A defendant in an action for divorce may defend herself in many ways. These ways include (for example) filing an answer, submitting a motion to dismiss, or alleging one or more of the defenses to divorce listed below:
- Prior existing marriage
You may read more regarding answers and motions to dismiss in our separate pages covering those topics. However, a more detailed analysis of the defenses listed above follows below.
Prior existing marriage
A defendant to a divorce may defend on the ground that one of the parties is still legally bound by a previously un-dissolved marriage. A previously un-dissolved marriage of one of the parties renders their current marriage void. Thus, a petitioner seeking a divorce in this case would not be entitled to a divorce, as there is no current valid marriage between the parties to dissolve. O.C.G.A. § 19-5-1.
A defendant may defend against a divorce action by relying on the defense of insanity. An insane spouse is not capable of committing cruel treatment or desertion, seeing that both of these grounds for divorce require willful and intentional acts. Thus, this defense is available to defend against these allegations in a divorce action. See Hilburn v. Hilburn, 210 Ga. 497 (1954) and Zeigler v. Zeigler, 149 Ga. 508.
If a plaintiff alleges any ground for divorce other than that the marriage is irretrievably broken, a defendant may defend themselves with the defense of recrimination. A party is not entitled to a divorce if they are guilty of the same conduct that alleged in the complaint. See O.C.G.A. § 19-5-4. Thus, if both parties are guilty of the same conduct, adultery for example, a defendant may successfully defend against the divorce action, as neither party would be entitled to a divorce on the grounds of adultery.
If “the adultery, desertion, cruel treatment, or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing a divorce,” a divorce will not be granted. O.C.G.A. § 19-5-4. If a plaintiff files a complaint for divorce alleging the grounds listed above, and there is evidence that the parties agreed to seek a divorce on those ground, a court will not grant the divorce. Thus, collusion may be asserted by a defendant in order to defend against an action for divorce.
If “there has been voluntary condonation and cohabitation subsequent to the action complained of, with notice thereof,” no divorce may be granted.” O.C.G.A. § 19-5-4. This statement simply means that where one spouse voluntarily forgives the other spouse of marital misconduct, with full knowledge of that spouse’s wrongful action, this forgiveness constitutes condonation. Condonation is a complete bar to a divorce based on that specific instance of conduct. Therefore, a defendant may assert a plaintiff’s condonation of his or her actions as a defense to divorce.
If, “the party complaining of the adultery, desertion, cruel treatment, or intoxication of the other party was consenting thereto,” a court will not grant a divorce to that plaintiff. O.C.G.A. § 19-5-4. Connivance is the consent of the plaintiff to the commission of the marital misconduct that the plaintiff now asserts as cause for the divorce. Connivance is not the same as condonation, even though they may seem similar. Connivance is where one party consents to the other parties misconduct, and condonation is simply where one party forgives the other party after the commission of marital misconduct. Seeing that a plaintiff who consents to a defendant’s misconduct is not entitled to a divorce as a result, a defendant may rely upon connivance as a defense to the divorce action.