In Georgia, there are a total of thirteen grounds for divorce that may be alleged by a spouse as a foundation for his or her suit for divorce. Although there are several grounds for divorce to choose from, many are rarely ever relied upon by parties seeking divorce in Georgia, while others are routinely cited. Below, we have listed twelve fault based grounds for divorce in Georgia, along with the one no-fault basis for divorce in Georgia. Many of the below listed grounds for divorce are relatively self-explanatory. However, the others require some brief explanation as there are certain elements that must be met in order for a spouse to successfully allege them as grounds for divorce.
The thirteen grounds for divorce, pursuant to O.C.G.A. § 19-5-1, are listed below along with brief explanations where necessary:
1) Intermarriage by persons within the prohibited degrees of consanguinity. In Georgia, intermarriage between the following relatives is prohibited: father and daughter/stepdaughter, mother and son/stepson, brother and sister (whole or half), grandparent and grandchild, aunt and nephew, or uncle and niece. O.C.G.A. § 19-3-3(a). It should be noted however that marriage between cousins is not prohibited in Georgia. Thus, intermarried cousins seeking to divorce must allege one of the other grounds for divorce.
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. In the context of Georgia divorce, menace is any overt act of a threatening character. Bryant v. Bryant, 192 Ga. 114 (1941). Duress is defined as any conduct that coerces a person to do something, which they otherwise would not have done. Id. Thus, to obtain a divorce based on this ground, a party must prove that he or she was forced, or fraudulently induced, into the marriage and that, without the force or fraud, he or she would not have entered into 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 in either of the parties after the marriage. Legally speaking, a person commits adultery when he or she has sexual intercourse with a person other than his or her spouse during the course of the marriage. Owens v. Owens, 247 Ga. 139 (1981). Although many fail to realize this, adultery may serve as a ground for divorce, even if committed after the parties have separated, because even though separated the parties are still legally married.
7) Willful and continued desertion by either of the parties for a term of one year. In order to successfully allege desertion as a ground for divorce in Georgia, a party must prove three elements: 1) 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; 2) A cessation of cohabitation either by physical absence or by the denial of conjugal relations without justification; and, 3) The willful absence and cessation of cohabitation must endure for a period of one year continuously.
8) 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.
9) Habitual intoxication.
10) Cruel treatment. Cruel treatment has been defined in Georgia case law at 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). According to O.C.G.A. § 19-5-3(10), the actions of the at-fault spouse must meet the above definition in order to constitute a basis for divorce in Georgia.
11) Incurable mental illness.
12) Habitual drug addiction.
13) The 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). Claiming that the marriage is irretrievably broken does not require either spouse to allege fault on the part of the other spouse. The parties must simply assert that their marriage is broken beyond repair and there in no hope for reconciliation.