Grounds for Divorce

Legal Grounds for Divorce

Georgia offers both fault-based and no-fault-based divorce. For a no-fault divorce the justification is simply that the marriage is irretrievably broken. An at-fault divorce can cite one or more of the legal grounds for divorce.

There are 13 legal grounds for divorce in Georgia. Stating your reason (grounds for divorce) is a required part of your divorce petition. You must cite at least one of the established grounds for divorce. "Irreconcilable Differences" is probably the most frequently stated reasons for filing divorce.

Some of the legal grounds for divorce cited may require proof in order to remain as part of the Divorce Complaint. This could include assertions of adultery, drug addiction, alcoholism, etc.

No-Fault vs. At-Fault Divorce in Georgia

Filing for divorce in Georgia does not require determining fault because Georgia is not a fault-based state. However, of the established legal grounds for divorce, there are grounds that may be cited which do create a condition of fault.

Do the Grounds Affect the Outcome of My Divorce?

Generally speaking, the specific reasons for getting a divorce can play a role in how your divorce is settled. What typically plays the most significant role, especially when filing contested divorce in Georgia are the details surrounding the grounds for divorce.

For example, citing and proving drug addiction or alcoholism can have a profound affect on custody and visitation decisions. Citing and proving adultery can nullify eligibility for spousal support.

Many low-conflict uncontested divorces, particularly divorces not involving children, cite irretrievably broken and avoid excessive public disclosure of facts. Whether uncontested or contested, if the facts of your married life involve criminality, egregious or salacious behaviors a judge may apply bias in the final terms of the divorce.

The 13 Legal Grounds for Divorce

The Georgia Code Title 19 – Domestic Relations Chapter 5 – O.C.G.A. 19-5-3 (2010) 19-5-3 is where you can find the exact language of the laws regarding grounds for total divorce in Georgia.

1.  1. Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
2.  2. Mental incapacity at the time of the marriage;
3.  3. Impotency at the time of the marriage;
4.  4. Force, menace, duress, or fraud in obtaining the marriage;
5.  5. Pregnancy of the wife by a man other than the husband at the time of the marriage, unknown to the husband;
6.  6. Adultery by either party after marriage;
7.  7. Willful and continued desertion by either party for a period of one year;
8.  8. Conviction of either party for an offense involving moral turpitude, followed by imprisonment in a penal institution for a term of two years or longer;
9.  9. Habitual intoxication;
10. 10. Cruel treatment, including the willful infliction of pain or bodily or mental injury that reasonably justifies fear of danger to life, limb, or health;
11. 11. Incurable mental illness;
12. 12. Habitual drug addiction, involving addiction to a controlled substance as defined under Georgia law;
13. 13. The marriage is irretrievably broken.

Is Adultery a Crime?

In Georgia, adultery is still considered a misdemeanor, punishable by a $1,000 fine and up to a year in jail. It’s worth noting that it has been over a century since anyone was jailed in Georgia for adultery. The website goes on to define adultery in Georgia as follows, "Georgia state law defines adultery as heterosexual or homosexual intercourse between a married person and someone other than the spouse. Oral sex practices, including fellatio and cunnilingus, are not included in this definition and so cannot be used as grounds for divorce. The sexual act must include penetration but does not need to reach completion."

Desertion vs. Abandonment

Abandonment is a challenging situation for a person wanting a divorce in Georgia. Georgia does not officially recognize abandonment as a reason to file for divorce. However, if your significant other walks out a divorce judge will almost certainly hold that person accountable for breaking up the marriage. Considering such action as constructive desertion the Court will usually apply negative consequences to the offender.

Georgia law requires an absence of a year or longer to formally apply a condition of desertion for the purposes of filing divorce. It’s important to know that this is willful desertion which excludes situations such as being deployed for military service.

Don’t allow an assertion of constructive desertion to be flipped on you. Here is a tip you need to know: If you turn away a spouse who returns to you in "good faith", you then become the spouse committing constructive desertion. This is because you now have mentally ended the marriage. In this case, the term good faith means that the spouse sincerely wanted to save the marriage.