Fault vs. No-Fault Divorce in Georgia

Georgia Divorce, Family Law, Bankruptcy, Business Immigration LawyersGeorgia is a no-fault divorce state, which means either party may request a divorce by asserting that the marriage cannot be saved. No-fault basically means that there are fundamental disputes between the parties that cannot be resolved and that the union should be terminated. Since no proof of cause is necessary in this situation, the procedure is quicker and ultimately easier for all parties. For those seeking a divorce in Georgia, fault divorce is still an option. One spouse’s actions that led to the breakdown of the marriage are referred to as fault grounds. However, a burden of proof is needed on the party alleging fault. If one spouse seeks a fault divorce, they must demonstrate that the other spouse violated at least one of the 13 grounds for total divorce. 

Grounds for Total Divorce

Georgia divorce law provides for thirteen (13) legal grounds for divorce. People involved in a divorce need to identify only one of the legal grounds, but they may claim multiple grounds. Each of the legal grounds for divorce requires certain conditions to exist in order to formally assert any particular reason for getting a divorce in Georgia.

The following grounds shall be sufficient to authorize the granting of a total divorce:

Intermarriage by persons within the prohibited degrees of consanguinity or affinity

In Georgia, intermarriage is prohibited between the following degrees of relation:

  • Father and daughter/stepdaughter
  • Mother and son/stepson
  • Brother and sister (whole or half)
  • Grandparent and grandchild
  • Aunt and nephew
  • Uncle and niece

See O.C.G.A. § 19-3-3(a).

Not only are these marriages unlawful from their beginning, but also it should also be acknowledged that if a person marries another person to whom he or she knows is related, by blood or marriage, within one of the restricted degrees listed above, that person is subject to imprisonment. See O.C.G.A. § 19-3-3(a) – (b).

Mental incapacity at the time of the marriage

According to the law, the parties to a marriage contract must be qualified to understand the essence and consequences of marriage. The absence of the capability to make decisions for oneself or the ability to convey such decisions is referred to as mental incapacity. Therefore, among other things, mental incapacity may result from a brain injury, stroke, Alzheimer’s disease, congenital handicap, or mental illness. If either spouse is unable to comprehend the marriage contract, the law considers the marriage is voidable.

Impotence at the time of the marriage

Although sexual dysfunction or erectile dysfunction may be a reason to divorce for many couples, in Georgia impotence may serve as a ground for total divorce itself. Specifically, in Georgia, a wife may seek a divorce from her husband if her husband was impotent at the time of marriage. Anyone seeking a divorce on these grounds should be sure to pay attention to the particular wording of the Georgia law provision establishing these grounds for divorce. See O.C.G.A. § 19-5-3(3). The third ground for divorce in Georgia—impotence at the time of marriage—is the only one that is permitted by law. Impotence or sexual dysfunction cannot therefore be used as grounds for divorce if it occurs after a couple has been separated.

Force, menace, duress, or fraud in obtaining the marriage

Any overt behavior of a hostile nature qualifies as menace in a Georgia divorce. Any behavior that coerces someone to act or do something is known as duress. Although coercive control may not involve physical violence, it is nonetheless a form of abuse in which one spouse exerts relentless and threatening control over the other. Therefore, in order to get a divorce on this ground in Georgia, you must demonstrate that you were forced or fraudulently induced into the marriage and that you would not have gone through the marriage if coercion or fraud were absent.

Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;

A husband may file for divorce if his wife has an extramarital affair or a relationship with someone else throughout the marriage that the husband was unaware of and that resulted in a pregnancy.

Adultery in either of the parties after marriage

Legally speaking, having sexual relations with someone other than one’s spouse is considered adultery in Georgia. See Owens v. Owens, 247 Ga. 139 (1981). Even adultery that occurs after a couple has already split can be a reason for divorce. Adultery may be established through direct or indirect evidence. However, as adultery is frequently performed in secret, it might be challenging to compile enough proof to support this claim.

Willful and continued desertion by either of the parties for the term of one year

In Georgia, a party must successfully establish these three requirements in order to establish desertion as a ground for divorce:

  • Absence of the at-fault spouse that was willful and intentional and not due to the behavior of the other spouse or with their consent.
  • The separation caused by the physical absence of one party or the unjustified refusal of marital relations.
  • A year has passed consistently after the voluntary separation and discontinuation of cohabitation.

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

If either partner is found guilty of a crime involving immoral behavior that resulted in a minimum term of two years in prison the opposite party may file for divorce and use this as a reason for divorce.

Habitual intoxication

The Petitioner does not have to demonstrate that the Respondent was continually and unremittingly intoxicated throughout the marriage in order to get a divorce under this ground. See Fuller v. Fuller,108 Ga. 256 (1899). However, to support a divorce on the basis of habitual drinking, evidence that the party was ‘drunk’ or ‘under the influence of liquor’ on one occasion prior to the separation is wholly insufficient. See Stimpson v. Stimpson, 213 Ga. 235 (1957). So, there must be a pattern of drinking, but it need not be an ongoing, permanent condition.

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;

According to O.C.G.A. 19-5-3(10), cruel treatment must involve the purposeful inflicting of physical or mental suffering on the complaining party that properly justifies fear for the complainant’s life, limb, or health to qualify as grounds for divorce. Georgia case law has characterized cruel treatment as the willful, deliberate, and unnecessary infliction of harm upon a person’s body or feelings and emotions; abusive treatment; inhumane or outrageous treatment. See Mills v. Mills, 218 Ga. 686 (1963).

Incurable mental illness. 

A divorce cannot be granted unless the mentally ill party has been institutionalized, received continuous treatment for mental illness for at least two years, and has received a mental illness diagnosis from a court or two doctors. A documented statement made under oath by the institution’s superintendent or chief executive officer and one qualified physician must establish that the party lacks the mental capacity to understand the marriage relationship. The guardian and the superintendent of the institution must be given notice of the action, and they both have a right to appear and be heard. Regarding the care and maintenance of the mentally ill person, the parties’ situation is unaltered as of the divorce.

Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16

According to the law, “habitual drug addiction” refers to dependence on any of the following restricted substances defined in Article 2 of Chapter 13 of Title 16: marijuana, narcotic drugs, stimulants, depressants, or hallucinogens. See OCGA 19-5-3(12) and OCGA 16-13-2(a). A habit of drug use must have led to the party’s dependence on the controlled substance. It is implied by the terms “habitual” and “addiction” that a single use of a restricted substance will not be sufficient to establish this ground for divorce.

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.

A marriage is considered irretrievably broken when “either or both parties are unable or refuse to cohabit, and there are no prospects for reconciliation. See Harwell v. Harwell (1974), 233 Ga. 89. The parties do not have to demonstrate that either party was at fault in order to seek a divorce on the grounds. The parties should only indicate that they are unable to reconcile due to their marital problems and that they are seeking a change of status. Due to the fact that this basis for divorce is based on the idea that there is no chance of reconciliation and the marriage is irreparably broken, if a complaint for divorce is filed solely on the basis that the marriage is irreparably broken, any subsequent reconciliation or cohabitation between the parties will end the divorce action.

This article is written below for informational purposes, and provides a brief understanding about the grounds for total divorce.  As always, it is you are advised to consult with a local and experienced divorce and family law attorney. Call us today at 470-947-2471 to speak with one of our experienced and caring attorneys.  Contact >>