When filing for divorce in the state of Georgia, the party submitting the petition must cite the grounds for the divorce. Georgia law allows divorces to be filed on grounds of fault or on grounds of no fault by either party. Georgia allows parties to file for divorce when neither party is at fault, by filing on the grounds that the marriage is “irretrievably broken”.
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.
What are the fault-based grounds for divorce and how do they work?
There are twelve (12) 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:
- 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.
- 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.
- 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.
These are the lesser cited grounds for fault-based divorce in Georgia:
- Incest: Marriage to a person who is a relative
- Mental Incapacity: must be at the time of the marriage
- Impotency: must be impotent at the time of the marriage
- Fraud or Duress: one party was deceived or threatened into obtaining the marriage
- Pregnancy of the wife by a man other than the husband: must be at the time of the marriage and unknown to the husband
- Imprisonment: conviction must be for an offense involving moral turpitude, and imprisonment must be for a term of two years or longer
- Habitual Intoxication: this refers to alcoholism
- Incurable Mental Illness: this requires that the mentally ill party be found mentally ill by at least two physicians and a court of law
- Habitual Drug Addiction: addiction to any controlled substance as defined by the Controlled Substances Act
When should someone file for divorce based on fault?
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.
How do I prove the reason for the dissolution of the 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 incident of adultery that took place years before the parties filed for divorce is probably not going to be considered to be the reason for the dissolution. When adultery occurs and the parties attempt to work through the conflict to preserve the marriage this is considered condonation. Condonation means one party has excused the bad behavior of the other party. 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 case are very 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.
If you are facing divorce and need to speak with an experienced and caring attorney, call us at 770-609-1247 to discuss how we can assist you.