving off of spouse - Agreement for support as bar to alimony.
In cases of voluntary separation or in cases where one spouse, against the will of that spouse, is abandoned or driven off by the other spouse, a party voluntarily, by contract or other written agreement made with his spouse, may make an adequate provision for the support and maintenance of such spouse, consistent with the means of the party and the former circumstances of the spouse. Such an agreement shall be a bar to the right of the spouse to permanent alimony.
19-6-9. Voluntary separation, abandonment, or driving off of spouse - Equity may compel support.
Absent the making of a voluntary contract or other agreement, as provided in Code Section 19-6-8, and on the application of a party, the court, exercising its equitable powers, may compel the spouse of the party to make provision for the support of the party and such minor children as may be in the custody of the party.
19-6-10. Voluntary separation, abandonment, or driving off of spouse - Petition for alimony or child support when no divorce pending - Notice; hearing; order and enforcement; equitable remedies; decree in equity; effect of filing for divorce.
When spouses are living separately or in a bona fide state of separation and there is no action for divorce pending, either party, on the party's own behalf or on the behalf of the minor children in the party's custody, if any, may institute a proceeding by petition, setting forth fully the party's case. Upon three days' notice to the other party, the judge may hear the same and may grant such order as he might grant were it based on a pending petition for divorce, to be enforced in the same manner, together with any other remedy applicable in equity, such as appointing a receiver and the like. Should the petition proceed to a hearing before a jury, the jury may render a verdict which shall provide the factual basis for equitable relief as in Code Section 19-6-9. However, such proceeding shall be held in abeyance when a petition for divorce is filed bona fide by either party and the judge presiding has made his order on the motion for alimony. When so made, the order shall be a substitute for the aforesaid decree in equity as long as the petition is pending and is not finally disposed of on the merits.
19-6-11. Voluntary separation, abandonment, or driving off of spouse - Petition for alimony or child support when no divorce pending - Appeals.
A judgment of the superior court in a case brought under Code Section 19-6-10 shall be appealable on the same terms as are prescribed in divorce cases.
19-6-12. Voluntary separation, abandonment, or driving off of spouse - Effect of subsequent cohabitation between spouses on permanent alimony.
The subsequent voluntary cohabitation of spouses, where there has been no total divorce between them, shall annul and set aside all provision made either by deed or decree for permanent alimony; provided, however, that the rights of children under any deed of separation or voluntary provision or decree for alimony shall not be affected by such subsequent voluntary cohabitation of the spouses.
19-6-13. Liability of parents for necessaries furnished to children pending voluntary provision, order, or decree.
Until otherwise provided voluntarily or by decree or order of a court, each party shall be liable to third persons for the board and support and for all necessaries furnished to or for the benefit of the parties' children.
19-6-14. Child support and custody pending final divorce; effect on liability to third persons for necessaries.
Pending a final judgment in an action for divorce, the judge presiding may grant as alimony a sum sufficient for the support of the children of the parties. The judge may also hear and determine who shall be entitled to the care and custody of the children until the final judgment in the case. If a sum is awarded for the support of the children, the party who is required to pay the support shall not be liable to third persons for necessaries furnished to the children.
19-6-15. Child support in final verdict or decree; computation of award; guidelines for determining amount of award; continuation of duty to provide support; duration of support.
(a) As used in this Code section, the term:
(1) `Adjusted gross income' means the net determination of a parent's income, calculated by deducting from that parent's gross income any applicable self-employment taxes being paid by the parent and any preexisting child support order for current child support which is being paid by the parent.
(2) `Adjusted support obligation' means the basic child support obligation from the child support obligation table, adjusted for parenting time, health insurance, and work related child care expenses.
(3) `Basic child support obligation' means the amount of support displayed on the child support obligation table which corresponds to the combined adjusted gross income of both parents and the number of children for whom support is being determined. This amount is rebuttably presumed to be the appropriate amount of basic child support to be provided by both parents in the case immediately under consideration, prior to consideration of any adjustments for parenting time or additional expenses.
(4) `Caretaker' means the person or entity providing care and supervision of a child more than 50 percent of the time. The caretaker may be the child's custodial parent. The caretaker may be a parent of the child or a nonparent relative of the child who voluntarily or otherwise, pursuant to court order or other legal arrangement, is providing care and supervision of the child. A caretaker may also be a private or public agency providing custodial care and supervision for the child through voluntary placement by the child's parent, nonparent relative, or other designated caretaker or by court order or other legal arrangement.
(5) `Child support obligation table' means the chart created by the Georgia Child Support Commission which displays the dollar amount of the basic child support obligation corresponding to various levels of combined adjusted gross income of the children's parents and the number of children for whom a child support order is being established or modified. The table shall be used to calculate the basic child support obligation according to the provisions of this Code section. Deviations from the table shall comply with the requirements of this Code section.
(6) `Combined adjusted gross income' means the amount of adjusted gross income calculated by adding together the adjusted gross incomes of both parents. This amount is then used to determine the basic child support obligation for both parents for the number of children for whom support is being calculated in the case immediately under consideration.
(7) `Credit worksheet' means the worksheet used for listing information regarding a parent's preexisting child support order and self-employment tax.
(8) `Custodial parent' means the parent with whom the child or children resides more than 50 percent of the time. The term also means a nonparent caretaker who has been given physical custody of the child or children. If each parent spends exactly 50 percent of the time with the child or children, then the court shall designate the parent with the lesser child support obligation as the custodial parent and the other parent as the noncustodial parent. If a custodial parent has not been designated, the caretaker with whom the child resides more than 50 percent of the time shall be the custodial parent.
(9) `Day' or `days' means that a child spends more than 12 hours of a calendar day with or under the control of a parent and that parent expends a reasonable amount of resources on the child during such time period, such as the cost of a meal or other costs directly related to the care and supervision of the child. Partial days of parenting time that are not consistent with this definition shall not be considered a `day' under the child support guidelines. A `day' under the control of a parent includes a day the child is not in the parent's home, but is under the parent's control, for example, with the parent's permission at camp or with friends.
(10) `Final child support order' means the presumptive child support order adjusted by any deviations ordered by the court.
(11) `Health insurance' means accident, sickness, health, medical, or dental insurance.
(12) `Noncustodial parent' means the parent with whom the child resides less than 50 percent of the time.
(13) `Parenting time adjustment' means an adjustment to the noncustodial parent's portion of the basic child support obligation upon the noncustodial parent's parenting time with the child.
(14) `Percentage of income' for each parent is obtained by dividing each parent's adjusted gross income by the combined total of both parents' adjusted gross income. The percentage of income is used to determine each parent's pro rata share of the basic child support obligation and each parent's share of the amount of additional expense for health insurance and work related child care. The percentage of income is also used to designate the amount of uninsured medical expenses that each parent is financially responsible to pay, absent an order of a court setting a different amount.
(15) `Preexisting orders' means:
(A) An order in another case that requires a parent to make child support payments for another child or children, which child support the parent is actually paying, as evidenced by documentation including, but not limited to, payment history from a court clerk, Title IV-D agency, as defined in Code Section 19-6-31, the Department of Human Resources computer system, the department's Internet child support payment history, or canceled checks or other written proof of payments paid directly; and
(B) That the date of filing of the initial order for each such other case is earlier than the date of filing of the initial order in the case immediately before the court, regardless of the age of any child in any of the cases.
(16) `Presumptive child support order' means the amount of support to be paid for the child or children derived from the parent's proportional share of the basic child support obligation, adjusted for parenting time, plus the parent's proportional share of any additional expenses. This amount is rebuttably presumed to be the appropriate child support order.
(17) `Pro rata' means to the proportion of one parent's adjusted gross income to both parents' combined adjusted gross income, or to the proportion of one parent's support obligation to the whole support obligation. A parent's pro rata share of income is calculated by combining both parents' adjusted gross income and dividing each parent's separate adjusted gross income by the combined adjusted gross income. A parent's pro rata share of the basic support obligation is calculated by multiplying the basic child support obligation obtained from the child support obligation table by each parent's pro rata percentage of the combined adjusted gross income.
(18) `Split parenting' can only occur in a child support case if there are two or more children of the same parents, where one parent is the custodial parent for at least one child of the parents, and the other parent is custodial parent for at least one other child of the parents. In a split parenting case, each parent is the custodial parent of any child spending more than 50 percent of the time with that parent and is the noncustodial parent of any child spending more than 50 percent of the time with the other parent. A split parenting situation will have two custodial parents and two noncustodial parents, but no child will have more than one custodial parent or noncustodial parent.
(19) `Standard parenting' means a child support case in which all of the children supported under the order spend more than 50 percent of the time with the same custodial parent. There is only one custodial parent and one noncustodial parent in a standard parenting case.
(20) `Theoretical support order' means a hypothetical order which allows the court to determine the amount of a child support obligation if an order existed. A theoretical support order is used to determine the amount of credit allowed as a deduction from a parent's gross income for a parent's qualified other child or children who are not under a preexisting child support order.
(21) `Uninsured health care expenses' means the child's or children's uninsured medical expenses including, but not limited to, health insurance copayments, deductibles, and such other costs as are reasonably necessary for orthodontia, dental treatment, asthma treatments, physical therapy, vision care, and any acute or chronic medical or health problem or mental health illness, including counseling and other medical or mental health expenses, that are not covered by insurance.
(22) `Work related child care costs' means expenses for the care of the child or children for whom support is being determined which are due to employment of either parent. In an appropriate case, the court may consider the child care costs associated with a parent's job search or the training or education of a parent necessary to obtain a job or enhance earning potential, not to exceed a reasonable time as determined by the court, if the parent proves by a preponderance of the evidence that the job search, job training, or education will benefit the child or children being supported. The term shall be projected for the next consecutive 12 months and averaged to obtain a monthly amount.
(23) `Worksheet' or `child support worksheet' means the worksheet used to record information necessary to determine and calculate gross income and child support.
(b)(1) The child support guidelines contained in this Code section are a minimum basis for determining child support obligations and shall apply as a rebuttable presumption in all legal proceedings involving the child support obligation of a parent, including, but not limited to, orders entered in criminal and juvenile proceedings, orders entered pursuant to Article 3 of Chapter 11 of this title, the `Uniform Interstate Family Support Act,' and voluntary support agreements and consent orders approved by the court. The child support guidelines do not apply to orders for prior maintenance for reimbursement of child care costs incurred prior to the date an action for child support is filed or to child support orders entered against stepparents or other persons or agencies secondarily liable for child support. The child support guidelines shall be used when the court enters a temporary or permanent child support order in a contested or noncontested hearing. The rebuttable presumption award provided by these child support guidelines may be increased according to the best interest of the child for whom support is being considered, the circumstances of the parties, the grounds for deviation set forth in subsection (i) of this Code section, and to achieve the state policy of affording to children of unmarried parents, to the extent possible, the same economic standard of living enjoyed by children living in intact families consisting of parents with similar financial means.
(2) The provisions of this Code section shall not apply with respect to any divorce case in which there are no minor children, except to the limited extent authorized by subsection (d) of this Code section. In the final judgment or decree in a divorce case in which there are minor children, or in other cases which are governed by the provisions of this Code section, the trier of fact court shall;
(A) Specify in what amount and from which party the minor children are entitled to permanent support as determined by use of the worksheets;
(B) Specify as required by Code Section 19-5-12 in what manner, how often, to whom, and until when the support shall be paid;
(C) Include a written finding of the gross income of the father and the mother as determined by the factfinder;
(D) Determine whether health insurance for the child or children involved is reasonably available at a reasonable cost to either parent. If the insurance policy is reasonably available at a reasonable cost to the parent, then the court may order that the child or children be covered under such insurance; and
(E) Include written findings of fact as to whether one or more of the deviations allowed under this Code section are applicable, and if one or more such deviations are applicable, the written findings of fact shall further set forth:
(i) The reasons the court deviated from the presumptive amount of child support;
(ii) The amount of child support that would have been required under the child support guidelines if the presumptive amount had not been rebutted; and
(iii) A finding that states how application of the child support guidelines would be unjust or inappropriate in the case immediately under consideration considering the relative ability of each parent to provide support and how the best interests of the child or children who are subject to the support award determination are served by deviation from the presumptive guideline amount.
(3) When support is awarded, the party who is required to pay the support shall not be liable to third persons for necessaries furnished to the child or children embraced in the judgment or decree. In any contested case, the parties shall submit to the court their worksheets and the presence or absence of other factors to be considered by the court pursuant to the provisions of this Code section. In any case in which the gross incomes of the father and the mother are determined by a jury, the court shall charge the provisions of this Code section applicable to the determination of gross income and the jury shall be required to return a special interrogatory. Based upon the jury's verdict as to gross income, the court shall determine the child support obligation in accordance with the provisions of this Code section.
(4) Nothing contained within this Code section shall prevent the parties from entering into an enforceable agreement to the contrary which may be made the order of the court pursuant to the review by the court of the adequacy of the child support amounts negotiated by the parties, including the provision for medical expenses and health insurance; provided, however, that if the agreement negotiated by the parties does not comply with the provisions contained in this Code section and does not contain findings of fact as required to support a deviation, the court shall reject such agreement. To assist in this determination by the court, the parties shall provide all child support worksheets utilized by the parties to determine the child support amounts proposed in the agreement.
(c) In the event of a hearing or trial on the issue of child support, the guidelines enumerated in this Code section are intended by the General Assembly to be guidelines only and any court so applying these guidelines shall not abrogate its responsibility in making the final determination of child support based on the evidence presented to it at the time of the hearing or trial.
(d) The duty to provide support for a minor child shall continue until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs; provided, however, that, in any temporary or final order for child support with respect to any proceeding for divorce, separate maintenance, legitimacy, or paternity entered on or after July 1, 1992, the court, in the exercise of sound discretion, may direct either or both parents to provide financial assistance to a child who has not previously married or become emancipated, who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that such financial assistance shall not be required after a child attains 20 years of age. The provisions for support provided in this subsection may be enforced by either parent or the child for whose benefit the support is ordered.
(e) Gross income.
(1)(A) Gross income of each parent shall be determined in the process of setting the presumptive child support order and shall include all income from any source, before deductions for taxes and other deductions such as preexisting child support orders and credits for other qualified children, whether earned or unearned, and includes, but is not limited to, the following:
(i) Salaries;
(ii) Commissions, fees, and tips;
(iii) Income from self-employment;
(iv) Bonuses;
(v) Overtime payments;
(vi) Severance pay;
(vii) Recurring income from pensions or retirement plans including, but not limited to, Veterans' Administration, Railroad Retirement Board, Keoughs, and individual retirement accounts;
(viii) Interest income;
(ix) Dividend income;
(x) Trust income;
(xi) Income from annuities;
(xii) Capital gains;
(xiii) Disability or retirement benefits that are received from the Social Security Administration pursuant to Title XI of the federal Social Security Act;
(xiv) Workers' compensation benefits, whether temporary or permanent;
(xv) Unemployment insurance benefits;
(xvi) Judgments recovered for personal injuries and awards from other civil actions;
(xvii) Gifts that consist of cash or other liquid instruments, or which can be converted to cash;
(xviii) Prizes;
(xix) Lottery winnings;
(xx) Alimony or maintenance received from persons other than parties to the proceeding before the court; and
(xxi) Assets which are used for the support of the family.
(B) Excluded from gross income are the following:
(i) Child support payments received by either parent for the benefit of a child or children of another relationship; and
(ii) Benefits received from means-tested public assistance programs such as, but not limited to:
(I) PeachCare for Kids Program, Temporary Assistance for Needy Families, or similar programs in other states or territories under Title IV-A of the federal Social Security Act;
(II) Food stamps or the value of food assistance provided by way of electronic benefits transfer procedures by the Department of Human Resources;
(III) Supplemental security income received under Title XVI of the federal Social Security Act;
(IV) Benefits received under Section 402(d) of the federal Social Security Act for disabled adult children of deceased disabled workers; and
(V) Low Income Heating and Energy Assistance Program payments.
(2)(A) When establishing an initial order of child support, if a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to support or ability to support in prior years, and the court has no other reliable evidence of the parent's income or income potential, gross income for the current year shall be determined by imputing gross income based on a 40 hour workweek at minimum wage.
(B) When cases with established orders are reviewed for modification and a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to support or ability to support in prior years, and the court has no other reliable evidence of that parent's income or income potential, the court may enter an order to increase the child support obligation of the parent failing or refusing to produce evidence of income by an increment of at least 10 percent per year of that parent's pro rata share of the basic child support obligation for each year since the support order was entered or last modified.
(C) In either circumstance in subparagraph (A) or (B) of this paragraph, either parent may later provide within 90 days, upon motion to the court, the reliable evidence necessary to determine the appropriate amount of support based upon reliable evidence. The court may increase or reduce the amount of current support from the date of filing of either parent's initial filing or motion to modify child support, but arrearages or retroactive amounts entered in an order based upon imputed income shall not be forgiven. When a parent, whose income has been imputed under subparagraph (A) or (B) of this paragraph, provides reliable evidence to support a modification of the amount of income imputed for that parent, the parent is not required to demonstrate the existence of a significant variance otherwise required for modification of an order pursuant to subsection (l) of this Code section.
(3)(A) Income from self-employment includes income from, but not limited to, business operations, work as an independent contractor or consultant, sales of goods or services, and rental properties, less ordinary and reasonable expenses necessary to produce such income. Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership, limited liability company, or closely held corporation is defined as gross receipts minus ordinary and necessary expenses required for self-employment or business operations. Ordinary and reasonable expenses of self-employment or business operations necessary to produce income do not include:
(i) Excessive promotional, travel, vehicle, or personal living expenses, depreciation on equipment, or costs of operation of home offices; or
(ii) Amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court to be inappropriate for determining gross income.
In general, income and expenses from self-employment or operation of a business should be carefully reviewed by the factfinder and the court to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. Generally, this amount will differ from a determination of business income for tax purposes.
(B)(i) An additional deduction of 6.2 percent of FICA and 1.45 percent of medicare, or in any amount subsequently set by federal law as FICA and medicare tax, shall be deducted from a parent's gross income earned from self-employment, up to the amounts allowed under federal law.
(ii) Any self-employment tax paid shall be deducted from gross income as part of the calculation of a parent's adjusted gross income.
(4)(A) Fringe benefits for inclusion as income or `in kind' remuneration received by a parent in the course of employment, or operation of a trade or business, shall be counted as income if they significantly reduce personal living expenses.
(B) Such fringe benefits might include, but are not limited to, use of a company car, housing, or room and board.
(C) Basic allowance for housing, basic allowance for subsistence, and variable housing allowances for members of the armed services are considered income for the purposes of determining child support.
(D) Fringe benefits do not include employee benefits that are typically added to the salary, wage, or other compensation that a parent may receive as a standard added benefit, including but not limited to employer paid portions of health insurance premiums or employer contributions to a retirement or pension plan.
(5)(A) Benefits received under Title XI of the federal Social Security Act by a child on the obligor's account shall be counted as child support payments and shall be applied against the child support obligation ordered to be paid by the obligor for the child.
(B) If after calculating the obligor's gross income as defined in this subsection, including the countable Social Security benefits in division (1)(A)(xiii) of this subsection, and after calculating the amount of the child support obligation using the child support worksheet, the amount of the child support obligation is greater than the Social Security benefits paid on behalf of the child on the obligor's account, the obligor shall be required to pay the amount exceeding the Social Security benefit as part of the child support obligation in the case.
(C)(i) If after calculating the obligor's gross income as defined in this subsection, including the countable Social Security benefits in division (1)(A)(xiii) of this subsection, and after calculating the amount of the child support obligation using the child support worksheet, the amount of the child support obligation is equal to or less than the Social Security benefits paid to the caretaker on behalf of the child on the obligor's account, the child support obligation of that parent is met and no further child support obligation shall be paid.
(ii) Any benefit amounts under Title XI of the federal Social Security Act as determined by the Social Security Administration sent to the caretaker by the Social Security Administration for the child's benefit which are greater than the child support obligation ordered by the court shall be retained by the caretaker for the child's benefit and shall not be used as a reason for decreasing the child support order or reducing arrearages.
(D) The court shall make a written finding of fact in the child support order regarding the use of the Social Security benefits in the calculation of the child support obligation.
(6) Variable income such as commissions, bonuses, overtime pay, and dividends shall be averaged by the factfinder over a reasonable period of time consistent with the circumstances of the case and added to a parent's fixed salary or wages to determine gross income. When income is received on an irregular, nonrecurring or one-time basis, the court may, but is not required to, average or prorate the income over a reasonable specified period of time or require the parent to pay as a one-time support amount a percentage of his or her nonrecurring income, taking into consideration the percentage of recurring income of that parent.
(7)(A) A determination of whether a parent is willfully or voluntarily unemployed or underemployed shall ascertain the reasons for the parent's occupational choices and assess the reasonableness of these choices in light of the parent's obligation to support his or her child or children and to determine whether such choices benefit the child or children. A determination of willful and voluntary unemployment or underemployment is not limited to occupational choices motivated only by an intent to avoid or reduce the payment of child support. A determination of willful and voluntary unemployment or underemployment can be based on any intentional choice or act that affects a parent's income.
(B) Factors for the court to consider when determining willful and voluntary unemployment or underemployment include, but are not limited to:
(i) The parent's past and present employment;
(ii) The parent's education and training;
(iii) Whether unemployment or underemployment for the purpose of pursuing additional training or education is reasonable in light of the parent's obligation to support his or her child or children and, to this end, whether the training or education may ultimately benefit the child or children in the case immediately under consideration by increasing the parent's level of support for that child or those children in the future;
(iv) A parent's ownership of valuable assets and resources, such as an expensive home or automobile, that appear inappropriate or unreasonable for the income claimed by the parent; and
(v) The parent's role as caretaker of a handicapped or seriously ill child of that parent, or any other handicapped or seriously ill relative for whom that parent has assumed the role of caretaker, which eliminates or substantially reduces the parent's ability to work outside the home, and the need of that parent to continue in that role in the future.
(C) When considering the income potential of a parent whose work experience is limited due to the caretaker role of that parent, the court shall consider the following factors:
(i) Whether the parent acted in the role of full-time caretaker immediately prior to separation by the married parties or prior to the divorce or annulment of the marriage or dissolution of another relationship in which the parent was a full-time caretaker;
(ii) The length of time the parent staying at home has remained out of the workforce for this purpose;
(iii) The parent's education, training, and ability to work; and
(iv) Whether the parent is caring for a child or children who are four years of age or younger.
(D) If the court determines that a parent is willfully and voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, as evidenced by educational level or previous work experience. In the absence of any other reliable evidence, income may be imputed to the parent pursuant to a determination that gross income for the current year is based on a 40 hour workweek at minimum wage.
(E) A determination of willful and voluntary unemployment or underemployment shall not be made when an individual is activated from the National Guard or other armed forces unit or enlists or is drafted for full-time service in the armed forces of the United States.
(8)(A) An adjustment to the parent's gross income shall be made on the child support worksheet for current preexisting orders actually being paid under an order of support for a period of not less than 12 consecutive months immediately prior to the date of the hearing before the court to set, modify, or enforce child support.
(B) In calculating the adjustment for preexisting orders, the court shall include only those preexisting orders where the date of entry of the initial support order precedes the date of entry of the initial order in the case immediately under consideration.
(C) The priority for preexisting orders is determined by the date of the initial order in each case. Subsequent modifications of the initial support order shall not affect the priority position established by the date of the initial order.
(D) Adjustments are allowed for current preexisting support only to the extent that the payments are actually being paid as evidenced by documentation including, but not limited to, payment history from a court clerk, a Title IV-D agency, as defined in Code Section 19-6-31, the Department of Human Resources computer system, the department's Internet child support payment history, or canceled checks or other written proof of payments paid directly. The maximum credit allowed for a preexisting order is an average of the amount of current support actually paid under the preexisting order over the past 12 months prior to the hearing date.
(E) All preexisting orders shall be entered on the credit worksheet for the purpose of calculating the total amount of the credit to be included on the child support worksheet, but the preexisting orders shall not be used on the credit worksheet as a deduction against gross income for the purpose of calculating a theoretical child support order.
(F) Payments being made by a parent on any arrearages shall not be considered payments on preexisting or subsequent orders and shall not be used as a basis for reducing gross income.
(9)(A) In addition to the adjustments to gross income for self-employment tax provided in subparagraph (B) of paragraph (3) of this subsection and for preexisting orders provided in paragraph (8) of this subsection, credits for either parent's other child or children qualified under this paragraph may be considered by the court for the purpose of reducing the parent's gross income or as a reason for deviation. Credits may be considered for a qualified child:
(i) For whom the parent is legally responsible and in whose home that child resides;
(ii) The parent is actually supporting;
(iii) Who is not subject to a preexisting order for child support; and
(iv) Who is not before the court to set, modify, or enforce support in the case immediately under consideration.
Stepchildren and other minors in the home that the parent has no legal obligation to support shall not be considered in the calculation of this credit. To consider a parent's qualified other child or children for credit, a parent must present documentary evidence of the parent-child relationship to the court.
(B) Credits against income pursuant to this paragraph may be considered in such circumstances in which the failure to consider such child or children would cause substantial hardship to the parent. Use of this credit is appropriate when a child support order is entered. Credits may also be appropriate when a child support order is modified to rebut a claim for increased child support brought by the custodial parent. If the court, in its discretion, decides to apply this credit, a parent's current financial responsibility for his or her natural or adopted child or children who currently reside with the parent, other than a child or children for whom child support is being determined in the pending action, can be no greater than an amount (i) equal to the basic child support obligation for that child or those children based on the parent's income if the other parent of such child or children does not live with the parent and child or children or (ii) one-half of the basic child support obligation for such child or children based on the combined incomes of both of the parents of such child or children if the other parent of such child or children lives with the parent and the child or children.
(C) Credits against income for another qualified child or other qualified children shall be calculated and recorded on the credit worksheet and then entered on the child support worksheet for the purpose of reducing the parent's gross income on the child support worksheet. However, except for self-employment taxes paid, no other amounts shall be subtracted from the parent's gross income on the credit worksheet when calculating a theoretical support order under this paragraph.
(10) Actual payments of alimony should not be considered as a deduction from gross income but may be considered as a factor to vary from the final presumptive child support order. If the court considers the actual payment of alimony, the court shall make a written finding of such consideration as a basis for deviation from the final presumptive child support order.
(11) In multiple family situations, the adjustments to a parent's gross income shall be calculated in the following order:
(A) Preexisting orders according to the date of the initial order; and
(B) After applying the deductions on the child support worksheet for preexisting orders, if any, in subparagraph (E) of paragraph (8) of this subsection, any credit for a parent's qualified other child or children may be considered using the procedure set forth in subparagraph (A) of this paragraph.
(f) The basic child support obligation is determined based upon the parent's gross income and by using the corresponding child support obligation table as established and maintained by the Georgia Child Support Commission. If the combined monthly adjusted gross income falls between the amounts shown in the table, then the child support obligation shall be based on the income bracket mostly closely matched to the combined monthly adjusted gross income. The number of children column on the table corresponds to children for whom parents share joint legal responsibility and for whom support is being sought.
(g)(1) The child support obligation table does not include the cost of the child's work related child care costs or the cost of health insurance premiums or uninsured health expenses. The additional expenses for the child's health insurance premium and work related child care shall be included in the calculations to determine child support.
(2)(A) Work related child care expenses necessary for the parent's employment, education, or vocational training that are determined by the court to be appropriate, and that are appropriate to the parents' financial abilities and to the lifestyle of the child or children if the parents and child or children were living together, shall be averaged for a monthly amount and entered on the child support worksheet in the column of the parent initially paying the expense. Work related child care expenses of a nonparent caretaker shall be considered when determining the amount of this expense.
(B) If a child care subsidy is being provided pursuant to a means-tested public assistance program, only the amount of the child care expense actually paid by either parent shall be included in the calculation.
(C) If either parent is the provider of child care services to the child or children for whom support is being determined, the value of those services shall not be added to the basic child support obligation when calculating the support award.
(D) If child care is provided by a family member, other unpaid person, or provided by a parent's employer without charge to the parent, then the value of these services shall not be added to the basic child support obligation.
(3)(A) The amount that is, or will be, paid by a parent for health insurance for the child or children for whom support is being determined shall be added to the basic child support obligation and prorated between the parents based upon their respective incomes. Payments made by a parent's employer for health insurance and not deducted from the parent's wages are not included. When a child or children for whom support is being determined are covered by a family policy, only the health insurance premium actually attributable to that child or those children is added. If this amount is not available or cannot be verified, the total cost of the premium shall be divided by the total number of persons covered by the policy and then multiplied by the number of covered children for whom support is being determined.
(B) The amount of the cost for the child's or children's health insurance premium and work related child care expenses shall be determined and added to the basic child support obligation as `additional expenses' whether paid directly by the parent or through a payroll deduction.
(C) The total amount of the cost for the child's or children's health insurance premium and work related child care shall be divided between the parents pro rata to determine the total presumptive child support order and shall be included in the worksheet and written order of the court together with the amount of the basic child support obligation.
(4)(A) If health insurance that provides for the health care needs of the child or children can be obtained by a parent at reasonable cost, then an amount to cover the cost of the premium shall be added to the basic child support obligation. A health insurance premium paid by a nonparent caretaker shall be included when determining the amount of this expense. In determining the amount to be added to the order for this cost, only the amount of the insurance cost attributable to the child or children who are the subject of the support order shall be included.
(B) If coverage is applicable to other persons and the amount of the health insurance premium attributable to the child or children who are the subject of the current action for support is not verifiable, the total cost to the parent paying the premium shall be prorated by the number of persons covered so that only the cost attributable to the child or children who are the subject of the order under consideration is included. This amount shall be determined by dividing the total amount of the insurance premium by the number of persons covered by the insurance policy and taking the resulting amount and multiplying it by the number of children covered by the insurance policy. This monthly cost shall be entered on the child support worksheet in the column of the parent paying the premium.
(C) Eligibility for or enrollment of the child or children in Medicaid shall not satisfy the requirement that the child support order provide for the child's or children's health care needs.
(h)(1) The court shall determine each parent's pro rata share of the additional expenses by multiplying the percentage of income of each parent by the combined total additional expenses.
(2)(A) In standard parenting situations, the adjusted support obligation is the parent's share of the basic child support obligation plus the parent's share of any additional expenses for the child's or children's health insurance premium and work related child care.
(B) In split parenting situations, the adjusted support obligation is each parent's basic child support obligation for the child or children in the other parent's care plus each parent's share of any additional expenses for the child or children's health insurance premium and work related child care.
(C) If a parenting time adjustment has been calculated in either a standard or split parenting situation and that parent's share of the basic child support obligation is adjusted as specified in paragraph (5) of this subsection, then each parent's adjusted support obligation is calculated pursuant to this paragraph.
(3)(A) If a parent pays directly or through payroll deduction the child's or children's health insurance premium, or pays through payroll deduction work related child care costs, the total amount of the expenses paid in this manner shall first be entered on the child support worksheet to be used in calculating total additional expenses and each parent's adjusted support obligation.
(B) Once the adjusted support obligation has been calculated, the expenses paid by the parent as indicated in subparagraph (A) of this paragraph shall be deducted from the adjusted support obligation of that parent to credit the parent for the payment of these expenses. The amount of the deduction for the health insurance premium or payroll deduction for the work related child care expense shall be included in the child support order to identify the amount and nature of the child support obligation. These expenses shall not be included in the noncustodial parent's income deduction order. The order shall require that these expenses continue to be paid in the same manner as they were being paid prior to the instant action.
(C) To the extent that work related child care expenses are not included in subsection (g) of this Code section, the expense shall be accounted for in the noncustodial parent's income deduction order as part of the child support order. The custodial parent shall pay this expense in full out of his or her income and the child support award.
(4)(A) The child's or children's uninsured health expenses, including, but not limited to, deductibles, copayments, and dental, orthodontic, counseling, psychiatric, vision, hearing, and other medical needs not covered by insurance, shall be the financial responsibility of both parents. The order of the court shall include provisions for payment of the uninsured medical expenses. The parents shall divide these expenses pro rata, unless otherwise specifically ordered by the court.
(B) If a parent fails to pay his or her pro rata share of the child's or children's, uninsured medical expenses, as specified in the child support order, within a reasonable time after receipt of evidence documenting the uninsured portion of the expense, the other parent, the nonparent caretaker, or the state or its Title IV-D agency, as defined in Code Section 19-6-31, may enforce payment of the expense by any means permitted by law.
(5) No adjustment to gross income shall be made in the calculation of a child support obligation which seriously impairs the ability of the custodial parent in the case immediately under consideration to maintain minimally adequate housing, food, and clothing for the child or children being supported by the order and to provide other basic necessities, as determined by the court.
(i)(1) The amount of child support established by this Code section and the child support obligation table are rebuttable and the court may deviate from the presumptive child support order in compliance with this subsection. In deviating from the child support guidelines, primary consideration shall be given to the best interest of the child or children for whom support under the child support guidelines are being determined.
(2) When ordering a deviation from the presumptive amount of child support established by the child support guidelines, the court's order shall contain written findings of fact stating:
(A) The reasons for the change or deviation from the presumptive child support order;
(B) The amount of child support that would have been required under the child support guidelines if the presumptive child support order had not been rebutted; and
(C) How, in its determination,
(i) Application of the child support guidelines would be unjust or inappropriate in the case immediately under consideration; and
(ii) The best interests of the child for whom support is being determined will be served by deviation from the presumptive child support order.
No deviation in the amount of the child support obligation shall be made which seriously impairs the ability of the custodial parent in the case immediately under consideration to maintain minimally adequate housing, food, and clothing for the child or children being supported by the order and to provide other basic necessities, as determined by the court.
(3)(A) For purposes of this paragraph, parents are considered to be high-income parents if their combined adjusted gross income exceeds $20,000.00 per month.
(B) For high-income parents, the court shall set the child support obligation at the highest amount allowed by the child support obligation table but may consider upward deviation to attain an appropriate award of child support for high-income parents which is considered in the best interest of the child or children.
(4) Deviation from the child support guidelines may be appropriate for reasons in addition to those established under subsection (g) of this Code section when the court finds it is in the best interest of the child, in accordance with the requirements of subsection (e) of this Code section and the following procedures:
(A) In making its determination regarding a request for deviation pursuant to this subsection, the court shall consider all available income of the parents and shall make a written finding that an amount of child support other than the amount calculated under the child support guidelines is reasonably necessary to provide for the needs of the child or children for whom support is being determined in the case immediately under consideration. If the circumstances which supported the deviation cease to exist, the child support order may be modified to eliminate the deviation;
(B) In cases where the child or children are in the legal custody of the Department of Human Resources, the child protection or foster care agency of another state or territory, or any other child caring entity, public or private, the court may consider a deviation from the presumptive child support order if the deviation will assist in accomplishing a permanency plan or foster care plan for the child or children that has a goal of returning the child or children to the parent or parents and the parent's need to establish an adequate household or to otherwise adequately prepare herself or himself for the return of the child or children clearly justifies a deviation for this purpose;
(C) If parenting time related travel expenses are substantial due to the distance between the parents, the court may order the allocation of such costs by deviation from the basic child support obligation, taking into consideration the circumstances of the respective parties as well as which parent moved and the reason that the move was made; and
(D)(i) The child support obligation table includes average child rearing expenditures for families given the parents' monthly combined income and number of children. Extraordinary expenses are in excess of these average amounts and are highly variable among families. For these reasons, extraordinary expenses, other than the health insurance premium and work related child care, shall be considered on a case by case basis in the calculation of support and added to the basic support award as a deviation so that the actual amount of the expense is considered in the calculation of the final child support order for only those families actually incurring the expense.
(ii)(I) Extraordinary educational expenses may be added to the basic child support as a deviation. Extraordinary educational expenses include, but are not limited to, tuition, room and board, lab fees, books, fees, and other reasonable and necessary expenses associated with special needs education or private elementary and secondary schooling that are appropriate to the parent's financial abilities and to the lifestyle of the child or children if the parents and child or children were living together.
(II) In determining the amount of deviation for extraordinary educational expenses, scholarships, grants, stipends, and other cost reducing programs received by or on behalf of the child or children shall be considered.
(III) If a deviation is allowed for extraordinary educational expenses, a monthly average of these expenses shall be based on evidence of prior or anticipated expenses and entered on the child support worksheet in the deviation section.
(iii)(I) Special expenses incurred for child rearing, including but not limited to expense variations related to the food, clothing, and hygiene costs of children at different age levels, which can be quantified may be added to the child support obligation as a deviation from the presumptive child support order. Such expenses include, but are not limited to, summer camp, music or art lessons, travel, school sponsored extra curricular activities, such as band, clubs, and athletics, and other activities intended to enhance the athletic, social, or cultural development of a child but are not otherwise required to be used in calculating the child support order as are health insurance premiums and work related child care costs.
(II) A portion of the basic child support obligation is intended to cover average amounts of special expenses incurred in the rearing of a child. When special expenses exceed 7 percent of the monthly basic child support obligation, then the court shall consider additional amounts of support as a deviation to cover the full amount of these special expenses.
(iv) In instances of extreme economic hardship, such as in cases involving extraordinary medical needs not covered by insurance or other extraordinary special needs for the child or children of a parent's current family, deviation from the child support guidelines may be considered. In such cases, the court shall consider the resources available for meeting such needs, including those available from agencies and other adults.
(5)(A) For purposes of this paragraph, a parent is considered to be a low-income person if his or her annual gross income is at or below the federal poverty level for a single person.
(B) The court may consider the low income of the custodial parent or the noncustodial parent as a basis for deviation from the guideline amounts.
(C) The court shall consider all nonexempt sources of income available to each party and all expenses actually paid by each party.
(D) The party seeking a low-income deviation shall present to the court documentation of all his or her income and expenses or provide sworn statements of all his or her income and expenses in support of the requested deviation.
(E) The court shall make a written finding in its order that the deviation from the child support guidelines based upon the low income and reasonable expenses of a party are clearly justified and shall make the necessary written findings pursuant to this paragraph.
(F) The court may deviate from the lowest amount of child support provided for in the basic child support guideline table and shall make the necessary written findings if it chooses to deviate.
(j)(1) The child support guidelines presume that when parents live separately, the child or children will typically reside primarily with the custodial parent and stay overnight with the noncustodial parent a minimum of every other weekend from Friday to Sunday, two weeks in the summer, and two weeks during holidays throughout the year, for a total of 80 days per year. The child support guidelines also recognize that some families may have different parenting situations and thus allow for an adjustment in the noncustodial parent's child support obligation, as appropriate, in compliance with the criteria specified in this subsection. The calculations made for each parenting situation shall be based on specific factual information regarding the amount of time each parent has with the child.
(2)(A) If the noncustodial parent spends 100 or more days per calendar year with a child or children, an assumption is made that the noncustodial parent is making greater expenditures on the child or children due to the duplication of some child rearing expenditures between the two households, for example, housing or food, and a reduction to the noncustodial parent's child support obligation may be made to account for these expenses.
(B) The noncustodial parent's child support obligation may be reduced for the days of additional parenting time based upon the following schedule:
Number of Days Percent Reduction in Support
100 - 136 days 10 percent 137 - 151 days 20 percent 152 - 166 days 30 percent 167 - 181 days 40 percent 182 or more days 50 percent
(C) The presumption that more parenting time by the noncustodial parent shall result in a reduction to the noncustodial parent's support obligation may be rebutted by evidence.
(D) If there is more than one child in the case with whom the noncustodial parent spends 100 days or more per year, and the noncustodial parent is spending different amounts of time with each child, then the time the noncustodial parent spends with each child shall be averaged to determine the parenting time adjustment.
(3)(A) If the noncustodial parent spends 60 or fewer days per calendar year with a child or children, an assumption is made that the custodial parent is making greater expenditures on the child or children for items such as food and baby-sitting associated with the increased parenting time by the custodial parent, and an increase in the noncustodial parent's child support obligation may be made.
(B) The noncustodial parent's child support obligation may be increased for the reduction in days of the noncustodial parent's parenting time based upon the following schedule:
Number of Days Percent Reduction in Support
69 - 39 days 10 percent 38 - 24 days 20 percent 23 - 9 days 30 percent 8 - 0 days 35 percent
(C) The presumption that less parenting time by the noncustodial parent shall result in an increase to the noncustodial parent's support obligation may be rebutted by evidence.
(D) If there is more than one child in the case with whom the noncustodial parent spends 60 or fewer days per year, and the noncustodial parent is spending different amounts of time with each child, then the time the noncustodial parent spends with each child is averaged to determine the parenting time adjustment.
(4) If there are additional children for whom support is being calculated with whom the noncustodial parent spends more than 60 days but less than 100 days per calendar year, the days with these children are not included in the calculation for the parenting time adjustment.
(5) If a child support obligation is being calculated for multiple children, and the noncustodial parent spends 100 days or more per year with at least one child and 60 or fewer days with at least one child, then the percentage increase is offset against the percentage decrease and the resulting percentage is applied to the child support obligation.
(k) In the event a parent suffers an involuntary termination of employment, has an extended involuntary loss of average weekly hours, is involved in an organized strike, incurs a loss of health, or similar involuntary adversity resulting in a loss of income of 25 percent or more, then the portion of child support attributable to lost income shall not accrue from the date of the filing of the petition for modification, provided that service is made on the other parent.
(l)(1) The adoption of these child support guidelines constitutes a significant material change in the establishment and calculation of child support orders. In any proceeding to modify an existing order, an increase or decrease of 15 percent or more between the amount of the existing order and the amount of child support resulting from the application of these child support guidelines shall be presumed to constitute a substantial change of circumstances as may warrant a modification based upon the court's considerations of the parent's financial circumstances and the needs of the children. This differential shall be calculated by applying 15 percent to the existing award. If there is a material change in the father's income, the mother's income, the needs of the child or children, or the needs of either parent, either parent shall have the right to petition for modification of the child support award regardless of the length of time since the establishment or most recent modification of the child support award. If there is a difference of 30 percent or more between a new award and a prior award, the court may, at its discretion, phase in the new child support award over a period of up to one year with the phasing in being largely evenly distributed with at least an initial immediate adjustment of not less than 25 percent of the difference and at least one intermediate adjustment prior to the final adjustment at the end of the phase-in period.
(2) In proceedings for the modification of a child support award pursuant to the provisions of this Code section, the court may award attorneys' fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require. Where a custodial parent prevails in an upward modification of child support based upon the noncustodial parent's failure to be available and willing to exercise visitation as scheduled under the prior order, reasonable and necessary attorney's fees and expenses of litigation shall be awarded to the custodial parent.
(3) No petition to modify child support may be filed by either parent within a period of two years from the date of the final order on a previous petition by the same parent except where the child support obligation table created by the Georgia Child Support Commission creates a difference of 15 percent or more between a new award and a prior award.
(m) For split custody situations, a worksheet shall be prepared separately for the child or children for whom the father is custodial parent and for the child or children for whom the mother is the custodial parent; and that worksheet shall be entered into the record. For each of these two custodial situations, the court shall enter which parent is the obligor, the presumptive award, and the actual award, if different from the presumptive award; how and when the net cash support owed shall be paid; and any other child support responsibilities for each of the parents.
(n) The child support obligation table shall be proposed by the Georgia Child Support Commission and set as determined by joint resolution of the General Assembly."
19-6-16. Enforcement of child support orders, decrees, or verdicts.
Orders, decrees, or verdicts, permanent or temporary, in favor of the children may be enforced as those in favor of a party.
19-6-17. Application for child support following custody award; service of petition; hearing; review; modification of order; enforcement; judgment.
(a) Whenever the custody of a minor child or children has been lawfully awarded by any court having jurisdiction thereof to:
(1) Any person other than a parent of the children at any time subsequent to the rendition of a final divorce decree between the father and mother of the children; or
(2) A parent as part of the final divorce decree where the court awarding the decree was unable to obtain jurisdiction over the parent without custody for purposes of a determination as to whether the parent should be bound for support of the child or children and the court's decree contains no specific provisions binding the parent without custody for the support of the child or children, the parent or other person to whom the custody of the child or children is awarded may apply by petition to the superior court in the county where the parent without custody of the child or children resides for an order and judgment fixing the amount of support money that the parent without custody shall provide in order to fulfill the parent's natural duty to supply the necessaries of life for the child or children.
(b) The procedure provided for in this Code section shall be available in cases in which the parent with custody of the children is the petitioner, notwithstanding the fact that the divorce decree and judgment may have been rendered in favor of the parent without custody.
(c) The petition shall be served upon the respondent; it shall be heard by the court, unless a jury trial is demanded by either party to the case. The judgment shall be reviewable as in other cases. The order or judgment shall likewise be subject to modification in the event of changed circumstances, under the same terms and conditions as are provided for in other cases of permanent alimony for the support of children granted in connection with the rendition of a final decree in divorce cases.
(d) The order and judgment of the court shall remain in effect, except as limited by its own restrictions and subsection (c) of this Code section, so long as the petitioner remains in lawful custody of the child or children and until they become of age. Execution may be granted to the petitioner for any sums past due under the order and judgment, in accordance with procedures in other cases of judgments for alimony.
(e) Any payment or installment of support under any child support order is, on and after the date due:
(1) A judgment by operation of law, with the full force and effect and attributes of a judgment of this state, including the ability to be enforced;
(2) Entitled as a judgment to full faith and credit; and
(3) Not subject to retroactive modification.
19-6-18. Revision of judgment rendered prior to July 1, 1977, for permanent alimony and child support; when authorized; petition and hearing; expenses for defense of litigation.
(a) The judgment of a court providing permanent alimony for the support of a wife or child or children, or both, rendered prior to July 1, 1977, shall be subject to revision upon petition filed by either the husband or the wife showing a change in the income and financial status of the husband. The petition shall be filed and returnable under the same rules of procedure applicable to divorce proceedings. The petition shall be filed in the proper venue provided by law in civil cases. No petition may be filed by the wife under this Code section within a period of two years from the date of the filing of a previous petition by the wife under this Code section. No petition may be filed by the husband under this Code section within a period of two years from the date of the filing of a previous petition by the husband under this Code section. After hearing both parties and the evidence, the jury, or the judge where a jury is not demanded, may modify and revise the previous judgment so as to provide for the wife or child or children, or both, in accordance with the changed income and financial status of the husband, if such a change in the income and financial status of the husband is satisfactorily proved so as to warrant the modification and revision. In the hearing upon a petition filed as provided in this Code section, testimony may be given and evidence introduced relative to the income and financial status of the wife.
(b) Upon an application as authorized in subsection (a) of this Code section, the merits of whether the wife, or child or children, or both, are entitled to alimony and support are not in issue, but only whether there has been such a substantial change in the income and financial status of the husband as to warrant either a downward or upward revision and modification of the permanent alimony judgment.
(c) An application authorized in subsection (a) of this Code section can be filed only where the husband has been ordered by the final judgment in an alimony or divorce and alimony action to pay permanent alimony in weekly, monthly, annual, or similar periodic payments, and not where the wife, or child or children, or both, have been given an award from the corpus of the husband's estate in lieu of such periodic payment.
(d) Where an application authorized in subsection (a) of this Code section is filed by the husband, the court may require the husband to pay reasonable expenses of litigation as may be incurred by the wife, either for herself or the child or children, or both, in defense thereof.
19-6-19. Revision of judgment for permanent alimony or child support generally - When authorized; petition and hearing; cohabitation with third party as ground for revision; attorney's fees; temporary modification pending final trial.
(a) The judgment of a court providing permanent alimony for the support of a spouse rendered on or after July 1, 1977, shall be subject to revision upon petition filed by either former spouse showing a change in the income and financial status of either former spouse. A petition shall be filed and returnable under the same rules of procedure applicable to divorce proceedings. No petition may be filed by either former spouse under this subsection within a period of two years from the date of the final order on a previous petition by the same former spouse. After hearing both parties and the evidence, the jury, or the judge where a jury is not demanded by either party, may modify and revise the previous judgment, in accordance with the changed income and financial status of either former spouse in the case of permanent alimony for the support of a former spouse, or in accordance with the changed income and financial status of either former spouse if such a change in the income and financial status is satisfactorily proved so as to warrant the modification and revision. In the hearing upon a petition filed as provided in this subsection, testimony may be given and evidence introduced relative to the income and financial status of either former spouse.
(b) Subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of a spouse, the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former spouse. As used in this subsection, the word "cohabitation" means dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person. In the event the petitioner does not prevail in the petition for modification on the ground set forth in this subsection, the petitioner shall be liable for reasonable attorney's fees incurred by the respondent for the defense of the action.
(c) When an action for revision of a judgment for permanent alimony under this Code section is pending, the court in its discretion may allow, upon motion, the temporary modification of such a judgment, pending the final trial on the petition. In considering an application for temporary modification under this subsection, the court shall consider evidence of any changed circumstances of the parties and the reasonable probability of the petitioner obtaining revision upon final trial. The order granting temporary modification shall be subject to revision by the court at any time before final trial.
(d) In proceedings for the modification of alimony for the support of a spouse pursuant to the provisions of this Code section, the court may award attorneys' fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require.
19-6-20. Revision of judgment for permanent alimony or child support, generally - Merits not at issue.
In the trial on a petition authorized in subsection (a) of Code Section 19-6-19, the merits of whether a party is entitled to alimony are not an issue. The only issue is whether there has been such a substantial change in the income and financial status of either former spouse in cases of permanent alimony for the support of a former spouse, as to warrant either a downward or upward revision or modification of the permanent alimony judgment.
19-6-21. Revision of judgment for permanent alimony or child support - Not available in case of lump sum award.
A petition authorized in subsection (a) of Code Section 19-6-19 can be filed only where a party has been ordered by the final judgment in an alimony or divorce and alimony action to pay permanent alimony in weekly, monthly, annual, or similar periodic payments and not where the former spouse of such party has been given an award from the corpus of the party's estate in lieu of such periodic payment.
19-6-22. Revision of judgment for permanent alimony or child support - Expenses for defense of litigation.
Where a petition authorized by subsection (a) of Code Section 19-6-19 is filed by a party obligated to pay alimony, the court may require the party to pay the reasonable expenses of litigation as may be incurred by the party's former spouse on behalf of the former spouse in defense thereof.
19-6-23. Applicability of Code Section 19-6-18 or Code Sections 19-6-19 through 19-6-22 to judgments on or after March 9, 1955.
Code Section 19-6-18 or Code Sections 19-6-19 through 19-6-22, as applicable, shall be effective and shall apply to any judgment of a court providing permanent alimony for support, unless rendered prior to March 9, 1955, in which case Code Section 19-6-24 shall apply.
19-6-24. Applicability of Code Section 19-6-18 or Code Sections 19-6-19 through 19-6-22 to judgments prior to March 9, 1955.
Code Section 19-6-18 or Code Sections 19-6-19 through 19-6-22, as applicable, shall apply to all judgments for permanent alimony for the support of a wife rendered prior to March 9, 1955, where all the following conditions are met:
(1) Both parties to the case in which the judgment for permanent alimony was rendered consent in writing to the revision, amendment, alteration, settlement, satisfaction, or release thereof;
(2) There are no minor children involved or, if there were minor children at the time the original judgment was rendered, the children are all of age at the time the application is filed;
(3) The judge of the court wherein the original judgment for permanent alimony was rendered approves the revision, amendment, alteration, settlement, satisfaction, or release; and
(4) The consent of the parties, together with the court's approval, is filed with the clerk of the court wherein the original judgment for permanent alimony was rendered.
19-6-25. Revision of permanent alimony for judgments entered prior to March 9, 1955.
When any judgment for permanent alimony rendered prior to March 9, 1955, is revised, amended, altered, settled, satisfied, or released, the same shall not thereafter be subject to revision, except upon the conditions specified in Code Section 19-6-24.
19-6-26. Definitions; jurisdiction.
(a) As used in this Code section, the term:
(1) "Child support order" means a judgment, decree, or order of a court or authorized administrative agency requiring the payment of child support in periodic amounts or in a lump sum and includes (A) a permanent or temporary order and (B) an initial order or a modification of an order.
(2) "Continuing, exclusive jurisdiction" means the authority and jurisdiction of a court to enter or modify a judgment, decree, or order for the payment of child support, as defined in the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. Section 1738B, as amended.
(3) "Foreign child support order" means a judgment, decree, or order of a court or authorized administrative agency of another state requiring the payment of child support in periodic amounts or in a lump sum and includes (A) a permanent or temporary order and (B) an initial order or a modification of an order.
(4) "Modification" means a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to a child support order or foreign child support order.
(5) "Moving party" means the party initiating an action for the modification of a child support order or foreign child support order.
(6) "Nonmoving party" means the party not initiating an action for the modification of a child support order or foreign child support order.
(7) "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the territories and possessions of the United States, and Indian Country as defined in 18 U.S.C. Section 1151.
(b) A court of this state may exercise continuing, exclusive jurisdiction for purposes of entering a child support order if the court has subject matter and personal jurisdiction to make such a child support order, and no previous support order has been entered by a court of competent jurisdiction with respect to the child or children named in the support order.
(c) A court of this state may exercise continuing, exclusive jurisdiction for purposes of entering a modification of a child support order issued by a court of this state if the child or children named in the child support order or any party to the action resides in this state.
(d) A court of this state may exercise continuing, exclusive jurisdiction for purposes of entering a modification of a foreign child support order if:
(1) The court has subject matter and personal jurisdiction over the nonmoving party; and
(2) The court of the state issuing the order sought to be modified no longer has continuing, exclusive jurisdiction to modify said order as defined in the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. Section 1738B, as amended.
(3) The parties file a written consent allowing the court to assume continuing, exclusive jurisdiction. This Code section shall be interpreted to effectuate the provisions of Article 3 of Chapter 11 of this title.
(e) Jurisdiction within this state to enforce a child support order entered by or registered with a court of this state shall be vested concurrently in the court issuing such order, the court in the county where the person owing the duty of support may be found or is employed, and the court in the county where property may be found which is subject to seizure, sale, foreclosure, or other process for application toward the support obligation.
19-6-27. Application for permanent alimony or child support after grant of foreign divorce decree; venue; hearing; review; modification.
(a) Whenever, in any foreign country or any other state of the United States, any person obtains a divorce from such person's spouse, which spouse at the time of the filing of the divorce action was a resident of this state, and in the divorce action the spouse was not personally served with petition and process but was served constructively and did not appear, plead, or otherwise waive jurisdiction of the foreign court, the spouse, at any time subsequent to the granting of the foreign divorce decree, may apply to the superior court for an order and judgment for permanent alimony for the support of such spouse and the child or children of the parties, if any. The permanent alimony action shall be filed, pleaded, and tried as if no divorce decree had been entered, even though the foreign decree may be entitled to full faith and credit in dissolving the marriage. If the person who obtained the divorce has become a resident of this state, the action for alimony shall be brought in the county of the person's residence; otherwise, the action shall be brought in the county in which the spouse applying for alimony resides.
(b) The procedure provided for in subsection (a) of this Code section shall not be available for the support of any child or children whose custody and support was legally adjudicated in the foreign court unless custody of the child or children is subsequently changed by a court having jurisdiction of the parties.
(c) A petition brought under this Code section shall be served upon the person who obtained the divorce, as in actions for permanent alimony, and shall be heard by the judge unless a jury trial is demanded by either party to the case. The judgment shall be reviewable as in other cases. The order or judgment shall be subject to modification upon a change of condition, in the same manner that other orders or judgments for permanent alimony are subject to modification.
19-6-28. Enforcement of orders; contempt; service of rule nisi by mail; rule nisi form.
(a) In addition to other powers specified in this chapter, the court shall have the power to subject the respondent to such terms and conditions as the court may deem proper to assure compliance with its orders and, in particular, shall have the power to punish the respondent who violates an