Area of Law:
Divorce may be defined as the legal termination of a marriage. Married couples do not have a legal or a constitutional right to seek a divorce, but states like Georgia commonly accord divorces because to force a couple to stay married would be considered against public policy.
“No-fault” and “fault” are the two types of grounds, or justifications, for divorce in the United States. In some states, no-fault is the only acceptable justification for a divorce, even if fault grounds exist within the marriage. The other states, including Georgia, allow the parties to select either a no-fault or a fault divorce.
The United States first adopted the idea of no-fault divorce in the late 1960's, and nearly all states currently allow for some variation of it. A no-fault divorce is one in which the parties do not legally fault, or blame, one another for the divorce. Some examples of justifications for a no-fault divorce include “irreconcilable differences,” “irretrievable breakdown,” or “incompatibility.” In Georgia, either spouse can file for a no-fault divorce on the basis of irretrievable breakdown of the marriage and do not need to show any fault grounds. For a complete explanation of the divorce laws in Georgia, visit lawyers.com.
Many states require a “cooling-off” period of separation for a particular period of time before no-fault divorce proceedings can begin. During this time, the couple is necessitated to live separate and apart from each other with the intent that the separation will be permanent. The duration of the cooling-off period varies according to state law. In Georgia, a divorce will not be granted until at least 30 days after one spouse serves the other with divorce papers. If the parties are in agreement regarding finances and property division, a divorce in Georgia can usually be granted without a trial.
Some states also allow fault grounds for divorce. Common fault grounds include cruelty, desertion, adultery, prison confinement, habitual intemperance (drunkenness or drug addiction), and impotency. In Georgia, the justifications that must be proven in a fault grounds case include: mental incapacity or impotency at the time of marriage, adultery, desertion for at least one year, a conviction involving moral turpitude, habitual intoxication or drug use, cruel treatment that endangers the safety or life of either spouse, incurable mental illness, force, duress, or fraud when obtaining the marriage, the husband’s unawareness of the wife’s pregnancy by another man at the time of marriage, and incest.
There are several “defenses,” or denials, that are sometimes used against fault divorces. In Georgia, the defenses for adultery, desertion, cruelty, and intoxication are: collusion, both parties guilty, connivance, subsequent voluntary condonation and cohabitation, and consent. These defenses are not used often, perhaps because they require witnesses and additional court time, which is expensive and can drag out the divorce. For more on the defenses to divorce in George, go to findlaw.com.
Collusion may be committed by a couple who does not want to wait the separation period mandatory in their state and instead attempts to falsely manufacture fault grounds for the divorce. When one spouse sets the other up for wrongdoing and then later uses it as a basis for a fault divorce, this is called connivance. The condonation defense is sometimes used when a party condoned a certain spousal behavior during the marriage and then attempts to use it as fault grounds for divorce.
The specific grounds required for divorce differ widely across the United States. The American Bar Association offers a variety of information regarding divorce requirements state by state on their Section of Family Law website. A chart comparing all 50 states, including Georgia, can be found at abanet.org.
*An example of a Georgia Divorce Settlement Agreement can be seen on Free Legal Aid.