Georgia allows for no-fault divorces which means that either spouse can file for divorce without having to show that the other spouse did something wrong. No-fault divorce recognizes that a couple may want to end their marriages because they are incompatible or unhappy without serious faults by either spouse. Some states have completely abandoned their old fault-based divorce systems, but Georgia has kept its fault-based grounds for divorce.
If you and your spouse are contemplating divorce in Georgia, you need to decide whether to allege that the other spouse is at fault regard to the marriage, or just that there are irreconcilable differences (no-fault). Below provides an overview of the difference between fault and no-fault divorce in Georgia.
What are the grounds for divorce in Georgia?
In Georgia, there are thirteen statutory grounds for divorce according to O.C.G.A. § 19-5-3. To file for a divorce petition in Georgia, you must declare one of these statutory grounds upon which the divorce is being sought. Either the parties (both spouses) must agree upon and substantiate the ground, or the spouse who is filing for divorce must prove it to the court.
The Grounds for Divorce Under Georgia Law (O.C.G.A. § 19-5-3) are:
1. Intermarriage by persons within the prohibited degrees of consanguinity or affinity
2. Mental incapacity at the time of the marriage3. 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 by the husband
7. Willful and continued desertion for one year
8. The conviction for an offense involving moral turpitude and under which he or she is sentenced to imprisonment for two years or longer
9. Habitual intoxication
10. Cruel treatment
11. Incurable mental illness
12. Habitual drug addiction
13. The marriage is irretrievably broken (No-fault divorce)
In a no-fault divorce, a marriage can be dissolved without proving on of the spouses is at fault. Georgia adopted a no-fault option in 1973 by adding a 13th ground for divorce that the marriage be “irretrievably broken.” This is the most commonly cited reason for divorce in Georgia. In addition, almost all uncontested divorces in Georgia are filed as no-fault divorces. A no-fault divorce is still the most commonly filed divorce in Georgia, whether it is an uncontested or contested divorce.
Most divorce citing a one (or more) of the 12 fault-based grounds are granted on the basis of one of the following three: adultery, cruel treatment, and desertion. The other nine are allowable but not often cited in Georgia divorce cases. Grounds for fault divorce vary among states, so you should check the laws of your state.
The Supreme Court of Georgia has defined an irretrievably broken marriage as one “where either or both parties are unable or refuse to cohabit, and there are no prospects for a reconciliation.” [Harwell v. Harwell, 233 Ga. 89 (1974)]. Fault is not an issue. Rather, the focus is whether there is a possibility of reconciliation. You must show that your marital differences are insoluble, that reconciliation is not possible, and that you no longer wish to live with your spouse. Subsequent reconciliation and cohabitation with your spouse will terminate your action for no-fault divorce because the evidence denies that there is no possibility of reconciliation between the spouses.
In Georgia, adultery is defined as one spouse having sexual intercourse with a person other than his or her spouse while married. [O.C.G.A. § 16-6-19] Adultery may serve as a ground for divorce even if the conduct occurs after the parties have separated and after suit for divorce has been instituted on other grounds. Adultery may be proven by direct or circumstantial evidence. Since there is rarely direct proof of adultery (an eyewitness or photographs that show your spouse in the act of having sexual relations with another person), most times it must be proved by circumstantial evidence. Circumstantial evidence are photographs that show your spouse and another person holding hands at a restaurant, kissing at a public park, or emerging from a hotel together. Gathering evidence sufficient to prove adultery in court can be complex. and it is highly recommended that you contact an experienced family law attorney if you are trying to prove adultery in your divorce case.
Cruel treatment is defined as the willful infliction of pain, bodily or mental upon one spouse, or abusive treatment or inhuman or outrageous treatment of the spouse. [Mills v. Mills, 218 Ga. 686 (1963)].
Desertion is the willful and continued desertion by either of the parties for the period of one year. There are three required elements to the ground of desertion:
- The purported wrongdoer must willfully intend to abandon his or her spouse and the abandonment must not be justified by the conduct of the other spouse nor with the other spouse’s consent
- A cessation of cohabitation may occur from physical absence of one spouse or by denial of conjugal relations to the other spouse without justification
The willful abandonment must last for a period of one year continuously.
- When you file for a fault divorce, you can file under more than one ground. For instance, you can allege a divorce by proving that your spouse both committed adultery and abandoned you.
Why you may choose to file for divorce based on the fault-based grounds?
Under Georgia law, it is not necessary for a spouse to have engaged in adultery or other bad behaviors listed above in order for the other spouse to get divorced. But if you choose a grounds for divorce, you have to go through the process of proving it to the court. Why would then anyone choose to sue for divorce based on the fault based grounds when he or she can simply allege that the marriage is irretrievably broken?
It is because Georgia courts treat fault-based divorces differently from a no-fault divorce. A spouse’s fault can affect the awarding of alimony/spousal support (which is a payment from one spouse to the other for the recipient’s care and maintenance after the divorce), or the division of property.
Specifically, Georgia statute provides that if one spouse is found to have committed adultery or deserted the other spouse, that at-fault spouse may not be entitled to alimony. [O.C.G.A. § 19-6-1]. It is not enough that the spouse cheated on or abandoned the other spouse during the marriage. For adultery or desertion to bar alimony, it has to be the “reason for the divorce.” So, for example, your spouse cheated, but you forgave him or her and continued to live together, your spouse will not be barred from receiving alimony. In a case where alimony is ordered, a spouse’s adulterous conduct or abandonment can also be considered by the court in deciding the ‘amount’ of the alimony award.
Further, adultery or other marital misconduct can have an impact on how to equitably divide the property of the parties. When determining how to fairly split the couple’s property, the court will consider why they are divorcing and how they behaved while they were married. However, unlike alimony, adultery or desertion is not a bar to property division.
Under Georgia law, the faults of either spouse are relevant in questions of alimony and property division. While you can file for no-fault divorce, traditional marital fault can impact on these important questions. Therefore, it is important for you to know how adultery or other conduct may factor in to your divorce case. Be sure to consult with a knowledgeable divorce lawyer before or after you have decided to file for a divorce.
Obtaining the assistance of an experienced Georgia Divorce attorney is important.
If you are facing divorce, whether it is a fault or no-fault case, whether contested or uncontested, call us at 770-609-1247 to speak with an experienced divorce and trust attorney about your case. Contact >>