Grounds for Divorce in Georgia
When considering divorce, it’s important to understand the different grounds for divorce in Georgia. Not only should you know what type of grounds you will be filing for divorce, each instance presents a different set of expectations, possibilities, and challenges. Let’s take a closer look at common grounds for divorce, what they entail, and how the divorce attorneys at Stearns-Montgomery & Proctor can help.
Most Common Grounds for Divorce
The grounds for divorce in Georgia, and every state, appear in many forms. These can include everything from abuse, to a loss of connection or mutual feelings between the two people involved. In most cases, irretrievably broken (no-fault) divorce is the most common grounds for divorce. These are the grounds most commonly seen for divorce cases:
- Irreconcilable Differences (Irretrievably broken / No-Fault)
- Cruel Treatment
Below, we will cover each of these in more detail.
Irreconcilable Differences as Grounds for Divorce
Also known as a no-fault divorce, this means that you have essentially grown apart or there is some personality conflict that cannot be resolved and simply do not feel it is best to be married anymore. By claiming that your marriage is irretrievably broken, you are stating that there is no hope for your marriage and that you wish to terminate the legal relationship that you have with your husband or wife. The Court will specifically require that you state “there is no hope for reconciliation.” It is not uncommon that, even in an uncontested case where the formality of asking whether the marriage is irretrievably broken in front of the judge, that the judge refuses to sign off on the final order granting the divorce. Also, if the parties continue to have sexual relations, most judges will interpret this to mean that the marriage is not in fact irretrievably broken and may dismiss the case.
Irretrievably broken, or no-fault divorce, is the most used legal ground for divorce used when filing for a divorce. However, this doesn’t mean one of the other many reasons might not also apply. Typically, when other grounds such as adultery or cruel treatment are cited in the initial pleadings, it makes for a more litigious beginning and is not conducive to putting out the emotional fires that are already burning. There can be strategic reasons for using the least derogatory or accusatory grounds that are provided by Georgia Law.
Adultery as Grounds for Divorce
A person commits adultery when he or she has sexual intercourse with a person other than his or her spouse, and it is the cause of the divorce. This two prong test makes it extremely difficult to prove a case of adultery. There are a lot of cases where there are plenty of other facts that would substantiate the reason for the divorce. In those cases, the divorce has more to do with facts other than the fact that one of the parties have had sexual intercourse outside the marriage.
There is some dispute in the law whether sexual relations other than sexual intercourse would be sufficient to meet the first prong of the adultery test or not. The medical definition of sexual intercourse generally means genital contact. However, other sexual contact may be just as damaging to the case for the alleged adulterer.
Several statutes exist which protect a spouse from having to admit these indiscretions. From there, it gets more complicated. Even if you do not have to admit to the indiscretion, the fact that you are not denying it can be used to infer it did happen, thereby giving the evidence necessary to prove sexual intercourse did happen. Also, if your spouse had an affair months or years ago, and you forgave them and welcomed them back into the marital bed, then adultery is most likely not a proper ground. The other party can claim condonation, which is a defense to adultery.
It is also common to see allegations against another spouse for an emotional affair. Although an emotional affair is not enough to bring in an adultery claim against that spouse, it can be used elsewhere. If the complaining spouse confronts the spouse having the emotional affair and requests all contact cease with the alleged paramour and the spouse continues to have contact with the paramour, typically an attorney will bring this up as a form of cruel treatment.
Cruel Treatment as Grounds for Divorce
Is the infliction of bodily or mental pain upon the husband or wife enough that it reasonably justifies an apprehension of danger to life, limb, or health? The most common use of cruel treatment as a ground for divorce will be when there is extensive domestic abuse that has occurred in a marriage. There is a litany of literature that can be used in domestic violence cases to help prove the cruel treatment. It can range from verbal to financial abuse, where one party is continuously insulting the other or is preventing the other from having access to a means of support.
The most difficult part of these cases is that it is a “he said, she said” situation. Judges are extremely experienced in these matters, however, and will typically see through to the real problem areas. If they have any doubts, they typically will assign a Guardian ad Litem or another investigator to the case, especially when children are involved.
Desertion as Grounds for Divorce
The definition of desertion is “the voluntary separation of either spouse from the other or the voluntary refusal to renew a suspended cohabitation without justification either in the consent or the wrongful conduct of the other spouse”. In Georgia, the desertion must occur for at minimum one year before this is a valid claim to pursue as grounds for divorce.
Clients don’t usually use the term desertion; typically you hear them saying “he moved out and abandoned me/family”, or something along those lines.
This, too, may be hard to prove in a “he said, she said” situation. The person who allegedly deserted typically claims that he or she was kicked out of the house. If there is a desertion claim, it typically happens in the event that the other spouse is unable to be located and has not been found after a diligent effort. Service on that spouse may be difficult, but not impossible, and so you may still be able to obtain a divorce in Georgia. Service is made through publication, which often causes the divorce to take a bit longer to accomplish, but not impossible.
Filing for Divorce in Georgia Typically Involves Multiple Grounds
The most common ground for divorce in Georgia is to file on the basis that your marriage is irretrievably broken. However, most cases will involve more than one grounds for divorce, including but not limited to:
- Cruel treatment
- Habitual intoxication
- Drug addiction come into play more often than not.
The evidence you need to prove these typically come from pictures, statements to third parties such as hospitals or medical providers, or admissions by the guilty party. These days with Facebook and other social media, as well as texts and emails, there is usually an abundance of documentation.
Less Common Grounds for Divorce in Georgia
Although the grounds we covered above are the most seen and common grounds for divorce, there are rare claims that can come up now and then. Some less common grounds for divorce in Georgia include:
- Incurable mental illness
- Intermarriage between parties who are third cousins
Effect of Fault in a Divorce
The grounds listed above are not the only grounds for divorce allowable under Georgia Law. There are advantages to using a fault based divorce versus simply citing irretrievably broken. Filing on fault based grounds can have an effect on alimony as well as equitable division of assets. If you can prove the grounds cited, then the judge can consider the “bad act” of the other spouse in deciding how to fairly divide any marital assets or debts that are at issue in the divorce.
Rely on Our Divorce Attorneys For All Your Needs
Whether you’re filing for divorce in Georgia, or you’re on the other side of the case, our team of Georgia-based divorce attorneys are here to help. We’ll make sure you get the representation you deserve and the information you need. Contact our team today to schedule an appointment.