Grounds for Divorce in Georgia
A marriage can be formally ended in two ways: annulment and divorce. In an annulment the marriage is declared to be invalid from the beginning. The law essentially sees marriage as a contract, so, like a contract, a marriage can be invalid from the beginning if it was obtained by fraud or coercion. A lack of ability to knowingly enter into the contract due to insanity, intoxication, or marrying under the age of 16 can also invalidate a marriage. A marriage can be invalid because the parties are too closely related–parent/child, parent/stepchild, grandparent/grandchild, aunt/nephew, or uncle/niece–or because one of the parties was still married to someone else at the time of the marriage.
An Invalid Marriage
An invalid marriage can occur quite innocently. Sometimes parties to a marriage will leave court and get remarried the same day after hearing the judge say that a divorce is granted. The second marriage may last twenty years, but is was bigamous from the beginning because the first marriage was not actually ended until the judge signed a written divorce decree and the clerk of the court entered the decree, which only happened after the hasty second marriage. When something like this happens it creates a huge mess because many of the court’s equitable remedies, such as alimony and a monetary award to fairly balance out the parties’ property interests, might not be available. The court can only award temporary alimony pending the annulment itself and can only divide jointly title property. Since annulments are very rare–no one has ever hired me to handle one– Brunswick lawyers and judges have little experience with them and there are few written court rulings in Georgia divorce law to turn to for guidance.
If you do believe that your marriage may have been invalid, seek the advice of a Glynn County divorce attorney immediately. If you wish, you may be able to validate the marriage. Your marriage may already have been validated if you had children together during the marriage. On the other hand, if you are seeking to end the marriage, it may be easier and advantageous to seek an annulment. Additionally, if your “spouse” has been guilty of fraud you may be able to sue for money damages in Glynn County Superior Court.
No Fault Divorce in Georgia
The normal way to end a marriage is through divorce. Georgia divorce law has simplified the process substantially by adopting no fault divorce. You need to show that: (a) the marriage is irretrievably broken; (b) the parties are not cohabiting; and (c) there are no prospects for a reconciliation. No agreement is required; one party can unilaterally decide that the marriage is broken and refuse to cohabit. The parties can be living separately in the same house. In fact, if both parties agree that the marriage is broken and the parties have resolved their issues in a written separation agreement or arbitration ruling, the court can grant the divorce on the paperwork filed with the court without holding a hearing.
Fighting a No Fault Divorce
Despite the no fault approach to divorce adopted in Georgia, a spouse who wants to stay married can fight the divorce by claiming that the parties are still cohabiting or that there is still hope for a reconciliation. Such a fight is often waged for emotional reasons. A hearing would have to be held, the divorce lawyers would present the testimony of both sides, and the judge would have to decide which party to believe.
Fault Based Grounds for Divorce in Georgia
The old fault based grounds for divorce are still on the books. They are:
1. Cruel treatment (the willful infliction or bodily or mental pain sufficient to place the victim in apprehension of danger to body or health);
2. Adultery (mere improper association with the opposite sex is not enough, but can be part of cruel treatment);
3. Desertion (willful and continuous absence or denial of sex for a period of one year);
4. Intermarriage by persons too closely related (also a ground for annulment);
5. Mental incapacity at the time of the marriage (also a ground for annulment);
6. Impotency at the time of the marriage (also a ground for annulment);
7. Force, menace, duress or fraud in obtaining the marriage (also a ground for annulment);
8. Pregnancy of the wife at the time of the marriage, by one other than the husband, at the time of the marriage (also a ground for annulment);
9. Conviction of a crime involving moral turpitude and a sentence of two years or longer;
10. Habitual intoxication (only alcohol counts); and
11. Incurable mental illness (spouse must be adjudged mentally ill).
These grounds have almost entirely been replaced by the no fault basis for divorce. Seeking a divorce through a fault based ground is more expensive and time consuming and accomplishes little. Marital misconduct is still relevant to alimony and property division. At a hearing on those issues evidence of misconduct would be given, but you should seek the divorce itself the easier, no fault, way.
The Law Office of Lee S. Ashmore pursues contested and uncontested divorce cases in Brunswick, Glynn County, and Saint Simons Island, Georgia.
The Bank of America Building
777 Gloucester Street, Suite 402
Brunswick, GA 31520
P: (912) 275-7728
F: (912) 342-7142