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Grounds for Divorce
In Georgia, there are thirteen statutory grounds for divorce according to O.C.G.A. § 19-5-3. These grounds include:
- Intermarriage by persons within the prohibited degrees of consanguinity.
- Mental incapacity at the time of the marriage.
- Impotency at the time of marriage.
- Force, menace, duress, or fraud in obtaining the marriage.
- Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown by the husband.
- Adultery in either of the parties after the marriage.
- Willful and continued desertion by either of the parties for a term of one year.
- The conviction of either party for an offense involving moral turpitude and under which he or she is sentenced to imprisonment in a penal institution for a term of two years of longer.
- Habitual intoxication.
- Cruel treatment.
- Incurable mental illness.
- Habitual drug addiction.
- The marriage is irretrievably broken.
Many of the statutory grounds for divorce listed above are not often alleged or relied upon by parties seeking a divorce in Georgia. These lesser relied upon grounds include: Intermarriage between close relatives, mental incapacity, impotency at the time of marriage, force in obtaining the marriage, pregnancy of the wife by a man other than her husband at the time of the marriage, conviction and imprisonment of one spouse for a term over two years, incurable mental illness, and habitual drug addiction or intoxication. On the other hand, the most often relied upon grounds for divorce include adultery, desertion, cruel treatment, and that the marriage is irretrievably broken.
In Georgia, legally speaking, a person commits adultery when he or she has sexual intercourse with a person other than his or her spouse. Owens v. Owens, 247 Ga. 139 (1981). Adultery may serve as a ground for divorce, even if committed after the parties have separated. Adultery may be proven by direct or circumstantial evidence. However, as adultery is often committed in secret, it may be difficult to gather evidence sufficient to prove this allegation.
According to O.C.G.A. § 19-5-3(10), in order to constitute a ground for divorce, cruel treatment must consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health. Cruel treatment has been defined in Georgia case law as the wanton, malicious, and unnecessary infliction of pain upon the body or feelings and emotions of an individual; abusive treatment; inhuman or outrageous treatment. Mills v. Mills, 218 Ga. 686 (1963).
In order to successfully allege desertion as a ground for divorce in Georgia, a party must prove three elements:
- Willful and intentional absence of the at fault spouse, which was not caused or justified by the conduct of the other spouse nor with the other spouse’s consent.
- A cessation of cohabitation either by physical absence or by the denial of conjugal relations without justification.
- The willful absence and cessation of cohabitation must endure for a period of one year continuously.
As with adultery and cruel treatment, the grounds of desertion and cruel treatment are not inconsistent. Both grounds may be alleged in the same petition and based on the same facts, as cruel treatment may be proven by showing the denial of conjugal rights or the refusal of one spouse to cohabit with the other. See Phinizy v. Phinizy, 154 Ga. 199 (1922); Harkness v. Harkness, 228 Ga. 184 (1971); Pinnebad v. Pinnebad, 134 Ga. 496 (1910).
Marriage is irretrievably broken
An irretrievably broken marriage is one where “either or both parties are unable or refuse to cohabit, and there are no prospects for a reconciliation.” Harwell v. Harwell, 233 Ga. 89 (1974). In order to obtain a divorce predicated on the ground that the marriage is irretrievably broken, it is not necessary for the parties to show that there was fault on the part of either party. The parties must merely state that their marital differences are insoluble, that there is no hope for reconciliation and that they request a change of status. Seeing that this ground for divorce is based on the premise that the marriage is broken beyond repair and there is no hope for reconciliation, if a complaint for divorce is brought upon the sole allegation that the marriage is irretrievably broken, subsequent reconciliation and cohabitation of the parties will terminate the action for divorce.