In Georgia, to file a divorce action in the proper court, one must establish three criteria:
1) Proper venue;
2) Jurisdiction of the subject matter; and
3) Jurisdiction over the parties.
Georgia divorce jurisdiction law is stringent; if you fail to establish one of these three prongs, then the divorce complaint will be dismissed.
Establishing proper venue is the simplest of the three. The Georgia Constitution states a divorce action should be filed in the Superior Court of the county in which the defendant lives. If the defendant is a nonresident or cannot be located in Georgia (and all other aspects of jurisdiction have been or can be established) the divorce should be filed in the Superior Court of the county in which the plaintiff resides.
Subject matter jurisdiction refers to the court having control over the subject matter of the litigation. In a divorce action that “subject matter” is the marriage.
To establish jurisdiction one must have a valid marriage and residence/domicile in the State of Georgia. Under Georgia divorce law, residency is established once one has lived in Georgia for six (6) months. This six-month period must be consecutive and must be the six months prior to filing the divorce case.
The individual living in Georgia can be your wife; it does not have to be you. If your wife has moved to Georgia and you wish to obtain a divorce in Georgia, you can do so as long as she has been a resident for six months prior to you filing the complaint for divorce.
Personal jurisdiction refers to the court having jurisdiction over both spouses in order to award a divorce. By filing an action for divorce, one subjects himself to the personal jurisdiction of Georgia courts.
Therefore, you must then establish personal jurisdiction over the defendant – your wife. This can be established in many ways.
Your wife can voluntarily submit herself to the personal jurisdiction of the court by signing an acknowledgment of service. If your wife lives in Georgia, and you know her whereabouts, you can have her personally served with your Complaint for Divorce and a Summons by the sheriff or by a private process server. Your wife can also be personally served if she is visiting or present in Georgia for any period of time regardless of where she lives.
If you are unable to locate your wife after a requisite diligent search, then the court may allow you to serve your wife by publication whether she is in the state or not, though the place for publication will be in the county of her last known residence.
However, if you achieve service by publication, you establish limited personal jurisdiction and the court can only award a divorce and division of property that is located in the State of Georgia; the court cannot grant alimony or child support.
If your wife is no longer living in Georgia, then you may be able to use the Long Arm Statute to establish personal jurisdiction and obtain your divorce in Georgia. Under the Long Arm Statute, Georgia courts may exercise jurisdiction over a nonresident if:
1) She owns, uses, or possesses any real property situated within this state; or
2) If she maintains a matrimonial domicile in this state at the time the divorce is filed or if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not.
This means if you and your wife own any real estate in Georgia or you lived with your wife in Georgia prior to her leaving the state, then the court can have personal jurisdiction. Keep in mind she must still be properly served. See O.C.G.A. §§ 9-11-4 and 9-11-5.
In summary, to be granted a divorce in Georgia the court must have jurisdiction over the actions. The court has jurisdiction if subject matter jurisdiction, personal jurisdiction, and venue are proper.
Subject matter jurisdiction equates to one party to a marriage living in Georgia for six months prior to filing the divorce complaint. Personal jurisdiction requires that both parties have some ties to the State of Georgia either physically or through real property. Venue means that the case must be filed in the Superior Court of the county of either the defendant (if defendant lives in Georgia) or Plaintiff (if defendant does not live in Georgia).