While anyone residing in Georgia can generally get a divorce, each divorce case will have to be predicated on a legally recognized grounds, or reasons. Learning about grounds for divorce can really help you decide whether divorce is the right option for you. Only one legally recognized reason for ground for divorce is required.
Grounds as a Part of the Procedure for Filing for Divorce
When filing a divorce petition in the state of Georgia, the party submitting the petition must cite the grounds for divorce. Under the state of Georgia, either party can file divorce upon fault or no fault grounds. However, in state of Georgia, a divorce petition can be filed when neither party is at fault, by filing on the grounds that marriage is “irretrievably broken.”
Fault-Based Divorce Grounds in Georgia
There are several grounds for fault-based divorce in Georgia. A fault-based divorce will usually be contested because a finding of fault is likely to affect the equitable division of property and awards of spousal support. Georgia grounds for divorce are codified at O.C.G.A. § 19-5-3.
There are twelve fault-based grounds for divorce in Georgia. Most of these grounds are rarely cited as the reason for the divorce. The following three fault-based grounds are commonly cited:
(1) Adultery. The adultery may be perpetrated by either of the parties during the marriage. The adultery may be heterosexual or homosexual. If the adultery can be proven to be the cause of the dissolution of the marriage, this is a complete bar to the recovery of alimony by the at-fault party in Georgia.
(2) Abandonment/Desertion. The desertion must willful and for a period of at least one year. Desertion or abandonment may include withholding intimacy while continuing to share physical residency. Desertion will not include one party leaving the residence or withholding intimacy due to the other party’s bad behavior.
(3) Cruel treatment. Cruel treatment includes mental and physical abuse. If cruel treatment is proven to be the reason for the dissolution of the marriage, this will establish a complete bar to the recovery of alimony by the at-fault party. Evidence of cruel treatment may also affect the child custody determination.
Additionally, there are lesser-cited grounds for fault-based divorce in Georgia:
(1) Intermarriage by persons within the prohibited degrees of consanguinity. Under Georgia law, intermarriage is prohibited between the following degrees of family relationship: father and daughter or stepdaughter, mother and son or stepson, brother and sister (whole or half-sibling), grandparent and grandchild, aunt and nephew, or uncle and niece. See OCGA §19-3-3(a). In addition to these marriages being void from their inception, if a person marries another person to whom he or she knows is related, by blood or marriage, within one of these prohibited degrees, that person is subject to imprisonment. See OCGA §19-3-3(a) – (b).
(2) Mental incapacity at time of the marriage, affecting the consent to marriage contract.
(3) Impotency at the time of the marriage. Impotency simply means inability to have sex. However, proving one spouse’s impotence can be extremely difficult, as the spouse who is incapable of having sexual intercourse may claim they just don’t want to. If that happens, then you will have to show the medical basis for your spouse’s inability to have sex.
(4) Fraud or Duress to show that one party was deceived or threatened into entering into the marriage.
(5) Pregnancy of the wife, by man other than the husband at the time of the marriage. The pregnancy must be unknown to the husband.
(6) Imprisonment: conviction must be for an offense involving moral turpitude, and imprisonment must be for a term of two years or longer
(7) Habitual intoxication, referring to alcoholism.
(8) Incurable mental illness that at least two physicians and a court of law find the mentally ill party mentally ill
(9) Habitual Drug Addiction to any controlled substance as defined by the Controlled Substances Act
Divorcing on the Grounds of Fault-Based
Filing for divorce based upon fault can be advantageous to the party who is not at fault. A finding of fault by the court will affect the division of property and any alimony awards because the court will consider this factor when making a determination. The at-fault party is likely to get a lesser share of the marital property and may have to pay more in spousal support to compensate the party that has been slighted by the bad behavior. However, the party claiming fault must prove that this is the reason for the dissolution of the marriage which can make the divorce proceeding more complicated and more expensive.
Proving Reason for Dissolution of Marriage
The party claiming fault must prove the other party’s bad behavior by compiling evidence of the fault. The court will also consider the timing of the events when determining the reason for the divorce.
For example, an adultery incident that took place years before the parties filed for divorce is probably not going to be considered as a reason for dissolution. When adultery occurs and the parties attempt to work through the conflict to preserve the marriage this is known as condonation. When condonation occurs, the bad behavior will not be found to be the reason for the dissolution of the marriage.
Fault-based divorce cases are particularly complicated and should always be handled by an experienced attorney. The facts and circumstances of each individual vary and these facts are important to prove one party is at fault for the divorce. Your attorney will be integral in analyzing the facts of your case and assisting you in compiling the proper evidence to prove your case. Going through a divorce can be made tolerable, with the help of an experienced attorney. Call one or our experienced divorce attorneys today at 770-609-1247 to discuss your case and schedule a consultation.