Title 19 Domestic Relations

Chapter 5 Divorce

19-5-1. Total divorces authorized; how tried; referral for alternative dispute resolution.

(a) Total divorces may be granted in proper cases by the superior court. Unless an issuable defense is filed as provided by law and a jury trial is demanded in writing by either party on or before the call of the case for trial, in all petitions for divorce and permanent alimony the judge shall hear and determine all issues of law and of fact and any other issues raised in the pleadings.

(b) In any county in which there has been established an alternative dispute resolution program pursuant to Chapter 23 of Title 15, known as the "Georgia Court-annexed Alternative Dispute Resolution Act," the judge may, prior to trial, refer all contested petitions for divorce or permanent alimony to the appropriate alternative dispute resolution method. In counties in which an alternative dispute resolution program has not been established, a judge may nonetheless refer any disputed divorce case to an appropriate alternative dispute resolution method if a method is reasonably available without additional cost to the parties.

19-5-2. Residence requirements; venue.

No court shall grant a divorce to any person who has not been a bona fide resident of this state for six months before the filing of the petition for divorce, provided that any person who has been a resident of any United States army post or military reservation within this state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the United States army post or military reservation; and provided, further, that a nonresident of this state may file a petition for divorce, in the county of residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.

19-5-3. Grounds for total divorce.

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

(1) Intermarriage by persons within the prohibited degrees of consanguinity or affinity;

(2) Mental incapacity at the time of the marriage;

(3) 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 to the husband;

(6) Adultery in either of the parties after marriage;

(7) Willful and continued desertion by either of the parties for the term of one year;

(8) 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;

(9) Habitual intoxication;

(10) 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;

(11) 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;

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

(13) 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.

19-5-4. Effect of collusion, consent, guilt of like conduct, or condonation.

(a) No divorce shall be granted under the following circumstances:

(1) The adultery, desertion, cruel treatment, or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing a divorce;

(2) The party complaining of the adultery, desertion, cruel treatment, or intoxication of the other party was consenting thereto;

(3) Both parties are guilty of like conduct; or

(4) There has been a voluntary condonation and cohabitation subsequent to the acts complained of, with notice thereof.

(b) In all such cases, the respondent may plead in defense the conduct of the party bringing the action and the jury may, on examination of the whole case, refuse a divorce.

19-5-5. Petition; contents and verification; demand for detailed statement.

(a) The action for divorce shall be brought by written petition and process, the petition being verified by the petitioner.

(b) The petition shall show:

(1) The residence or last known address of the respondent;

(2) That the applicant meets the residence requirements for bringing an action for divorce or that the applicant is bringing a counterclaim and is not required to meet the residence requirements;

(3) The date of the marriage and the date of the separation;

(4) Whether or not there are any minor children of the parties and the name and age of each minor child;

(5) The statutory ground upon which a divorce is sought; and

(6) Where alimony or support or division of property is involved, the property and earnings of the parties, if such is known.

(c) The respondent, at any time before trial, may file with the court a written demand for a detailed statement of the facts on which the grounds in the petition are predicated. The respondent shall cause a copy of the demand to be served upon the petitioner or upon the petitioner’s counsel of record and the facts demanded shall be added to the petition in the form of an amendment thereto.

19-5-6. Grant of divorce to respondent without necessity of counterclaim.

When a petition for divorce is filed, the respondent may recriminate in his answer and ask a divorce in his favor. If, at the trial, the court or jury believes that the respondent rather than the petitioner is entitled to a divorce, they may so find upon legal proof.

19-5-7. Transfer of property after filing of petition; lis pendens notice.

After a petition for divorce has been filed, no transfer of property by either party, except a bona fide transfer in payment of preexisting debts, shall pass title so as to avoid the vesting thereof according to the final verdict of the jury in the case; provided, however, that the title to real property shall not be affected by the filing of an action for divorce unless a notice of lis pendens, as provided for by Code Section 44-14-610, is filed in the office of the clerk of the superior court of the county in which the real property is situated and is recorded by the clerk in a book kept by him for that purpose.

19-5-8. Pleading and practice.

The same rules of pleading and practice applicable to ordinary civil actions shall apply to actions for divorce, alimony, and custody of minor children, except as otherwise specifically provided in this chapter. No verdict or judgment by default shall be taken in any such case but the allegations of the pleadings shall be established to the satisfaction of the court by the verified pleadings, by affidavit, by evidentiary hearing, or otherwise, as provided in Code Section 19-5-10.

19-5-10. Duty of judge in undefended divorce cases; appointment of attorney; evidentiary hearings; evidentiary attacks on prior judgments.

(a) In divorce cases which are not defended by the responding party, the judge shall determine that the asserted grounds for divorce are legal and sustained by proof or shall appoint an attorney of the court to discharge that duty for him. An evidentiary hearing for the determination of the existence of the grounds for divorce and for the determination of issues of alimony, child support, and child custody and other issues is authorized but not required. If no evidentiary hearing is held, the determination of such matters may be made upon the verified pleadings of either party, one or more affidavits, or such other basis or procedure as the court may deem proper in its discretion.

(b) The provisions of subsection (a) of this Code section shall apply to proceedings pending on July 1, 1987, as well as to proceedings filed on or after that date.

(c) Any motion to set aside or other proceeding to attack a judgment which attacks a judgment entered in a divorce case prior to July 1, 1987, and which is based upon an alleged failure to properly establish evidence supporting the judgment must be commenced prior to July 1, 1988, or thereafter be totally barred. The bar established by this subsection is in addition to and not in lieu of any other statute or rule of law which would operate as a bar to such a motion or other proceeding; and this subsection shall not operate to revive any otherwise barred right to prosecute any such motion or other proceeding.

19-5-11. Use of confession as evidence; corroboration.

The confessions of a party to acts of adultery or cruel treatment shall be received with great caution; if unsupported by corroborating circumstances and if made with a view to be evidence in the case, such confessions shall not be deemed sufficient to grant a divorce.

19-5-12. Form of judgment and decree.

(a) A final judgment of divorce shall be prepared so as to conform to the pleadings and the evidence and may restore a maiden or prior name, if requested. It shall be prepared in form substantially as follows:

FINAL JUDGMENT AND DECREE

Upon consideration of this case, upon evidence submitted as provided by law, it is the judgment of the court that a total divorce be granted, that is to say, a divorce a vinculo matrimonii, between the parties to the above stated case upon legal principles.

It is considered, ordered, and decreed by the court that the marriage contract heretofore entered into between the parties to this case, from and after this date, be and is set aside and dissolved as fully and effectually as if no such contract had ever been made or entered into.

Petitioner and Respondent in the future shall be held and considered as separate and distinct persons altogether unconnected by any nuptial union or civil contract whatsoever and both shall have the right to remarry.

Decree and order entered this ______ day of _________, ____.

________________________________ Judge, Superior Court

(b) Where applicable, any one or more of the following clauses shall be included in the form of the judgment:

The court restores to (Petitioner/Respondent) his/her prior or maiden name, to wit: ____________________________________________________________.

The court awards custody of the children of the parties as follows:

_________________________________________________________________.

The court fixes alimony as follows: ____________________________________.

(c) In any case which involves the determination of child support, the form of the judgment shall also include provisions indicating both parties’ incomes, the number of children for which support is being provided, the presumptive award calculation, and, if the presumptive award is rebutted, the award amount and the basis for the rebuttal award.

(d) Where applicable, the court shall also include in the order the provisions of Code Section 19-6-30 concerning continuing garnishment for support and language in compliance with Code Section 19-6-32 concerning income deduction orders.

19-5-13. Disposition of property in accordance with verdict.

The verdict of the jury disposing of the property in a divorce case shall be carried into effect by the court by entering such judgment or decree or taking such other steps as are usual in the exercise of the court’s equitable powers to execute effectually and fully the jury’s verdict.

19-5-14. New trials.

New trials may be granted in actions for divorce as in other cases.

19-5-15. Effect of divorce.

A total divorce annuls a marriage from the time of the rendition of the decree, unless the divorce is granted for a cause rendering the marriage void originally, in which case the divorce serves to annul the marriage from its inception. However, the issue of the marriage shall not be rendered born out of wedlock by a divorce, except in cases of pregnancy of the wife by a man other than the husband at the time of the marriage, unknown to the husband.

19-5-16. Restoration of maiden or prior name.

In all divorce actions, a party may pray in his pleadings for the restoration of a maiden or prior name. If a divorce is granted, the judgment or decree shall specify and restore to the party the name so prayed for in the pleadings.

19-5-17. Determination of parties’ rights; disability preventing remarriage forbidden.

When a divorce is granted, the jury or the judge, as the case may be, shall determine the rights of the parties. No person shall be placed under a disability that would prevent remarriage.

SOURCE: DivorceOnline.com