Georgia allows for the common traditional uncontested divorce (aka no-fault divorces) which means that either spouse can file for divorce without having to show that the other spouse did something wrong. Georgia law concerning uncontested divorces recognize that a couple may want to end their marriages because they are incompatible or unhappy without serious faults by either spouse. Some states have completely abandoned their old fault-based divorce systems, but Georgia has kept its fault-based grounds for divorce.
However, contrary to what is commonly believed, in Georgia fault grounds can also be alleged for divorce, and the divorce can still be uncontested. 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). But it is important to remember that if you are alleging fault grounds for a divorce, your spouse may balk a the allegations and become resistant to signing the other documents necessary for the divorce to be settled, such as the Divorce Settlement Agreement, Acknowledgement of Service and other related documents. Below is an overview of the difference between fault and no-fault grounds for divorce in Georgia.
What are the grounds for an Uncontested Divorce in Georgia?
In Georgia, there are thirteen statutory grounds for divorce according to O.C.G.A. § 19-5-3. To file for an uncontested divorce petition in Georgia, you must declare one of these statutory grounds upon which the divorce is being sought. This declaration is made in a document commonly called a Complaint for Divorce or Petition for Divorce. Either the parties (both spouses) must agree upon (or at least not object to) the grounds for divorce contained in the Complaint for Divorce for an uncontested divorce to proceed. It the other party objects to the grounds for divorce, the spouse who is filing for divorce must file the case with the court without their spouse’s approval and be prepared to prove the fault grounds in court.
The grounds for divorce in Georgia are as follows [O.C.G.A. § 19-5-3]:
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 by the husband
7. Willful and continued desertion for one year
8. The conviction for an offense involving moral turpitude and under which he or she is sentenced to imprisonment for two years or longer
9. Habitual intoxication
10. Cruel treatment
11. Incurable mental illness
12. Habitual drug addiction
13. The marriage is irretrievably broken (the No-Fault Ground for Divorce)
In a no-fault divorce, a marriage can be dissolved without proving on of the spouses is at fault. Georgia adopted a no-fault option in 1973 by adding a 13th ground for divorce that the marriage be “irretrievably broken.”
Among the 12 fault-based grounds, most fault based divorces are granted on the basis of the following five grounds:
- habitual intoxication
- habitual drug addiction
- cruel treatment
The other grounds for divorce listed above are not as frequently used 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 an issue. Rather, the focus is whether there is a possibility of reconciliation. You must show that your marital differences are insoluble, that reconciliation is not possible, and 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.
In Georgia, adultery is defined as one spouse having sexual intercourse with a person other than his or her spouse while married. [See 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 it is highly recommended that you contact an experienced family law attorney if you are trying to prove adultery in your divorce case. It is important to note that under Georgia law, neither cunnilingus nor fellatio (defined as sodomy) is a ground for divorce and generally neither is considered adultery.
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 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 choose to file for an divorce 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 fault based ground for divorce and your spouse objects to it, you may not be able to file an uncontested divorce. And if you choose not to rely on the no-fault ground for divorce, you have to go through the process of proving the fault ground(s) 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.” So, for example, your spouse cheated, but you forgave him or her and continued to live together, your spouse will not be barred from receiving alimony. 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, adultery or desertion is not a bar to property division.
Also, some people want to file for divorce to justify their stance on child custody and visitation. While common, this is also a frequent reason an uncontested divorce cannot be negotiated between the parties.
Also, either for religious reason, status with family and community, or to make a point many people will also choose to file a divorce based on fault grounds. We see this in come cases where the reason for the divorce is very important to the person filing the case, with assets, child custody, child support, spousal support, alimony and other issues not being paramount in the case.
In summary, you can file an uncontested divorce based solely on the no-fault ground, or one or more of the fault-grounds, or both no-fault and fault-grounds. However, for the uncontested divorce to be completed, your spouse must either agree with the grounds presented in the Complaint for Divorce, or at least not object to the ground(s) presented. The most common uncontested divorce cases are based on the no-fault ground. The less common uncontested divorce cases alleging fault always require the other spouse to not object to the inclusion of the fault grounds. This is done by spouse not filing an Answer / Response to the Divorce and signing the other required documents for the case to move forward as an uncontested divorce. Since the alleging of fault grounds can be taken personally as an insult (even if it is true), it can also cause the other spouse to not agree to to cooperate with the overall uncontested divorce process. Therefore, it may be advised that the inclusion of fault grounds in an uncontested divorce are usually not worth the risk to the overall process.
Under Georgia law, the fault 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 Georgia divorce lawyer before or after you have decided to file for a divorce.
Obtaining help with your Georgia Uncontested Divorce
If you have questions about divorce and the grounds required, call us at 770-609-1247 to speak with one of our experienced uncontested divorce attorneys. We offer free consultation for uncontested divorce cases. Contact >>