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Grounds for divorce in Georgia: no-fault and fault
Summary
Georgia law lists 13 grounds for divorce. Twelve are based on fault or a problem with the marriage itself, such as adultery or desertion. The thirteenth is no-fault: the marriage is irretrievably broken.[1]
Most divorces use the no-fault ground. A divorce on that ground can't be granted until at least 30 days after the other spouse is served.[1]
Even in a no-fault divorce, conduct can still matter. A spouse whose adultery or desertion caused the separation can't receive alimony,[2] and conduct can be considered in dividing property.[3]
The no-fault ground: irretrievably broken
Georgia's Supreme Court has described an irretrievably broken marriage as one where either or both spouses are unable or refuse to live together as a married couple and there are no prospects for a reconciliation.[4]
Neither spouse has to prove the other did anything wrong. The court can't grant the divorce on this ground until at least 30 days after the other spouse is served.[1]
Can a spouse stop the divorce?
Not just by refusing to agree. Under the definition above, it's enough that either spouse is unable or refuses to live together and there's no prospect of reconciliation.[4]
But the question isn't automatic. If the other spouse swears that the marriage isn't broken and that there are genuine prospects for reconciliation, the court can't decide it on paperwork alone, and either spouse can ask for a jury to decide it.[5]
A spouse who doesn't want the divorce can also answer the complaint and be heard on everything else: custody, child support, alimony and how property and debts are divided.
The fault and other grounds
The other twelve grounds in the law are below. Some lines combine more than one ground:[1]
- Adultery by either spouse after the marriage
- Willful and continued desertion for one year
- Conviction of a crime of moral turpitude with a prison sentence of two years or longer
- Habitual intoxication, or habitual drug addiction
- Cruel treatment: willfully causing physical or mental pain that reasonably makes the other spouse fear for their life, body or health
- Incurable mental illness, which has strict medical and court requirements
- Problems that existed when the couple married: a close blood or in-law relationship, mental incapacity, impotency, force, threats, duress or fraud used to bring about the marriage, or the wife's pregnancy by another man unknown to the husband
A fault ground has to be proved with evidence. A divorce based on adultery, desertion, cruel treatment or intoxication can be refused if, for example, both spouses were guilty of similar conduct, the complaining spouse consented to it, or the spouses forgave it and lived together again knowing about it.[6]
When fault still matters
- Alimony: a spouse can't get alimony if it's shown that their own adultery or desertion caused the separation. When alimony is sought, the court hears evidence about what caused the separation whatever ground the divorce is granted on. Even when that bar doesn't apply, the court considers each spouse's conduct toward the other in deciding alimony.[2]
- Property: the conduct of the spouses, both during the marriage and in causing the divorce, can be considered in dividing property.[3]
- Custody is decided on the child's best interests, not on which spouse was at fault in the marriage. The judge looks at things like family violence and each parent's care of the child, and a jury can't decide custody.[7]
Choosing a ground
Many complaints list the no-fault ground, and some add a fault ground too. Whether to plead or try to prove a fault ground in your case is a question for a family lawyer. If you've been harmed or don't feel safe, call 911 in an emergency. Georgia's statewide domestic violence hotline is 1-800-334-2836.
Questions you might ask a lawyer
- Should my complaint list only the no-fault ground, or a fault ground too?
- Could either spouse's conduct affect alimony or the property division in our case?
- What evidence would a fault ground need?
- If my spouse doesn't want the divorce, what should I expect?
Common questions
Is Georgia a no-fault divorce state?
Georgia allows no-fault divorce, and most divorces use that ground: the marriage is irretrievably broken. Georgia also keeps 12 other grounds, including adultery, desertion and cruel treatment.[1]
Can my spouse refuse to give me a divorce in Georgia?
Not just by refusing. A marriage can be irretrievably broken when either spouse refuses to live together and there's no prospect of reconciliation.[4] If the other spouse swears there are genuine prospects for reconciliation, either spouse can ask a jury to decide.[5] The other spouse can also contest custody, support, alimony and property.
Does adultery matter in a Georgia divorce?
It can. A spouse whose adultery caused the separation can't receive alimony,[2] and conduct can be considered in dividing property.[3]
Do we have to be separated before filing for divorce in Georgia?
Georgia's grounds for divorce don't require a period of separation before filing. The exception is desertion, which must have lasted a full year to be used as the ground.[1] One spouse usually must have lived in Georgia for at least 6 months.[8]
Sources
- ^ O.C.G.A. § 19-5-3, grounds for divorce (Justia)
- ^ O.C.G.A. § 19-6-1, alimony and the cause of the separation (Justia)
- ^ Wood v. Wood (Ga. 2008), conduct and property division (Justia)
- ^ McCoy v. McCoy (Ga. 1976), what irretrievably broken means (Justia)
- ^ Dickson v. Dickson (Ga. 1977), when a spouse denies the marriage is broken (Justia)
- ^ O.C.G.A. § 19-5-4, when a divorce can be refused (Justia)
- ^ O.C.G.A. § 19-9-3, custody and the child's best interest (WomensLaw)
- ^ O.C.G.A. § 19-5-2, residence requirements (Justia)
Laws and court rules change. If something here looks out of date, email help@divorce.city.