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Is Withholding Sex From a Spouse Sufficient Grounds for a Georgia Divorce?

In Georgia, there are thirteen grounds for divorce. These include:
1) Intermarriage between certain relatives;
2) Mental incapacity at the time of the marriage;
3) Impotency at the time of 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;
6) Adultery;
7) Desertion;
8) The conviction of either party for an offense involving moral turpitude and under which he or she is sentenced to imprisoned in a penal institution for a term of two years or longer;
9) Habitual intoxication;
10) Cruel treatment;
11) Incurable mental illness;
12) Habitual drug addiction;
13) The marriage is irretrievably broken.

See O.C.G.A. § 19-5-3(1) et seq.

Although withholding sex is not a listed ground for divorce in Georgia, there is a listed ground that may encompass this behavior – Desertion. Desertion, sufficient to warrant divorce occurswhen:

1) There is willful absence. This means the deserting spouse must have intended to desert the other spouse. However, this absence must not be justified by theother spouse’s conduct. Thus, if the deserting spouse leaves as a result of the other spouse abuse, this absence would not qualify as desertion. See Cagle v. Cagle, 193 Ga. 34 (1941) andConklin v. Conklin, 148 Ga. 640 (1919).

2) There is a cessation of cohabitation. This cessation of cohabitation may either be physical or by one spouses refusal to engage in sexual relations with theother spouse. Thus, a spouse can desert the other spouse even though they continue to reside in the same home. Phillips v. Phillips, 215 Ga. 606 (1960); Wilkinson v. Wilkinson, 159 Ga.332 (1924); Whitfield v. Whitfield, 89 Ga. 471 (1892).

3) For a period of one year. The willful absence must be for a period of one year or more, and the absence must be continuous for that one year periodimmediately prior to the filing of the divorce complaint. Monroe v.Monroe, 218 Ga. 353 (1962).

Thus, if you are in a situation where your spouse has willfully refused to engage in marital relations with you for a period of one year or more, a divorce based on the ground of desertion may begranted in your favor.

However, if you are an aggrieved spouse and you are not able to prove all of the elements of desertion, you may instead seek a divorce based on the grounds that the marriage is irretrievablybroken. Although in this circumstance the divorce will not be granted solely due to the fact that the other spouse has refused to engage sexually with you, the fact that you and your spouse nolonger have a sexual relationship may provide the court with the evidence necessary to grant you a divorce based on the fact that your marriage is indeed irretrievably broken.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

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