Georgia allows for no-fault divorces which means that either spouse can file for divorce without having to prove to the court that their spouse did something wrong in accordance with Georgia law. No-fault divorce recognizes that a married couple may want to end their marriage because they are incompatible or unhappy without a serious fault being committed by either spouse. Some states have completely abandoned fault-based divorce requirements. However, Georgia has kept its fault-based grounds for divorce and added a no-fault based ground.
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 (13) grounds for divorce under Georgia law. See O.C.G.A. § 19-5-3. To file for divorce in Georgia, you must claim at least one of the thirteen of these statutory grounds for divorce upon which the divorce (relief) is being filed. Either both parties (both spouses) must agree upon the ground or grounds for divorce the case is being filed upon, or the spouse who is filing for divorce must prove it to the court. In the alternative, the spouse that is being filed divorce against may simply acquiesce to not contest the ground or grounds for divorce the case is being filed upon.
The Grounds for Divorce Under Georgia Law (O.C.G.A. § 19-5-3) are:
- Intermarriage by persons within the prohibited degrees of consanguinity or affinity. See O.C.G.A. § 19-5-3(1).
- Mental incapacity at the time of the marriage. See O.C.G.A. § 19-5-3(2).
- Impotency at the time of the marriage. See O.C.G.A. § 19-5-3(3).
- Force, menace, duress, or fraud in obtaining the marriage. See O.C.G.A. § 19-5-3(4).
- Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown by the husband. See O.C.G.A. § 19-5-3(5).
- Adultery in either of the parties after marriage. See O.C.G.A. § 19-5-3(6).
- Willful and continued desertion by either of the parties for the term of one year. See O.C.G.A. § 19-5-3(7).
- The conviction for an offense involving moral turpitude, under which he or she is sentenced in a penal institution for two years or longer. See O.C.G.A. § 19-5-3(8).
- Habitual intoxication. See O.C.G.A. § 19-5-3(9).
- Cruel treatment, which shall consist of the willful infliction of paint, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health. See O.C.G.A. § 19-5-3(10).
- Incurable mental illness. No divorce shall be granted upon this ground unless the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party; and he has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and the superintendent or other chief executive officer of the institution and one competent physician appointed by the court, after a thorough examination, make a certified statement under oath that it is their opinion that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party’s mental health cannot be expected at any time during his life. Notice of the action must be served upon the guardian of the person of the mentally ill person and upon the superintendent or other chief executive officer of the institution in which the person is confined. In the event that there is no guardian of the person, then notice of the action shall be served upon a guardian ad litem, who shall be appointed by the court in which the divorce action is filed, and upon the superintendent or chief executive officer of the institution in which the person is confined. The guardian and superintendent shall be entitled to appear and be heard upon the issues. The status of the parties as to the support and maintenance of the mentally ill person shall not be altered in any way by the granting of the divorce. See O.C.G.A. § 19-5-3(11).
- Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16. See O.C.G.A. § 19-5-3(12).
- 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. (No-fault divorce) See O.C.G.A. § 19-5-3(13).
In a no-fault divorce, a marriage can be dissolved without proving either of the spouses is at fault. Georgia adopted a no-fault option in 1973 by adding the 13th ground for divorce listed above, making a provision that a marriage can be “irretrievably broken” and this being a legal reason for a divorce. This is the most commonly cited reason for divorce in Georgia, with almost all uncontested divorces filed in Georgia being no-fault divorces.
Most Georgia divorce cases citing one (or more) of the twelve fault-based grounds are granted on the basis of one of the following three:
- cruel treatment, and
The other nine fault are allowable but are not commonly claimed in Georgia divorce cases.
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 the issue in these divorce cases. The main issue in these divorce cases is whether there is a possibility of reconciliation. You must show that your marital differences between the parties cannot be resolved and that reconciliation of the parties is not possible. In addition, you must also claim 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.
Adultery in Georgia Divorce Cases
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. Therefore, if filing a divorce case where adultery is at issue, you should contact a Georgia divorce attorney experienced in proving adultery.
Cruel Treatment in Georgia Divorce Cases
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 in Georgia Divorce Cases
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 in Georgia 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.” This is an important distinction because if your spouse cheated on you, but you forgave him or her and continued to live together, your spouse will not be barred from receiving alimony for adultury. 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 >>