Cross references.

- Powers and duties of Department of Human Resources, county boards of health, and other agencies, regarding family-planning services, T. 49, C. 7.

Editor's notes.

- Ga. L. 1979, p. 466, § 1, not codified by the General Assembly, provides that no contract made or judgment, order, or decree rendered prior to April 4, 1979, should be overturned, modified, or disturbed by reason of the 1979 Act and that no such contract, judgment, order, or decree should be overturned, modified, or disturbed except to the extent absolutely required by the Constitution of this state or of the United States. The section also provides that nothing in the 1979 Act shall be construed to prohibit modification of judgments, decrees, or orders to the extent such modification is expressly authorized by statute, and that nothing in the Act shall be construed to authorize any court to entertain any claim of constitutional right which claim is barred because it was not timely raised in any previous judicial proceeding.

Ga. L. 1979, p. 466, § 49, not codified by the General Assembly, provides that the Act shall govern all proceedings and actions brought after it takes effect and also all further proceedings in actions then pending.

The following Code sections were affected by the 1979 Act: §§ 19-3-9,19-3-10,19-5-7,19-5-12,19-5-17,19-6-1,19-6-2,19-6-3,19-6-4,19-6-5,19-6-6,19-6-7,19-6-8,19-6-9,19-6-10,19-6-13,19-6-14,19-6-15,19-6-16,19-6-17,19-6-18,19-6-19,19-6-20,19-6-21,19-6-22,19-6-23,19-6-24,19-6-26,19-6-27,19-7-1,19-7-2,19-7-24,19-9-2,19-11-42,19-11-43.

Law reviews.

- For annual survey on domestic relations, see 36 Mercer L. Rev. 167 (1984). For article surveying domestic relations law in 1984-1985, see 37 Mercer L. Rev. 221 (1985). For annual survey of domestic relations law, see 39 Mercer L. Rev. 199 (1987). For annual survey of law of domestic relations, see 40 Mercer L. Rev. 211 (1988). For annual survey article on domestic relations law, see 45 Mercer L. Rev. 215 (1993). For annual survey article on domestic relations law, see 46 Mercer L. Rev. 223 (1994). For annual survey article on domestic relations law, see 49 Mercer L. Rev. 135 (1997). For annual survey article on domestic relations, see 50 Mercer L. Rev. 217 (1998). For annual survey article discussing developments in domestic relations law, see 51 Mercer L. Rev. 263 (1999). For annual survey article discussing developments in domestic relations law, see 52 Mercer L. Rev. 213 (2000). For article, "The Nature of Family, The Family of Nature: The Surprising Liberal Defense of the Traditional Family in the Enlightment," see 64 Emory L.J. 591 (2014). For article, "Criminal Law as Family Law," see 33 Ga. St. U. L. Rev. 285 (2017). For article, "The Return of the Unprovided-For Case," see 51 Ga. L. Rev. 763 (2017). For note, "Publicly Funded Private Security: A Critical Examination of Georgia Law Pertaining to the Private Employment of Off-Duty Police Officers," see 51 Ga. L. Rev. 879 (2017).

RESEARCH REFERENCES

ALR.

- Family court jurisdiction to hear contract claims, 46 A.L.R.5th 735.

Pre-emptive effect of Employee Retirement Income Security Act (ERISA) provisions (29 USCS §§ 1056(d)(3), 1144(a), and 1144(b)(7)) with respect to orders entered in domestic relations proceedings, 116 A.L.R. Fed. 503.

CHAPTER 1 GENERAL PROVISIONS

19-1-1. Injunctions and restraining orders authorized in domestic relations actions.

  1. As used in this Code section, the term "domestic relations action" shall include any action for divorce, alimony, equitable division of assets and liabilities, child custody, child support, legitimation, annulment, determination of paternity, termination of parental rights in connection with an adoption proceeding filed in a superior court, any contempt proceeding relating to enforcement of a decree or order, a petition in respect to modification of a decree or order, an action on a foreign judgment based on alimony or child support, and adoption.The term "domestic relations action" shall also include any direct or collateral attack on a judgment or order entered in any such action.
  2. Upon the filing of any domestic relations action, the court may issue a standing order in such action which:
    1. Upon notice, binds the parties in such action, their agents, servants, and employees, and all other persons acting in concert with such parties;
    2. Enjoins and restrains the parties from unilaterally causing or permitting the minor child or children of the parties to be removed from the jurisdiction of the court without the permission of the court, except in an emergency which has been created by the other party to the action;
    3. Enjoins and restrains each party from doing or attempting to do or threatening to do any act which injures, maltreats, vilifies, molests, or harasses or which may, upon judicial determination, constitute threats, harassment, or stalking the adverse party or the child or children of the parties or any act which constitutes a violation of other civil or criminal laws of this state; and
    4. Enjoins and restrains each party from selling, encumbering, trading, contracting to sell, or otherwise disposing of or removing from the jurisdiction of the court, without the permission of the court, any of the property belonging to the parties except in the ordinary course of business or except in an emergency which has been created by the other party to the action.
  3. Upon written motion of a party, the standing order provided for in this Code section shall be reviewed by the court at any rule nisi hearing.

(Code 1981, §19-1-1, enacted by Ga. L. 1994, p. 1161, § 1.)

Editor's notes.

- Former Code Section 19-1-1, repealed and reserved by Ga. L. 1991, p. 94, § 19, and redesignated as Code Section 19-15-1, was based on Ga. L. 1990, p. 1785, § 1.

19-1-2 through 19-1-6.

Reserved.Repealed by Ga. L. 1991, p. 94, § 19, effective March 14, 1991.

Editor's notes.

- Ga. L. 1991, p. 94, § 19, effective March 14, 1991, repealed the Code sections formerly codified at this chapter and redesignated them as Chapter 15 of this title. The former chapter, relating to child abuse consisted of Code Sections 19-1-1 through 19-1-6 and was based on Ga. L. 1987, p. 1065, § 1; Ga. L. 1988, p. 474, § 1; and Ga. L. 1990, p. 1785, § 1.

CHAPTER 2 DOMICILE

RESEARCH REFERENCES

ALR.

- Creditor's right to prevent debtor's renunciation of benefit under will or debtor's election to take under will, 39 A.L.R.4th 633.

19-2-1. Place of domicile; how domicile changed, generally.

  1. The domicile of every person who is of full age and is laboring under no disability is the place where the family of the person permanently resides, if in this state. If a person has no family or if his family does not reside in this state, the place where the person generally lodges shall be considered his domicile.
  2. The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining at the new residence. Declaration of an intention to change one's domicile is ineffectual for that purpose until some act is done in execution of the intention.

(Laws 1838, Cobb's 1851 Digest, p. 530; Code 1863, §§ 1644, 1650; Code 1868, §§ 1689, 1694; Code 1873, §§ 1690, 1695; Code 1882, §§ 1690, 1695; Civil Code 1895, §§ 1824, 1829; Civil Code 1910, §§ 2181, 2186; Code 1933, §§ 79-401, 79-406.)

Law reviews.

- For note discussing the constitutional implications of higher nonresident tuition fees charged by state universities, see 8 Ga. St. B.J. 86 (1971).

JUDICIAL DECISIONS

General Consideration

Applicability of section.

- Law was not intended to apply in determining whether person had lost domicile acquired in this state and has become domiciled in some other state. Williams v. Williams, 191 Ga. 437, 12 S.E.2d 352 (1940).

Establishment of residence.

- Law required both act and intent to establish residence, and either without the other was insufficient. Bufford v. Bufford, 223 Ga. 133, 153 S.E.2d 718 (1967).

Domicile of man having family.

- Domicile of man having family was place where family shall permanently reside, if in this state. Grimaud v. Knox-Georgia Homes, Inc., 210 Ga. 514, 81 S.E.2d 476 (1954).

"Family" defined.

- No definition of the word "family" as used in the law would be satisfactory that does not convey the idea of unity of the household in which were gathered the members of the family as one collective body under the management or control of the head thereof. Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 52 S.E. 898 (1905).

Meaning of the word "family" is not necessarily identical with the meaning of the same word as used in the homestead and exemption laws, and there was a still further variation from the meaning in criminal laws and police regulations. Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 52 S.E. 898 (1905).

"Permanently" defined.

- Word "permanently" is used in these provisions in contradistinction from the word "temporarily." Alvaton Mercantile Co. v. Caldwell, 34 Ga. App. 151, 128 S.E. 781 (1925); Grimaud v. Knox-Georgia Homes, Inc., 210 Ga. 514, 81 S.E.2d 476 (1954).

"Residence" and "domicile" were not synonymous and convertible terms. Worsham v. Ligon, 144 Ga. 707, 87 S.E. 1025 (1916); Avery v. Bower, 170 Ga. 202, 152 S.E. 239 (1930); Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818 (1966); Pugh v. Jones, 131 Ga. App. 600, 206 S.E.2d 650 (1974).

Trial court erred in finding that venue was proper in Effingham County, Georgia because the defendant, who maintained residences in both Effingham County and Chatham County, Georgia, was domiciled in Chatham County. Oglesby v. Deal, 311 Ga. App. 622, 716 S.E.2d 749 (2011).

"Domicile," unlike "residence," means permanent place of abode, whereas "residence" is not necessarily permanent, and may be at some place other than the place of domicile. Avery v. Bower, 170 Ga. 202, 152 S.E. 239 (1930).

Actual residence and intention to remain.

- There must be concurrence of actual residence and intention to remain to acquire domicile. Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 52 S.E. 898 (1905); Worsham v. Ligon, 144 Ga. 707, 87 S.E. 1025 (1916); Avery v. Bower, 170 Ga. 202, 152 S.E. 239 (1930); Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981).

Prerequisites to change of domicile.

- In order to change a person's domicile, a person must actually remove to another place with a present intention of remaining there as that person's place of domicile, or having removed, avow that person's intention of remaining there as the person's place of domicile, but such avowal may be proved by express declaration or acts equivalent thereto. Worsham v. Ligon, 144 Ga. 707, 87 S.E. 1025 (1916); Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818 (1966).

For a person to change that person's domicile, it is essential that the person should have a bona fide intent to make the change. In addition, the person must also declare an intent to change the person's domicile and do some act in execution of such intent. Brandt v. Buckley, 147 Ga. 389, 94 S.E. 233 (1917).

To effect a change of domicile there must be an avowed intent, which may be shown by declarations or acts equivalent thereto, and an actual removal. Bellamy v. Bellamy, 187 Ga. 804, 2 S.E.2d 413 (1939).

Person may have several residences, but only one domicile. Avery v. Bower, 170 Ga. 202, 152 S.E. 239 (1930).

Change in domicile involves exercise of volition and choice.

- As to a person sui juris, the matter of making a change in domicile is one involving the exercise of volition and choice. Stanfield v. Hursey, 36 Ga. App. 394, 136 S.E. 826 (1927).

There must be either tacit or explicit intention to change one's domicile before there is a change of legal residence. Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981).

When length of stay away from domicile immaterial.

- When an individual travels away from that individual's domicile for a time, it is immaterial whether such a stay is for one month or any number of months, provided it does not become so extended that it could be reasonably inferred that there is an actual intention to make a change of domicile. Venable v. Long Realty Co., 46 Ga. App. 803, 169 S.E. 322 (1933).

There may be residence for long time at place not intended as permanent abode.

- See Bush v. State, 10 Ga. App. 544, 73 S.E. 697 (1912).

Rules stated in this section determine where suit should be instituted. Daniel v. Sullivan, 46 Ga. 277 (1872).

Domicile for purpose of legal action.

- Domicile or legal residence for the purpose of action exists when there has been a concurrence of an actual residence and an intention to remain there permanently, which intention may be proved by acts. Mayo v. Ivan Allen-Marshall Co., 51 Ga. App. 250, 180 S.E. 20 (1935).

One's legal residence for purpose of being sued was necessarily the same county as the person's domicile where domicile was determined by this statute. Pugh v. Jones, 131 Ga. App. 600, 206 S.E.2d 650 (1974).

Role of Jury

Question of domicile is mixed question of law and fact, and is ordinarily one for jury and should not be determined by the court as a matter of law except in plain and palpable cases. Williams v. Williams, 226 Ga. 734, 177 S.E.2d 481 (1970); Pugh v. Jones, 131 Ga. App. 600, 206 S.E.2d 650 (1974); Milton v. Wilkes, 152 Ga. App. 362, 262 S.E.2d 624 (1979).

Question of bona fides of intent to change domicile is one for jury determination. Brandt v. Buckley, 147 Ga. 389, 94 S.E. 233 (1917).

Residence was a question of fact to be determined by the jury, so far as it involves ascertainment of the intention of the party. Jordan v. Carter, 60 Ga. 443 (1878); Battle v. Braswell, 107 Ga. 128, 32 S.E. 838 (1899); Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 52 S.E. 898 (1905); Mims v. Jones, 135 Ga. 541, 69 S.E. 824 (1910); Smith v. Smith, 136 Ga. 197, 71 S.E. 158 (1911).

Defendant's liability to suit.

- Whether defendant was liable to suit as resident was question for jury. Jordan v. Carter, 60 Ga. 443 (1878).

Question of domicile may be withdrawn from jury only if the evidence demands a finding that there has not been a change of domicile. Milton v. Wilkes, 152 Ga. App. 362, 262 S.E.2d 624 (1979).

Application

Change of domicile not shown.

- Trial court did not err when the court denied the father's motion to move a child custody action from Gwinnett County to DeKalb County because the father had not proved domicile in DeKalb County; while the father testified that the father moved to DeKalb County, the father's driver's license showed a Gwinnett County address eight months later and the father had not notified the father's homeowner's insurance company or the Internal Revenue Service of the move. Goyal v. Fifadara, 324 Ga. App. 567, 751 S.E.2d 190 (2013).

Dismissal for lack of residency affirmed.

- Trial court's finding that a wife was not a resident of DeKalb County, Georgia, and its order dismissing her DeKalb County divorce case were affirmed where the parties had sold their home in Georgia six months before the divorce was filed, and the wife's tax forms stated that she did not maintain a home in the United States, but rather that her bona fide residence was in South Africa; although the wife claimed that she intended to return to DeKalb County, the trial court properly applied the principle that the testimony of a party who offered herself as a witness in her own behalf at trial was to be construed most strongly against her when it was self-contradictory, vague, or equivocal. Conrad v. Conrad, 278 Ga. 107, 597 S.E.2d 369 (2004).

Person's domicile is not changed merely by the person's enlistment in Army and that person's transfer or assignment by military order to another jurisdiction. Squire v. Vazquez, 52 Ga. App. 712, 184 S.E. 629 (1936).

Father did not reside in Georgia for purposes of recording and modifying an Alabama child support order under O.C.G.A. § 19-11-172(a) of the Uniform Interstate Family Support Act, O.C.G.A. § 19-11-100 et seq., because while the father had been stationed in Georgia in the Army, the father was registered to vote in Alabama, had a driver's license there, and lived in Alabama with his wife, two sons, and his father; thus, the father was domiciled in Alabama for the purposes of O.C.G.A. § 19-2-1. Kean v. Marshall, 294 Ga. App. 459, 669 S.E.2d 463 (2008).

Military personnel may change domicile.

- It is as competent for a soldier to abandon the soldier's domicile or residence and acquire a new one as it is for any other citizen to do so. Engram v. Faircloth, 205 Ga. 577, 54 S.E.2d 598 (1949); Smiley v. Davenport, 139 Ga. App. 753, 229 S.E.2d 489 (1976).

Effect of transfer to mental hospital on domicile.

- Person's domicile is not changed merely by the person's transference to a mental hospital located in another jurisdiction, nor by an adjudication of a court of competent jurisdiction that the person is of unsound mind, remanding the person to a hospital for the insane, nor is the person's domicile changed by the appointment of a guardian for the person's estate. Squire v. Vazquez, 52 Ga. App. 712, 184 S.E. 629 (1936).

Mentally incompetent person may lack capacity to intend change of domicile.

- Person who is mentally incompetent and who moves from one place to another may lack the mental capacity to change his or her domicile. Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981).

Boarding.

- When a single person boards and lodges four nights in the week in a certain district for the purpose of teaching school such district will constitute the person's residence. Hinton v. Lindsay, 20 Ga. 746 (1856).

Criminal flight from state.

- Change of domicile is not effected by a person fleeing from the state after wounding another when the person's family continues to live in the former state. Barrett & Williford v. Black, Cobb & Co., 25 Ga. 151 (1858).

Domicile of convict sent to a penitentiary in a county other than that of the convict's domicile is not changed by this reason. Barton v. Barton, 74 Ga. 761 (1885).

Effect of abandoning family.

- When a man has a family but has abandoned the family, the man's residence must be determined under the latter part of the section, namely, that pertaining to persons with no family. Gilmer v. Gilmer, 32 Ga. 685 (1861); Smith v. Smith, 136 Ga. 197, 71 S.E. 158 (1911).

Change of residence by wife.

- Wife cannot, in the absence of the husband, and without his consent, change the family residence so as to change the husband's venue. Sindall v. H.C. Thacker & Co., 56 Ga. 51 (1876).

Pendency of divorce proceeding in another state.

- Mere pendency of a suit for divorce in another state, which was dismissed only a short time before the filing of a suit for divorce in this state, does not disprove the positive testimony of the plaintiff that the plaintiff had been a bona fide resident of this state for 12 months prior to the filing of the plaintiff's suit. Bellamy v. Bellamy, 187 Ga. 804, 2 S.E.2d 413 (1939).

Residence taken upon marital separation not domicile when husband disavows as such.

- When the husband had lived with the wife in the county in which a suit for divorce and alimony was filed and took an apartment in another county upon their separation which he disavowed as his domicile, he did not abandon the former county as his domicile. Smith v. Smith, 223 Ga. 551, 156 S.E.2d 916 (1967).

In a family violence case in which the respondent has left the family home but has not avowed an intention to remain in that new location, venue is proper both in the county of the family's residence and in the county to which the respondent has relocated. Davis-Redding v. Redding, 246 Ga. App. 792, 542 S.E.2d 197 (2000).

No intention to abandon residence.

- Man having a permanent residence in one county does not lose such residence by accepting a contract in another county, and renting a house in the latter county to which he moved his family, when it is not his intention to abandon his former domicile in the county first referred to. Knight v. Bond, 112 Ga. 828, 38 S.E. 206 (1901).

Second house rented for special purpose not domicile.

- Fact that defendant removed to another county and there rented a house did not constitute a change of domicile since the removal was for the purpose of educating children, the former home was maintained, the incidents of citizenship there discharged, and there was at no time an intention to provide a fixed place of abode in the place of removal, or to there establish permanent residence. Alvaton Mercantile Co. v. Caldwell, 34 Ga. App. 151, 128 S.E. 781 (1925).

Temporary departure from domicile.

- If a person leaves the place of the person's domicile temporarily, or for a particular purpose, and does not actually remove to another place with the intention of remaining there indefinitely, the person will not be considered as having changed the person's legal residence. Venable v. Long Realty Co., 46 Ga. App. 803, 169 S.E. 322 (1933); Smith v. Smith, 223 Ga. 551, 156 S.E.2d 916 (1967).

Temporary absence from county by man who has no family does not operate to change domicile. Bellamy v. Bellamy, 187 Ga. 804, 2 S.E.2d 413 (1939).

Evidence sufficient to appoint father as guardian of adult autistic son who desired to change domicile to Georgia.

- Decision granting a father guardianship of an adult autistic son was supported by sufficient evidence based on the son's desire to change domicile to the father's home, the son's desire to engage in more activities while at the father's home, as well as the testimony of the attorney appointed for the son, who indicated that while the son undoubtedly faced certain challenges due to autism, the son was not so mentally impaired to lack capacity to choose Georgia as the son's domicile. In the Interest of M. P., 338 Ga. App. 696, 791 S.E.2d 592 (2016).

Cited in Smith v. Ellabelle-Eldora School Dist., 40 Ga. App. 561, 150 S.E. 454 (1929); Cunningham v. Spurway, 50 Ga. App. 550, 178 S.E. 762 (1935); Mayo v. Ivan Allen-Marshall Co., 51 Ga. App. 250, 180 S.E. 20 (1935); Bellamy v. Bellamy, 187 Ga. 56, 199 S.E. 745 (1938); Adams v. Adams, 191 Ga. 537, 13 S.E.2d 173 (1941); Stewart v. Stewart, 195 Ga. 460, 24 S.E.2d 672 (1943); Foster v. Foster, 207 Ga. 519, 63 S.E.2d 318 (1951); Patterson v. Patterson, 208 Ga. 7, 64 S.E.2d 441 (1951); Sikes v. Sims, 212 Ga. 391, 93 S.E.2d 6 (1956); Stanton v. Stanton, 213 Ga. 545, 100 S.E.2d 289 (1957); Allen v. McDermott, 110 Ga. App. 536, 139 S.E.2d 143 (1964); Odom v. Beard, 114 Ga. App. 364, 151 S.E.2d 468 (1966); Davis v. Mullis, 296 F. Supp. 1345 (S.D. Ga. 1969); Brady v. Stephenson, 227 Ga. 461, 181 S.E.2d 387 (1971); Clark v. Hammock, 228 Ga. 157, 184 S.E.2d 581 (1971); Hatcher v. Hatcher, 229 Ga. 249, 190 S.E.2d 533 (1972); Midkiff v. Midkiff, 275 Ga. 136, 562 S.E.2d 177 (2002); Sastre v. McDaniel, 293 Ga. App. 671, 667 S.E.2d 896 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Domicile is broader and more fundamental concept than mere residence. 1958-59 Op. Att'y Gen. p. 91.

Domicile means one's fixed and permanent place of abode, to which, when one is absent therefrom, one intends to return. 1958-59 Op. Att'y Gen. p. 91; 1963-65 Op. Att'y Gen. p. 375.

Person's domicile is principally question of intent; one acquires domicile by residing in a particular place with the intention of remaining there indefinitely; taking up temporary residence in other places, even for long periods of time, will not result in loss of one's domicile as long as the intent to return prevails. 1962 Op. Att'y Gen. p. 144.

Residence and domicile distinguished.

- Residence means living in a particular locality; domicile means living in that locality with the intent to make it a fixed and permanent home. Residence requires only physical presence as an inhabitant in a given place, while domicile requires presence in that place as well as an intention to make it a domicile. A new domicile cannot be acquired simply by change of residence without an intention to abandon the old domicile. A person may continue to be domiciled in this state even though actually residing in another state. 1965-66 Op. Att'y Gen. No. 65-22.

One cannot change domicile by merely assuming residence in new location without intention to remain there; physical presence in the new location must coexist with the requisite intention to remain there. 1958-59 Op. Att'y Gen. p. 91; 1963-65 Op. Att'y Gen. p. 375.

Change of domicile requires physical move and intention to remain.

- In order to change one's domicile it is necessary that one move from one's old domicile and become a resident in the proposed new domicile with the intention to remain there permanently or at least indefinitely. 1958-59 Op. Att'y Gen. p. 91.

Domicile retained until officially established elsewhere.

- Person, having established domicile within this state, will retain the person's domicile here until the person officially establishes domicile in another state. 1976 Op. Att'y Gen. No. 76-70.

Temporary residence does not change domicile.

- Temporary residence of a person with the person's family in another county while the person was performing a contract in that county does not result in a change of domicile. 1958-59 Op. Att'y Gen. p. 92.

Temporary residence of wife and family for special purpose.

- While it is provided that the domicile of a married man shall be the place where his family resides, the wife or the wife and family may, for purposes of temporary convenience or for the purpose of educating the children, reside for a long time at a place not intended as a permanent abode, without effecting any change of legal residence; this for the reason that while there is a physical removal, there was never, on the part of those who moved, an intention to abandon a former domicile. 1958-59 Op. Att'y Gen. p. 92.

One may have two or more residences at same time, but every person has but one domicile. 1958-59 Op. Att'y Gen. p. 91.

Extension of land into district immaterial as to domicile.

- Fact that a candidate's land extends into a district is immaterial; in order to qualify as a candidate from that district, one's house must be within the boundaries of that district and one must be physically present in that district. 1968 Op. Att'y Gen. No. 68-273.

Members of armed forces never lose their domicile merely by joining service, and in response to military orders, moving about from state to state or abroad; they retain the domicile they held at the time they entered the service, unless they indicate that it is their intention to remove their domicile to some other state in which they are residing. 1958-59 Op. Att'y Gen. p. 91.

While a person in military service may change the person's domicile, the mere enlistment in the armed forces and transfer by military order does not necessarily change the domicile. 1965-66 Op. Att'y Gen. No. 65-22.

No change effected when military personnel have no intent to change domicile.

- That a legal resident of a county is absent from the county in the military service of the United States for a long period of time with no intent to change the person's residence does not effect a change. 1945-47 Op. Att'y Gen. p. 478.

Military personnel intending to remain in Georgia.

- If one moved to Georgia with intention of remaining when returning from military, one may consider Georgia one's domicile. 1965-66 Op. Att'y Gen. No. 66-190.

Noncitizens of United States may acquire domicile in Georgia for purposes of attending state supported college or university. 1960-61 Op. Att'y Gen. p. 128.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Domicile, §§ 1, 19 et seq.

Nonestablishment of Domicil in Foreign Jurisdiction, 4 POF2d 595.

Establishment of Person's Domicil, 39 POF2d 587.

C.J.S.

- 28 C.J.S., Domicil, §§ 2, 15 et seq.

ALR.

- Acquisition of domicile in countries (such as China, Turkey, and Egypt) granting extraterritorial privileges to foreigners, 39 A.L.R. 1155.

Significance of place where one votes or registers to vote on question as to his domicile or residence for other purposes, 107 A.L.R. 448.

Change of domicile by public officer or employee, 129 A.L.R. 1382.

Residence or domicile for purposes of venue statute of student, teacher, or inmate of institution, 132 A.L.R. 509.

Domicile or residence of person in the armed forces, 150 A.L.R. 1468; 151 A.L.R. 1465; 152 A.L.R. 1462; 153 A.L.R. 1434; 154 A.L.R. 1460; 155 A.L.R. 1461; 156 A.L.R. 1459; 157 A.L.R. 1457; 158 A.L.R. 1464.

Effect on jurisdiction of court to grant divorce, of plaintiff's change of residence pendente lite, 7 A.L.R.2d 1414.

Acquisition of domicile by sending wife or family to new home, 31 A.L.R.2d 775.

Validity and application of provisions governing determination of residency for purpose of fixing fee differential for out-of-state students in public college, 56 A.L.R.3d 641.

19-2-2. Election between two or more domiciles; domicile of transients.

  1. If a person resides indifferently at two or more places in this state, the person shall have the privilege of electing which of such places shall be his domicile. If the election is made known generally among those with whom the person transacts business in this state, the place chosen shall be the person's domicile. If no such election is made or if an election is made but is not generally known among those with whom the person transacts business in this state, third persons may treat any one of the places in which the person resides as his domicile and it shall be so held; and in all such cases a person who habitually resides a portion of the year in one county and another portion of the year in another shall be deemed a resident of both, so far as to subject him to actions in either for contracts made or torts committed in such county.
  2. Transient persons whose business or pleasure causes a frequent change of residence and who have no family permanently residing at one place in this state shall be deemed, as to third persons, to be domiciled at such place as they at the time temporarily occupy.

(Orig. Code 1863, § 1645; Code 1868, § 1690; Code 1873, § 1691; Code 1882, § 1691; Civil Code 1895, § 1825; Civil Code 1910, § 2182; Code 1933, § 79-402.)

JUDICIAL DECISIONS

Words "all such cases" refer to preceding portion of subsection (a) of this section dealing with persons who "reside indifferently at two or more places in this state." Jackson v. Taylor, 49 Ga. App. 261, 175 S.E. 259 (1934).

Juror living on county line may serve in county claimed as domicile.

- Juror living in a house which is partly in one county and partly in another is competent to serve in the county in which the juror claims residence, votes, and pays the juror's taxes. Chancey v. State, 141 Ga. 54, 80 S.E. 287 (1913).

In a family violence case in which the respondent has left the family home but has not avowed an intention to remain in that new location, venue is proper both in the county of the family's residence and in the county to which the respondent has relocated. Davis-Redding v. Redding, 246 Ga. App. 792, 542 S.E.2d 197 (2000).

Railroads may be residents of several counties. Watson v. Richmond & D.R.R., 91 Ga. 222, 18 S.E. 306 (1892).

Jury instructions when evidence shows residence in two places.

- In a trial of a plea to the jurisdiction, when the evidence might support a finding of the defendant's residence in either of two places it is not error for the court to charge the provisions of this statute relative to the situation where one resides indifferently in two or more places. Allen v. McDermott, 110 Ga. App. 536, 139 S.E.2d 143 (1964).

Transients.

- Venue and jurisdiction were properly laid in Fulton County when, at time of service, transient defendant had resided temporarily at several places in Fulton County. Patterson v. Citizens & S. Bank, 163 Ga. App. 539, 294 S.E.2d 730 (1982).

Cited in Crawford v. Wilson, 142 Ga. 734, 83 S.E. 667 (1914); Smith v. Ellabelle-Eldora School Dist., 40 Ga. App. 561, 150 S.E. 454 (1929); Georgia Cresoting Co. v. Moody, 41 Ga. App. 701, 154 S.E. 294 (1930); Cunningham v. Spurway, 50 Ga. App. 550, 178 S.E. 762 (1935); Bell v. Stevens, 100 Ga. App. 281, 111 S.E.2d 125 (1959); Grey v. Roboscope Int'l, Ltd. of Ga., Inc., 122 Ga. App. 725, 178 S.E.2d 334 (1970); Stewman v. Magley, 138 Ga. App. 545, 227 S.E.2d 277 (1976).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Domicil, §§ 6, 25.

C.J.S.

- 28 C.J.S., Domicile, §§ 5 et seq., 13, 14.

ALR.

- Significance of place where one votes or registers to vote on question as to his domicile or residence for other purposes, 107 A.L.R. 448.

Domicile or residence of person in the armed forces, 148 A.L.R. 1413; 149 A.L.R. 1471; 150 A.L.R. 1468; 151 A.L.R. 1468; 152 A.L.R. 1471; 153 A.L.R. 1442; 155 A.L.R. 1466; 156 A.L.R. 1465; 157 A.L.R. 1462; 158 A.L.R. 1474.

19-2-3. Domicile of married person.

The domicile of a married person shall not be presumed to be the domicile of that person's spouse.

(Orig. Code 1863, § 1646; Code 1868, § 1691; Code 1873, § 1692; Code 1882, § 1692; Civil Code 1895, § 1826; Civil Code 1910, § 2183; Code 1933, § 79-403; Ga. L. 1982, p. 805, §§ 1, 2.)

JUDICIAL DECISIONS

Section unconstitutional insofar as it might prevent voting registration.

- Joint operation of former Code 1933, §§ 79-403 and 79-407 (see now O.C.G.A. §§ 19-2-3 and19-2-6) and former Code 1933, § 34-632, insofar as it established an irrebuttable presumption that the domicile and residence of a married woman was that of her husband, and thereby prevented her from registering to vote in Georgia, violated U.S. Const., amend. 19. Kane v. Fortson, 369 F. Supp. 1342 (N.D. Ga. 1973).

Words "voluntary separation" and "living apart," do not necessarily mean mutual agreement for separation; for when husband has been guilty of such dereliction of duty in the marital relation as entitles the wife to have it either partially or totally dissolved, she may acquire a separate domicile of her own for the purpose of conferring jurisdiction on the proper tribunal in a proceeding for divorce or separation. Pearlstine v. Pearlstine, 148 Ga. 756, 98 S.E. 264 (1919); Abou-Issa v. Abou-Issa, 229 Ga. 77, 189 S.E.2d 443 (1972).

Duty of wife to follow husband.

- Wife is bound to go with her husband to reside on a farm despite an antenuptial contract to the contrary. Pace v. Pace, 154 Ga. 712, 115 S.E. 65 (1922); Perkerson v. Perkerson, 157 Ga. 589, 122 S.E. 53 (1924).

Domicile not presumed to be spouse's domicile.

- In a case involving the residency requirements of O.C.G.A. §§ 21-2-217(a) and46-2-1(b), the trial court properly granted a commissioner's motion for summary judgment because the evidence established the commissioner's residence in District Two at least 12 months prior to the commissioner's election to the Public Service Commission; pursuant to O.C.G.A. § 19-2-3, the domicile of the commissioner's spouse in another district was not presumed to be the commissioner's domicile. Dozier v. Baker, 283 Ga. 543, 661 S.E.2d 543 (2008).

Cited in Porter v. Chester, 208 Ga. 309, 66 S.E.2d 729 (1951); Stanton v. Stanton, 213 Ga. 545, 100 S.E.2d 289 (1957); Bufford v. Bufford, 223 Ga. 133, 153 S.E.2d 718 (1967); Lance v. Safwat, 170 Ga. App. 694, 318 S.E.2d 86 (1984).

OPINIONS OF THE ATTORNEY GENERAL

Eligibility of married woman to register to vote.

- Married woman whose husband has legal residence in Georgia may register to vote even though not physically domiciled within the state. 1975 Op. Att'y Gen. No. 75-77.

Military personnel stationed in Georgia.

- Member of the military stationed in Georgia may claim an exemption on her automobile pursuant to the Soldiers and Sailors Relief Act [50 U.S.C. App. § 574] regardless of her husband's claiming homestead exemption on his house in Georgia, unless other conduct on her part establishes an intent to change her residency to Georgia. 1990 Op. Att'y Gen. No. U90-15.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Domicil, § 36.

C.J.S.

- 28 C.J.S., Domicile, §§ 28, 29. 41 C.J.S., Husband and Wife, §§ 8, 9.

ALR.

- Separate domicile of wife for purposes of jurisdiction over subject-matter of suit by her for divorce or separation, 39 A.L.R. 710.

Effect of marriage of alien woman to one then an American citizen on right to enter or remain in this country, 71 A.L.R. 1213.

Separate domicile of wife for purposes other than suit for divorce, separation, or maintenance, 75 A.L.R. 1254; 90 A.L.R. 358; 128 A.L.R. 1422.

Effect on jurisdiction of court to grant divorce, of plaintiff's change of residence pendente lite, 7 A.L.R.2d 1414.

Domicile for state tax purposes of wife living apart from husband, 82 A.L.R.3d 1274.

19-2-4. Domicile of minor.

  1. If a minor child's parents are domiciled in the same county, the domicile of that child shall be that of the parents. If a minor child's parents are divorced, separated, or widowed, or if one parent is not domiciled in the same county as the other parent, the child's domicile shall be that of the custodial parent. The domicile of a minor child born out of wedlock shall be that of the child's mother.
  2. Where a child's parents have voluntarily relinquished custody of the child to a third person or have been deprived of custody by court order, the child's domicile shall be that of the person having legal custody of the child. If there is no legal custodian, the child's domicile shall be that of his guardian if the guardian is domiciled in this state. If there is neither a legal custodian nor a guardian, the domicile of the child shall be determined as if he were an adult.

(Orig. Code 1863, § 1647; Code 1868, § 1692; Code 1873, § 1693; Code 1882, § 1693; Civil Code 1895, § 1827; Civil Code 1910, § 2184; Code 1933, § 79-404; Ga. L. 1984, p. 612, § 1; Ga. L. 1988, p. 1720, § 1.)

Cross references.

- Determination of domicile of non-minor university student based on domicile of parents, §§ 20-3-66,39-1-1.

JUDICIAL DECISIONS

Domicile of parents at time of birth is domicile of child, and remains the child's domicile until changed in some manner as provided by law, either by a change of the domicile of the parents or of the parent whose domicile controls that of the child before the child reaches majority, or by a change in the domicile of the child. Squire v. Vazquez, 52 Ga. App. 712, 184 S.E. 629 (1936).

Husband and wife separated.

- When husband and wife are separated, the county of the husband's residence is that of the minor children, unless he has consented otherwise. Hunt v. Hunt, 94 Ga. 257, 21 S.E. 515 (1894).

Children removed from state by widowed mother.

- When children had been removed from the state by their widowed mother, who had married again but they frequently avowed an intention of returning to their former home, on an application for homestead out of their father's property in the county in which the father dies resident, the question of domicile was for the jury, and a verdict in favor of the minor's rights will not be disturbed. Harkins v. Arnold, 46 Ga. 656 (1872).

Child's domicile changed to that of mother when father abandoned family.

- That a father left his wife and minor child in Georgia to obtain employment for himself in Michigan and failed to provide for the family, except sending the family about $12.00 for about two years, authorized a finding that the father had voluntarily relinquished his parental authority over the child to the mother, thereby rendering the domicile of the child that of the child's mother. Thus, a Michigan divorce decree awarding him the custody of the child was void for lack of jurisdiction, even though the mother filed an answer in the divorce proceeding, asking that she be awarded the child. Elliott v. Elliott, 181 Ga. 545, 182 S.E. 846 (1935).

Child's domicile changed to that of guardians when father relinquished custody.

- Giving full faith and credit to the decree of a Tennessee court to which father of child relinquished his parental authority, which decree committed child to petitioners, residents of this state, it is clear that the child's domicile was changed from Tennessee to Georgia. Herrin v. Graham, 87 Ga. App. 291, 73 S.E.2d 572 (1952), overruled on other grounds, Davey v. Evans, 156 Ga. App. 698, 275 S.E.2d 769 (1980).

Minor leaving home with parental consent.

- Change of domicile does not result from the minor's leaving home with the father's consent, to live in another county and conduct a partnership business there in the minor's own name for the minor and the minor's father. Jackson v. Southern Flour & Grain Co., 146 Ga. 453, 91 S.E. 481 (1917).

Choice by minor.

- When a minor has neither father, mother, nor guardian, the minor may change the minor's residence at will. Dampier v. McCall, 78 Ga. 607, 3 S.E. 563 (1887).

Residence of ward who has come to years of discretion.

- When ward has come to years of discretion, residence of guardian is not residence of ward, unless the ward chooses to make it the ward's residence. Roberts v. Walker, 18 Ga. 5 (1855).

Service of process on illegitimate child's mother gives juvenile court jurisdiction.

- Service of process on the mother in the county in which the mother of an illegitimate child resides is sufficient to give the county juvenile court jurisdiction over both the mother and the child, regardless of whether there was a "detention" of the child, and in spite of the fact that a welfare worker had obtained possession of the child outside of the state. Sanchez v. Walker County Dep't of Family & Children Servs., 148 Ga. App. 49, 225 S.E.2d 441, rev'd on other grounds, 237 Ga. 406, 229 S.E.2d 66 (1976).

Cited in Hayslip v. Gillis, 123 Ga. 263, 51 S.E. 325 (1905); Portman v. Mobley, 158 Ga. 269, 123 S.E. 695 (1924); Beavers v. Williams, 199 Ga. 114, 33 S.E.2d 343 (1945); Altree v. Head, 90 Ga. App. 601, 83 S.E.2d 683 (1954); Ethel Harpst Home, Inc. v. Haithcock, 214 Ga. 297, 104 S.E.2d 459 (1958); Sailors v. Spainhour, 98 Ga. App. 475, 106 S.E.2d 82 (1958); Springstead v. Cook, 215 Ga. 154, 109 S.E.2d 508 (1959); Mathews v. Murray, 101 Ga. App. 216, 113 S.E.2d 232 (1960); Ingle v. Rubenstein, 112 Ga. App. 767, 146 S.E.2d 367 (1965); Giles v. State, 123 Ga. App. 700, 182 S.E.2d 140 (1971); Burnett v. Hope, 124 Ga. App. 273, 183 S.E.2d 505 (1971); Griffin v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 179, 199 S.E.2d 101 (1973); Mathis v. Sapp, 232 Ga. 620, 208 S.E.2d 446 (1974); Huff v. Moore, 144 Ga. App. 668, 242 S.E.2d 329 (1978); Abrams v. Daffron, 155 Ga. App. 182, 270 S.E.2d 278 (1980); Whitlock v. Barrett, 158 Ga. App. 100, 279 S.E.2d 244 (1981).

OPINIONS OF THE ATTORNEY GENERAL

Domicile of child for school purposes can be altered by voluntary relinquishment of parental authority if proper legal action has been taken or circumstances are present which secure to the person with whom the child is residing some legal obligation as to the child's welfare and education. 1970 Op. Att'y Gen. No. U70-8.

Relinquished parental control of child.

- If parental control of a child is relinquished to Georgia residents, the child is legally domiciled in this state. 1965-66 Op. Att'y Gen. No. 66-190.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Domicil, § 37 et seq.

C.J.S.

- 28 C.J.S., Domicile, § 22 et seq. 39 C.J.S., Guardian and Ward, § 14.

ALR.

- Emancipation by parent as affecting right of infant to change domicile or settlement, 5 A.L.R. 949.

Approximation to maturity as affecting the rule that an infant cannot change his domicile, 5 A.L.R. 958.

Separate domicile of married woman or divorced woman as affecting citizenship, domicile, residence, or inhabitancy of children, 53 A.L.R. 1160.

Does child, upon death of parent to whom custody had been awarded by decree of divorce, take the domicile of the other parent, 136 A.L.R. 914.

Separate domicile of mother as affecting domicile or residence of infant, 13 A.L.R.2d 306.

Domicile of infant on death of both parents; doctrine of natural guardianship, 32 A.L.R.2d 863.

Validity and application of provisions governing determination of residency for purpose of fixing fee differential for out-of-state students in public college, 56 A.L.R.3d 641.

19-2-5. Domicile of person under guardianship.

Persons of full age who for any cause are placed under the power of a guardian have the same domicile as the guardian.

(Orig. Code 1863, § 1648; Code 1868, § 1693; Code 1873, § 1694; Code 1882, § 1694; Civil Code 1895, § 1828; Civil Code 1910, § 2185; Code 1933, § 79-405.)

Cross references.

- Guardians, T. 29, C. 2.

JUDICIAL DECISIONS

When ward is inmate at state hospital when guardian appointed.

- Law did not refer to situations where ward was inmate at state hospital at time of guardian's appointment, was never in the custody of the guardian, and had been declared sane some years prior to the ward's death, and the sole remaining contact with the guardian at the time of the ward's death was with reference to whether a certain disbursement made by the guardian was proper. Fuller v. Weekes, 105 Ga. App. 790, 125 S.E.2d 662, rev'd on other grounds, 218 Ga. 515, 128 S.E.2d 715 (1962).

Cited in Ocean Accident & Guarantee Co. v. Lovern, 90 Ga. App. 708, 83 S.E.2d 862 (1954); Bennet v. Bennet, 212 Ga. 292, 92 S.E.2d 11 (1956); Edwards v. Lampkin, 112 Ga. App. 128, 144 S.E.2d 119 (1965).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Domicil, § 47 et seq.

C.J.S.

- 28 C.J.S., Domicile, § 31.

ALR.

- Determination of dwelling place and living conditions of one adjudged incompetent, 131 A.L.R. 289.

Change of state or national domicile of mental incompetent, 96 A.L.R.2d 1236.

19-2-6. Change of domicile which is dependent on that of another; change of ward's domicile affecting inheritance.

  1. A person whose domicile for any reason is dependent upon that of another cannot effect a change of his own domicile.
  2. A guardian cannot change the domicile of his ward by a change of his own domicile or in any other fashion so as to interfere with the rules of inheritance or succession or otherwise to affect the rights of inheritance of third persons.

(Orig. Code 1863, § 1651; Code 1868, § 1695; Code 1873, § 1696; Code 1882, § 1696; Civil Code 1895, § 1830; Civil Code 1910, § 2187; Code 1933, § 79-407.)

JUDICIAL DECISIONS

Section unconstitutional insofar as it might prevent voting registration.

- The joint operation of former Code 1933, § 79-407 (see O.C.G.A. § 19-2-6) and former Code 1933, § 34-632, insofar as it established an irrebuttable presumption that the domicile and residence of a married woman is that of her husband, and thereby prevents her from registering to vote in Georgia, violates U.S. Const., amend. 19. Kane v. Fortson, 369 F. Supp. 1342 (N.D. Ga. 1973).

Minor has no power to bring about change of domicile. Jackson v. Southern Flour & Grain Co., 146 Ga. 453, 91 S.E. 481 (1917).

Person adjudged insane cannot, by the person's own act or volition, effect change in domicile. Stanfield v. Hursey, 36 Ga. App. 394, 136 S.E. 826 (1927).

Change of domicile by incompetent.

- Whether incompetent may change domicile depends on extent to which reason is impaired; a comparatively slight degree of understanding is required and it is sufficient if the person understands the nature and effect of the person's act. Davis v. Mullis, 296 F. Supp. 1345 (S.D. Ga. 1969).

Cited in Harkins v. Arnold, 46 Ga. 656 (1872); Griffin v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 179, 199 S.E.2d 101 (1973); Davenport v. Aetna Cas. & Sur. Co., 144 Ga. App. 474, 241 S.E.2d 593 (1978); Wilson v. Willard, 183 Ga. App. 204, 358 S.E.2d 859 (1987).

OPINIONS OF THE ATTORNEY GENERAL

Previous marriage of minor female allows change in her domicile.

- Previous marriage of minor female, with or without parents' consent, not only emancipates her from her parents' control, but also allows a change in her domicile. 1981 Op. Att'y Gen. No. U81-5.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Domicile, § 37 et seq.

C.J.S.

- 28 C.J.S., Domicile, § 21 et seq. 39 C.J.S., Guardian and Ward, § 14.

ALR.

- Emancipation by parent as affecting right of infant to change domicile or settlement, 5 A.L.R. 949.

Approximation to maturity as affecting the rule that an infant cannot change his domicile, 5 A.L.R. 958.

Domicile of infant on death of both parents; doctrine of natural guardianship, 32 A.L.R.2d 863.

Change of state or national domicile of mental incompetent, 96 A.L.R.2d 1236.

CHAPTER 3 MARRIAGE GENERALLY

Article 1 General Provisions.
Article 2 License and Ceremony.
Article 3 Antenuptial Agreements, Marriage Contracts, and Postnuptial Settlements.
Cross references.

- Recognition of marriage, Ga. Const. 1983, Art. I, Sec. IV.

Performance of sterilization procedure upon request, § 31-20-2.

Presumption of gift when person pays purchase money for property which is conveyed to spouse, § 53-12-28.

Law reviews.

- For article, "Lochner, Lawrence, and Liberty," see 27 Ga. St. U. L. Rev. 609 (2011). For article, "The Nature of Family, The Family of Nature: The Surprising Liberal Defense of the Traditional Family in the Enlightment," see 64 Emory L.J. 591 (2014). For article, "The Nature of Family, the Family of Nature: The Surprising Liberal Defense of the Traditional Family in the Enlightenment," see 64 Emory L.J. 591 (2015). For article, "Polygamous Unions? Charting the Contours of Marriage Law's Frontier," see 64 Emory L.J. 1669 (2015). For article, "Why Two In One Flesh? The Western Case for Monogamy Over Polygamy," see 64 Emory L.J. 1675 (2015). For article, "Should Civil Marriage Be Opened Up to Multiple Parties," see 64 Emory L.J. 1747 (2015). For article, "Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage," see 64 Emory L.J. 1977 (2015). For article, "The Evolution of Plural Parentage Applying Vulnerability Theory to Polygamy and Same Sex Marriage," see 64 Emory L.J. 2047 (2015). For article, "Polygyny and Violence Against Women," see 64 Emory L.J. 1767 (2015). For article, "Cohabitation Worldwide Today," see 35 Ga. St. U.L. Rev. 299 (2019). For article, “Transcript: Abortion and Gay Rights,” see 35 Ga. St. U.L. Rev. 871 (2019). For comment, "By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage," see 63 Emory L.J. 979 (2014). For comment, "L'Amour for Four: Polygyny, Polyamory, and the State's Compelling Economic Interest in Normative Monogamy," see 64 Emory L.J. 2093 (2015).

RESEARCH REFERENCES

Criminal Law - The Battered Woman Defense, 34 POF2d 1.

ALR.

- Necessity of physical injury to support cause of action for loss of consortium, 16 A.L.R.4th 537.

Modern status of rule that husband is primarily or solely liable for necessaries furnished wife, 20 A.L.R.4th 196.

Spouse's liability, after divorce, for community debt contracted by other spouse during marriage, 20 A.L.R.4th 211.

Prisoners' Constitutional Right to Marry, 26 A.L.R. Fed. 3d 5.

ARTICLE 1 GENERAL PROVISIONS

19-3-1. Prerequisites to valid marriage.

To constitute a valid marriage in this state there must be:

  1. Parties able to contract;
  2. An actual contract; and
  3. Consummation according to law.

(Orig. Code 1863, § 1653; Code 1868, § 1697; Code 1873, § 1698; Code 1882, § 1698; Civil Code 1895, § 2411; Civil Code 1910, § 2930; Code 1933, § 53-101.)

Law reviews.

- For article discussing changes in and case application of statutes concerning marriage, divorce, and custody law in 1976 to 1977, see 29 Mercer L. Rev. 103 (1977). For article, "Georgia Inheritance Rights of Children Born Out of Wedlock," see 23 Ga. St. B.J. 28 (1986). For article, "A Holy Secular Institution," see 58 Emory L.J. 1123 (2009). For article, "Speech or Conduct? The Free Speech Claim of Wedding Vendors," see 65 Emory L.J. 241 (2015).

JUDICIAL DECISIONS

General Consideration

O.C.G.A. § 19-3-1 applies equally to both ceremonial and common-law marriages. Metropolitan Life Ins. Co. v. Lucas, 761 F. Supp. 130 (M.D. Ga. 1991).

"According to law" had reference to common law as expounded in Askew v. Dupree, 30 Ga. 173 (1860), and recognized by the legislature as then existing, but which on that feature was intended to be "regulated" by statute. Drewry v. State, 208 Ga. 239, 65 S.E.2d 916 (1951), adopting dissenting opinion in Lefkoff v. Sicro, 189 Ga. 554, 6 S.E.2d 687 (1939).

In order for valid marriage to exist there must be ceremonial marriage or common-law marriage entered into in good faith. Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967).

To constitute valid marriage in this state, there must be parties able to contract. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946).

Marriage is in law complete when parties able to contract have actually contracted to be man and wife in the forms and with the solemnities required by law. Pitts v. State, 147 Ga. 801, 95 S.E. 706 (1918).

Discussion of the presumption of validity or invalidity of second marriage. See Scott v. Jefferson, 174 Ga. App. 651, 331 S.E.2d 1 (1985).

Cited in White v. White, 41 Ga. App. 394, 153 S.E. 203 (1930); Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608 (1943); Graves v. Carter, 207 Ga. 308, 61 S.E.2d 282 (1950); Drewry v. State, 208 Ga. 239, 65 S.E.2d 916 (1951); Goza v. State, 91 Ga. App. 842, 87 S.E.2d 232 (1955); Hobby v. Burke, 227 F.2d 932 (5th Cir. 1955); Wolverine Ins. Co. v. Leach, 100 Ga. App. 570, 112 S.E.2d 10 (1959); Toole v. Gallion, 221 Ga. 494, 144 S.E.2d 360 (1965); Shepherd v. Shepherd, 233 Ga. 228, 210 S.E.2d 731 (1974); Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976); Riddle v. Riddle, 240 Ga. 515, 241 S.E.2d 214 (1978); Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483 (1978); Thompson v. Brown, 254 Ga. 191, 326 S.E.2d 733 (1985); Dennis v. State, 220 Ga. App. 420, 469 S.E.2d 494 (1996); Wright v. Goss, 229 Ga. App. 393, 494 S.E.2d 23 (1997); Finch v. Dasgupta, 251 Ga. App. 637, 555 S.E.2d 22 (2001).

Evidence

Evidence presented must show present intent to marry; an agreement to marry in the future is not sufficient. Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675 (1979).

All presumptions necessary to make marriage valid attach on proof of formal ceremony and cohabitation by the parties under the belief that the parties were lawfully married. Fanning v. State, 46 Ga. App. 716, 169 S.E. 60 (1933); Brewer v. Interstate Life & Accident Co., 56 Ga. App. 720, 193 S.E. 909 (1937).

Presumption of capacity to contract marriage.

- When marriage is regularly solemnized and parties live together, there is a presumption of capacity to contract marriage, and of the existence of all other facts necessary to render the marriage valid; and this presumption prevails until the contrary appears. Fanning v. State, 46 Ga. App. 716, 169 S.E. 60 (1933); Brewer v. Interstate Life & Accident Co., 56 Ga. App. 720, 193 S.E. 909 (1937); Addison v. Addison, 186 Ga. 155, 197 S.E. 232 (1938); Brown v. Hogan, 72 Ga. App. 691, 34 S.E.2d 619 (1945); Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949).

Presumption of validity of marriage.

- Law favors validity of marriages, and marriage is presumed to be valid until the marriage's validity is negatived by disproving every reasonable possibility of the marriage's validity. Brown v. State, 208 Ga. 304, 66 S.E.2d 745 (1951).

O.C.G.A. § 19-3-1 reflects Georgia's policy favoring the validity of marriages; validity is presumed absent proof negating the possibility of validity. Metropolitan Life Ins. Co. v. Lucas, 761 F. Supp. 130 (M.D. Ga. 1991).

Absence of proof of entry into a present marriage contract as required by O.C.G.A. § 19-3-1 supported the finding that a petitioner for year's support was not the decedent's common-law spouse. Holmes v. Holmes, 232 Ga. App. 434, 502 S.E.2d 294 (1998).

Burden to show marriage invalid.

- Burden is upon one who attacks validity of marriage to show that the marriage is invalid by clear, distinct, positive, and satisfactory proof. Fanning v. State, 46 Ga. App. 716, 169 S.E. 60 (1933); Brewer v. Interstate Life & Accident Co., 56 Ga. App. 720, 193 S.E. 909 (1937); Addison v. Addison, 186 Ga. 155, 197 S.E. 232 (1938); Brown v. Hogan, 72 Ga. App. 691, 34 S.E.2d 619 (1945).

Whether or not common law marriage exists is question of fact, requiring proof of simultaneous existence of all elements of O.C.G.A. § 19-3-1. Gregg v. Barnes, 203 Ga. App. 549, 417 S.E.2d 206, cert. denied, 203 Ga. App. 906, 417 S.E.2d 206 (1992); Dixon v. State, 217 Ga. App. 267, 456 S.E.2d 758 (1995).

Act of living together as man and wife.

- Marriage may be shown by such circumstances as act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the factum of the marriage and the evidence in each case is for the jury. Murray v. Clayton, 151 Ga. App. 720, 261 S.E.2d 455 (1979); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675 (1979).

Relationship cannot be partial or periodic.

- Evidence that parties held themselves out as married when it was to their benefit and maintained their non-marital status when it was to their benefit supported finding that there was no marriage as such legal relationship cannot be partial or periodic. Baynes v. Baynes, 219 Ga. App. 848, 467 S.E.2d 195 (1996).

Agreement on which common-law marriage is founded must contain mutual intent to be married in praesenti, not a present intent to marry in the future. Hubbard v. State, 145 Ga. App. 714, 244 S.E.2d 639 (1978).

Immediate agreement to become husband and wife.

- To constitute a valid marriage per verba de praesenti there must be an agreement to become husband and wife immediately from the time when the mutual consent is given. An express future condition is absolutely fatal to a claim of marriage, and cannot be explained away by circumstances, as it shows mental reservations which are incompatible with consent, whether the condition relates to the creation of the marriage status, or to the duration of the relations of the parties. Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608 (1943).

General repute in community.

- Marriage is matter of public interest, and general repute in community is admissible upon such an issue. Murray v. Clayton, 151 Ga. App. 720, 261 S.E.2d 455 (1979).

Party asserting marriage has burden of proving end of illicit relationship.

- When the relationship between the parties begins as an illicit arrangement, the burden is on the party asserting the validity of the marriage to show that the illicit relationship ended and that the parties did actually enter a marriage contract. Brown v. Brown, 234 Ga. 300, 215 S.E.2d 671 (1975); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675 (1979).

Party seeking to prove prior marriage founded upon cohabitation must show every element necessary to validity of such a prior marriage by proving not only that the prior marriage was consummated in accordance with the rules of law, but that such alleged former spouse was single and possessing every other qualification for a valid marriage. Addison v. Addison, 186 Ga. 155, 197 S.E. 232 (1938).

Inconsistent acts do not overcome direct proof of common-law marriage.

- When a common-law marriage has been satisfactorily proved, inconsistent acts and declarations of the parties subsequent thereto, although entitled to consideration, do not overcome the direct proof of the existence of the marriage. Evans v. Marbut, 140 Ga. App. 329, 231 S.E.2d 94 (1976), cert. dismissed, 238 Ga. 583, 234 S.E.2d 506 (1977).

Presumption as valid contract, arising from cohabitation and repute, yields to proof of subsequent ceremonial marriage of one of the parties. Addison v. Addison, 186 Ga. 155, 197 S.E. 232 (1938); Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949).

Ceremonial marriage will not prevail over properly proven previous common-law marriage. Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949), later appeal, 207 Ga. 308, 61 S.E.2d 282 (1950).

Rules of estoppel between parties cannot be invoked to determine validity of marriage. Bell v. Bell, 206 Ga. 194, 56 S.E.2d 289 (1949).

Georgia does not allow the validity of a marriage to be challenged through estoppel. Hayes v. Schweiker, 575 F. Supp. 402 (N.D. Ga.), aff'd, 723 F.2d 918 (11th Cir. 1983), cert. denied, 466 U.S. 953, 104 S. Ct. 2160, 80 L. Ed. 2d 545 (1984).

Evidence supported jury's determination that common-law marriage existed. See Ridley v. Grandison, 260 Ga. 6, 389 S.E.2d 746 (1990).

Conflicting evidence allowed the jury to find evidence of a common-law marriage between a decedent and a widower, which began before January 1, 1997, when common-law marriages were no longer recognized in Georgia, and continued to the date of the decedent's death, because they were able to contract as the decedent was a widow and the widower was divorced, they had a sexual relationship and shared a bedroom, they agreed to be married and the decedent accepted a ring from the widower which she wore daily until her last hospitalization, the widower referred to the decedent as his wife, they opened joint financial accounts, to which they both contributed monies, and shared household expenses, they opened separate individual retirement accounts, designating each other as sole beneficiaries, they incurred debt together, they bought land which was titled in both of their names, he signed consents for her last hospitalization, and they introduced each other to others as husband or wife. In re Estate of Love, 274 Ga. App. 316, 618 S.E.2d 97 (2005).

When a couple had not agreed to live together as man and wife and had not held themselves out to the world as husband and wife, but had, on the contrary, frequently referred to themselves as engaged to be married, there was no common-law marriage. In re Estate of Wilson, 236 Ga. App. 496, 512 S.E.2d 383 (1999).

Common-law Marriage

Common-law marriage is valid marriage in this state. Steed v. State, 80 Ga. App. 360, 56 S.E.2d 171 (1949).

There is no common-law marriage de futuro cum copula in this state. Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608 (1943).

Elements of common-law marriage.

- By the common law and the law of this state a mutual agreement to be husband and wife, by parties able to contract, followed by cohabitation, is recognized as a valid marriage. Askew v. Dupree, 30 Ga. 173 (1860); Dillon v. Dillon, 60 Ga. 204 (1878); Wynne v. State, 17 Ga. App. 263, 86 S.E. 823 (1915); Stewart v. Price, 89 Ga. App. 62, 81 S.E.2d 28 (1954).

To establish a common-law marriage in Georgia three requisites must be met. There must be: (1) parties able to contract; (2) an actual contract of marriage; and (3) consummation by cohabitation in Georgia. Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967).

In order for a common-law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement. Georgia Osteopathic Hosp. v. O'Neal, 198 Ga. App. 770, 403 S.E.2d 235 (1991).

Georgia law allows proof of common-law marriage by proof of cohabitation in conjunction with the husband and wife holding themselves out to the world as married. Metropolitan Life Ins. Co. v. Lucas, 761 F. Supp. 130 (M.D. Ga. 1991).

In a will contest, in which it was disputed whether the decedent was married by common law to her purported widower, a son's requested jury charge that a common-law marriage could not be partial or periodic was adequately covered in the trial court's charge on the elements of a common-law marriage under O.C.G.A. § 19-3-1. In re Estate of Love, 274 Ga. App. 316, 618 S.E.2d 97 (2005).

In order for a common law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement, and all three of these elements as set forth in O.C.G.A. § 19-3-1 must be met simultaneously. In re Estate of Love, 274 Ga. App. 316, 618 S.E.2d 97 (2005).

Evidence tending to show the existence of a common law marriage may include such circumstances as the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the factum of marriage. In re Estate of Love, 274 Ga. App. 316, 618 S.E.2d 97 (2005).

Requirements of common-law marriage.

- Three requirements of law must be met, all at one time, in order for there to be a common-law marriage. Brown v. Brown, 234 Ga. 300, 215 S.E.2d 671 (1975); Evans v. Marbut, 140 Ga. App. 329, 231 S.E.2d 94 (1976), cert. dismissed, 238 Ga. 583, 234 S.E.2d 506 (1977); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675 (1979).

O.C.G.A. § 19-3-1 establishes the three essential elements of a marriage in this state, all of which must be met during one period of time in order to prove a common law marriage. Edwards v. Edwards, 188 Ga. App. 821, 374 S.E.2d 791 (1988).

Essential elements of a marriage are: (1) parties able to contract; (2) an actual contract; and (3) consummation according to law. These requirements must be satisfied simultaneously in order for a marriage to exist. Brown v. Carr, 198 Ga. App. 567, 402 S.E.2d 296 (1991).

No common law marriage.

- There was evidence supporting the finding that an administrator and a decedent were not common-law spouses. The couple separated numerous times, and the administrator had a boyfriend during one separation, filed tax returns as a single person, and did not list the decedent as the father on her daughter's birth certificate or give her his last name; furthermore, the administrator was the only person who testified in support of her common-law marriage, while the remaining two witnesses testified that neither the administrator nor the decedent held themselves out as husband and wife. In re Estate of Smith, 298 Ga. App. 201, 679 S.E.2d 760 (2009).

Appellant and the decedent did not have a common law marriage despite their long cohabitation and the appellant's testimony that they had exchanged rings; the decedent's sister and brother testified that the decedent never referred to the appellant as the decedent's wife, never mentioned the private vows, and specifically denied that they were married. Further, the couple separated and had relationships with other people at times. In re Estate of O'Connell, 354 Ga. App. 333, 840 S.E.2d 730 (2020).

Cohabitation

It is not sufficient to agree to present cohabitation and future regular marriage when more convenient, or when a wife dies, or when a ceremony can be performed. Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608 (1943).

Fact of cohabitation is essential in establishing common-law marriage in this state. Drewry v. State, 208 Ga. 239, 65 S.E.2d 916 (1951), adopting dissenting opinion in Lefkoff v. Sicro, 189 Ga. 554, 6 S.E.2d 687 (1939); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675 (1979).

Agreement of marriage may be inferred from cohabitation and reputation unless there is other evidence indicating that such an agreement was not present. In order for a relationship based upon repute and cohabitation to obtain the status of marriage at least one of the parties must have believed in good faith that their marital agreement made them husband and wife. Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967).

Marriage may be inferred from proof of cohabitation, and that the parties held themselves out to the world as husband and wife. Such proof may be made by general repute among neighbors and others in a position to know the facts. Simeonides v. Zervis, 127 Ga. App. 506, 194 S.E.2d 324 (1972).

Informal agreement not consummated by cohabitation is insufficient to establish common-law marriage. Tabor v. Fowler, 119 Ga. App. 259, 167 S.E.2d 220 (1969).

Common-law marriage not negated by plans for marriage ceremony.

- When the probate court was clearly authorized to determine from the evidence both that decedent and a woman had intended to live together as husband and wife subsequent to decedent's divorce from his first wife and that they actually had done so, the fact that they planned at some point in the future to secure a license and formalize their union with a ceremonial marriage did not negate the existence of a common-law marriage. Brown v. Carr, 198 Ga. App. 567, 402 S.E.2d 296 (1991).

Woman's statement that she and decedent had "talked some about getting married but never did it" did not necessarily negate the existence of a common-law marriage relationship for a couple may enter into such a relationship yet nevertheless discuss and plan a marriage ceremony for the purpose of formalizing the arrangement. Georgia Osteopathic Hosp. v. O'Neal, 198 Ga. App. 770, 403 S.E.2d 235 (1991).

Presumption when only proof in case is of continuous cohabitation.

- When only proof in case is of continuous cohabitation, presumption is that it was lawful. When to this proof is added some affirmative proof of holding themselves out as man and wife, it adds so much to the force of presumption, and length of time strengthens the probative force of the presumption. This presumption of marriage from connubial habit is one of the strongest known to the law, and is to be repelled only by clear evidence. Simeonides v. Zervis, 127 Ga. App. 506, 194 S.E.2d 324 (1972).

Insufficient evidence of common law marriage.

- Absence of proof of entry into a present marriage contract resulted in the affirmation of the trial court's finding that the tenant was not the common law spouse of the decedent. In re Estate of Legrand, 259 Ga. App. 67, 576 S.E.2d 54 (2002).

Same Sex Marriage

Lesbian marriages.

- Attorney General, that is, the State of Georgia's interest, as an employer in promoting the efficiency of the Attorney General's important public service outweighed the plaintiff's personal associational interests in a lesbian marriage. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997), cert. denied, 522 U.S. 1049, 118 S. Ct. 693, 139 L. Ed. 2d 638 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Common-law marriages are just as valid as any other marriage. 1958-59 Op. Att'y Gen. p. 89.

State recognizes common-law marriages.

- While there is no statute relating to common-law marriage in this state, such marriages have long been recognized by the courts; such a marriage must be between persons who are otherwise able to contract a valid marriage in Georgia and who actually intend to be, or hold themselves out to be, husband and wife. 1967 Op. Att'y Gen. No. 67-35.

Common-law marriages are legal from inception provided essentials of marriage contract are present; namely: (1) the parties are able to contract; (2) it is an actual contract; and (3) it is consummated according to law; however, should either party be unable to meet any of the prerequisites the marriage would not be legal from the marriage's inception. 1958-59 Op. Att'y Gen. p. 89.

Mutual agreement to be husband and wife by parties able to contract, followed by cohabitation, is recognized as a valid common-law marriage; such a marriage is not defined in terms of length of time of relationship, but rather intent of the relationship. 1967 Op. Att'y Gen. No. 67-35.

Effect of lack of publicizing common-law marriage.

- If it were disclosed that the common-law marriage was unknown to relatives, friends, or neighbors, that fact might be taken as one circumstance bearing upon the credibility as a witness of the party claiming the existence of the common-law marriage, but the lack of publicizing the marriage would not affect its validity if there was an actual contract or marriage. 1957 Op. Att'y Gen. p. 93.

Relationship illicit in inception when intent of marriage is not present is presumed illegal no matter how long the relationship continues; if a cohabitation between a man and a woman is shown to have been illicit in its inception, in the absence of proof to the contrary, the illicit relation will be presumed to have continued throughout the period of cohabitation. 1967 Op. Att'y Gen. No. 67-35.

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 13 et seq., 36 et seq.

C.J.S.

- 55 C.J.S., Marriage, § 4 et seq.

ALR.

- Constitutionality of marriage statutes as affected by discriminations or exceptions, 3 A.L.R. 1568.

Habit and repute as essential to common-law marriage, 33 A.L.R. 27.

Validity of common-law marriage in American jurisdictions, 39 A.L.R. 538; 60 A.L.R. 541; 94 A.L.R. 1000; 133 A.L.R. 758.

Right to attack validity of marriage after death of party thereto, 76 A.L.R. 769; 47 A.L.R.2d 1393.

Continued cohabitation between parties to ceremonial marriage contracted when one of them was insane as creating presumption of common-law marriage, 85 A.L.R. 1302.

Inference or presumption of marriage from continued cohabitation following removal of impediment, 104 A.L.R. 6.

Proxy marriages, 170 A.L.R. 947.

Validity of marriage as affected by intention of the parties that it should be only a matter of form or jest, 14 A.L.R.2d 624.

Judicial declaration of validity or existence of common-law marriage, 92 A.L.R.2d 1102.

Property rights arising from relationship of couple cohabiting without marriage, 69 A.L.R.5th 219.

19-3-1.1. Common-law marriage; effectiveness.

No common-law marriage shall be entered into in this state on or after January 1, 1997. Otherwise valid common-law marriages entered into prior to January 1, 1997, shall not be affected by this Code section and shall continue to be recognized in this state.

(Code 1981, §19-3-1.1, enacted by Ga. L. 1996, p. 1414, § 1.)

Editor's notes.

- Ga. L. 1996, p. 1414, § 2, not codified by the General Assembly, provides: "The Department of Human Resources is authorized and directed to implement a state-wide education program through the broadcast and print media to inform state residents regarding the Code section enacted by this Act and the elements of a valid common-law marriage."

Law reviews.

- For annual survey article discussing wills, trusts and administration of estates, see 52 Mercer L. Rev. 481 (2000). For article, "Marriage, Death and Taxes: The Estate Planning Impact of Windsor and Obergefell on Georgia's Same Sex Spouses," see 21 Ga. St. Bar. J. 9 (Oct. 2015). For article, "Cohabitation Worldwide Today," see 35 Ga. St. U.L. Rev. 299 (2019).

JUDICIAL DECISIONS

Application to termination proceedings.

- Trial court did not err in denying a father's motion to continue a termination hearing in order for the father to obtain income tax returns that would have shown that the father filed joint tax returns with the mother, thereby showing that they had a common law marriage, because, inter alia, correspondence from the IRS noted that records before January 1, 1997 were likely destroyed and tax records dated after January 1, 1997 would not have been probative of a common law marriage as common law marriages could no longer have been created after that date. In the Interest of D.C., 279 Ga. App. 889, 632 S.E.2d 744 (2006).

No common law marriage found.

- There was evidence supporting the finding that an administrator and a decedent were not common-law spouses. The couple separated numerous times, and the administrator had a boyfriend during one separation, filed tax returns as a single person, and did not list the decedent as the father on her daughter's birth certificate or give her his last name; furthermore, the administrator was the only person who testified in support of her common-law marriage, while the remaining two witnesses testified that neither the administrator nor the decedent held themselves out as husband and wife. In re Estate of Smith, 298 Ga. App. 201, 679 S.E.2d 760 (2009).

Appellant and the decedent did not have a common law marriage despite their long cohabitation and the appellant's testimony that they had exchanged rings; the decedent's sister and brother testified that the decedent never referred to the appellant as the decedent's wife, never mentioned the private vows, and specifically denied that they were married. Further, the couple separated and had relationships with other people at times. In re Estate of O'Connell, 354 Ga. App. 333, 840 S.E.2d 730 (2020).

Evidence of common law marriage.

- Trial court did not err in admitting evidence regarding the conduct of a common law husband and a common law wife after moving to Georgia because although the parties' cohabitation and public recognition of their marriage in Georgia could not establish a common-law marriage, those facts could corroborate other evidence of a prior agreement to marry entered into in Alabama. Norman v. Ault, 287 Ga. 324, 695 S.E.2d 633 (2010).

Common law marriage found.

- Jury was authorized to conclude that a common law marriage existed between a common law husband and a common law wife because the evidence satisfied enough of the criteria generally indicative of public recognition to determine that the husband assented to the marriage in another state; three years after the husband's divorce, the wife began living in Alabama in the same home as him, sharing a bedroom, and doing housework, the parties would tell people that the other was his or her spouse, and the husband would tell the wife all the time that "in God's eyes, you are my wife," the husband had sexual relations only with the wife, and before the parties moved to Georgia, the husband executed a deed filed in Alabama conveying property to himself, his daughter, and his wife. Norman v. Ault, 287 Ga. 324, 695 S.E.2d 633 (2010).

Unable to prove common law marriage in workers' compensation case.

- Although a claimant seeking workers' compensation dependent benefits under O.C.G.A. § 34-9-13 was living with and dependent on the deceased employee at the time of the employee's death from a work injury, they were not married, either ceremonially or by common law, and the claimant was therefore not entitled to recover benefits arising out of that living arrangement. The claimant could not establish a common law marriage from an arrangement that began in 2002, after common law marriage was abolished by O.C.G.A. § 19-3-1.1. Sanchez v. Carter, 343 Ga. App. 187, 806 S.E.2d 638 (2017), cert. denied, 2018 Ga. LEXIS 346 (Ga. 2018).

Cited in Field v. Massey, 232 Ga. App. 524, 502 S.E.2d 349 (1998); King v. Lusk, 280 Ga. App. 40, 633 S.E.2d 350 (2006).

19-3-2. Who may contract marriage; emancipation requirement; minimum age for marriage.

  1. To be able to contract marriage, a person must:
    1. Be of sound mind;
    2. Except as provided in subsection (b) of this Code section, be at least 18 years of age;
    3. Have no living spouse of a previous undissolved marriage. The dissolution of a previous marriage in divorce proceedings must be affirmatively established and will not be presumed. Nothing in this paragraph shall be construed to affect the legitimacy of children; and
    4. Not be related to the prospective spouse by blood or marriage within the prohibited degrees.
  2. If either applicant for marriage is 17 years of age, documentary proof that such applicant was emancipated by operation of law or pursuant to a petition filed with the court as provided in Article 10 of Chapter 11 of Title 15 shall be required before a license may be issued pursuant to Article 2 of this chapter; provided, in addition, that:
    1. If the emancipation was pursuant to a petition filed with the court, a certified copy of the order providing for the emancipation shall be provided as documentary proof;
    2. At least 15 days shall have passed since such emancipation shall have occurred by operation of law or pursuant to a petition filed with the court;
    3. The older party to the marriage contract shall not be more than four years older than the younger party to the marriage contract; and
    4. Each party to the marriage contract who is 17 years of age shall present a certificate of completion of premarital education as provided under Code Section 19-3-30.1.
  3. No license provided for under Article 2 of this chapter shall be issued for the marriage of any party who is under 17 years of age.

(Orig. Code 1863, § 1654; Code 1868, § 1698; Code 1873, § 1699; Code 1882, § 1699; Civil Code 1895, § 2412; Civil Code 1910, § 2931; Code 1933, § 53-102; Ga. L. 1957, p. 83, § 1; Ga. L. 1962, p. 138, § 1; Ga. L. 1963, p. 485, § 1; Ga. L. 1965, p. 335, § 1; Ga. L. 1965, p. 500, § 1; Ga. L. 1976, p. 1719, § 1; Ga. L. 1979, p. 872, § 1; Ga. L. 1999, p. 81, § 19; Ga. L. 2006, p. 141, § 6A/HB 847; Ga. L. 2019, p. 558, § 1-1/HB 228.)

The 2019 amendment, effective July 1, 2019, substituted the present provisions of subsection (b) for the former provisions, which read: "If either applicant for marriage is 16 or 17 years of age, parental consent as provided in Code Section 19-3-37 shall be required."; and added subsection (c).

Cross references.

- Bigamy and marrying a bigamist, §§ 16-6-20,16-6-21.

Law reviews.

- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article advocating reamendment of this Code section to recognize the presumption favoring validity of subsequent marriages, see 21 Mercer L. Rev. 465 (1970). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 79 (2006). For article, "A Holy Secular Institution," see 58 Emory L.J. 1123 (2009). For article, "Conflict of Laws Structure and Vision: Updating a Venerable Discipline," see 31 Ga. St. U. L. Rev. 231 (2015).

JUDICIAL DECISIONS

General Consideration

Law is more regardful of nuptial contracts, and persons incapable of contracting generally may contract marriage. Unlawful marriages are not void unless so declared. Park v. Barron, 20 Ga. 702 (1856).

Presumption of capacity to contract marriage.

- There is presumption that parties had capacity to contract marriage and this presumption prevails until overcome by proof. Fanning v. State, 46 Ga. App. 716, 169 S.E. 60 (1933).

Requirements of section applicable to common-law marriage.

- In order to be able to contract a valid common-law marriage, one must be able to meet the requirements of this statute. Hiter v. Shelp, 129 Ga. App. 401, 199 S.E.2d 832 (1973).

When the existence of a common-law marriage was raised as a defense to kidnapping, even though the trial court erred in failing to charge that defendant's burden to prove the marriage was only to a preponderance of the evidence, the error was harmless since no evidence was cited to prove two of the elements as required by O.C.G.A. § 19-3-2. Dixon v. State, 217 Ga. App. 267, 456 S.E.2d 758 (1995).

Circumstantial evidence proving divorce occurred.

- Georgia Court of Appeals held that while the divorce decree would be direct evidence of the dissolution of the marriage, any fact can be proven through circumstantial evidence. Dillard v. Schilke, 352 Ga. App. 158, 834 S.E.2d 278 (2019).

Jury's verdict finding that the defendant was the decedent's lawful surviving spouse was upheld because the circumstantial evidence established that the decedent and the plaintiff legally divorced and that the decedent's marriage to the defendant was valid. Dillard v. Schilke, 352 Ga. App. 158, 834 S.E.2d 278 (2019).

Cited in Gibbs v. Brown, 68 Ga. 803 (1882); Crapps v. Smith, 9 Ga. App. 400, 71 S.E. 501 (1911); Morgan v. Morgan, 148 Ga. 625, 97 S.E. 675 (1918); Bentley v. Bentley, 149 Ga. 707, 102 S.E. 21 (1920); Finney v. State, 51 Ga. App. 545, 181 S.E. 144 (1935); Irby v. State, 57 Ga. App. 717, 196 S.E. 101 (1938); Smith v. State, 66 Ga. App. 669, 19 S.E.2d 168 (1942); Indian Springs Swimming Pool Corp. v. Maddox, 70 Ga. App. 842, 29 S.E.2d 724 (1944); Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818 (1944); Hickman v. State, 199 Ga. 805, 35 S.E.2d 461 (1945); Gearllach v. Odom, 200 Ga. 350, 37 S.E.2d 184 (1946); Pritchett v. Ellis, 201 Ga. 809, 41 S.E.2d 402 (1947); Goza v. State, 91 Ga. App. 842, 87 S.E.2d 232 (1955); Hayes v. Hay, 92 Ga. App. 88, 88 S.E.2d 306 (1955); Liberty Mut. Ins. Co. v. Ellis, 99 Ga. App. 486, 109 S.E.2d 70 (1959); Hosley v. Ridley, 101 Ga. App. 752, 112 S.E.2d 304 (1959); Ganns v. Worrell, 216 Ga. 512, 117 S.E.2d 533 (1960); Bryant v. Bryant, 216 Ga. 762, 119 S.E.2d 573 (1961); Toole v. Gallion, 221 Ga. 494, 144 S.E.2d 360 (1965); Murry v. Lett, 222 Ga. 67, 148 S.E.2d 412 (1966); Wittke v. Horne's Enters., Inc., 118 Ga. App. 211, 162 S.E.2d 898 (1968); Smith v. Smith, 230 Ga. 616, 198 S.E.2d 307 (1973); Hiter v. Shelp, 129 Ga. App. 401, 199 S.E.2d 832 (1973); Riddle v. Riddle, 240 Ga. 515, 241 S.E.2d 214 (1978); Thompson v. Brown, 254 Ga. 191, 326 S.E.2d 733 (1985); Dismuke v. C & S Trust Co., 261 Ga. 525, 407 S.E.2d 739 (1991); Cornelius v. State, 213 Ga. App. 766, 445 S.E.2d 800 (1994); Singleton v. Wilburn, 262 Ga. App. 52, 584 S.E.2d 659 (2003); Singleton v. Wilburn, 262 Ga. App. 52, 584 S.E.2d 659 (2003).

Sound Mind

Sound mind essential requirement.

- It is essential to the validity of a marriage in this state that the parties should be of sound mind and marriages of persons unable to contract are void. Bell v. Bennett, 73 Ga. 784 (1884). For other cases, see 9 Enc. Dig. 189.

Age

Ratification of marriage contract upon majority.

- Although this statute prescribed the consentable age of parties, if a party below the age marries, but after the party reaches the consentable age the party affirms the marriage, and there is cohabitation, the marriage will thereafter be valid and binding. Americus Gas & Elec. Co. v. Coleman, 16 Ga. App. 17, 84 S.E. 493 (1915).

Marriage of a boy under 17 years of age, although declared by former Code 1933, § 53-104 (see now O.C.G.A. § 19-3-5) to be void, may nevertheless be ratified and confirmed by continuing, after arriving at the age of 17, to cohabit with his wife as such. Jones v. Jones, 200 Ga. 571, 37 S.E.2d 711 (1946).

If a girl contracts a marriage which is invalid because she is under the age of consent, but, on arriving at this age, ratifies the marriage by continued cohabitation, the marriage is thereafter valid. Such marriages partake more of the nature of voidable than void marriages. They are imperfect marriages which the party may affirm or disaffirm after reaching the age of consent. The burden of proof is upon the person seeking to prove that the marriage was in fact ratified by continued cohabitation after the removal of the disability. Mims v. Hardware Mut. Cas. Co., 82 Ga. App. 210, 60 S.E.2d 501 (1950).

Underage party who contracts invalid marriage not subject to alimony claim.

- When at the time of purported marriage, and at the time of an order granting alimony on the application of the wife for the support of their child, the partner was less than 17 years of age the grant of such judgment against him was contrary to law, since there was no valid marriage to support it, and whether he could in some way be held liable for support of the child, he could not be subject to such liability through a claim of alimony. Eskew v. Eskew, 199 Ga. 513, 34 S.E.2d 697 (1945).

Alimony permissible if minor subsequently ratifies marriage.

- Marriage of a boy under the age specified in law, though not absolutely void, being voidable only and subject to ratification, must yet be treated as void, so far as alimony is concerned, unless and until it is so ratified by him after reaching such age. Eskew v. Eskew, 199 Ga. 513, 34 S.E.2d 697 (1945).

Previous Undisclosed Marriage

Party to previous undissolved marriage is unable to contract marriage. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946).

Previous undissolved marriage of one of the parties to a marriage ceremony renders such party incapable of making a marriage contract. Pritchett v. Ellis, 201 Ga. 809, 41 S.E.2d 402 (1947).

One who has a prior undissolved marriage does not have legal capacity to contract marriage. Kicklighter v. Kicklighter, 217 Ga. 54, 121 S.E.2d 122 (1961); Murry v. Lett, 222 Ga. 67, 148 S.E.2d 412 (1966).

Previous undissolved marriage renders attempted second marriage void. Graves v. Carter, 207 Ga. 308, 61 S.E.2d 282 (1950); Lovett v. Zeigler, 224 Ga. 144, 160 S.E.2d 360 (1968).

When a woman having a living husband married another man, or a husband having a living wife and married another woman, the second marriage is void. Murchison v. Green, 128 Ga. 339, 57 S.E. 709 (1907); Curlew v. Jones, 146 Ga. 367, 91 S.E. 115 (1917).

Marriage ceremony accompanied by cohabitation between a man and a woman, when one of them has a living wife or husband, is an absolute nullity, and may be so treated by the parties. Atlantic Bitulithic Co. v. Maxwell, 40 Ga. App. 483, 150 S.E. 110 (1929).

Bigamous marriage, being void, is a nullity, and no decree is necessary to avoid the marriage. The marriage may be treated as an absolute nullity by the parties to such a ceremony and by all the world. Smith v. State, 66 Ga. App. 669, 19 S.E.2d 168 (1942).

Attempted bigamous marriage is utterly void, and may be disregarded without ever being decreed void by a judgment of a court. Gearllach v. Odom, 200 Ga. 350, 37 S.E.2d 184 (1946).

Knowledge of former marriage by innocent party to second marriage is not requisite to render void the second marriage. Clark v. Cassidy, 62 Ga. 407 (1879); Belle Isle v. Belle Isle, 47 Ga. App. 168, 170 S.E. 211 (1933).

When marriage has been proved, relation is presumed to exist until evidence of marriage's dissolution by divorce or death, and the party asserting the dissolution must prove the dissolution. Clark v. Cassidy, 62 Ga. 407 (1879); Belle Isle v. Belle Isle, 47 Ga. App. 168, 170 S.E. 211 (1933).

Subsequent marriage does not create presumption of dissolution of first marriage. Uddyback v. Johnson, 149 Ga. App. 769, 256 S.E.2d 29 (1979).

When there is proof that one party has living spouse, there is no presumption that divorce was granted dissolving the former marriage. Liberty Mut. Ins. Co. v. Ellis, 99 Ga. App. 486, 109 S.E.2d 70 (1959).

Presumption of validity of second marriage is strong, and burden is upon one attacking said marriage to overcome the presumption by clear, distinct, positive, and satisfactory proof. Jones v. Transamerica Ins. Co., 154 Ga. App. 408, 268 S.E.2d 444 (1980), overruled on other grounds, Glover v. Glover, 172 Ga. App. 278, 322 S.E.2d 755 (1984).

Presumption arose that second marriage was valid until evidence was adduced that first spouse is living, and only then does the law place the burden on the party contending that the second marriage was valid to go forward with the evidence and show that the first marriage was dissolved by divorce. American Mut. Liab. Ins. Co. v. Copeland, 113 Ga. App. 707, 149 S.E.2d 402 (1966); Patrick v. Simon, 237 Ga. 742, 229 S.E.2d 746 (1976); Kelly v. Kelly, 144 Ga. App. 43, 240 S.E.2d 312 (1977); Glover v. Glover, 172 Ga. App. 278, 322 S.E.2d 755 (1984).

When establishing dissolution of former marriage required.

- It is only when there is evidence of a living spouse that rule requiring affirmative establishment of dissolution of previous marriage comes into play. Zurich Ins. Co. v. Craft, 103 Ga. App. 889, 120 S.E.2d 922 (1961).

Burden of proof, once former marriage is shown, is on party asserting dissolution. Good faith or ignorance of the parties to the second marriage as to the true facts does not change the rule. New Amsterdam Cas. Co. v. Thompson, 100 Ga. App. 677, 112 S.E.2d 273 (1959), criticized, Zurich Ins. Co. v. Craft, 103 Ga. App. 889, 120 S.E.2d 922 (1961).

Third party may legally marry party to bigamous marriage not otherwise incapacitated.

- When a single man laboring under no disability married a woman who had theretofore knowingly been a party to a bigamous marriage, but was not otherwise incapacitated, his marriage to her was legal and, so long as it was not dissolved, constituted an impediment against another marriage by him. Atlantic Bitulithic Co. v. Maxwell, 40 Ga. App. 483, 150 S.E. 110 (1929).

To void bigamous marriage, a party may later marry when no other impediment exists.

- The fact that a woman otherwise capable of contracting marriage entered into a marriage ceremony with a man who, to her knowledge, had a living wife from whom he was not divorced, would not render her incapable of later contracting marriage with another man, and this she could do without any judgment or decree annulling the previous marriage. Atlantic Bitulithic Co. v. Maxwell, 40 Ga. App. 483, 150 S.E. 110 (1929).

Common-law wife could not invoke marital privilege against testimony when previous existing marriage shown.

- When witness testified that prior to the time she lived with the defendant as his common-law wife, she was married to another person who was still living and from whom she had not been divorced, the witness was not entitled to the marital privilege of refusing to testify as the previous marriage was not presumed to have been dissolved. Gates v. State, 120 Ga. App. 518, 171 S.E.2d 375 (1969).

Bigamous marriage may become lawful on death of first spouse.

- If a man who had a living wife undivorced entered into a ceremonial marriage with another woman who was not shown to have known of the former marriage, and they cohabited as husband and wife from the time of such marriage and continued to do so after the death of the first wife, they will be considered thereafter as lawfully married. Hamilton v. Bell, 161 Ga. 739, 132 S.E. 83 (1926).

Validity of marriage challenged through estoppel.

- Georgia does not allow validity of a marriage to be challenged through estoppel. Hayes v. Schweiker, 575 F. Supp. 402 (N.D. Ga.), aff'd, 723 F.2d 918 (11th Cir. 1983), cert. denied, 466 U.S. 953, 104 S. Ct. 2160, 80 L. Ed. 2d 545 (1984).

Setting aside divorce decree when marriage void from inception.

- Trial court erred by denying an ex-husband's motion to set aside a divorce decree with the ex-wife because the marriage was void from the marriage's inception due to the ex-wife having a living spouse from an undissolved marriage at the time and there was no issue of the protection of a child to prevent the decree from being set aside. Wright v. Hall, 292 Ga. 457, 738 S.E.2d 594 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Former Code 1933, § 53-107 (see now O.C.G.A. § 19-3-36) took precedence over former Code 1933, § 53-102 (see now O.C.G.A. § 19-3-2) insofar as a conflict existed between the two statutes; when documentary proof of an applicant's age was required only a birth or baptismal certificate will suffice. 1975 Op. Att'y Gen. No. U75-5.

Marriage performed before final divorce decree issues as to one of parties is void. 1954-56 Op. Att'y Gen. p. 150.

Marriage between first cousins not being prohibited by former Code 1933, § 53-105 (see now O.C.G.A. § 19-3-3), such marriage was legal and proper in this state. 1965-66 Op. Att'y Gen. No. 65-107.

Person who has been declared incompetent cannot enter into valid marriage, whether the marriage is performed by a minister or arises by declaration through common-law cohabitation; only a court can adjudicate the existence of a marital relationship in a specific case based on a set of particular circumstances. 1965-66 Op. Att'y Gen. No. 66-69.

Physician's certificate is not required to be in affidavit form; the law only contemplates that a physician's certificate be presented, and that the certificate bear the signature of the physician; thus, any reasonable form of certification by the physician would appear to suffice. 1963-65 Op. Att'y Gen. p. 771.

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 16 et seq., 38.

1D Am. Jur. Pleading and Practice Forms, Annulment of Marriage, §§ 2, 18, 27 et seq., 36, 59.

C.J.S.

- 55 C.J.S., Marriage, §§ 10 et seq., 16, 17, 24.

ALR.

- Mental capacity to marry, 28 A.L.R. 635; 82 A.L.R.2d 1040.

Incompetency to marry because of other marital relations as affecting breach of promise, 47 A.L.R. 400.

Right of heir, next of kin, or other person interested in decedent's estate to attack his marriage on ground of his mental incompetency, 57 A.L.R. 131.

Right to attack validity of marriage after death of party thereto, 76 A.L.R. 769; 47 A.L.R.2d 1393.

Validity of marriage celebrated while spouse by former marriage of one of the parties was living and undivorced, in reliance upon presumption from lapse of time of death of such spouse, 93 A.L.R. 345; 144 A.L.R. 747.

Ratification of marriage by one under age, upon attaining marriageable age, 159 A.L.R. 104.

Presumption as to validity of second marriage, 14 A.L.R.2d 7.

Right to attack validity of marriage after death of party thereto, 47 A.L.R.2d 1393.

Acts in connection with marriage of infant below marriageable age as contributing to delinquency, 68 A.L.R.2d 745.

Conflict of laws as to validity of marriage attacked because of nonage, 71 A.L.R.2d 687.

Marriage between persons of the same sex, 81 A.L.R.5th 1.

Validity, construction, and application of state enactment, order, or regulation expressly prohibiting sexual orientation discrimination, 82 A.L.R.5th 1.

19-3-3. Degrees of relationship within which intermarriage prohibited; penalty; effect of prohibited marriage.

  1. Any person who marries a person to whom he knows he is related, either by blood or by marriage, as follows:
    1. Father and daughter or stepdaughter;
    2. Mother and son or stepson;
    3. Brother and sister of the whole blood or the half blood;
    4. Grandparent and grandchild;
    5. Aunt and nephew; or
    6. Uncle and niece

      shall be punished by imprisonment for not less than one nor more than three years.

  2. Marriages declared to be unlawful under subsection (a) of this Code section shall be void from their inception.

(Cobb's 1851 Digest, p. 814; Code 1863, §§ 1655, 4418; Code 1868, §§ 1699, 4459; Code 1873, §§ 1700, 4533; Code 1882, §§ 1700, 4533; Ga. L. 1886, p. 30, § 1; Civil Code 1895, § 2413; Penal Code 1895, § 380; Civil Code 1910, § 2932; Penal Code 1910, § 371; Ga. L. 1916, p. 51, § 2; Code 1933, §§ 26-5702, 53-105; Code 1933, § 26-9905, enacted by Ga. L. 1968, p. 1249, § 1.)

Cross references.

- Incest, § 16-6-22.

JUDICIAL DECISIONS

Man who marries mother of illegitimate daughter becomes stepfather of such child. Lipham v. State, 125 Ga. 52, 53 S.E. 817 (1906); Nephew v. State, 5 Ga. App. 841, 63 S.E. 930 (1909).

Marriage to sister of former wife did not violate O.C.G.A. § 19-3-3 since there was no blood relationship between the man and his wife. Bennett v. Bennett, 162 Ga. App. 311, 290 S.E.2d 206 (1982), cert. vacated, 250 Ga. 20, 296 S.E.2d 57 (1982).

Power of court to enjoin harassment.

- Regardless of whether an order was denominated a family violence order, it was within the power and authority of the superior court, after hearing the evidence of the mother's conduct, to enjoin her from approaching or harassing the father and his family. Ganny v. Ganny, 238 Ga. App. 123, 518 S.E.2d 148 (1999).

Cited in Hargroves v. State, 179 Ga. 722, 177 S.E. 561 (1934); Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818 (1944); Moss v. Moss, 135 Ga. App. 401, 218 S.E.2d 93 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Marriage between first cousins not being prohibited, such marriage is legal and proper in this state. 1965-66 Op. Att'y Gen. No. 65-107.

Third cousins may legally marry in Georgia. 1954-56 Op. Att'y Gen. p. 157.

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 3, 9.

1D Am. Jur. Pleading and Practice Forms, Annulment of Marriage, § 35 et seq.

C.J.S.

- 42 C.J.S., Incest, § 8 et seq. 55 C.J.S., Marriage, § 16.

ALR.

- Relationship created by adoption as within statute prohibiting marriage between parties in specified relationships, or statute regarding incest, 151 A.L.R. 1146.

Sexual intercourse between persons related by half blood as incest, 34 A.L.R.5th 723.

19-3-3.1. Marriages between persons of same sex prohibited; marriages not recognized.

  1. It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state.
  2. No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state. Any contractual rights granted by virtue of such license shall be unenforceable in the courts of this state and the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties' respective rights arising as a result of or in connection with such marriage.

(Code 1981, §19-3-3.1, enacted by Ga. L. 1996, p. 1025, § 1.)

Law reviews.

- For article, "To Say 'I Do': Shahar v. Bowers, Same-Sex Marriage, and Public Employee Free Speech Rights," see 15 Ga. St. U. L. Rev. 381 (1998). For article on proposed constitutional amendment on gay marriage, see 21 Ga. St. U. L. Rev. 14 (2004). For article, "Speech or Conduct? The Free Speech Claim of Wedding Vendors," see 65 Emory L.J. 241 (2015). For article, "The Odd Couple: How Justices Kennedy and Scalia, Together, Advanced Gay Rights in Romer v. Evans," see 67 Mercer L. Rev. 305 (2016). For review of 1996 domestic relations legislation, see 13 Ga. St. U. L. Rev. 137 (1996). For note, "Status or Contract? A Comparative Analysis of Inheritance Rights under Equitable Adoption and Domestic Partnership Doctrines," see 39 Ga. L. Rev. 675 (2005). For comment on adoptions by homosexuals, see 55 Mercer L. Rev. 1415 (2004). For article, "A Holy Secular Institution," see 58 Emory L.J. 1123 (2009). For comment, "By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage," see 63 Emory L.J. 979 (2014).

JUDICIAL DECISIONS

Employment denied due to lesbian marriage.

- Attorney General, that is, the State of Georgia's interest, as an employer in promoting the efficiency of the Attorney General's important public service outweighed the plaintiff's personal associational interests in a lesbian marriage. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997), cert. denied, 522 U.S. 1049, 118 S. Ct. 693, 139 L. Ed. 2d 638 (1998).

Cited in Bloom v. Camp, 336 Ga. App. 891, 785 S.E.2d 573 (2016).

RESEARCH REFERENCES

ALR.

- Marriage between persons of the same sex, 81 A.L.R.5th 1.

Marriage between persons of same sex - United States and Canadian cases, 1 A.L.R. Fed. 2d 1.

19-3-4. Nature of consent required.

To constitute an actual contract of marriage, the parties must consent thereto voluntarily without any fraud practiced upon either. Drunkenness at the time of marriage, brought about by art or contrivance to induce consent shall be held as fraud.

(Orig. Code 1863, § 1656; Code 1868, § 1700; Code 1873, § 1701; Code 1882, § 1701; Civil Code 1895, § 2414; Civil Code 1910, § 2933; Code 1933, § 53-103.)

JUDICIAL DECISIONS

Granting divorce on ground of duress amounts to finding that no actual contract of marriage ever existed. York v. York, 202 Ga. 50, 41 S.E.2d 877 (1947).

Cited in Baxter v. Rogers, 195 Ga. 274, 24 S.E.2d 52 (1943).

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 21, 26 et seq.

1D Am. Jur. Pleading and Practice Forms, Annulment of Marriage, §§ 28, 41, 54.

C.J.S.

- 55 C.J.S., Marriage, §§ 12, 18, 34.

ALR.

- Marriage to which consent of one of parties was obtained by duress as void or only voidable, 91 A.L.R. 414.

Concealment or misrepresentation relating to religion as ground for annulment, 44 A.L.R.3d 972.

19-3-5. What marriages void; legitimacy of issue; effect of later ratification.

  1. Marriages of persons unable to contract, unwilling to contract, or fraudulently induced to contract shall be void. However, the issue of such a marriage born before the marriage is annulled and declared void by a competent court shall be legitimate.
  2. In the case of persons unwilling to contract or fraudulently induced to do so, a subsequent consent and ratification of the marriage, freely and voluntarily made, accompanied by cohabitation as husband and wife shall render the marriage valid. In the case of a marriage void on one of the grounds specified in paragraphs (1) through (3) of Code Section 19-3-2, after removal of the impediment to marriage, a subsequent free and voluntary consent and ratification of the marriage accompanied by cohabitation as husband and wife shall likewise render the marriage valid.

(Orig. Code 1863, § 1657; Code 1868, § 1701; Code 1873, § 1702; Code 1882, § 1702; Civil Code 1895, § 2416; Civil Code 1910, § 2935; Code 1933, § 53-104.)

Law reviews.

- For article, "Annulment of Marriage in Georgia," see 5 Ga. B.J. 22 (1942). For article, "Georgia Inheritance Rights of Children Born Out of Wedlock," see 23 Ga. St. B.J. 28 (1986). For annual survey of law of domestic relations, see 38 Mercer L. Rev. 179 (1986).

JUDICIAL DECISIONS

Legislative intent as to applicability.

- In the use of the word "marriages" in the law, dealing with "marriages of persons unable to contract," it cannot be said that the legislature, in providing that the issue of such marriages before annulled will be legitimate, intended it to apply only to ceremonial marriages. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226 (1951).

Legislature intended to remove stigma of bastardy from children if their parents go through marriage ceremony, even though the marriage is void because one of the parties was unable to contract marriage by reason of an existing marriage. Brazziel v. Spivey, 219 Ga. 445, 133 S.E.2d 885 (1963).

"Marriage" construed.

- Former Code 1933, § 53-101 (see now O.C.G.A. § 19-3-1) defined the essentials of a marriage, and this court repeatedly recognized common-law marriages as complying with these essentials. Former Code 1933, § 53-102 (see now O.C.G.A. § 19-3-2) specified those persons who were able to contract a marriage, and listed as one of the disabilities to contract a marriage, a previous marriage undissolved. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226 (1951).

Marriages of persons unable to contract marriage are void. Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818 (1944).

Contract of marriage entered into by insane person is void. Johnson v. Johnson, 172 Ga. 273, 157 S.E. 689 (1931).

Party to previous undissolved marriage cannot contract marriage and marriage by such person is void. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946).

Previous undissolved marriage of one of the parties to a marriage ceremony renders such party incapable of making a marriage contract. A marriage contract involving such a party is void. Pritchett v. Ellis, 201 Ga. 809, 41 S.E.2d 402 (1947).

Attempted bigamous marriage is void and may be disregarded without being decreed void by a judgment of court. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226 (1951).

Previous undissolved marriage renders void an attempted second marriage. Lovett v. Zeigler, 224 Ga. 144, 160 S.E.2d 360 (1968).

When a man having a living wife enters into a ceremonial marriage to another woman, such purported second marriage is void. Rush v. Holtzclaw, 154 Ga. App. 4, 267 S.E.2d 316 (1980).

Bigamous marriage, being void, is a nullity and no decree is necessary to avoid the marriage. The marriage may be treated as an absolute nullity by the parties to such a ceremony and by all the world. Smith v. State, 66 Ga. App. 669, 19 S.E.2d 168 (1942).

This state has abandoned common-law rule that made children of void marriage illegitimate, and adopted the civil law rule that the issue of certain void marriages, before they were annulled, were to be considered legitimate. Andrews v. Willis, 133 Ga. App. 697, 212 S.E.2d 24 (1975).

Children born before marriage declared void.

- Until marriages are declared void by competent court, children of such marriages are legitimate. Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818 (1944).

If the parents participated in a marriage ceremony, even though the marriage might ultimately be void, children born before the marriage was annulled or declared void were legitimate. Hall v. Coleman, 242 Ga. App. 576, 530 S.E.2d 485 (2000).

Issue of bigamous marriage, born before the marriage is annulled and declared void by a competent court are legitimate. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946).

When party to marriage prosecuted for bigamy.

- Although a party to a bigamous marriage is convicted of the offense of bigamy, the issue of such second marriage, born before the commencement of any prosecution for bigamy shall, notwithstanding the invalidity of such marriage, be considered as legitimate. Perkins v. Levy, 158 Ga. 896, 124 S.E. 799 (1924); Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946).

When there are two ceremonial marriages and the second is void because the man had previously married and was undivorced, the children of the purported second marriage are legitimate if the second marriage has not been declared void and when the children were born before the commencement of a prosecution for bigamy. Andrews v. Willis, 133 Ga. App. 697, 212 S.E.2d 24 (1975).

Children of bigamous marriage may be lawful heirs of deceased parent.

- Child of a bigamous common-law marriage, born before such marriage was annulled or declared void by a court, is legitimate and is the lawful heir of the child's deceased father. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226 (1951).

Policy codified did not legitimate offspring of illicit relationship. This declared policy was applicable only to those situations, broadly defined in the Code, when a marriage contract had been undertaken, but was void or voidable because of the legal inability of one of the parties to make a valid contract. Hobby v. Burke, 227 F.2d 932 (5th Cir. 1955).

Illegitimate offspring.

- If no marriage, either ceremonial or common law, ever took place, offspring are illegitimate. Hobby v. Burke, 227 F.2d 932 (5th Cir. 1955).

Void marriage may ripen into valid marriage.

- While ceremonial marriage may be void at inception, it may under given circumstances ripen into a valid marriage. Beebe v. Beebe, 227 Ga. 248, 179 S.E.2d 758 (1971).

No children from marriage void from inception.

- Trial court erred by denying an ex-husband's motion to set aside a divorce decree with the ex-wife because the marriage was void from the marriage's inception due to the ex-wife having a living spouse from an undissolved marriage at the time and there was no issue of the protection of a child to prevent the decree from being set aside. Wright v. Hall, 292 Ga. 457, 738 S.E.2d 594 (2013).

Continued cohabitation after removal of impediment renders marriage valid.

- If the parties cohabited as husband and wife from the time of the ceremonial marriage, and so continued after the husband's disabilities were removed, they will be considered as lawfully married. Hawkins v. Hawkins, 166 Ga. 153, 142 S.E. 684 (1928).

When parties enter into a ceremonial marriage which is not valid because of the incapacity of one of them, unknown to the other, but the impediment is later removed, their continued cohabitation thereafter as husband and wife is sufficient to create the presumption of a valid common-law marriage, nothing further appearing. Rush v. Holtzclaw, 154 Ga. App. 4, 267 S.E.2d 316 (1980).

Marriage of boy under 17 (now 16), may be ratified and confirmed by continuing, after arriving at the age of 17 (now 16), to cohabit with his wife as such. Smith v. Smith, 84 Ga. 440, 11 S.E. 496 (1890); Morgan v. Morgan, 148 Ga. 625, 97 S.E. 675 (1918); Jones v. Jones, 200 Ga. 571, 37 S.E.2d 711 (1946).

Marriage by female under 14 (now 16) may be ratified by her after she has reached the age of 17. Powers v. Powers, 138 Ga. 65, 74 S.E. 759 (1912); Dunson v. State, 25 Ga. App. 172, 102 S.E. 899 (1920).

Party not subject to alimony when marriage void.

- When at the time of purported marriage, and at the time of order granting alimony on the application of the wife for the support of their child, the partner was less than 17 years of age (now 16), the grant of such judgment against him was contrary to law, since there was no valid marriage to support it, and whether the father could in some way be held liable for support of the child, he could not be subject to such liability through a claim of alimony. Eskew v. Eskew, 199 Ga. 513, 34 S.E.2d 697 (1945).

When husband estopped to deny marriage in alimony actions.

- In a suit by reputed wife for alimony, the husband is estopped from denying her competency to contract marriage if he has in fact married her, lived with her many years as his wife, and reared a family of children by her. Dillon v. Dillon, 60 Ga. 204 (1878); Bell v. Bennett, 73 Ga. 784 (1884).

Cited in Mims v. State, 43 Ga. App. 100, 157 S.E. 901 (1931); Griffin v. Booth, 176 Ga. 1, 167 S.E. 294 (1932); Smith v. State, 66 Ga. App. 669, 19 S.E.2d 168 (1942); Baxter v. Rogers, 195 Ga. 274, 24 S.E.2d 52 (1943); Mackey v. Mackey, 198 Ga. 707, 32 S.E.2d 764 (1945); Flynn v. Flynn, 210 Ga. 280, 79 S.E.2d 534 (1954); S. v. S., 211 Ga. 365, 86 S.E.2d 103 (1955); Diggs v. Diggs, 91 Ga. App. 634, 86 S.E.2d 639 (1955); Goza v. State, 91 Ga. App. 842, 87 S.E.2d 232 (1955); Bryant v. Bryant, 216 Ga. 762, 119 S.E.2d 573 (1961); King v. King, 218 Ga. 534, 129 S.E.2d 147 (1962); Toole v. Gallion, 221 Ga. 494, 144 S.E.2d 360 (1965); Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546 (1965); Aetna Life Ins. Co. v. Harley, 365 F. Supp. 1210 (N.D. Ga. 1973); Thompson v. Brown, 254 Ga. 191, 326 S.E.2d 733 (1985); Argo v. State, 188 Ga. App. 102, 371 S.E.2d 922 (1988).

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 16 et seq., 41 et seq., 54, 83, 84.

1D Am. Jur. Pleading and Practice Forms, Annulment of Marriage, § 1 et seq.

C.J.S.

- 55 C.J.S., Marriage, §§ 11 et seq., 21, 30, 36 et seq.

ALR.

- Legitimation by subsequent marriage annulled under a statute declaring that certain marriages shall be void from the time their nullity is declared, 27 A.L.R. 1121.

Validity of contract executed under duress exercised by third person, 62 A.L.R. 1477.

Misrepresentation or mistake as to identity or condition in life of one of the parties as affecting validity of marriage, 75 A.L.R. 663.

Right to attack validity of marriage after death of party thereto, 76 A.L.R. 769; 47 A.L.R.2d 1393.

Continued cohabitation between parties to ceremonial marriage contracted when one of them was insane as creating presumption of common-law marriage, 85 A.L.R. 1302.

Marriage to which consent of one of parties was obtained by duress as void or only voidable, 91 A.L.R. 414.

Validity of marriage celebrated while spouse by former marriage of one of the parties was living and undivorced, in reliance upon presumption from lapse of time of death of such spouse, 93 A.L.R. 345; 144 A.L.R. 747.

Construction and application of statutes which in effect, under prescribed conditions, validate, after removal of impediment, marriage celebrated while a former spouse of one of the parties was living and undivorced, 95 A.L.R. 1292.

Right to alimony, counsel fees, or suit money in case of invalid marriage, 110 A.L.R. 1283.

Rights and remedies in respect of property accumulated by man and woman living together in illicit relations or under void marriage, 31 A.L.R.2d 1255.

Validity of solemnized marriage as affected by absence of license required by statute, 61 A.L.R.2d 847.

Liability of one putative spouse to other for wrongfully inducing entry into or cohabitation under illegal, void, or nonexistent marriage, 72 A.L.R.2d 956.

Homosexuality, transvestism, and similar sexual practices as grounds for annulment of marriage, 68 A.L.R.4th 1069.

19-3-6. Effect of restraints on marriage; when valid.

Marriage is encouraged by the law. Every effort to restrain or discourage marriage by contract, condition, limitation, or otherwise shall be invalid and void, provided that prohibitions against marriage to a particular person or persons or before a certain reasonable age or other prudential provisions looking only to the interest of the person to be benefited and not in general restraint of marriage will be allowed and held valid.

(Orig. Code 1863, § 1652; Code 1868, § 1696; Code 1873, § 1697; Code 1882, § 1697; Civil Code 1895, § 2410; Civil Code 1910, § 2929; Code 1933, § 53-107.)

JUDICIAL DECISIONS

It is public policy of this state to maintain family relation and to permit the settlement of matrimonial differences for that purpose. Evans v. Hartley, 57 Ga. App. 598, 196 S.E. 273 (1938); McClain v. McClain, 237 Ga. 80, 227 S.E.2d 5 (1976).

Termination of alimony in event of remarriage.

- Provision for permanent alimony which provided that in the event the wife should obtain a divorce and should marry again, or should marry again in the event of the death of her husband, the alimony should terminate was not violative of law and contrary to public policy in that it was in restraint of marriage. Watson v. Burnley, 150 Ga. 460, 104 S.E. 220 (1920).

Agreement incorporated into a divorce decree providing for termination of the former wife's equity in real property upon her remarriage does not act as a restraint on marriage. Gordin v. Gordin, 249 Ga. 371, 290 S.E.2d 921 (1982).

Fact that a termination-upon- remarriage provision in a final judgment and decree originated in the jury's verdict rather than from an agreement of the parties is a distinction without legal significance. A trial court does not err by allowing the jury to return the verdict including the termination provision, or in entering judgment on the verdict. Gordin v. Gordin, 249 Ga. 371, 290 S.E.2d 921 (1982).

When agreement to divorce held void.

- Any agreement between husband and wife, prior to a separation, that they will live separate and apart, or that either or both will obtain a divorce, and any agreement to otherwise promote a dissolution of the marriage relation, is against public policy and void, and consideration founded thereon is illegal, but a contract between husband and wife, providing for the wife's maintenance, made after a separation has taken place, is valid and enforceable. Craig v. Craig, 53 Ga. App. 632, 186 S.E. 755 (1936).

Contract for attorney's fee void when contingent on procuring divorce.

- Contract for the payment of a fee to an attorney contingent upon the attorney procuring a divorce for the attorney's client or contingent in amount upon the amount of alimony to be obtained is void as against public policy. Evans v. Hartley, 57 Ga. App. 598, 196 S.E. 273 (1938).

Contract for attorney's fee void when fee to be paid from alimony recovered.

- Contract by wife to pay her solicitors part of alimony to be recovered by her in a suit for divorce, as compensation for their services in such suit, is void as against public policy. Evans v. Hartley, 57 Ga. App. 598, 196 S.E. 273 (1938).

Attorney may recover reasonable value of services when contract void.

- When an attorney's contract for compensation for services rendered a married woman was void as against public policy, the attorney could recover what the attorney's services were reasonably worth. Evans v. Hartley, 57 Ga. App. 598, 196 S.E. 273 (1938).

Foreign judgment given full faith though based on separation agreement void in this state.

- Although a North Carolina judgment which was incorporated into a Georgia divorce decree on the issues of alimony, child support, and custody was based on a separation contract which included a provision not to contest a later divorce which contract was clearly void as against the public policy of this state, the North Carolina alimony judgment was entitled to full faith and credit and the trial court did not err in incorporating it in the divorce decree. Cannon v. Cannon, 244 Ga. 299, 260 S.E.2d 19 (1979).

Apprenticeship of female not void when she becomes 18 as being in restraint of marriage. Dent v. Cock, 65 Ga. 400 (1880).

Employment contract not void when restraint on marriage reasonable.

- Employment contract which provided that a woman employee was to be employed as a teacher only so long as she did not marry was not void because the contract provision was a reasonable one and the restraint on marriage was incidental to the primary lawful purpose of the contract. Huiet v. Atlanta Gas Light Co., 70 Ga. App. 233, 28 S.E.2d 83 (1943).

Limitation of appointment to such time as executrix remains widow is not void as an illegal restraint against marriage. Bruce v. Fogarty, 53 Ga. App. 443, 186 S.E. 463 (1936).

Provision in will prohibiting share in estate if daughter married designated individual was not "in terrorem" but was specific valid restraint not tending to discourage marriage. Taylor v. Rapp, 217 Ga. 654, 124 S.E.2d 271 (1962).

Statute has nothing to do with adoption standards.

- Public policy of the state as enunciated by the General Assembly is to consider the best interest of the child when determining whether he or she should be adopted, O.C.G.A. § 19-8-18(b); in stating that marriage is encouraged, O.C.G.A. § 19-3-6 forbids most efforts to restrain or discourage marriage by contract, condition, limitation, or otherwise, and § 19-3-6 has nothing to do with the standards the courts must apply in determining whether to allow a child to be adopted. In re Goudeau, 305 Ga. App. 718, 700 S.E.2d 688 (2010).

Meretricious relationship defense did not apply to a promise to marry.

- Because the object of a promise to marry was not illegal or against public policy, O.C.G.A. § 19-3-6, the fact that a man and woman were living together before and after a marriage proposal was only collateral to the promise to marry, and the meretricious relationship defense provided by O.C.G.A. § 13-8-1 was inapplicable to the promise to marry. Kelley v. Cooper, 325 Ga. App. 145, 751 S.E.2d 889 (2013).

Cited in Graham v. McRae, 147 Ga. 49, 92 S.E. 871 (1917); Sims v. Sims, 245 Ga. 680, 266 S.E.2d 493 (1980); Daniel v. Daniel, 250 Ga. 849, 301 S.E.2d 643 (1983).

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, § 114 et seq.

C.J.S.

- 17A C.J.S., Contracts, §§ 245, 246.

ALR.

- Conditions, conditional limitations, or contracts in restraint of marriage, 122 A.L.R. 7.

What constitutes contract between husband or wife and third person promotive of divorce or separation, 93 A.L.R.3d 523.

19-3-7. Contracts attempting to force marriage void.

The policy of the law being opposed equally to restrictions on marriage and to marriages not the result of free choice, all contracts or bonds made to hinder or to force marriage are deemed fraudulent and void.

(Orig. Code 1863, § 3113; Code 1868, § 3125; Code 1873, § 3182; Code 1882, § 3182; Civil Code 1895, § 2415; Civil Code 1910, § 2934; Code 1933, § 53-108.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, § 120.

C.J.S.

- 17A C.J.S., Contracts, §§ 245, 246.

ALR.

- Validity of contract executed under duress exercised by third person, 62 A.L.R. 1477.

Conditions, conditional limitations, or contracts in restraint of marriage, 122 A.L.R. 7.

Recovery for services rendered by persons living in apparent relation of husband and wife without express agreement for compensation, 94 A.L.R.3d 552.

19-3-8. Interspousal tort immunity continued.

Interspousal tort immunity, as it existed immediately prior to July 1, 1983, shall continue to exist on and after July 1, 1983.

(Orig. Code 1863, § 1700; Code 1868, § 1743; Code 1873, § 1753; Code 1882, § 1753; Civil Code 1895, § 2473; Civil Code 1910, § 2992; Code 1933, § 53-501; Ga. L. 1983, p. 1309, § 1; Ga. L. 1984, p. 22, § 19.)

Law reviews.

- For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B.J. 24 (1985). For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For article, "Interspousal Tort Immunity in America," see 23 Ga. L. Rev. 359 (1989). For annual survey article on tort law, see 50 Mercer L. Rev. 335 (1998). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For note, "Publicly Funded Private Security: A Critical Examination of Georgia Law Pertaining to the Private Employment of Off-Duty Police Officers," see 51 Ga. L. Rev. 879 (2017). For note, "Piercing the Marital Veil: Interspousal Tort Immunity After Harris v. Harris," see 36 Mercer L. Rev. 1013 (1985).

JUDICIAL DECISIONS

General Consideration

Section does not change common-law doctrine of interspousal immunity.

- O.C.G.A. § 19-3-8 does not purport to change common law regarding personal torts committed by one spouse against the other, and the law, with respect to those matters, is still the same as it was under common law, that is, that marriage extinguishes antenuptial rights of action between husband and wife, and after marriage the wife cannot maintain an action against her husband based on tortious injury to her person, though committed prior to coverture. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).

Common-law interspousal immunity doctrine applies to husbands as well as wives. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).

Scope of doctrine.

- Doctrine of interspousal tort immunity bars actions between spouses in respect to personal torts committed by one spouse against the other, except when the traditional policy reasons for applying interspousal tort immunity are absent, i.e., when there is no marital harmony to be preserved and when there exists no possibility of collusion between the spouses. Shoemake v. Shoemake, 200 Ga. App. 182, 407 S.E.2d 134 (1991).

Application of interspousal immunity doctrine to wrongful death actions violates constitutional guarantee of equal protection because the doctrine arbitrarily distinguishes between classes of wrongful death claimants. Jones v. Jones, 259 Ga. 49, 376 S.E.2d 674 (1989).

Doctrine of interspousal immunity is not unconstitutional as a matter of due process or equal protection. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).

Common-law interspousal immunity doctrine bears reasonable relationship to promotion of domestic tranquility interest sought to be furthered by it. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).

For discussion of reasons for preserving doctrine of interspousal immunity.

- See Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).

Doctrine of interspousal tort immunity is inapplicable when there is, realistically speaking, no marital harmony to be protected by application of the rule nor any hint of collusion between the husband and wife or of intent to defraud an insurance company. Smith v. Rowell, 176 Ga. App. 100, 335 S.E.2d 461 (1985).

When husband and wife had been separated for ten years, despite sporadic reconciliation attempts, and during which time the husband lived with another woman, the doctrine of interspousal tort immunity did not apply since there was no "marital harmony" to be protected. Harris v. Harris, 252 Ga. 387, 313 S.E.2d 88 (1984).

Suit against husband's estate by wife's parents.

- Interspousal immunity doctrine was not a bar to a wrongful death action brought against the estate of a deceased husband by the parents of the wife who died with her husband in the crash of a plane piloted by the husband. Trust Co. Bank v. Thornton, 186 Ga. App. 706, 368 S.E.2d 158 (1988), cert. vacated, 258 Ga. 543, 373 S.E.2d 512 (1988).

Requirement to apportion damages did not violate interspousal tort immunity doctrine.

- Application of the apportionment of damages pursuant to O.C.G.A. § 51-12-33 did not violate the interspousal tort immunity doctrine, O.C.G.A. § 19-3-8, because the trial court's holding that the jury should have been instructed to apportion the award of damages to a wife according to the jury's determination of the percentage of fault of her husband and a driver, if any, in no way requires the wife to file suit against her husband, but instead, precluded the wife from recovering from the driver that portion of her damages, if any, that a trier of fact concluded resulted from the negligence of her husband. Barnett v. Farmer, 308 Ga. App. 358, 707 S.E.2d 570 (2011).

Application of doctrine.

- Trial court erred in denying a husband's motion to dismiss, which was treated as a motion for summary judgment, and in failing to apply the interspousal tort immunity doctrine, as codified in O.C.G.A. § 19-3-8, to a wife's claim for damages for a motorcycle accident, even though the wife's complaint against the husband contained a count for dissolution of the marriage. Gates v. Gates, 277 Ga. 175, 587 S.E.2d 32 (2003).

Cited in Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); Coleman v. Dublin Coca-Cola Bottling Co., 47 Ga. App. 369, 170 S.E. 549 (1933); Breedlove v. Suttles, 302 U.S. 277, 58 S. Ct. 205, 82 L. Ed. 252 (1937); Powell v. Powell, 196 Ga. 694, 27 S.E. 393 (1943); Foster v. Withrow, 201 Ga. 260, 39 S.E.2d 466 (1946); Bradley v. Tenneco Oil Co., 146 Ga. App. 161, 245 S.E.2d 862 (1978); State Farm Mut. Auto. Ins. Co. v. Gazaway, 152 Ga. App. 716, 263 S.E.2d 693 (1979); McTier v. State, 153 Ga. App. 551, 265 S.E.2d 876 (1980); Chester v. State, 162 Ga. App. 10, 290 S.E.2d 117 (1982).

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Husband and Wife, § 236 et seq.

C.J.S.

- 41 C.J.S., Husband and Wife, §§ 204, 205.

ALR.

- Right of wife to exclude husband from possession, use, or enjoyment of family residence or homestead owned by her, 21 A.L.R. 745.

Wife's right to reimbursement by husband for expenditures for support and maintenance of herself or family made while they were living together in the marriage relation, 101 A.L.R. 442.

Presumption of ownership of personal property as between husband and wife, 111 A.L.R. 1374.

Liability of married woman or her estate for fees of real estate broker, 117 A.L.R. 752.

Renewal by one spouse without the other's participation, of lien on homestead, 143 A.L.R. 1369.

Power of either spouse, without consent of other, to make gift of community property or funds to third party, 17 A.L.R.2d 1118.

Woman's right to have abortion without consent of, or against objections of, child's father, 62 A.L.R.3d 1097.

Validity of verdict or verdicts by same jury in personal injury action awarding damages to injured spouse but denying recovery to other spouse seeking collateral damages, or vice versa, 66 A.L.R.3d 472.

Right of married woman to use maiden surname, 67 A.L.R.3d 1266.

Domicile for state tax purposes of wife living apart from husband, 82 A.L.R.3d 1274.

Right of liability insurer or uninsured motorist insurer to invoke defense based on insured's tort immunity arising out of marital or other close family relationship to injured party, 36 A.L.R.4th 747.

Joinder of tort actions between spouses with proceeding for dissolution of marriage, 4 A.L.R.5th 972.

19-3-9. Each spouse's property separate.

The separate property of each spouse shall remain the separate property of that spouse, except as provided in Chapters 5 and 6 of this title and except as otherwise provided by law.

(Laws 1809, Cobb's 1851 Digest, p. 305; Code 1863, § 1701; Ga. L. 1866, p. 146, § 1; Code 1868, § 1744; Code 1873, § 1754; Code 1882, § 1754; Civil Code 1895, § 2474; Civil Code 1910, § 2993; Code 1933, § 53-502; Ga. L. 1979, p. 466, § 33.)

Cross references.

- Spouse's separate property, Ga. Const. 1983, Art. I, Sec. I, Para. XXVII.

Law reviews.

- For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For survey article on wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For article, "Are We Witnessing the Erosion of Georgia's Separate Property Distinction?," see 13 Ga. St. B.J. 14 (2007). For note, "Georgia Becomes A Quasi Community Property State," see 17 Ga. St. B.J. 134 (1981). For comment, "The Georgia Supreme Court's Creation of an Equitable Interest in Marital Property - Yours? Mine? Ours!," see 34 Mercer L. Rev. 449 (1982).

JUDICIAL DECISIONS

At common law, earnings of wife belonged to her husband. Cotter v. Gazaway, 141 Ga. 534, 81 S.E. 879 (1914).

Real estate of wife prior to married women's statute.

- Under the statutes of this state as they were in force prior to the Act approved December 13, 1866 (Acts 1866, p. 146), all the real estate of the wife in her possession and to which she had title at the time of the marriage vested in and belonged to the husband. Hudgins v. Chupp, 103 Ga. 484, 30 S.E. 301 (1898).

Law constituted women as feme soles. Citizens & S. Nat'l Bank v. Mann, 234 Ga. 884, 218 S.E.2d 593 (1975).

Wife's separate property.

- Law gave wife right to keep, acquire, and control her separate property. Foster v. Withrow, 201 Ga. 260, 39 S.E.2d 466 (1946).

Wife's action for conversion of her property.

- Trial court erred by finding that a wife could not proceed against her former husband on claims relating to his conversion of stock certificates owned solely in her name. Fleming v. Fleming, 246 Ga. App. 69, 539 S.E.2d 563 (2000).

Debts of husband.

- Law did not restrict a woman's assumption of debts of her husband. Citizens & S. Nat'l Bank v. Mann, 234 Ga. 884, 218 S.E.2d 593 (1975).

Bankruptcy exemptions.

- When husband and wife debtors sought to exempt their income tax refunds, pursuant to O.C.G.A. § 44-13-100(a)(6), the procedure set forth in In re Crowson, 431 Bankr. 484, 489 (10th Cir. B.A.P. 2010) was to be followed. Each debtor was treated separately under 11 U.S.C. § 522(m), and Georgia law had no presumption of equal ownership of property between spouses under O.C.G.A. § 19-3-9. In re Evans, 449 Bankr. 827 (Bankr. N.D. Ga. 2010).

Retention of tax refund by Chapter 7 debtors.

- Chapter 7 debtors could not retain total tax refunds because, pursuant to Georgia law, which - pursuant to O.C.G.A. § 19-3-9 - had no presumption of equal ownership of property between spouses, the refund in its entirety was the sole property of the sole income earner at the time of the bankruptcy filing. In re Hraga, 467 Bankr. 527 (Bankr. N.D. Ga. 2011).

Statute's effect on common law property right of wife.

- Statutes of this state do change common law in respect to property rights of wife; with respect to such rights she is as a feme sole. Eddleman v. Eddleman, 183 Ga. 766, 189 S.E. 833 (1937).

Husband and wife are no longer unit, one person in law, with all property vested in husband as the head of the family, and subject to his debts, but they are, in law, so far as property is concerned, two distinct persons, with distinct and separate rights. Sessions v. Parker, 174 Ga. 296, 162 S.E. 790, answer conformed to, 45 Ga. App. 101, 163 S.E. 297 (1932).

Married woman may deal with her property as freely as man may deal with his; she is not forbidden to utilize her estate for her husband's benefit. Johnston v. Susman, 193 Ga. 758, 19 S.E.2d 919 (1942).

Wife may sue and be sued in all matters relating to her sole and separate property. Martin v. Gurley, 201 Ga. 493, 39 S.E.2d 878 (1946).

Wife has right of action for damages to her separate estate resulting from her husband's negligence. This right is necessary in order that a wife may have equal protection of the law respecting her separate estate. Hubbard v. Ruff, 97 Ga. App. 251, 103 S.E.2d 134 (1958).

Right of action for damages to property resulting from negligence is a property right as to which a wife in this state suffers from no restrictions arising from coverture, and she may accordingly maintain an action for damages against her husband thereon. Hubbard v. Ruff, 97 Ga. App. 251, 103 S.E.2d 134 (1958).

Married woman's action for loss of consortium.

- Married woman may maintain action for damages against third person for loss of consortium, even though she may be living at the time with her husband. Tingle v. Maddox, 186 Ga. 757, 198 S.E. 722 (1938).

Recovery by wife (and mother) for homicide of child is property right. Kehely v. Kehely, 200 Ga. 41, 36 S.E.2d 155 (1945).

Husband can maintain bailtrover action against his wife, a husband and wife can make contracts with each other, and the husband and wife can become copartners in a business enterprise. Foster v. Withrow, 201 Ga. 260, 39 S.E.2d 466 (1946); Bradley v. Tenneco Oil Co., 146 Ga. App. 161, 245 S.E.2d 862 (1978).

Husband cannot use his wife's separate money to buy property for himself; if he invests her funds in real estate in his own name, equity will fix a trust upon the land, and having jurisdiction for one purpose, it will do complete justice and give full relief between the parties. Sasser v. Sasser, 73 Ga. 275 (1884).

Failure to allege that wife's separate estate provided portion of purchase price.

- Insofar as petition sought to recover one-half, or some other portion of the real estate here involved or to impress such real estate with a trust, upon the theory that it was purchased in part out of the separate estate of the wife, the petition failed to set out a cause of action because it did not allege that any definite portion of the purchase price was paid by her out of her separate estate. Roach v. Roach, 212 Ga. 40, 90 S.E.2d 423 (1955).

Property brought into marriage by one party is not subject to equitable division. Bailey v. Bailey, 250 Ga. 15, 295 S.E.2d 304 (1982).

Deduction of premarital value proper.

- Trial court did not err in deducting the premarital value from the wife's share of the benefits to which the wife was entitled. Christian v. Christian, 300 Ga. 263, 794 S.E.2d 51 (2016).

Property acquired during marriage by either party by gift, inheritance, bequest, or devise remains separate property of party that acquired it, and is not subject to equitable division. Bailey v. Bailey, 250 Ga. 15, 295 S.E.2d 304 (1982).

Interspousal gifts of property acquired during marriage are subject to claims for equitable division of property. McArthur v. McArthur, 256 Ga. 762, 353 S.E.2d 486 (1987).

Parties' residence constituted marital property for purposes of equitable division, despite the subsequent interspousal transfer for the purpose of shielding the home from a potential judgment creditor, since the parties initially acquired the property as marital property. Sparks v. Sparks, 256 Ga. 788, 353 S.E.2d 508 (1987).

When there is no question that the house initially was acquired as marital property, deeded by husband to wife, the trial court did not err by denying the wife's motion for directed verdict, by charging the jury that gifts, for purposes of determining the parties' separate property, consist of gifts from a nonspouse before or during the marriage, nor by entering judgment on the jury's verdict awarding to the husband a 35 percent interest in the house. McArthur v. McArthur, 256 Ga. 762, 353 S.E.2d 486 (1987).

Former husband was barred from seeking resulting trust in parties' residence, because his misconduct of fraudulently transferring the house to the former wife related directly to the transaction from which he sought relief - the transfer of the house placing title in her, but his misconduct in transferring the residence did not relate directly to his claim for an equitable division of the residence. That claim was based not on the circumstances surrounding the transfer, but on the fact that the property was acquired during the parties' marriage, through their labor and investments, thereby giving each party an equitable interest therein. Sparks v. Sparks, 256 Ga. 788, 353 S.E.2d 508 (1987).

Effect of conveyance of separate property.

- Husband deeding of a home to both his wife and himself, to be held as "tenants in common" with right of survivorship manifested an intent to transform the husband's own separate property into marital property; because both the husband and the wife then owned an undivided one-half interest in the property, the entire home should have been treated as marital property. Lerch v. Lerch, 278 Ga. 885, 608 S.E.2d 223 (2005).

Once separated by judicial determination in a separate maintenance judgment, property becomes part of the separate estate of the party to whom the property is awarded and the property is not thereafter subject to equitable division in a later divorce action. Goodman v. Goodman, 254 Ga. 703, 334 S.E.2d 179 (1985).

Section does not change common-law doctrine of interspousal immunity.

- O.C.G.A. § 19-3-9 does not purport to change common law regarding personal torts committed by one spouse against the other, and the law, with respect to those matters, is still the same as it was under common law, that is, that marriage extinguishes antenuptial rights of action between husband and wife, and after marriage the wife cannot maintain an action against her husband based on tortious injury to her person, though committed prior to coverture. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).

Common-law interspousal immunity doctrine applies to husbands as well as wives. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).

Doctrine of interspousal immunity is not unconstitutional, as a matter of due process or equal protection. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).

Common-law interspousal immunity doctrine bears reasonable relationship to promotion of domestic tranquillity interest sought to be furthered by it. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).

For discussion of reasons for preserving doctrine of interspousal immunity.

- See Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).

Unvested retirement benefits are marital property subject to equitable division, insofar as the retirement benefits are acquired during the marriage. Courtney v. Courtney, 256 Ga. 97, 344 S.E.2d 421 (1986).

Applicable to third-party actions.

- Interspousal immunity doctrine does apply in the context of third-party actions. New v. Hubbard, 206 Ga. App. 679, 426 S.E.2d 379 (1992).

Cited in Carlton v. Moultrie Banking Co., 170 Ga. 185, 152 S.E. 215 (1930); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); Sheffield v. Sheffield, 178 Ga. 248, 173 S.E. 121 (1934); Magid v. Beaver, 185 Ga. 669, 196 S.E. 422 (1938); Thompson v. Thompson, 199 Ga. 692, 35 S.E.2d 262 (1945); Bryant v. Bryant, 204 Ga. 747, 51 S.E.2d 797 (1949); Adams v. Pafford, 79 Ga. App. 477, 54 S.E.2d 329 (1949); Taylor v. Vezzani, 109 Ga. App. 167, 135 S.E.2d 522 (1964); Reid v. Peoples Bank, 220 Ga. 368, 138 S.E.2d 876 (1964); Rankin v. Smith, 113 Ga. App. 204, 147 S.E.2d 649 (1966); Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980); Walton Elec. Membership Corp. v. Snyder, 226 Ga. App. 673, 487 S.E.2d 613 (1997); Head v. Head, 234 Ga. App. 469, 507 S.E.2d 214 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Proposed Equal Rights Amendment might affect all state laws which discriminate, even innocuously, between sexes or deny or abridge any equality of rights between sexes for any reason whatsoever. 1970 Op. Att'y Gen. No. 70-165.

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Husband and Wife, § 19 et seq.

C.J.S.

- 41 C.J.S., Husband and Wife, § 10 et seq.

ALR.

- Should ownership of property be laid in the husband or wife in an indictment for larceny, 2 A.L.R. 352.

Presumption of ownership of personal property as between husband and wife, 111 A.L.R. 1374.

Right of trustee in bankruptcy, or creditors, of marital community in respect of separate property of one spouse, which has been improved wholly or in part by use of community property, 133 A.L.R. 1097.

Mental incompetency of one spouse as affecting transfer or encumbrance of community property, homestead property, or estate by the entireties, 155 A.L.R. 306.

Interest of spouse in estate by entireties as subject to satisfaction of his or her individual debt, 166 A.L.R. 969; 75 A.L.R.2d 1172.

Spouse's cause of action for negligent personal injury as separate or community property, 35 A.L.R.2d 1199.

Use of community funds in improving, or discharging encumbrance on, separate property as grounding right to reimbursement, lien, or charge, 54 A.L.R.2d 429.

Rights in wedding presents as between spouses, 75 A.L.R.2d 1365.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one of the joint depositors, 11 A.L.R.3d 1465.

Change of domicile as affecting character of property previously acquired as separate or community property, 14 A.L.R.3d 404.

Pensions, and reserve or retired pay, as community property, 94 A.L.R.3d 176.

Divorce and separation: appreciation in value of separate property during marriage without contribution by either spouse as separate or communal property, 24 A.L.R.4th 453.

Divorce property distribution: real estate or trust property in which interest vested before marriage and was realized during marriage, 60 A.L.R.4th 217.

Divorce and separation: attorney's contingent fee contracts as marital property subject to distribution, 44 A.L.R.5th 671.

Property rights arising from relationship of couple cohabiting without marriage, 69 A.L.R.5th 219.

Divorce and separation: Determination of whether proceeds from personal injury settlement or recovery constitute marital property, 109 A.L.R.5th 1.

Spouse's professional degree or license as marital property for purposes of alimony, support, or property settlement, 3 A.L.R.6th 447.

Inherited property as marital or separate property in divorce action, 38 A.L.R.6th 313.

Divorce and separation: appreciation in value of separate property during marriage with contribution by either spouse as separate or community property (doctrine of "active appreciation"), 39 A.L.R.6th 205.

19-3-10. Right of married persons to contract; presumptions.

A married person may make contracts with other persons; but, when a transaction between a husband and wife is attacked for fraud by the creditors of either, the onus shall be on the husband and wife to show that the transaction was fair. If a husband or a wife has a separate estate and purchases property from persons other than his or her spouse, the onus shall be upon a creditor levying on such property as the property of the other spouse to show fraud or to show that the husband or wife did not have the means with which to purchase the property.

(Civil Code 1895, § 2492; Civil Code 1910, § 3011; Code 1933, § 53-505; Ga. L. 1979, p. 466, § 35.)

History of section.

- The language of this Code section is derived in part from the decision in Richardson & Co. v. Subers, 82 Ga. 427, 9 S.E. 172 (1889).

Cross references.

- Acts void as against creditors, § 18-2-20 et seq.

Law reviews.

- For article, "Preparing the Georgia Farmer (or Other Small Entrepreneur) for Bankruptcy," see 22 Ga. State Bar J. 186 (1986).

JUDICIAL DECISIONS

General Consideration

Statute applied to transactions between husband and wife only, and does not extend to transactions between other near relatives. First Nat'l Bank v. Kelly, 190 Ga. 603, 10 S.E.2d 66 (1940).

Statute was rule of evidence, and does not dispense with necessary elements in setting aside conveyance based on a valuable consideration. Baker v. Goddard, 205 Ga. 477, 53 S.E.2d 754 (1949).

Purpose of section.

- Recognizing that in transactions between husband and wife fraud might be so completely concealed that creditors could not expose the fraud, and in order that the public might not suffer from such concealment, the law imposes upon the husband and wife the duty of affirmatively establishing their good faith when creditors attack such transactions for fraud. Arrington v. Awbrey, 190 Ga. 193, 8 S.E.2d 648 (1940); Powell v. Grimes, 223 Ga. 56, 153 S.E.2d 434 (1967).

Jury was properly instructed that a debtor and the debtor's spouse had the burden to show that an allegedly fraudulent transfer of the debtor's interest in the debtor's home to the spouse was fair and free from fraud since O.C.G.A. § 19-3-10, placing the burden in spousal transfers, was not impliedly repealed by enactment of the Uniform Fraudulent Transfer Act, O.C.G.A. § 18-2-70 et seq., which did not impose any burden of proof or conflict with any provision of the statute. Key Equip. Fin., Inc. v. Overend, 665 Fed. Appx. 801 (11th Cir. 2016)(Unpublished).

Cited in Strickland v. Jones, 131 Ga. 409, 62 S.E. 322 (1908); Brand v. Bagwell, 133 Ga. 750, 66 S.E. 935 (1910); Adams v. First Nat'l Bank, 147 Ga. 470, 94 S.E. 568 (1917); Mitchell v. Mixon, 148 Ga. 596, 97 S.E. 528 (1918); Gill v. Willingham, 156 Ga. 728, 120 S.E. 108 (1923); Pope v. Bennett, 157 Ga. 357, 121 S.E. 333 (1924); Jenkins v. Flournoy, 157 Ga. 618, 122 S.E. 309 (1924); Durden v. Royster Guano Co., 158 Ga. 234, 123 S.E. 603 (1924); Simmons v. Realty Inv. Co., 160 Ga. 99, 127 S.E. 279 (1925); Davis v. Barrett, 163 Ga. 666, 136 S.E. 904 (1927); James v. Hudson, 170 Ga. 321, 152 S.E. 829 (1930); Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708 (1934); Strobel v. Cormley, 50 Ga. App. 358, 178 S.E. 192 (1935); Strickland v. Davis, 184 Ga. 76, 190 S.E. 586 (1937); Tippins v. Lane, 184 Ga. 331, 191 S.E. 134 (1937); Armour Fertilizer Works v. Maxwell, 186 Ga. 801, 199 S.E. 120 (1938); Parker v. Harling, 189 Ga. 224, 5 S.E.2d 755 (1939); Dwight v. Acme Lumber & Supply Co., 189 Ga. 473, 6 S.E.2d 586 (1939); First Nat'l Bank v. Kelly, 190 Ga. 603, 10 S.E.2d 66 (1940); Mattox v. West, 194 Ga. 310, 21 S.E.2d 428 (1942); United States v. Phillips, 59 F. Supp. 1006 (S.D. Ga. 1945); Beazley v. Allen, 61 F. Supp. 929 (M.D. Ga. 1945); Lee v. Calhoun, 202 Ga. 297, 43 S.E.2d 156 (1947); Beebe v. Smith, 76 Ga. App. 391, 46 S.E.2d 212 (1948); Powers v. Powers, 213 Ga. 461, 99 S.E.2d 818 (1957); Clark v. Ryals Ins. Agency, 99 Ga. App. 689, 109 S.E.2d 643 (1959); Maloy v. Dixon, 127 Ga. App. 151, 193 S.E.2d 19 (1972); Citizens & S. Nat'l Bank v. Parker, 145 Ga. App. 802, 245 S.E.2d 48 (1978); Stokes v. McRae, 247 Ga. 658, 278 S.E.2d 393 (1981); Johnson v. Sheridan, 179 Ga. App. 331, 346 S.E.2d 109 (1986); Hadlock v. Anderson, 246 Ga. App. 291, 540 S.E.2d 282 (2000); Broadfoot v. Hunerwadel (In re Dulock), 282 Bankr. 54 (Bankr. N.D. Ga. 2002); Bloom v. Camp, 336 Ga. App. 891, 785 S.E.2d 573 (2016).

Transactions

Husband not liable for rent if wife specifically contracts to pay.

- Husband is not liable for the rent simply because the rent constitutes a necessity of life for his family and because he is legally bound to support his family and provide them with the necessities of life if it appears under the allegations of the petition that the wife expressly contracted with the landlord to pay the rent for the dwelling abode of the family and that the wife entered into a written lease contract with the landlord to that effect. Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935).

Married woman bound as purchaser when entering into unambiguous written contract.

- When a married woman enters into an unambiguous written contract whereby she becomes the owner of personalty, and agrees to pay a stipulated price therefor, she is bound by her obligation as purchaser, if the seller committed no fraud upon her nor knew of any committed by the husband. Gibson v. GMAC, 46 Ga. App. 201, 167 S.E. 203 (1932).

When a married woman was sold an automobile under a written contract of purchase and sale, and there was no evidence whatever of any fraud practiced upon her by the vendor, and no evidence going to show that she was unable to read and comprehend the terms of the written agreement, and although the defendant may have purchased the automobile for the benefit of her husband, and may have immediately turned it over to him, she (the married woman) was bound by the unambiguous written contract, by which she became the purchaser of the property, and by which the consideration for the agreement on her part to pay the purchase price passed legally and morally to her. Gibson v. GMAC, 46 Ga. App. 201, 167 S.E. 203 (1932).

Transactions between husband and wife involving transfer of property are to be scanned closely. Futrelle v. Karsman, 41 Ga. App. 765, 154 S.E. 714 (1930).

Transactions between husband, wife, and near relatives, to the prejudice of creditors, are to be closely scanned and their bona fides clearly established. State Banking Co. v. Miller, 185 Ga. 653, 196 S.E. 47 (1938).

Fraud

Conveyances may be fraudulent as to subsequent creditors, as well as existing creditors, if made with intent to defraud. Jones v. J.S.H. Co., 199 Ga. 755, 35 S.E.2d 288 (1945).

Burden on spouses to show fair transaction when creditors allege fraud.

- When a transaction between husband and wife is attacked for fraud by the creditors of either, the onus is on the husband and wife to show that the transaction was fair. Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708 (1934); Edwards v. United Food Brokers, Inc., 195 Ga. 1, 22 S.E.2d 812 (1942).

In a claim case where the wife sets up title to the property levied upon under a deed from her husband, and his creditor attacks the deed upon the ground that it is a fraudulent conveyance, this puts the burden upon the husband and wife to show that the transaction as a whole is free from fraud. Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708 (1934); Merchants' & Citizens' Bank v. Clark, 180 Ga. 490, 179 S.E. 103 (1935); Hodges v. Tattnall Bank, 185 Ga. 657, 196 S.E. 421 (1938).

When the plaintiff was attacking a conveyance from the husband of claimant to her on the ground that it was voluntarily made to delay or defraud the creditor, since the transaction attacked was one between husband and wife, the onus was on them to show the transaction was fair. Citizens & S. Nat'l Bank v. Kontz, 185 Ga. 131, 194 S.E. 536 (1937).

Whenever a transaction is between husband and wife, and the creditors of the husband attack the transaction for fraud, if the wife claims the property purchased or received from her husband, the onus is on her to make a fair showing about the whole transaction. State Banking Co. v. Miller, 185 Ga. 653, 196 S.E. 47 (1938); Jones v. J.S.H. Co., 199 Ga. 755, 35 S.E.2d 288 (1945).

Although the onus is on the husband and wife making the transaction to show that the transaction was fair, the plaintiff still retains the burden of putting forth evidence of the fraud. Bonner v. Smith, 247 Ga. App. 419, 543 S.E.2d 457 (2000).

Husband and wife must show that transaction as a whole is free from fraud, and the bona fides must be clearly established. Mattox v. West, 194 Ga. 310, 21 S.E.2d 428 (1942); Edwards v. United Food Brokers, Inc., 195 Ga. 1, 22 S.E.2d 812 (1942).

When there was no proof to show any transaction between spouses, onus was upon creditor to show fraud or collusion if any. Rainey v. Eatonton Coop. Creamery, 69 Ga. App. 547, 26 S.E.2d 297 (1943).

Conveyances for nominal consideration presumed fraudulent.

- When there exist conveyances in exchange for love and affection or nominal consideration, the law forms a presumption that such transfers between husband and wife were fraudulent as against their creditors, because the burden of proving that a legitimate sale occurred must be shouldered by the debtor and his/her spouse. Loeb v. Dante, 1 Bankr. 547 (Bankr. N.D. Ga. 1979).

Failure to produce testimony is badge of fraud, when the bona fides of the transaction are in issue, and witnesses who ought to be able to explain the transaction are in reach. Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708 (1934).

Transfer of property by alleged killer in unliquidated wrongful death claim.

- Summary judgment was error when an issue of fact remained as to whether an unliquidated wrongful death claim at the time of a killer's property transfer without consideration to the killer's spouse rendered the killer insolvent and material issues remained as to fraud. Bryant v. Browning, 259 Ga. App. 467, 576 S.E.2d 925 (2003).

Evidence

Mere introduction of conveyance from husband to wife would not shift burden from her to the creditor. State Banking Co. v. Miller, 185 Ga. 653, 196 S.E. 47 (1938); Jones v. J.S.H. Co., 199 Ga. 755, 35 S.E.2d 288 (1945).

Slight circumstances must be considered, and may be sufficient to establish existence of fraud. Arrington v. Awbrey, 190 Ga. 193, 8 S.E.2d 648 (1940).

Charge to jury on wife's burden to show fairness.

- Onus being on the claimant wife to show the fairness of the transaction and deed under which she claimed, as the court correctly charged, and she having assumed this burden and accepted the right to open and conclude the argument, it was not error, in the absence of request, for the court to fail to charge the jury further as to such burden, or as to any shift in the burden of introducing evidence. Tucker v. Talmadge, 186 Ga. 798, 198 S.E. 726 (1938).

Wife's proof of good faith is jury question.

- It is for jury to say whether wife has made proof of good faith required of her by law by simply denying knowledge of such business affairs of her husband. Mercantile Nat'l Bank v. Aldridge, 233 Ga. 318, 210 S.E.2d 791 (1974).

RESEARCH REFERENCES

Am. Jur. 2d.

- 37 Am. Jur. 2d, Fraudulent Conveyances and Transfers, § 206. 41 Am. Jur. 2d, Husband and Wife, § 52 et seq.

C.J.S.

- 37 C.J.S., Fraudulent Conveyances, § 121. 41 C.J.S., Husband and Wife, § 60 et seq.

ALR.

- Conflict of laws as to capacity of married women to contract, 18 A.L.R. 1516; 71 A.L.R. 744.

Validity of partnership agreement between husband and wife, 20 A.L.R. 1304; 38 A.L.R. 1264; 157 A.L.R. 652.

Conveyance pursuant to antenuptial agreement as fraud on creditors, 41 A.L.R. 1163.

Liability of married woman for articles purchased by her for which husband is not liable, 114 A.L.R. 910.

Liability of married woman or her estate for fees of real estate broker, 117 A.L.R. 752.

Spouse's acceptance or retention of benefits of other spouse's fraudulent act as ratification of transaction, 82 A.L.R.3d 625.

Separation agreements: enforceability of provision affecting property rights upon death of one party prior to final judgment of divorce, 67 A.L.R.4th 237.

19-3-11. Gift from spouse allowed, but not presumed.

Repealed by Ga. L. 1981, p. 704, § 1, effective July 1, 1981.

Editor's notes.

- Former Code Section 19-3-11 was based on Civil Code 1895, § 2491; Civil Code 1910, § 3010; Code 1933, § 53-506.

ARTICLE 2 LICENSE AND CEREMONY

19-3-30. Issuance, return, and recording of license.

  1. Marriage licenses shall be issued only by the judge of the probate court or his clerk at the county courthouse between the hours of 8:00 A.M. and 6:00 P.M., Monday through Saturday.
    1. No marriage license shall be issued to persons of the same sex.
    2. If one of the persons to be married is a resident of this state, the license may be issued in any county of this state. If neither the male nor the female to be married is a resident of this state, the license shall be issued in the county in which the ceremony is to be performed.
  2. The license shall be directed to the Governor or any former Governor of this state, any judge, including judges of state and federal courts of record in this state, city recorder, magistrate, minister, or other person of any religious society or sect authorized by the rules of such society to perform the marriage ceremony; such license shall authorize the marriage of the persons therein named and require the Governor or any former Governor of this state, judge, city recorder, magistrate, minister, or other authorized person to return the license to the judge of the probate court with the certificate thereon as to the fact and date of marriage within 30 days after the date of the marriage. The license with the return thereon shall be recorded by the judge in a book kept by such judge for that purpose.
  3. The fact of issue of any unrecorded marriage license may be established by affidavit of either party to a ceremonial marriage, which affidavit shall set forth the date, the place, and the name and title of the official issuing the license.
  4. In the event that any marriage license is not returned for recording, as provided in subsection (c) of this Code section, either party to a ceremonial marriage may establish the marriage by submitting to the judge of the probate court the affidavits of two witnesses to the marriage ceremony setting forth the date, the place, and the name of the official or minister performing the ceremony. The judge shall thereupon reissue the marriage license and enter thereon the certificate of marriage and all dates and names in accordance with the evidence submitted and shall record and cross-index same in the proper chronological order in the book kept for that purpose.
  5. Any other provisions of this Code section or any other law to the contrary notwithstanding, the judge of the probate court of any county which has within its boundaries a municipality that has a population according to the United States decennial census of 1950 or any future such census greater than that of the county seat of the county is authorized to appoint a clerk for the purpose of granting marriage licenses in the municipality at an office designated by the judge. The licenses shall be issued only between the hours prescribed in subsection (a) of this Code section.

(Laws 1805, Cobb's 1851 Digest, p. 282; Laws 1809, Cobb's 1851 Digest, p. 282; Ga. L. 1851-52, p. 49, § 1; Code 1863, §§ 1659, 1663; Code 1868, §§ 1702, 1706; Code 1873, §§ 1703, 1707; Code 1882, §§ 1703, 1707; Civil Code 1895, §§ 2417, 2421; Civil Code 1910, §§ 2936, 2940; Ga. L. 1924, p. 53, § 1; Code 1933, §§ 53-201, 53-211; Ga. L. 1956, p. 43, § 1; Ga. L. 1960, p. 179, § 1; Ga. L. 1965, p. 335, § 2; Ga. L. 1982, p. 3, § 19; Ga. L. 1983, p. 884, § 4-1; Ga. L. 1984, p. 1192, § 1; Ga. L. 1987, p. 409, § 1; Ga. L. 1996, p. 624, § 2; Ga. L. 1997, p. 1592, § 1; Ga. L. 2010, p. 394, § 1/SB 238.)

Cross references.

- Authority of retired judge or judge emeritus of a state court to perform marriage ceremonies, § 15-7-25.

Maintenance of records of marriage licenses, § 31-10-21.

Law reviews.

- For article, "Conflict of Laws Structure and Vision: Updating a Venerable Discipline," see 31 Ga. St. U. L. Rev. 231 (2015). For comment, "By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage," see 63 Emory L. J. 979 (2014).

JUDICIAL DECISIONS

Public record of ceremonial marriage is conclusive evidence of such marriage, in the absence of a timely direct attack on such record, which attack must be supported by proper proof. Guess v. Guess, 202 Ga. 364, 43 S.E.2d 326 (1947).

Marriage certificate produced in alimony action presumed valid unless directly attacked.

- In an action for alimony, after plaintiff introduces a certified copy of a marriage certificate, no issue as to the validity of the marriage is made in the absence of a direct attack on the record by the defendant. Guess v. Guess, 202 Ga. 364, 43 S.E.2d 326 (1947).

In action for alimony, evidence of defendant denying marriage was without probative value to contradict or disprove the written record of a ceremonial marriage between the parties in absence of direct attack on record showing ceremonial marriage. Guess v. Guess, 202 Ga. 364, 43 S.E.2d 326 (1947).

License valid when ceremony performed, and license issued, in another state.

- Failure to issue a marriage license in the county where the female resident resides does not invalidate the license if the ceremony was performed in another state and a valid license was issued in that state. Perry v. Perry, 173 Ga. App. 247, 326 S.E.2d 481 (1985).

Cited in Maryland Cas. Co. v. Teele, 70 Ga. App. 259, 28 S.E.2d 193 (1943); Levin v. Blumberg, 223 Ga. 865, 159 S.E.2d 66 (1968).

OPINIONS OF THE ATTORNEY GENERAL

License must be issued and ceremony performed in same county when female is nonresident.

- There is only one occasion where there is a requirement that the license be issued and the ceremony be performed in the same county and that is when the female is not a resident of the State of Georgia. 1965-66 Op. Att'y Gen. No. 66-175.

Justice of the peace is authorized to perform marriage ceremony at any place a judge, city recorder, or minister might perform such ceremony. 1963-65 Op. Att'y Gen. p. 329; 1969 Op. Att'y Gen. No. 69-178.

Out-of-state judge has the authority to perform a marriage ceremony in Georgia. 1998 Op. Att'y Gen. No. U98-5.

Judges emeriti may perform ceremonies.

- When a statute separate from the Emeritus Act provides that the ministerial act of performing a marriage ceremony may be carried out by any judge, a judge of the superior courts emeritus may perform that function. 1975 Op. Att'y Gen. No. U75-3.

City recorder may perform marriages outside municipality.

- City recorder, authorized by to perform marriage ceremonies, was not restricted to performing such ceremonies within the territorial limits of the city in which the person serves as recorder. 1975 Op. Att'y Gen. No. U75-96.

Officiant's failure to return license does not invalidate marriage.

- Law was a direction to the officer or minister and the failure to return the license with the certificate within the 30 days would not have any effect upon the validity of the marriage or the validity of the marriage's record. 1957 Op. Att'y Gen. p. 95.

No witnesses are required to be present at marriage ceremony in order to make the marriage legal; this state recognizes common-law marriage, and no ceremony is actually essential to the validity of the marriage. 1970 Op. Att'y Gen. No. U70-148.

Probate judge may not decline to perform a marriage ceremony for the reason that the parties are not of the same race. 1983 Op. Att'y Gen. No. U83-31.

Person may have several residences, but only one place of domicile. 1981 Op. Att'y Gen. No. U81-5.

"Resides" in O.C.G.A. § 19-3-30 was intended to refer to "legal residence" or "domicile" rather than mere "residence," since a later section, O.C.G.A. § 19-3-45, only provides for liability of probate court judge who issues marriage license to female who, to the judge's knowledge, is domiciled in another county. 1981 Op. Att'y Gen. No. U81-5.

Acquisition of domicile.

- Domicile is only acquired through concurrence of actual, physical residence and intention to remain. 1981 Op. Att'y Gen. No. U81-5.

Generally, minor child cannot change domicile of own volition.

- Modern case law does not support idea of allowing a minor child to change the child's domicile of the child's own volition when that child has living parents whose rights have not been voluntarily or involuntarily relinquished. 1981 Op. Att'y Gen. No. U81-5.

Domicile of minor is that of the minor's parents, but this can be altered when usual parental authority and control over minor is ended by voluntary or involuntary relinquishment. 1981 Op. Att'y Gen. No. U81-5.

Marriage license may be issued to minor female only in county of her parents' domicile in absence of certain exceptions. 1981 Op. Att'y Gen. No. U81-5.

Previous marriage of minor female allows change in her domicile.

- Previous marriage of minor female, with or without parents' consent, not only emancipates her from her parents' control, but also allows change in her domicile. 1981 Op. Att'y Gen. No. U81-5.

Probate judge may lawfully perform marriage ceremony in county other than one in which judge is elected and in which judge serves. 1980 Op. Att'y Gen. No. U80-7.

Prohibition on attorneys or clerks performing ceremony.

- Neither attorneys appointed pursuant to O.C.G.A. § 15-9-13(a), nor the clerks of the probate court, may perform marriage ceremonies, in that such power is inherently a personal one of the probate judge pursuant to subsection (c) of O.C.G.A. § 19-3-30. 1988 Op. Att'y Gen. No. U88-22.

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 30, 33 et seq.

C.J.S.

- 55 C.J.S., Marriage, §§ 26, 29, 33, 46.

ALR.

- Validity of solemnized marriage as affected by absence of license required by statute, 61 A.L.R.2d 847.

19-3-30.1. Premarital education; fees; special requirements if marriage applicant is 17 years old.

  1. The premarital education provided for under this Code section shall include at least six hours of instruction involving marital issues, which may include but not be limited to conflict management, communication skills, financial responsibilities, child and parenting responsibilities, and extended family roles. The premarital education shall be completed within 12 months prior to the application for a marriage license and the couple shall undergo the premarital education together, except as provided for in subsection (d) of this Code section. The premarital education shall be performed by:
    1. A professional counselor, social worker, or marriage and family therapist who is licensed pursuant to Chapter 10A of Title 43;
    2. A psychiatrist who is licensed as a physician pursuant to Chapter 34 of Title 43;
    3. A psychologist who is licensed pursuant to Chapter 39 of Title 43; or
    4. An active member of the clergy when in the course of his or her service as clergy or his or her designee, including retired clergy, provided that a designee is trained and skilled in premarital education; provided, further, that any active or retired member of the clergy or his or her designee performing the premarital education for a party who is 17 years of age shall also be a professional counselor, social worker, or marriage and family therapist who is licensed pursuant to Chapter 10A of Title 43.
  2. Each premarital education provider provided for in paragraphs (1) through (4) of subsection (a) of this Code section shall furnish each participant who completes the premarital education under his or her performance a certificate of completion.
  3. If both persons applying for a marriage license are 18 years of age or older and certify on the application for a marriage license that they have successfully completed a qualifying premarital education program, then such persons shall not be charged a fee for a marriage license.
  4. If either person applying for a marriage license is 17 years of age:
    1. No fee shall be charged for the issuance of a marriage license;
    2. A certificate of completion of premarital education by any such person as provided in subsection (b) of this Code section shall be provided to the judge of the probate court. The requirement of this paragraph shall not be waived regardless of whether the persons applying for a marriage license are willing to be charged a fee for the marriage license;
    3. Each person shall undergo the premarital education separately from the other person; and
    4. In addition to the topics provided for under subsection (a) of this Code section, the premarital education shall include instruction on the potential risks of marrying young, including, but not limited to, high divorce rates, increased rates of noncompletion of education, greater likelihood of poverty, medical and mental health problems, and information contained within the fact sheet provided for under Code Section 19-3-41.1, including, but not limited to, information on domestic violence and website and telephone resources for victims of domestic violence, dating violence, sexual assault, stalking, and human trafficking.

(Code 1981, §19-3-30.1, enacted by Ga. L. 2005, p. 1485, § 2/HB 378; Ga. L. 2019, p. 558, § 1-2/HB 228.)

The 2019 amendment, effective July 1, 2019, rewrote this Code section.

19-3-31. Issuance of licenses at satellite courthouses in certain counties.

Notwithstanding any other law, in all counties having a population in excess of 400,000 according to the United States decennial census of 1990 or any future such census or in counties where the county site is located in an unincorporated portion of the county, the judge of the probate court or his or her clerk shall be authorized to issue the marriage licenses provided for by Code Section 19-3-30 and to take and perform any and all other actions prescribed in Code Section 19-3-30 either at the courthouse located at the county site or at any permanent satellite courthouse within the county which has been established and constructed by the governing authority of the county and has been designated by the governing authority of the county as a courthouse annex or by similar designation has been established as an additional courthouse to the courthouse located at the county site.

(Code 1933, § 53-201a, enacted by Ga. L. 1976, p. 684, § 1; Ga. L. 1981, p. 531, § 1; Ga. L. 1982, p. 3, § 19; Ga. L. 1995, p. 567, § 1; Ga. L. 1998, p. 1159, § 5.)

19-3-32. Penalty for improper issuance of license.

If any judge of the probate court or clerk issues a marriage license in violation of subsection (a) of Code Section 19-3-30, the judge or clerk, as the case may be, shall be guilty of a misdemeanor.

(Ga. L. 1956, p. 43, § 2.)

RESEARCH REFERENCES

C.J.S.

- 55 C.J.S., Marriage, § 21.

19-3-33. Application for marriage license; contents; supplement marriage report.

  1. A marriage license shall be issued on written application therefor, made by the persons seeking the license, verified by oath of the applicants. The application shall state that there is no legal impediment to the marriage and shall give the full present name of the proposed husband and the full present name of the proposed wife with their dates of birth, their present addresses, and the names of the father and mother of each, if known. If the names of the father or mother of either are unknown, the application shall so state. The application shall state that the persons seeking the license have or have not completed premarital education pursuant to Code Section 19-3-30.1. If the application states that the applicants seeking issuance of the license have completed premarital education, then the applicants shall submit a signed and dated certificate of completion issued by the premarital education provider.
  2. An application supplement-marriage report shall be prepared in connection with each marriage license. Except for the information in paragraph (3) of this subsection, the application supplement-marriage report shall be completed as a part of each application for a marriage license. The application supplement-marriage report shall state, at a minimum, the following:
    1. The full name, date of birth, and social security number for each applicant;
    2. The number this marriage would be for each applicant; and
    3. After the ceremonial marriage has been performed, the date of the marriage ceremony and the county where the marriage ceremony occurred.

(Ga. L. 1927, p. 224, § 1A; Code 1933, § 53-202; Ga. L. 1958, p. 214, § 1; Ga. L. 1997, p. 1592, § 2; Ga. L. 2005, p. 1485, § 3/HB 378.)

JUDICIAL DECISIONS

Cited in Maryland Cas. Co. v. Teele, 70 Ga. App. 259, 28 S.E.2d 193 (1943).

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, § 30.

C.J.S.

- 55 C.J.S., Marriage, § 26.

ALR.

- Power of attorney to apply for or receive marriage license for another, 135 A.L.R. 800.

19-3-33.1. Use of surname in application for marriage license.

  1. The form for application for marriage licenses shall be designed and printed in such a manner that applicants therefor shall designate the surnames which will be used as their legal surnames after the marriage is consummated. The legal surnames shall be designated as provided in subsection (b) of this Code section.
  2. A spouse may use as a legal surname his or her:
    1. Given surname or, in the event the given surname has been changed as provided in Chapter 12 of this title, the surname so changed;
    2. Surname from a previous marriage;
    3. Spouse's surname; or
    4. Surname as provided in paragraph (1) or (2) of this subsection in conjunction with the surname of the other spouse.

(Code 1933, § 53-202.1, enacted by Ga. L. 1982, p. 950, § 1; Code 1981, §19-3-33.1, enacted by Ga. L. 1982, p. 950, § 2; Ga. L. 1996, p. 373, § 1.)

Law reviews.

- For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982).

19-3-34. Marriage application to be filed; use as evidence; transmission to the state registrar.

  1. Except as provided in subsection (b) of this Code section, the application for a marriage license shall be filed in the office of the judge of the probate court before a marriage license shall be issued and shall remain in the permanent files in the office of the judge. It may be used as evidence in any court of law under the rules of evidence made and provided in similar cases.
  2. The application supplement-marriage report form provided for in Code Section 19-3-33 shall be transmitted to the state registrar pursuant to Code Section 31-10-21. No original or duplicate application supplement-marriage report form need be retained by any official or employee of the probate court beyond the time required for transmission to the state registrar of vital records and confirmation of such transmission and receipt. While in the temporary custody of the probate court, application supplement-marriage report forms shall not be available for public inspection or copying or admissible in any court of law.

(Ga. L. 1927, p. 224, § 1A; Code 1933, § 53-203; Ga. L. 1997, p. 1592, § 3.)

JUDICIAL DECISIONS

Cited in Maryland Cas. Co. v. Teele, 70 Ga. App. 259, 28 S.E.2d 193 (1943); Pritchett v. Ellis, 201 Ga. 809, 41 S.E.2d 402 (1947).

RESEARCH REFERENCES

C.J.S.

- 55 C.J.S., Marriage, § 46.

19-3-35. Issuance of license to applicants otherwise eligible.

When both applicants for a marriage license are eligible to receive that license pursuant to the other provisions of this chapter and that license is otherwise authorized to be issued pursuant to the other provisions of this chapter, that license may be issued immediately and without any waiting period.

(Ga. L. 1927, p. 224, § 1A; Code 1933, § 53-202; Ga. L. 1958, p. 214, § 1; Ga. L. 1965, p. 335, § 3; Ga. L. 1972, p. 193, § 4; Ga. L. 1976, p. 1719, § 2; Ga. L. 1989, p. 605, § 1.)

Editor's notes.

- Ga. L. 1972, p. 193, § 10, not codified by the General Assembly, effective July 1, 1972, provided that the purpose of the Act was to reduce the age of legal majority from 21 years of age to 18 years of age so that all persons, upon reaching the age of 18, would have the rights, privileges, powers, duties, responsibilities, and liabilities previously applicable to persons 21 years of age or over. The section further provided that the Act was not to be construed to have the effect of changing the age from 21 to 18 with respect to any legal instrument or court decree in existence prior to the effective date of the Act when the instrument referred only to "the age of majority" or words of similar import, except that any guardianship of the person or property of a minor under the provisions of Title 49 of the 1933 Code, whether such guardianship was created by court order or decree entered before or after the effective date of the Act or under the will of a testator which was executed after the effective date of the Act, would terminate when the ward for whom such guardianship was created reached 18 years of age.

19-3-35.1. AIDS brochures; listing of HIV test sites; acknowledgment of receipt.

  1. Any term used in this Code section and defined in Code Section 31-22-9.1 shall have the meaning provided for such term in Code Section 31-22-9.1.
  2. The Department of Public Health shall prepare a brochure describing AIDS, HIV, and the dangers, populations at risk, risk behaviors, and prevention measures relating thereto. That department shall also prepare a listing of sites at which confidential and anonymous HIV tests are provided without charge. That department shall further prepare a form for acknowledging that the brochures and listings have been received, as required by subsection (c) of this Code section. The brochures, listings, and forms prepared by the Department of Public Health (formerly known as the Department of Human Resources for these purposes) under this subsection shall be prepared and furnished to the office of each judge of the probate court no later than October 1, 1988.
  3. On and after October 1, 1988, each person who makes application for a marriage license shall receive from the office of the probate judge at the time of the application the AIDS brochure and listing of HIV test sites prepared and furnished pursuant to subsection (b) of this Code section. On and after October 1, 1988, no marriage license shall be issued unless both the proposed husband and the proposed wife sign a form acknowledging that both have received the brochure and listing.

(Code 1981, §19-3-35.1, enacted by Ga. L. 1988, p. 1799, § 5; Ga. L. 2009, p. 453, § 1-16/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Editor's notes.

- Ga. L. 1988, p. 1799, § 1, not codified by the General Assembly, provides: "The General Assembly finds that Acquired Immunodeficiency Syndrome (AIDS) and its causative agent, including Human Immunodeficiency Virus (HIV), pose a grave threat to the health, safety, and welfare of the people of this state. In the absence of any effective vaccination or treatment for this disease, it threatens almost certain death to all who contract it. The disease is largely transmitted through sexual contacts and intravenous drug use, not through casual contact, and, while deadly, is therefore preventable. The key component of the fight against AIDS is education. Through public education and counseling our citizens can learn how the disease is transmitted and, thus, how to protect themselves and prevent its spread. The Department of Human Resources is encouraged to continue its efforts to educate all Georgians about the disease, its causative agent, and its means of transmission. In addition, voluntary testing should be encouraged for anyone who feels at risk of infection. While education, counseling, and voluntary testing are vital to the elimination of this epidemic, other measures are needed to protect the health of our citizens, and it is the intention of the General Assembly to enact such measures in the exercise of its police powers in order to deal with AIDS and HIV infection."

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

19-3-36. Proof of age of applicants.

The judge of the probate court to whom the application for a marriage license is made shall satisfy himself or herself that the provisions set forth in Code Section 19-3-2 regarding age limitations are met. The judge shall require all applicants to furnish the court with documentary evidence of proof of age in the form of a birth certificate, driver's license, baptismal certificate, certificate of birth registration, selective service card, court record, passport, immigration papers, alien papers, citizenship papers, armed forces discharge papers, armed forces identification card, or hospital admission card containing the full name and date of birth. Applicants who have satisfactorily proved that they have reached the age of majority may be issued a marriage license immediately.

(Orig. Code 1863, § 1661; Code 1868, § 1704; Code 1873, § 1705; Code 1882, § 1705; Civil Code 1895, § 2419; Civil Code 1910, § 2938; Ga. L. 1924, p. 53, § 2; Ga. L. 1927, p. 224, § 1; Code 1933, § 53-206; Ga. L. 1965, p. 335, § 6; Ga. L. 1972, p. 193, § 6; Ga. L. 1975, p. 1298, § 1; Ga. L. 1976, p. 1719, § 4; Ga. L. 1979, p. 872, § 2; Ga. L. 2006, p. 141, § 6B/HB 847; Ga. L. 2019, p. 558, § 1-3/HB 228.)

The 2019 amendment, effective July 1, 2019, substituted "The judge shall require all applicants" for "If the judge does not know of his or her own knowledge the age of a party for whom a marriage license is sought, the judge shall require the applicant" at the beginning of the second sentence and deleted the former third sentence, which read: "In the event an applicant does not possess any of the above but appears to the judge to be at least 25 years of age, the applicant, in lieu of furnishing the judge with one of the above, may give an affidavit to the judge stating the applicant's age."

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2006, "or that such limitations are not required by virtue of an order issued pursuant to Code Section 15-11-183" was deleted at the end of the first sentence. There is no Code Section 15-11-183.

Editor's notes.

- Ga. L. 1972, p. 193, § 10, not codified by the General Assembly, effective July 1, 1972, provided that the purpose of the Act was to reduce the age of legal majority from 21 years of age to 18 years of age so that all persons, upon reaching the age of 18, would have the rights, privileges, powers, duties, responsibilities, and liabilities previously applicable to persons 21 years of age or over. The section further provided that the Act was not to be construed to have the effect of changing the age from 21 to 18 with respect to any legal instrument or court decree in existence prior to the effective date of the Act when the instrument referred only to "the age of majority" or words of similar import, except that any guardianship of the person or property of a minor under the provisions of Title 49 of the 1933 Code, whether such guardianship was created by court order or decree entered before or after the effective date of the Act or under the will of a testator which was executed after the effective date of the Act, would terminate when the ward for whom such guardianship was created reached 18 years of age.

Law reviews.

- For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 79 (2006).

JUDICIAL DECISIONS

Cited in Maryland Cas. Co. v. Teele, 70 Ga. App. 259, 28 S.E.2d 193 (1943).

OPINIONS OF THE ATTORNEY GENERAL

Former Code 1933, § 53-206 (see now O.C.G.A. § 19-3-36) took precedence over former Code 1933, § 53-102 (see now O.C.G.A. § 19-3-2) insofar as conflict existed between the two statutes; when documentary proof of an applicant's age was required only a birth or baptismal certificate will suffice. 1975 Op. Att'y Gen. No. U75-5.

Judge may dispense with documentary proof of age only if the judge is certain, within the limits imposed by human observation and experience, that the applicants standing before the judge are of age; accordingly, "of his own knowledge" meant that a judge's observation of or prior personal acquaintance with the parties enabled the judge to conclude as a matter of practical certainty that the parties were of age. 1976 Op. Att'y Gen. No. U76-18.

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 17, 18.

C.J.S.

- 55 C.J.S., Marriage, §§ 11, 26.

19-3-37. Parental consent to marriage of underage applicants; when necessary; how obtained.

Reserved. Repealed by Ga. L. 2019, p. 558, § 1-4/HB 228, effective July 1, 2019.

Editor's notes.

- This Code section was based on Orig. Code 1863, § 1661; Code 1868, § 1704; Code 1873, § 1705; Code 1882, § 1705; Civil Code 1895, § 2419; Civil Code 1910, § 2938; Ga. L. 1924, p. 53, § 2; Ga. L. 1927, p. 224, § 1; Code 1933, § 53-204; Ga. L. 1965, p. 335, § 4; Ga. L. 1967, p. 31, § 1; Ga. L. 1968, p. 382, § 1; Ga. L. 1972, p. 193, § 5; Ga. L. 1976, p. 1719, § 3; Ga. L. 2006, p. 141, § 6C/HB 847; Ga. L. 2016, p. 134, § 3-1/HB 887.

19-3-38. Notification of parents of underage applicants; additional fee.

Reserved. Repealed by Ga. L. 2006, p. 141, § 6D/HB 847, effective July 1, 2006.

Editor's notes.

- This Code section was based on Code 1933, § 53-207, enacted by Ga. L. 1980, p. 438, § 1.

19-3-39. Certification and recordation of marriage after publication of banns.

If the Governor or any former Governor of this state, any judge, city recorder, magistrate, minister, or other authorized person joins in marriage persons whose banns have been published, the person shall certify the fact to the judge of the probate court of the county where the banns were published, who shall record the same in the same book in which marriage licenses are recorded.

(Orig. Code 1863, § 1660; Code 1868, § 1703; Code 1873, § 1704; Code 1882, § 1704; Civil Code 1895, § 2418; Civil Code 1910, § 2937; Code 1933, § 53-209; Ga. L. 1983, p. 884, § 4-1; Ga. L. 2010, p. 394, § 2/SB 238.)

Cross references.

- Further provisions regarding recording of marriage licenses, § 31-10-21.

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, § 35.

C.J.S.

- 55 C.J.S., Marriage, §§ 25, 33.

19-3-40. Blood test for sickle cell disease; information to be provided.

  1. As used in this Code section, the term "blood test for sickle cell disease" means a blood test for sickle cell anemia, sickle cell trait, and other detectable abnormal hemoglobin.
  2. The Department of Public Health shall prepare information for public dissemination on the department's website describing the importance of obtaining a blood test for sickle cell disease and explaining the causes and effects of such disease. Such information shall recommend that each applicant applying for a marriage license obtain a blood test for sickle cell disease prior to obtaining a marriage license. Such information may also be provided as a brochure or other document. The department shall make such information available in electronic format to the probate courts of this state which shall disseminate such information to all persons applying for marriage licenses.

(Code 1981, §19-3-40, enacted by Ga. L. 2009, p. 314, § 1/HB 184; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Editor's notes.

- Former Code Section 19-3-40 was repealed by Ga. L. 2003, p. 895, § 1, effective July 1, 2003. The former Code section pertained to blood tests, license refused to person infected with communicable syphilis, and treatment, and was based on Ga. L. 1949, p. 1054, §§ 1-6, 9; Ga. L. 1951, p. 674, § 1; Ga. L. 1952, p. 217, § 1; Ga. L. 1958, p. 685, § 1; Ga. L. 1972, p. 782, § 1; Ga. L. 1977, p. 737, §§ 1-3; Ga. L. 1978, p. 936, § 1; Ga. L. 1986, p. 982, § 7.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

19-3-41. Department of Public Health marriage manual; distribution; rules and regulations.

  1. The Department of Public Health shall prepare a marriage manual for distribution by the judge of the probate court or his clerk to all applicants for a marriage license. The manual shall include, but shall not be limited to, material on family planning.
  2. The manual provided for in subsection (a) of this Code section shall be issued by the judge of the probate court or his clerk to applicants for a marriage license at the same time the marriage license is issued.
  3. The Department of Public Health shall promulgate rules and regulations to implement this Code section.
  4. In order to be nonsectarian, the manual will include resource referral information for those who might have questions regarding religious beliefs in the areas covered by the marriage manual.

(Code 1933, § 53-201.1, enacted by Ga. L. 1973, p. 879, § 1; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

19-3-41.1. Fact sheet for distribution by premarital education providers; requirements; regulations.

  1. The Department of Public Health shall prepare a fact sheet for public availability and for distribution by premarital education providers. The Department of Public Health shall make such fact sheet available in electronic form, including, but not limited to, a version that can be legibly printed in a poster size of up to 24 by 36 inches.
  2. The fact sheet provided for in subsection (a) of this Code section shall:
    1. Include basic information about the legal rights and responsibilities of parties to a marriage as well as information about dating violence, sexual assault, stalking, domestic violence, and human trafficking, including, but not limited to, the warning signs and behaviors of an abusive partner and the dynamics of domestic violence and other forms of coercive control. Such fact sheet shall also include basic information about the rights of victims of such violence and the resources available to them, including, but not limited to, website and telephone resources, legal assistance, confidential shelters, and civil protective orders; and
    2. Be developed in partnership with the Georgia Commission on Family Violence and any other agencies in the discretion of the Department of Public Health that serve survivors of dating violence, sexual assault, and human trafficking.
  3. The Department of Public Health shall promulgate rules and regulations to implement this Code section.

(Code 1981, §19-3-41.1, enacted by Ga. L. 2019, p. 558, § 1-5/HB 228.)

Effective date.

- This Code section became effective July 1, 2019.

19-3-42. Effect on marriage due to the lack of authority in person officiating.

A marriage which is valid in other respects and supposed by the parties to be valid shall not be affected by want of authority in the minister, Governor or any former Governor of this state, judge, city recorder, magistrate, or other person to solemnize the same; nor shall such objection be heard from one party who has fraudulently induced the other to believe that the marriage was legal.

(Orig. Code 1863, § 1667; Code 1868, § 1708; Code 1873, § 1709; Code 1882, § 1709; Civil Code 1895, § 2423; Civil Code 1910, § 2492; Code 1933, § 53-213; Ga. L. 1983, p. 884, § 4-1; Ga. L. 2010, p. 394, § 3/SB 238.)

Law reviews.

- For comment, "By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage," see 63 Emory L.J. 979 (2014).

JUDICIAL DECISIONS

Cited in White v. White, 41 Ga. App. 394, 153 S.E. 203 (1930).

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 33, 34.

C.J.S.

- 55 C.J.S., Marriage, §§ 28, 29.

ALR.

- Validity of marriage as affected by lack of legal authority of person solemnizing it, 13 A.L.R.4th 1323.

19-3-43. Marriage in another state; effect in this state.

  1. All marriages solemnized in another state by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state. Parties residing in this state may not evade any of the laws of this state as to marriage, including, but not limited to, the age limitations provided for in Code Section 19-3-2, by going into another state for the solemnization of the marriage ceremony.
  2. Notwithstanding subsection (a) of this Code section, the age limitations provided for in Code Section 19-3-2 shall not apply to a lawful marriage solemnized in another state or country prior to either party residing in this state.

(Orig. Code 1863, § 1668; Code 1868, § 1709; Code 1873, § 1710; Code 1882, § 1710; Civil Code 1895, § 2424; Civil Code 1910, § 2943; Code 1933, § 53-214; Ga. L. 2019, p. 558, § 1-6/HB 228.)

The 2019 amendment, effective July 1, 2019, designated the existing provisions as subsection (a); inserted ", including, but not limited to, the age limitations provided for in Code Section 19-3-2," in the middle of the second sentence of subsection (a); and added subsection (b).

JUDICIAL DECISIONS

Valid marriage in another state is valid here, although one party labors under disability in this state, provided the parties acted in good faith and did not go to the foreign state for the mere purpose of evading the provisions of Georgia law. Brown v. Sheridan, 83 Ga. App. 725, 64 S.E.2d 636 (1951); Bituminous Cas. Corp. v. Wacht, 84 Ga. App. 602, 66 S.E.2d 757 (1951).

Effect of marriage contrary to public policy of state.

- While the lex loci, as a general rule, governs questions of marriage, it is subject, in practice, to the great controlling idea, that it will not be enforced, by comity, if it involves anything immoral, contrary to general policy, or violative of the conscience of the state called on to give it effect. Eubanks v. Banks, 34 Ga. 407 (1866).

Cited in Smith v. Smith, 84 Ga. 440, 11 S.E. 496 (1890); Georgia v. Tutty, 41 F. 753 (S.D. Ga. 1890); Rainey v. Moon, 187 Ga. 712, 2 S.E.2d 405 (1939); Montgomery v. Gable, 61 Ga. App. 859, 7 S.E.2d 426 (1940); Perry v. Perry, 173 Ga. App. 247, 326 S.E.2d 481 (1985).

OPINIONS OF THE ATTORNEY GENERAL

If alleged marriage is valid when performed, it is valid in this state, regardless of the fact that the license was invalid where the ceremony was performed or that no license at all was taken out. 1965-66 Op. Att'y Gen. No. 66-240.

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, § 62 et seq.

C.J.S.

- 55 C.J.S., Marriage, § 3.

ALR.

- Recognition of foreign marriage as affected by the conditions or manner of dissolving it under the foreign law, or the toleration of polygamous marriages, 74 A.L.R. 1533.

Recognition of foreign marriage as affected by policy in respect of incestuous marriages, 117 A.L.R. 186.

Public policy of forum against recognition of marriage valid (or voidable only) by the law of the place where it was celebrated, as affected by fact that neither of the parties was domiciled at the forum at the time of the marriage, 127 A.L.R. 437.

Conflict of laws as to validity of marriage attacked because of nonage, 71 A.L.R.2d 687.

Recognition by forum state of marriage which, although invalid where contracted, would have been valid if contracted within forum state, 82 A.L.R.3d 1240.

19-3-44. Return of license to parties.

  1. The judge of the probate court of each county shall return to the parties to a marriage the license and the return thereon after the same have been recorded as provided by law. This subsection shall be applicable to all marriage licenses and the returns thereon recorded after March 25, 1958.
  2. Upon request of either of the parties, the judge of the probate court of each county is authorized, as to marriage licenses with the returns thereon recorded prior to March 25, 1958, to return the license:
    1. To the parties to the marriage if the marriage is not dissolved and the parties are not living in a state of separation;
    2. To the surviving party to the marriage if one of the parties is deceased; or
    3. To the party first requesting the license if the parties are divorced.

(Ga. L. 1958, p. 331, §§ 1, 2.)

Cross references.

- Maintenance of records of marriage licenses generally, § 31-10-21.

19-3-45. Actions for improper issuance of marriage license; attorney's fee and court costs; disposition of balance of recovery.

Any judge of the probate court who by himself or his clerk knowingly grants a license without the required consent or without proper precaution in inquiring into the question of minority shall forfeit the sum of $500.00 for every such act, to be recovered at the action of the father or mother, if living, and, if not, at the action of the guardian or legal representative of either of such contracting parties, provided that under no circumstances shall more than one action be maintained by the father or mother, guardian, or legal representative of either of such contracting parties in connection with any one marriage; and provided, further, that no such action shall be brought prior to the expiration of 60 days from the date that the marriage becomes public and that no action under this Code section shall be maintained after the expiration of 12 months from the date the marriage becomes public. A recovery shall be had against the offending judge and his bondsmen. From the recovery a reasonable attorney's fee, to be fixed by the presiding judge trying the case, shall be paid to the attorney representing the person bringing the action and, after the payment of court costs, one-third of the remainder of the recovery shall be paid to the person bringing the action; and the remaining two-thirds shall be paid to the county educational fund of the county of the judge's residence. A judge who in good faith destroys physician's certificates of pregnancy and all records of the certificates under his control in accordance with the provisions of law shall not be prosecuted under this Code section for failure to require such a certificate from the applicants for a marriage license, if a birth certificate is issued for a child born to the applicants within the period of gestation after the marriage license was issued.

(Orig. Code 1863, § 1661; Code 1868, § 1704; Code 1873, § 1705; Code 1882, § 1705; Civil Code 1895, § 2419; Civil Code 1910, § 2938; Ga. L. 1924, p. 53, § 2; Ga. L. 1927, p. 224, § 1; Code 1933, § 53-208; Ga. L. 1939, p. 219, § 1; Ga. L. 1939, p. 221, § 1; Ga. L. 1965, p. 335, § 8; Ga. L. 1972, p. 193, § 7; Ga. L. 1976, p. 1719, § 5; Ga. L. 1989, p. 605, § 2.)

Editor's notes.

- Ga. L. 1972, p. 193, § 10, not codified by the General Assembly, effective July 1, 1972, provided that the purpose of the Act was to reduce the age of legal majority from 21 years of age to 18 years of age so that all persons, upon reaching the age of 18, would have the rights, privileges, powers, duties, responsibilities, and liabilities previously applicable to persons 21 years of age or over. The section further provided that the Act was not to be construed to have the effect of changing the age from 21 to 18 with respect to any legal instrument or court decree in existence prior to the effective date of the Act when the instrument referred only to "the age of majority" or words of similar import, except that any guardianship of the person or property of a minor under the provisions of Title 49 of the 1933 Code, whether such guardianship was created by court order or decree entered before or after the effective date of the Act or under the will of a testator which was executed after the effective date of the Act, would terminate when the ward for whom such guardianship was created reached 18 years of age.

JUDICIAL DECISIONS

Applicability of 1939 amendments to this section.

- Amendments of 1939 to this statute were intended to apply to bonds previously executed, and as thus construed they are not unconstitutional as impairing the obligation of contracts. If the bond contemplated such possible increase in liability, then the later statutes would not impair its obligation. National Sur. Corp. v. Gatlin, 192 Ga. 293, 15 S.E.2d 180 (1941).

Cited in Maryland Cas. Co. v. Teele, 70 Ga. App. 259, 28 S.E.2d 193 (1943).

RESEARCH REFERENCES

C.J.S.

- 55 C.J.S., Marriage, § 21.

ALR.

- Recovery of cumulative statutory penalties, 71 A.L.R.2d 986.

19-3-46. Forfeiture for officiating at marriage without license or banns.

The Governor or any former Governor of this state, any judge, city recorder, magistrate, minister, or other person authorized to perform the marriage ceremony who joins in marriage any couple without a license or the publication of banns shall forfeit the sum of $500.00, to be recovered and appropriated as set forth in Code Section 19-3-45.

(Orig. Code 1863, § 1662; Code 1868, § 1705; Code 1873, § 1706; Code 1882, § 1706; Civil Code 1895, § 2420; Civil Code 1910, § 2939; Code 1933, § 53-210; Ga. L. 1983, p. 884, § 4-1; Ga. L. 2010, p. 394, § 4/SB 238.)

Law reviews.

- For comment, "By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage," see 63 Emory L. J. 979 (2014).

RESEARCH REFERENCES

C.J.S.

- 55 C.J.S., Marriage, § 30.

ALR.

- Recovery of cumulative statutory penalties, 71 A.L.R.2d 986.

19-3-47. Penalty for filing false information in application for license.

Any person who willfully furnishes false information in connection with the application and issuance of any marriage license, either in the application for the license, in furnishing proof of age, or in the physician's certificate as to pregnancy, shall be guilty of a misdemeanor.

(Code 1933, § 53-9912, enacted by Ga. L. 1965, p. 335, § 9.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 31, 32.

C.J.S.

- 55 C.J.S., Marriage, § 26.

ALR.

- Perjury as predicated upon statements upon application for marriage license, 101 A.L.R. 1263.

19-3-48. Penalty for officiating at illegal marriage ceremony.

If the Governor or any former Governor of this state, any judge, city recorder, magistrate, minister, or other person authorized to perform the marriage ceremony joins together in matrimony any man and woman without a license or the publication of banns or if the person performing the marriage ceremony knows of any disability of either of the parties which would render a contract of marriage improper and illegal, that person shall be guilty of a misdemeanor.

(Cobb's 1851 Digest, pp. 818, 819; Code 1863, § 4441; Code 1868, § 4482; Code 1873, § 4566; Code 1882, § 4566; Penal Code 1895, § 637; Penal Code 1910, § 677; Code 1933, § 53-9901; Ga. L. 1982, p. 3, § 19; Ga. L. 1983, p. 884, § 4-1; Ga. L. 2010, p. 394, § 5/SB 238.)

Law reviews.

- For comment, "By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage," see 63 Emory L. J. 979 (2014).

JUDICIAL DECISIONS

Officiant's knowledge as to foreign residence did not violate section.

- Fact that the license was issued by the ordinary (now probate judge) of a county in which the female did not reside would not in itself render the marriage illegal, and therefore the knowledge of this fact by the marrying official would not constitute a violation of law. Minshew v. State, 25 Ga. App. 240, 102 S.E. 906 (1920).

RESEARCH REFERENCES

C.J.S.

- 55 C.J.S., Marriage, § 30.

19-3-49. Acceptance by judges of tips, consideration, or gratuities.

In addition to any compensation otherwise provided by law, any judge who performs a marriage ceremony at any time, except normal office hours, may receive and retain as personal income any tip, consideration, or gratuity voluntarily given to such judge for performing such marriage ceremony.

(Code 1981, §19-3-49, enacted by Ga. L. 1992, p. 1488, § 1.)

ARTICLE 3 ANTENUPTIAL AGREEMENTS, MARRIAGE CONTRACTS, AND POSTNUPTIAL SETTLEMENTS

Law reviews.

- For annual survey on domestic relations, see 71 Mercer L. Rev. 83 (2019).

RESEARCH REFERENCES

Transfer of Assets in Fraud of Spouse's Antenuptial Contractual Rights, 14 POF2d 755.

ALR.

- Necessity, in action against husband for necessaries furnished wife, of proving husband's failure to provide necessities, 19 A.L.R.4th 432.

Modern status of views as to validity of premarital agreements contemplating divorce or separation, 53 A.L.R.4th 22.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstances surrounding execution - modern status, 53 A.L.R.4th 85.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms - modern status, 53 A.L.R.4th 161.

Antenuptial contracts: parties' behavior during marriage as abandonment, estoppel, or waiver regarding contractual rights, 56 A.L.R.4th 998.

19-3-60. Definition; marriage as valuable consideration.

  1. As used in this article, the term "antenuptial agreement" means a contract entered into prior to a marriage that determines property rights or contemplates a future settlement to one spouse as to a future resolution of issues, including, but not limited to, year's support, spousal support, and equitable division of property.
  2. Marriage is a valuable consideration; and a spouse stands, as to property of the other spouse settled upon a spouse by marriage contract, as do other purchasers for value, provided that by the contract a spouse shall not incapacitate himself or herself from paying his or her existing just debts.

(Orig. Code 1863, § 1731; Code 1868, § 1772; Code 1873, § 1782; Code 1882, § 1782; Civil Code 1895, § 2487; Civil Code 1910, § 3006; Code 1933, § 53-403; Ga. L. 2018, p. 155, § 1-1/HB 190.)

The 2018 amendment, effective July 1, 2018, added subsection (a); designated the previously existing provisions of this Code section as subsection (b), and, in subsection (b), inserted "or herself" and "or her" near the end.

Cross references.

- Consideration generally, § 13-3-40 et seq.

Law reviews.

- For annual survey on domestic relations, see 70 Mercer L. Rev. 81 (2018).

JUDICIAL DECISIONS

Marriage is valuable consideration and innocent purchaser on such consideration will be protected even against subsequent bona fide purchaser. Nally v. Nally, 74 Ga. 669 (1885).

Marriage is sufficient consideration to support deed, and if the woman is guilty of no fraud, and enters into the settlement without notice of a debt, due from the man to a third party, she will be protected in the property conveyed by the settlement, against that debt. Marshall v. Morris, 16 Ga. 368 (1854); Sheridan v. Sheridan, 153 Ga. 262, 111 S.E. 906 (1922).

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Husband and Wife, § 106.

C.J.S.

- 41 C.J.S., Husband and Wife, §§ 93 et seq., 111.

ALR.

- Promise to marry as consideration for note or other executory obligation made some time thereafter, 63 A.L.R. 1184.

What constitutes promise made in or upon consideration of marriage within statute of frauds, 75 A.L.R.2d 633.

Action based upon reconveyance, upon promise of reconciliation, of property realized from divorce award or settlement, 99 A.L.R.3d 1248.

Validity, construction, and enforcement of oral antenuptial agreements, 15 A.L.R.7th 2.

19-3-61. Effect of minority of party.

The minority of either party to an antenuptial agreement or to a marriage contract shall not invalidate it, so long as the party is of lawful age to contract marriage.

(Orig. Code 1863, § 1734; Code 1868, § 1775; Code 1873, § 1784; Code 1882, § 1784; Civil Code 1895, § 2489; Civil Code 1910, § 3008; Code 1933, § 53-402; Ga. L. 2018, p. 155, § 1-1/HB 190.)

The 2018 amendment, effective July 1, 2018, substituted "an antenuptial agreement" for "marriage articles, as defined in subsection (a) of Code Section 19-3-62," in this Code section.

Law reviews.

- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, § 16.

C.J.S.

- 41 C.J.S., Husband and Wife, § 120 et seq.

19-3-62. (See Editor's notes.) Requirements and construction of antenuptial agreements.

An antenuptial agreement shall be in writing, signed by both parties who agree to be bound, and attested by at least two witnesses, one of whom shall be a notary public. Antenuptial agreements shall be liberally construed to carry into effect the intention of the parties, and no want of form or technical expression shall invalidate such agreements.

(Orig. Code 1863, § 1724; Code 1868, § 1765; Code 1873, § 1775; Code 1882, § 1775; Civil Code 1895, § 2480; Civil Code 1910, § 2999; Code 1933, § 53-401; Ga. L. 2018, p. 155, § 1-1/HB 190.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of this Code section for the former provisions, which read: "(a) As used in this article, the term 'marriage articles' means any antenuptial agreement between the parties to a marriage contemplating a future settlement upon one spouse. Marriage articles, whether by parol or in writing, may be executed and enforced by a court of equity at the instance of the spouse at any time during the life of the other spouse, so long as the rights of third persons, purchasers, or creditors, in good faith and without notice, are not affected thereby.

"(b) An agreement perfect in itself which needs no future conveyance to effect its purposes is an executed contract and does not come under the definition of marriage articles."

Cross references.

- Effect of marriage on debt created prior to ceremony, § 13-4-82.

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

Law reviews.

- For article, "Parentage Prenups and Midnups," see 31 Ga. St. U.L. Rev. 343 (2015). For annual survey on domestic relations, see 70 Mercer L. Rev. 81 (2018).

JUDICIAL DECISIONS

Equity has jurisdiction to set aside marriage settlements. Gefken v. Graef, 77 Ga. 340 (1886).

Husband cannot alter antenuptial agreement by postnuptial deed. Maxwell v. Hoppie, 70 Ga. 152 (1883).

Final and complete settlement.

- Prenuptial agreement between decedent husband and wife, wherein the wife agreed not to assert any claim on the husband's estate, constituted a final and complete settlement which the mother and sister of the decedent had standing to enforce. Sieg v. Sieg, 265 Ga. 384, 455 S.E.2d 830 (1995).

Requirement of attestation by two witnesses.

- In a divorce case in which a wife appealed the trial court's denial of the wife's motion for partial summary judgment on her claim that the antenuptial agreement was unenforceable, the antenuptial agreement was a marriage contract pursuant to O.C.G.A. § 19-3-62(b), and the agreement was unenforceable since the agreement had only been signed by one witness, and O.C.G.A. § 19-3-63 required that every marriage contract in writing, made in contemplation of marriage, must be attested by at least two witnesses. Sullivan v. Sullivan, 286 Ga. 53, 684 S.E.2d 861 (2009).

Trial court did not abuse discretion in setting aside agreement.

- Because the evidence supported a finding that one spouse failed to make a full and fair disclosure of assets, income, and liabilities to the other spouse prior to the execution of an antenuptial agreement, hiding specific facts of the spouse's true financial status, the trial court did not abuse the court's discretion in setting the agreement aside. Blige v. Blige, 283 Ga. 65, 656 S.E.2d 822 (2008).

Cited in Acree v. Acree, 201 Ga. 359, 40 S.E.2d 54 (1946); Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 (1961); Wilcox v. Wilcox, 225 Ga. 472, 169 S.E.2d 819 (1969).

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Husband and Wife, §§ 81 et seq., 107, 108, 113, 123.

C.J.S.

- 41 C.J.S., Husband and Wife, §§ 58, 59, 93, 94, 111 et seq., 118, 119, 127, 136, 138, 140 et seq.

ALR.

- Applicability of succession tax law to antenuptial contract, 44 A.L.R. 1475.

Validity of postnuptial agreement releasing or waiving rights of surviving spouse on death of other spouse, 49 A.L.R. 116.

Agreement not in contemplation of divorce for release of wife's right to support as contrary to public policy, 50 A.L.R. 351; 120 A.L.R. 1334.

Rule regarding revocation of will by marriage as affected by antenuptial agreement or settlement, 92 A.L.R. 1010.

Spouse's right to take under other spouse's will as affected by antenuptial or postnuptial agreement or property settlement, 53 A.L.R.2d 475.

Declaratory judgment, during lifetime of spouses, as to construction of antenuptial agreement dealing with property rights of survivor, 80 A.L.R.2d 941.

19-3-63. Construction of marriage contract; attestation.

Every marriage contract in writing, made in contemplation of marriage, shall be liberally construed to carry into effect the intention of the parties, and no want of form or technical expression shall invalidate the same. Such marriage contract shall be in writing, signed by both parties who agree to be bound, and attested by at least two witnesses, one of whom shall be a notary public.

(Orig. Code 1863, § 1726; Code 1868, § 1767; Code 1873, § 1777; Code 1882, § 1777; Civil Code 1895, § 2482; Civil Code 1910, § 3001; Code 1933, § 53-407; Ga. L. 2018, p. 155, § 1-1/HB 190.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of the second sentence of this Code section for the former provisions, which read: "The contract must be attested by at least two witnesses."

History of section.

- The language of this Code section is derived in part from the decisions in Blake v. Irwin, 3 Ga. 367 (1847) and Lafitte v. Lawton, 25 Ga. 305 (1858).

Law reviews.

- For annual survey of law on domestic relations, see 62 Mercer L. Rev. 105 (2010). For article, "Parentage Prenups and Midnups," see 31 Ga. St. U.L. Rev. 343 (2015).

JUDICIAL DECISIONS

Children provided for in settlement, when no words indicate different import are presumed children of marriage which gives occasion to the settlement. Knorr v. Raymond, 73 Ga. 749 (1884).

Requirement for two signatures enforced.

- In a divorce case in which a wife appealed the trial court's denial of the wife's motion for partial summary judgment on her claim that the antenuptial agreement was unenforceable, the antenuptial agreement was a marriage contract pursuant to O.C.G.A. § 19-3-62(b), and the agreement was unenforceable since the agreement had only been signed by one witness, and O.C.G.A. § 19-3-63 required that every marriage contract in writing, made in contemplation of marriage, must be attested by at least two witnesses. Sullivan v. Sullivan, 286 Ga. 53, 684 S.E.2d 861 (2009).

Parties' premarital agreement, viewed as a whole, was a marriage contract made in contemplation of marriage, not a prenuptial agreement made in anticipation of divorce, and the trial court therefore correctly denied enforcement of the agreement due to noncompliance with the attestation requirement of O.C.G.A. § 19-3-63. Fox v. Fox, 291 Ga. 492, 731 S.E.2d 676 (2012).

Attendant and surrounding circumstances may always be resorted to, and proof of the local usage or understanding of words is admissible to arrive at the meaning intended by the parties. Brown v. Ransey, 74 Ga. 210 (1884).

Misrepresentation or nondisclosure of material fact.

- Husband's argument that an antenuptial agreement contained a severability clause and that, under O.C.G.A. § 13-1-8(a), the failure to abide by the portion of the agreement concerning attachment of lists showing property owned or held did not void the entire agreement was without merit; the trial court was not bound by the language of the agreement as to severability, but the question was whether there was a misrepresentation or nondisclosure of a material fact. Alexander v. Alexander, 279 Ga. 116, 610 S.E.2d 48 (2005).

Intention of parties must be carried out even though court has to disregard rules of grammatical construction to effectuate the intent. Ardis v. Printup, 39 Ga. 648 (1869); Brown v. Ransey, 74 Ga. 210 (1884).

Use of void antenuptial agreement.

- Trial court committed reversible error by permitting testimony as to the contents of the parties antenuptial agreement into the final decree of divorce because that agreement had been previously ruled void and unenforceable, and the existence of the agreement and its contents were not to be considered by the fact-finder; hence, the matter was remanded for a new trial. Chubbuck v. Lake, 281 Ga. 218, 635 S.E.2d 764 (2006).

Because a prenuptial agreement addressing alimony issues was not an agreement made in contemplation of marriage, the trial court erred in ruling that O.C.G.A. § 19-3-63 applied; however, the criteria in Scherer v. Scherer, 249 Ga. 635 (1982) was satisfied by the disclosure of the husband's assets. Dove v. Dove, 285 Ga. 647, 680 S.E.2d 839 (2009).

Contract made in contemplation of divorce, not marriage.

- Trial court did not did not err in upholding the validity of an antenuptial agreement because the agreement was not subject to the dual attestation requirement of O.C.G.A. § 19-3-63 when it was a contract made in contemplation of divorce, not a contract made in contemplation of marriage; the antenuptial agreement addressed alimony, and it referred explicitly to the possibility of divorce, explaining that the parties wanted the agreement to govern in that event. Lawrence v. Lawrence, 286 Ga. 309, 687 S.E.2d 421 (2009).

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Husband and Wife, §§ 90, 103 et seq.

C.J.S.

- 41 C.J.S., Husband and Wife, §§ 128, 129.

ALR.

- Declaratory judgment, during lifetime of spouses, as to construction of antenuptial agreement dealing with property rights of survivor, 80 A.L.R.2d 941.

Modern status of views as to validity of premarital agreements contemplating divorce and separation, 53 A.L.R.4th 22.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstance surrounding execution - modern status, 53 A.L.R.4th 85.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms - modern status, 53 A.L.R.4th 161.

Failure to disclose extent or value of property owned as ground for avoiding premarital contract, 3 A.L.R.5th 394.

Validity of postnuptial agreements in contemplation of spouse's death, 87 A.L.R.6th 495.

19-3-64. Voluntary execution of antenuptial agreement; conveyance of property during marriage.

A person may voluntarily execute an antenuptial agreement, or he or she may at any time during the marriage, either indirectly through trustees or directly to his or her spouse, convey any property to which he or she has title, subject to the rights of prior purchasers or creditors without notice.

(Orig. Code 1863, § 1725; Code 1868, § 1766; Code 1873, § 1776; Code 1882, § 1776; Civil Code 1895, § 2481; Civil Code 1910, § 3000; Code 1933, § 53-404; Ga. L. 2018, p. 155, § 1-1/HB 190.)

The 2018 amendment, effective July 1, 2018, in this Code section, substituted "person may voluntarily execute an antenuptial agreement," for "spouse may voluntarily execute an agreement described in Code Section 19-3-62", twice inserted "or she", and inserted "or her".

History of section.

- The language of this Code section is derived in part from the decisions in Blake v. Irwin, 3 Ga. 345 (1847) and Lafitte v. Lawton, 25 Ga. 305 (1858).

RESEARCH REFERENCES

C.J.S.

- 41 C.J.S., Husband and Wife, §§ 144, 145.

ALR.

- Conveyance of interest in community property by one spouse to other, 37 A.L.R. 282.

Action for tortious interference with bequest as precluded by will contest remedy, 18 A.L.R.5th 211.

JUDICIAL DECISIONS

Property of bankruptcy estate.

- Since the Chapter 7 debtor pre-petition executed a deed conveying the debtor's interest in property to the debtor's spouse as part of the parties' settlement agreement before a divorce proceeding was filed, the debtor had no interest in the property on the bankruptcy petition date because the property was transferred pursuant to the deed and not pursuant to the settlement agreement. In re Randolph, 546 Bankr. 474 (Bankr. N.D. Ga. 2016).

Trial court did not abuse discretion in setting aside agreement.

- Because the evidence supported a finding that one spouse failed to make a full and fair disclosure of assets, income, and liabilities to the other spouse prior to the execution of an antenuptial agreement, hiding specific facts of the spouse's true financial status, the trial court did not abuse the court's discretion in setting the agreement aside. Blige v. Blige, 283 Ga. 65, 656 S.E.2d 822 (2008).

19-3-65. Powers of superior court judge in appointing and removing trustees and protecting trust estate.

The judge of the superior court of the county of a spouse's domicile may at any time, upon petition, exercise equitable powers in appointing, removing, or substituting trustees or in granting any order for the protection of the trust estate, exercising a wise discretion as to the terms on which the appointment shall be made or on which the order shall be granted.

(Orig. Code 1863, § 1729; Code 1868, § 1770; Code 1873, § 1780; Code 1882, § 1780; Civil Code 1895, § 2485; Civil Code 1910, § 3004; Code 1933, § 53-405; Ga. L. 2018, p. 155, § 1-1/HB 190.)

The 2018 amendment, effective July 1, 2018, deleted the former second sentence, which read: "The proceeding in each case shall be transmitted to the clerk of the superior court, to be recorded in the book of the minutes of the court."

JUDICIAL DECISIONS

Removal of trustees.

- Former Code 1933, § 53-405 (see now O.C.G.A. § 19-3-65) does not authorize filing action to remove trustees in any county other than county of trustees' residence. If that section is capable of being otherwise construed, it is in direct conflict with Ga. Const. 1976, Art. I, Sec. II, Para. VIII and Art. XI, Sec. I, Para I (see now Ga. Const. 1983, Art. I, Sec. II, Para. V) and must yield to the Constitution which is the paramount law. First Nat'l Bank v. Rowley, 224 Ga. 440, 162 S.E.2d 294 (1968).

RESEARCH REFERENCES

ALR.

- Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation, 96 A.L.R.3d 1102.

19-3-66. Enforcement of marriage contracts, postnuptial settlements, and antenuptial agreements.

  1. Marriage contracts and postnuptial settlements shall be enforced at the instance of all persons in whose favor there are limitations of the estate.
  2. Antenuptial agreements may be enforced by a court of equity at the instance of:
    1. The parties to the marriage; or
    2. The offspring of the marriage and their heirs at any time after the death of a spouse; provided, however, that when enforced at the instance of such offspring and their heirs, the court may enforce in favor of other persons.

(Orig. Code 1863, § 1730; Code 1868, § 1771; Code 1873, § 1781; Code 1882, § 1781; Civil Code 1895, § 2486; Civil Code 1910, § 3005; Code 1933, § 53-406; Ga. L. 2018, p. 155, § 1-1/HB 190.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of this Code section for the former provisions, which read: "Marriage contracts and postnuptial settlements shall be enforced at the instance of all persons in whose favor there are limitations of the estate. Marriage articles, as defined in subsection (a) of Code Section 19-3-62, shall be executed only at the instance of the parties to the contract and the offspring of the marriage and their heirs; but, when executed at their instance, the court may execute also in favor of other persons and volunteers."

Law reviews.

- For article, "Parentage Prenups and Midnups," see 31 Ga. St. U.L. Rev. 343 (2015).

JUDICIAL DECISIONS

Interested parties to action construing contract.

- When the construction of a doubtful marriage settlement is sought it is proper to make all persons, who may have an interest under any possible construction of the instrument, parties. Carswell v. Schley, 56 Ga. 101 (1876).

Parties within scope of marriage settlements.

- Those having natural claims upon the parties, such as the wife and offspring, and those claiming under or through them, alone come within the scope of the marriage consideration. The fact that collaterals are first mentioned in the limitations of the articles does not bring them within the reach and influence of the agreement. Merritt v. Scott, 6 Ga. 563 (1849).

Prenuptial agreement between decedent husband and wife, wherein the wife agreed not to assert any claim on the husband's estate, constituted a final and complete settlement which the mother and sister of the decedent had standing to enforce. Sieg v. Sieg, 265 Ga. 384, 455 S.E.2d 830 (1995).

Reformation.

- Persons, though provided for in a marriage settlement, if they are not parties to it, nor heirs at law of parties thereto, and are not embraced within the scope of the marriage consideration, cannot have it reformed in a court of chancery. Merritt v. Scott, 6 Ga. 563 (1849); Cook v. Walker, 21 Ga. 370 (1857); Cartledge v. Cutliff, 29 Ga. 758 (1859).

Changes to agreement.

- Final version of the settlement agreement adopted by the trial court over the objections of the defendant included several provisions either not included in the original or different than those initially agreed upon; those changes and additions to the parties agreement rendered the trial court's adoption of the subsequently drafted final version error. DeGarmo v. DeGarmo, 269 Ga. 480, 499 S.E.2d 317 (1998).

Cited in Ferrill v. Perryman, 34 Ga. 576 (1866).

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Husband and Wife, § 130.

C.J.S.

- 41 C.J.S., Husband and Wife, §§ 111 et seq., 136.

ALR.

- Divorce or judicial separation as affecting marriage settlement, 95 A.L.R. 1469.

Setting aside antenuptial contract or marriage settlement on ground of failure of spouse to make proper disclosure of property owned, 27 A.L.R.2d 883.

Declaratory judgment, during lifetime of spouses, as to construction of antenuptial agreement dealing with property rights of survivor, 80 A.L.R.2d 941.

Noncompliance with statutory requirements concerning form of execution or acknowledgment as affecting validity or enforceability of written antenuptial agreement, 16 A.L.R.3d 370.

Enforcement of antenuptial contract or settlement conditioned upon marriage, where marriage was subsequently declared void, 46 A.L.R.3d 1403.

Separation agreements: enforceability of provision affecting property rights upon death of one party prior to final judgment of divorce, 67 A.L.R.4th 237.

Failure to disclose extent or value of property owned as ground for avoiding premarital contract, 3 A.L.R.5th 394.

Validity of postnuptial agreements in contemplation of divorce, 77 A.L.R.6th 293.

Validity of postnuptial agreements in contemplation of spouse's death, 87 A.L.R.6th 495.

19-3-67. Recordation of marriage contracts and voluntary settlements; effect of failure to record.

Repealed by Ga. L. 2018, p. 155, § 1-1/HB 190, effective July 1, 2018.

Editor's notes.

- This Code section was based on Laws 1847, Cobb's 1851 Digest, p. 180; Code 1863, § 1727; Code 1868, § 1768; Code 1873, § 1778; Code 1882, § 1778; Civil Code 1895, § 2483; Civil Code 1910, § 3002; Code 1933, § 53-408.

19-3-68. Application for order compelling recordation; effect of application; liability of trustee refusing to record.

Repealed by Ga. L. 2018, p. 155, § 1-1/HB 190, effective July 1, 2018.

Editor's notes.

- This Code section was based on Orig. Code 1863, § 1728; Code 1868, § 1769; Code 1873, § 1779; Code 1882, § 1779; Civil Code 1895, § 2484; Civil Code 1910, § 3003; Code 1933, § 53-409.

CHAPTER 4 ANNULMENT OF MARRIAGE

Cross references.

- Recording of marriage annulments in vital records, § 31-10-22.

19-4-1. When annulments may be granted.

Annulments of marriages declared void by law may be granted by the superior court, except that annulments may not be granted in instances where children are born or are to be born as a result of the marriage.

(Ga. L. 1952, p. 149, § 1.)

Law reviews.

- For article, "Annulment of Marriage in Georgia," see 5 Ga. B.J. 22 (1942). For note, "Annulment in Georgia: A Product of Judicial Restraint and Legislative Confusion," see 14 Ga. L. Rev. 81 (1979). For comment on Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546 (1965), see 3 Ga. St. B.J. 219 (1966). For comment which compares this section with § 19-3-2, see 21 Mercer L. Rev. 465 (1970).

JUDICIAL DECISIONS

Purpose of section.

- Purpose of statute to uphold the interest and welfare of children is manifested in the provisions insuring their legitimacy, prohibiting annulment, and thus requiring divorce to dissolve such marriages. Riddle v. Riddle, 240 Ga. 515, 241 S.E.2d 214 (1978).

O.C.G.A. § 19-4-1 was promulgated for purpose of protecting children of an otherwise void marriage, in other words, this statute, by requiring parties to an otherwise void marriage to seek a divorce rather than an annulment, prevents those parties from bastardizing children which are a product of the marriage. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

Section provides exception to common-law rule.

- Georgia legislature, in promulgating O.C.G.A. § 19-4-1, carved out an exception to the common-law rule that if one party to a marriage has a previous unresolved marriage, then that party is unable to contract a subsequent valid marriage, and the later marriage is void from the beginning. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

Section does not render legitimate an otherwise void marriage.

- In Georgia, a person who enters into a marriage that is void because of a legal impediment must seek a divorce in order to terminate the purported marriage; traditionally, a divorce proceeding seeks to terminate a valid marriage, thus it appears that O.C.G.A. § 19-4-1 confers validity upon an otherwise void marriage; but under closer scrutiny, that section does not render legitimate an otherwise void marriage. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

Annulment statutes protect children of marriages previously considered void by prohibiting annulment and thus guaranteeing their legitimacy. Consistent with this purpose, the legislature provided that such marriage could be dissolved only by divorce. Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546 (1965). For comment, see 3 Ga. St. B.J. 219 (1966).

Right to alimony lies as necessary concomitant remedy to fulfill the general design of this statute. Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546 (1965); Riddle v. Riddle, 240 Ga. 515, 241 S.E.2d 214 (1978).

Under Social Security Act, 42 U.S.C. § 416(h)(1)(A), state law determines whether a marriage is valid or not in order to determine family status for purposes of social security benefits. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

Widows of such marriages not "legal" widows for social security purposes.

- In enacting O.C.G.A. § 19-4-1, under which, if a child has been born or will be born of a marriage otherwise void because of legal impediment, the proper procedure for resolution of such marriage is to obtain a divorce rather than an annulment, the Georgia legislature did not intend to confer validity on such otherwise void marriage; therefore, the widow of such void marriage is not the legal widow for purpose of receiving social security benefits. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

Denial of social security benefits to spouses of void marriages.

- O.C.G.A. § 19-4-1 does not confer validity on an otherwise void marriage for purpose of permitting a spouse to such marriage to receive benefits that only inure to the husband or wife of the legal marriage; in other words, denying a spouse the ability to receive benefits as a legal widow does not cast doubt on the legitimacy of the child born of a void marriage. Furthermore, to permit such spouse to receive benefits intended to inure only to the benefit of a legal widow would wreak havoc on any scheme set up to protect a surviving spouse. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

Setting aside divorce decree when marriage void from inception.

- Trial court erred by denying an ex-husband's motion to set aside a divorce decree with the ex-wife because the marriage was void from the marriage's inception due to the ex-wife having a living spouse from an undissolved marriage at the time and there was no issue of the protection of a child to prevent the decree from being set aside. Wright v. Hall, 292 Ga. 457, 738 S.E.2d 594 (2013).

Cited in Andrews v. Andrews, 91 Ga. App. 659, 86 S.E.2d 669 (1955); Bryant v. Bryant, 216 Ga. 762, 119 S.E.2d 573 (1961).

RESEARCH REFERENCES

Am. Jur. 2d.

- 4 Am. Jur. 2d, Annulment of Marriage, § 1 et seq.

1C Am. Jur. Pleading and Practice Forms, Annulment of Marriage, § 1 et seq.

C.J.S.

- 55 C.J.S., Marriage, § 46 et seq.

ALR.

- Epilepsy as ground for avoiding marriage, 7 A.L.R. 1503; 31 A.L.R. 148.

Right to annulment of marriage induced by false claim that husband was cause of existing pregnancy, 11 A.L.R. 931; 19 A.L.R. 80.

Meaning of "voluntary cohabitation" within statute relating to annulment of marriage, 26 A.L.R. 1068.

Representation that proposed marriage could and would be dissolved by annulment or divorce as ground for annulment, 93 A.L.R. 705.

Avoidance of procreation of children as ground for divorce or annulment of marriage, 4 A.L.R.2d 227.

Cohabitation of persons ceremonially married after learning of facts negativing dissolution of previous marriage of one, as affecting right to annulment, 4 A.L.R.2d 542.

What constitutes duress sufficient to warrant divorce or annulment of marriage, 16 A.L.R.2d 1430.

Refusal of sexual intercourse as ground for annulment, 28 A.L.R.2d 499.

Mental incompetency of defendant at time of action as precluding annulment of marriage, 97 A.L.R.2d 483.

Concealment of or misrepresentation as to prior marital status as ground for annulment of marriage, 15 A.L.R.3d 759.

Concealment or misrepresentation relating to religion as ground for annulment, 44 A.L.R.3d 972.

What constitutes mistake in the identity of one of the parties to warrant annulment of marriage, 50 A.L.R.3d 1295.

Incapacity for sexual intercourse as ground for annulment, 52 A.L.R.3d 589.

Spouse's secret intention not to abide by written antenuptial agreement relating to financial matters as ground for annulment, 66 A.L.R.3d 1282.

Effect, in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support or custody order made incidental thereto, 78 A.L.R.3d 846.

Homosexuality, transvestism, and similar sexual practices as grounds for annulment of marriage, 68 A.L.R.4th 1069.

19-4-2. Right to file for annulment or divorce.

Parties who enter into a marriage which is declared void by law shall have the right to file:

  1. A petition for annulment; or
  2. A petition for divorce, if grounds for divorce exist.

(Ga. L. 1952, p. 149, § 2.)

JUDICIAL DECISIONS

Purpose of section.

- Purpose of Ga. L. 1952, p. 149, §§ 1 and 2 (see now O.C.G.A. § 19-4-1 and19-4-2), to uphold the interest and welfare of children, is manifested in the provisions insuring their legitimacy, prohibiting annulment, and thus requiring divorce to dissolve such marriages. Riddle v. Riddle, 240 Ga. 515, 241 S.E.2d 214 (1978).

Setting aside divorce decree when marriage void from inception.

- Trial court erred by denying an ex-husband's motion to set aside a divorce decree with the ex-wife because the marriage was void from the marriage's inception due to the ex-wife having a living spouse from an undissolved marriage at the time and there was no issue of the protection of a child to prevent the decree from being set aside. Wright v. Hall, 292 Ga. 457, 738 S.E.2d 594 (2013).

Cited in Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546 (1965); Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 4 Am. Jur. 2d, Annulment of Marriage, § 59.

C.J.S.

- 55 C.J.S., Marriage, § 56.

19-4-3. Petition by next friend.

A petition for annulment may be filed by next friend for minors or persons of unsound mind.

(Ga. L. 1952, p. 149, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 4 Am. Jur. 2d, Annulment of Marriage, §§ 61, 63.

C.J.S.

- 55 C.J.S., Marriage, § 56.

ALR.

- By and in whose name suit to annul infant's marriage must be brought, 150 A.L.R. 609.

19-4-4. Procedure.

All matters of service, jurisdiction, procedure, residence, pleading, and practice for obtaining an annulment of marriage shall be the same as those provided by law for obtaining a divorce, with the exception that a decree of annulment may be ordered at any time, in open court or in chambers, when personal service is had at least 30 days beforehand and no contest or answer is filed.

(Ga. L. 1952, p. 149, § 4.)

Law reviews.

- For article analyzing jurisdictional problems in annulment actions, and comparing state statutes, see 10 J. of Pub. L. 47 (1961).

RESEARCH REFERENCES

Am. Jur. 2d.

- 4 Am. Jur. 2d, Annulment of Marriage, § 47 et seq.

C.J.S.

- 55 C.J.S., Marriage, § 57 et seq.

ALR.

- Jurisdiction, as between different states, of suit to annul marriage, 128 A.L.R. 61.

Necessity and sufficiency of corroboration of plaintiff's testimony concerning ground for annulment of marriage, 71 A.L.R.2d 620.

19-4-5. Effect of annulment.

A decree of annulment, when rendered, shall have the effect of a total divorce between the parties of a void marriage and shall return the parties thereto to their original status before marriage. However, a decree of annulment shall not operate to relieve the parties to a marriage of criminal charges or responsibilities occasioned by the marriage.

(Ga. L. 1952, p. 149, § 5.)

JUDICIAL DECISIONS

Annulled marriage is rendered void ab initio.

- Since a subsequent annulment is not merely a dissolution of the marriage but a judicial declaration that no marriage ever existed and, in the absence of a statutory declaration otherwise, its effect is usually said to make the annulled marriage void ab initio, a certificate of marriage to another woman did not establish an irrebuttable presumption that the petitioner was no longer the deceased's widower at the time the widower filed the year's support petition. Hamrick v. Bonner, 182 Ga. App. 76, 354 S.E.2d 687 (1987).

"Responsibilities occasioned by the marriage" are not limited to criminal charges but include civil liabilities, such as necessaries furnished the wife by a third person. McKinney v. McKinney, 242 Ga. 607, 250 S.E.2d 470 (1978).

Decree of annulment shall return parties to their original status but shall not relieve any party of criminal charges. McKinney v. McKinney, 242 Ga. 607, 250 S.E.2d 470 (1978).

Trial court erred in excluding from evidence a marriage certificate and the proffered testimony concerning the nature of the actual relationship between a petitioner for a year's support and another woman when, given the financial benefits which the petitioner and the woman stood to achieve after the caveat was filed by having their marriage annulled, a manifest injustice could result if the caveators were not permitted to go behind the annulment decree in an attempt to prove that the couple had in fact cohabitated as man and wife both before and after the entry of the annulment decree. Hamrick v. Bonner, 182 Ga. App. 76, 354 S.E.2d 687 (1987).

Annulled marriage as res judicata.

- While an annulment decree may have been res judicata between the parties thereto, it was not res judicata with respect to others who were neither parties nor in privity with the parties to the annulment proceedings. Hamrick v. Bonner, 182 Ga. App. 76, 354 S.E.2d 687 (1987).

RESEARCH REFERENCES

Am. Jur. 2d.

- 4 Am. Jur. 2d, Annulment of Marriage, §§ 1, 77 et seq.

C.J.S.

- 55 C.J.S., Marriage, § 75.

ALR.

- Division of property upon annulment of marriage, 11 A.L.R. 1394.

Effect of annulment of marriage on rights arising out of acts of or transactions between parties during the marriage, 2 A.L.R.2d 637.

Right to allowance of permanent alimony in connection with decree of annulment, 81 A.L.R.3d 281.

Prior institution of annulment proceedings or other attack on validity of one's marriage as barring or estopping one from entitlement to property rights as surviving spouse, 31 A.L.R.4th 1190.

CHAPTER 5 DIVORCE

Cross references.

- Optional retirement allowances; election of such options; revocation of election; effect of divorce, § 47-3-121.

Law reviews.

- For annual survey on law of domestic relations, see 42 Mercer L. Rev. 201 (1990). For article, "The Renewed Significance of Title in Dividing Marital Assets," see 16 (No. 6) Ga. St. B.J. 24 (2011).

RESEARCH REFERENCES

Waiver of Spousal Rights in Estate of Deceased Spouse, 7 POF2d 443.

Transfer of Assets in Fraud of Spouse's Antenuptial Contractual Rights, 14 POF2d 755.

Forensic Economics - Use of Economists in Cases of Dissolution of Marriage, 17 POF2d 345.

Status of Property as Separate, 20 POF2d 321.

Divorce and Separation - Fraudulent Procurement of Property Settlement, 28 POF2d 663.

Transmutation of Separate Property into Community Property, 37 POF2d 379.

Enforceability of Premarital Agreement Based on Fairness of Terms and Circumstances of Execution, 7 POF3d 581.

Valuation of Goodwill of Professional Practice for Distribution on Divorce, 8 POF3d 215.

Extent of Community and Separate Interests in Real Property, 19 POF3d 705.

ALR.

- Vacating or setting aside divorce decree after remarriage of party, 17 A.L.R.4th 1153.

Divorce and separation: effect of trial court giving consideration to needs of children in making property division - modern status, 19 A.L.R.4th 239.

Spouse's liability, after divorce, for community debt contracted by other spouse during marriage, 20 A.L.R.4th 211.

Excessiveness or adequacy of amount of money awarded as permanent alimony following divorce, 28 A.L.R.4th 786.

Effect of death of party to divorce proceeding pending appeal or time allowed for appeal, 33 A.L.R.4th 47.

Divorce: excessiveness or adequacy of combined property division and spousal support awards - modern cases, 55 A.L.R.4th 14.

Divorce: order requiring that party not compete with former marital business, 59 A.L.R.4th 1075.

Prejudgment interest awards in divorce cases, 62 A.L.R.4th 156.

Insanity as defense to divorce or separation suit - post-1950 cases, 67 A.L.R.4th 277.

Divorce: spouse's right to order that other spouse pay expert witness fees, 4 A.L.R.5th 403.

Joinder of tort actions between spouses with proceeding for dissolution of marriage, 4 A.L.R.5th 972.

Divorce and separation: consideration of tax consequences in distribution of marital property, 9 A.L.R.5th 568.

19-5-1. Total divorces authorized; trial; referral for alternative dispute resolution.

  1. Total divorces may be granted in proper cases by the superior court. Unless an issuable defense is filed as provided by law and a jury trial is demanded in writing by either party on or before the call of the case for trial, in all petitions for divorce and permanent alimony the judge shall hear and determine all issues of law and of fact and any other issues raised in the pleadings.
  2. In any county in which there has been established an alternative dispute resolution program pursuant to Chapter 23 of Title 15, known as the "Georgia Court-annexed Alternative Dispute Resolution Act," the judge may, prior to trial, refer all contested petitions for divorce or permanent alimony to the appropriate alternative dispute resolution method. In counties in which an alternative dispute resolution program has not been established, a judge may nonetheless refer any disputed divorce case to an appropriate alternative dispute resolution method if a method is reasonably available without additional cost to the parties.

(Orig. Code 1863, § 1669; Ga. L. 1866, p. 21, § 1; Code 1868, § 1710; Code 1873, § 1711; Ga. L. 1880-81, p. 65, § 2; Code 1882, § 1711; Civil Code 1895, § 2425; Civil Code 1910, § 2944; Code 1933, § 30-101; Ga. L. 1946, p. 90, § 1; Ga. L. 1956, p. 405, § 1; Ga. L. 1960, p. 1023, § 1; Ga. L. 1995, p. 1292, § 13; Ga. L. 2007, p. 554, § 7/HB 369; Ga. L. 2016, p. 864, § 19/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, deleted "; provided, however, that the parties shall comply with Code Section 19-5-1.1 if it is applicable" at the end of the first sentence of subsection (a).

Editor's notes.

- Ga. L. 2007, p. 554, § 1/HB 369, not codified by the General Assembly, provides that: "The General Assembly of Georgia declares that it is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage or relationship."

Ga. L. 2007, p. 554, § 8/HB 369, not codified by the General Assembly, provides that the 2007 amendment to subsection (a) shall apply to all child custody proceedings and modifications of child custody filed on or after January 1, 2008.

Law reviews.

- For article, "The Divorce Act of 1946," see 9 Ga. B.J. 287 (1947). For article advocating the adoption of a Uniform Divorce Bill, see 16 Ga. B.J. 41 (1953). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For article, "Conflict of Laws Structure and Vision: Updating a Venerable Discipline," see 31 Ga. St. U.L. Rev. 231 (2015). For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972). For note, "The Economics of Divorce of Georgia: Toward a Partnership Model of Marriage," see 12 Ga. L. Rev. 640 (1978).

JUDICIAL DECISIONS

General Consideration

Legislative intent.

- Laws peculiar to divorce suits clearly indicate an intention upon the part of the lawmaking power to impede the facility for obtaining divorces; and such purpose can only be attributed to a zealous regard for the well-being of society. Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940).

Former Code 1933, § 30-101 (see now O.C.G.A. § 19-5-1) was not violative of provisions of former Ga. Const. 1976, Art. VI, Sec. IV, Para. VII (see now Ga. Const. 1983, Art. I, Sec. I, Para XI). Flournoy v. Flournoy, 228 Ga. 224, 184 S.E.2d 822 (1971).

"Issuable defense" within meaning of law may be made by pre-trial order or other pleadings filed as provided by law. Trulove v. Trulove, 233 Ga. 896, 213 S.E.2d 868 (1975).

Defending divorce action without filing answer cannot preclude "issuable defense."

- Spouse's right in divorce action to defend without filing answer cannot preclude existence of "issuable defense" and thereby defeat the right to jury trial. Trulove v. Trulove, 233 Ga. 896, 213 S.E.2d 868 (1975).

Divorce proceedings are governed by Civil Practice Act (see now O.C.G.A. T. 11, Ch. 9). Ivey v. Ivey, 233 Ga. 45, 209 S.E.2d 590 (1974).

Divorce proceedings equitable in nature.

- Proceedings for divorce and for alimony have always, under the practice of this state, been regarded as equitable. Early v. Early, 243 Ga. 125, 252 S.E.2d 618 (1979).

Superior court judge presiding over a divorce case exercises all of the traditional powers of a chancellor in equity, except as otherwise provided by law. Allen v. Allen, 260 Ga. 777, 400 S.E.2d 15 (1991).

Case involving the question of the enforceability of a settlement agreement was remanded to the trial court, pursuant to the rule holding that divorce proceedings are equitable in nature. Allen v. Allen, 260 Ga. 777, 400 S.E.2d 15 (1991).

City courts lack jurisdiction to entertain suit for alimony.

- Because exclusive jurisdiction of divorce and/or alimony questions is vested in superior courts, city courts are without jurisdiction to entertain a suit for alimony in a case in which a judgment has previously been rendered in the superior court. Tyson v. Tyson, 176 Ga. 137, 167 S.E. 172 (1932).

Cited in Gilbert v. Gilbert, 202 Ga. 752, 44 S.E.2d 485 (1947); Huguley v. Huguley, 204 Ga. 692, 51 S.E.2d 445 (1949); Allison v. Allison, 205 Ga. 233, 53 S.E.2d 114 (1949); Stebbins v. Stebbins, 206 Ga. 529, 57 S.E.2d 564 (1950); Gardner v. Gardner, 206 Ga. 669, 58 S.E.2d 416 (1950); Champion v. Champion, 207 Ga. 431, 61 S.E.2d 822 (1950); Thompson v. Thompson, 207 Ga. 376, 61 S.E.2d 834 (1950); Harrison v. Harrison, 207 Ga. 393, 61 S.E.2d 837 (1950); Robertson v. Robertson, 207 Ga. 686, 63 S.E.2d 876 (1951); Whaley v. Whaley, 208 Ga. 323, 66 S.E.2d 722 (1951); Crute v. Crute, 208 Ga. 724, 69 S.E.2d 225 (1952); Lloyd v. Lloyd, 208 Ga. 694, 69 S.E.2d 251 (1952); Neal v. Neal, 209 Ga. 199, 71 S.E.2d 229 (1952); Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954); Bedingfield v. Bedingfield, 211 Ga. 310, 85 S.E.2d 756 (1955); Lott v. Lott, 212 Ga. 672, 94 S.E.2d 869 (1956); Bell v. Bell, 213 Ga. 176, 97 S.E.2d 571 (1957); Lott v. Lott, 213 Ga. 559, 100 S.E.2d 170 (1957); Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534 (1958); Moseley v. Moseley, 214 Ga. 137, 103 S.E.2d 540 (1958); Dunn v. Dunn, 221 Ga. 368, 144 S.E.2d 758 (1965); McLarin v. McLarin, 224 Ga. 675, 163 S.E.2d 914 (1968); Smith v. Smith, 228 Ga. 311, 185 S.E.2d 78 (1971); Hatcher v. Hatcher, 229 Ga. 249, 190 S.E.2d 533 (1972); Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978); Gordon v. Gordon, 244 Ga. 21, 257 S.E.2d 528 (1979); Osteen v. Osteen, 244 Ga. 445, 260 S.E.2d 321 (1979); Carmichael v. Carmichael, 248 Ga. 216, 282 S.E.2d 71 (1981); Hudson v. State, 248 Ga. 397, 283 S.E.2d 271 (1981).

Jury Trial

When judge of superior court sits in divorce case without jury, the judge has plenary control of the judge's judgment during the term at which the judgment is rendered. Juneau v. Juneau, 98 Ga. App. 330, 105 S.E.2d 913 (1958).

Ga. L. 1966, p. 609, § 39 (see now O.C.G.A. § 9-11-39) authorized the trial court to permit jury trial even if written demand was not timely filed under former Code 1933, § 30-101 (see now O.C.G.A. § 19-5-1). Bullock v. Bullock, 234 Ga. 253, 215 S.E.2d 255 (1975).

Jury is authorized to find for divorce when evidence establishes ground upon which the action is brought. Brackett v. Brackett, 217 Ga. 84, 121 S.E.2d 146 (1961).

Jury trial required upon proper demand.

- When one spouse made a proper demand for a jury trial which was not otherwise waived, it was reversible error for the court to enter a final judgment based upon the findings of an auditor, without a trial by jury. Franklin v. Franklin, 267 Ga. 82, 475 S.E.2d 890 (1996).

Parties waive their right to jury trial in a divorce case if the parties fail to make a written demand for a jury trial on or before the call of the case. Ivey v. Ivey, 264 Ga. 435, 445 S.E.2d 258 (1994).

Waiver of jury trial.

- Actions of a party who dismisses a petition for divorce and thereafter files a separation agreement with the court settling all issues as to alimony, property settlement, child custody, and child support must be construed as a waiver of jury trial as to all issues in the case. In these circumstances, the trial court has the power to grant the divorce without the intervention of a jury and adopt the settlement entered into between the parties. Slaughter v. Slaughter, 236 Ga. 353, 223 S.E.2d 714 (1976).

When jury verdict construed as in favor of petitioner.

- When both parties to a divorce action introduce evidence in support of their respective prayers for divorce, and the jury returns a verdict finding in favor of a total divorce between the parties, without stating whether the verdict is for the petitioner or the respondent, it will be construed to be for the petitioner. Carawan v. Carawan, 203 Ga. 325, 46 S.E.2d 588 (1948).

Application

Absent fraud, client bound by decree as negotiated by attorney.

- When one employs counsel to represent one in a divorce action and such counsel agrees with counsel for the opposite party to a decree which is entered by the court, such decree will, in the absence of a violation of express directions by the client to counsel, known to the adverse party or counsel, or fraud, accident, or mistake, be binding upon the client. Dixon v. Dixon, 204 Ga. 363, 49 S.E.2d 818 (1948).

Adultery as defense.

- Alleged act of adultery, committed after date of separation and action, if proven, would be good defense against the grant of either total divorce or permanent alimony. Rowell v. Rowell, 209 Ga. 572, 74 S.E.2d 833 (1953).

Recriminatory charge of adultery committed by the plaintiff after the commencement of a divorce action is a valid defense and upon a proper application at any time before the final decree, if such application is made immediately after the discovery of the fact, the court should permit the defendant to put in a supplemental answer or file a plea for continuance for the purpose of setting up such matter as a new defense. Rowell v. Rowell, 209 Ga. 572, 74 S.E.2d 833 (1953).

Action for divorce instituted by guardian of person adjudicated insane cannot be maintained in this state; the right to bring and prosecute such an action being strictly personal, and not within the authority conferred by law upon a guardian. Phillips v. Phillips, 203 Ga. 106, 45 S.E.2d 621 (1947).

Allegations that an individual, before the individual was adjudged mentally incompetent, and at a time when the individual had mental capacity to show the nature of an action for divorce, expressed the individual's intention and desire to obtain a divorce from the defendant, that at the time of the filing of the action, and during a lucid interval, after such adjudication, the individual again expressed the same intention and desire, and that the suit was instituted pursuant to the individual's direction, desire, and will at the time of filing the suit, would nevertheless not show authority in the guardian to institute and maintain such action. Phillips v. Phillips, 203 Ga. 106, 45 S.E.2d 621 (1947).

Intervention by third party in divorce action.

- There is no provision of law which allows third party to intervene in divorce action. Girtman v. Girtman, 191 Ga. 173, 11 S.E.2d 782 (1940).

Collateral attack of valid divorce judgment.

- Judgment in divorce case not shown to be void could not be collaterally attacked in another case and different forum. Juneau v. Juneau, 98 Ga. App. 330, 105 S.E.2d 913 (1958).

Action to set aside fraudulent divorce can be maintained following death of party if it appears that the divorce decree or the subsequent action to set it aside involved some property right in which the surviving spouse is beneficially interested and the status and rights of the parties are retroactively affected. United States Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 143 S.E.2d 663 (1965).

Decree properly set aside as fraudulent.

- Petition alleging that petitioner had no knowledge of the pendency of the divorce action against the petitioner, the petitioner not having been served with process of the suit, nor had the petitioner acknowledged service thereof, and that the defendant had concealed from petitioner and kept petitioner ignorant of the pending suit, was sufficient as grounds of fraud for setting aside the divorce decree. Robertson v. Robertson, 196 Ga. 517, 26 S.E.2d 922 (1943).

Motion to set aside decree properly denied when unsupported.

- When a judgment and decree sought to be set aside were rendered in one term, and the motion to set aside came at a subsequent term, was not based on any defect appearing on the face of the record or pleadings, and was not accompanied by any brief of the evidence adduced upon the trial which resulted in the judgment and decree, the trial judge did not err in dismissing the motion to set aside. Prewett v. Prewett, 215 Ga. 425, 110 S.E.2d 638 (1959).

Unadjudicated claim for divorce is purely personal and abates upon death. Segars v. Brooks, 248 Ga. 427, 284 S.E.2d 13 (1981).

Final judgment was prematurely entered at a temporary hearing in a divorce proceeding since 23 days remained during which defensive pleadings would have been required by law to be filed and both parties had filed timely demands for a jury trial. Henderson v. Henderson, 258 Ga. 205, 367 S.E.2d 40 (1988).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, § 1 et seq.

8B Am. Jur. Pleading and Practice Forms, Dismissal, Discontinuance, and Nonsuit, § 145.

C.J.S.

- 27A C.J.S., Divorce, § 5 et seq.

ALR.

- Power of court to grant absolute divorce to both spouses upon showing of mutual fault, 13 A.L.R.3d 1364.

Power of court to award absolute divorce in favor of party who desires only limited decree, or vice versa, 14 A.L.R.3d 703.

Enforceability of agreement requiring spouse's cooperation in obtaining religious bill of divorce, 29 A.L.R.4th 746.

Validity, construction, and application of provision in separation agreement affecting distribution or payment of attorneys' fees, 47 A.L.R.5th 207.

Divorce and separation: Determination of whether proceeds from personal injury settlement or recovery constitute marital property, 109 A.L.R.5th 1.

Retirement of husband as change of circumstances warranting modification of divorce decree - Prospective retirement, 110 A.L.R.5th 237.

Division of lottery proceeds in divorce proceedings, 124 A.L.R.5th 537.

19-5-2. Residence requirements; venue.

No court shall grant a divorce to any person who has not been a bona fide resident of this state for six months before the filing of the petition for divorce, provided that any person who has been a resident of any United States army post or military reservation within this state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the United States army post or military reservation; and provided, further, that a nonresident of this state may file a petition for divorce, in the county of residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.

(Ga. L. 1890-91, p. 235, § 1; Ga. L. 1893, p. 109, § 1; Civil Code 1895, § 2431; Civil Code 1910, § 2950; Code 1933, § 30-107; Ga. L. 1939, p. 203, § 1; Ga. L. 1950, p. 429, § 1; Ga. L. 1958, p. 385, § 1.)

Cross references.

- Venue for divorce cases, Ga. Const. 1983, Art. VI, Sec. II, Para. I.

Law reviews.

- For article, "Divorce: Residence and Domicile Requirements in Georgia," see 7 Ga. St. B.J. 455 (1971). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972).

JUDICIAL DECISIONS

Section's requirements as to domicile.

- Law required that plaintiff in divorce action must be domiciled in this state for the statutory period before the institution of the action, but did not require in addition that the plaintiff shall have actually resided in this state during such period. Williams v. Williams, 191 Ga. 437, 12 S.E.2d 352 (1940); Williams v. Williams, 226 Ga. 734, 177 S.E.2d 481 (1970).

Section does not apply to application for alimony.

- There was no provision of law extending the requirements of this statute to the application of the wife for alimony and attorney's fees. Lee v. Lee, 154 Ga. 820, 115 S.E. 493 (1923).

Legislature has established a statutory residency requirement of six months before divorce proceedings can be brought, but has not extended this requirement to alimony proceedings. Chalfant v. Rains, 244 Ga. 747, 262 S.E.2d 63 (1979).

"Resident" as used in statute was equivalent to domicile. Darbie v. Darbie, 195 Ga. 769, 25 S.E.2d 685 (1943).

Term "resident" meant "domiciliary." Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).

"Domicile" refers to single fixed place of abode with intention of remaining there indefinitely, or the single fixed place of abode where a person intends to return, even though the person may in fact be residing elsewhere. Abou-Issa v. Abou-Issa, 229 Ga. 77, 189 S.E.2d 443 (1972).

Residence in county for six months is all that is required to give the court jurisdiction of a plaintiff's petition for divorce. Tate v. Tate, 220 Ga. 393, 139 S.E.2d 297 (1964).

It requires both act and intent to establish residence, and either without the other is insufficient. Lorance v. Lorance, 216 Ga. 754, 119 S.E.2d 342 (1961).

To effect change of domicile there must be avowed intent and actual removal. Temporary absence from the county by a person who has no family does not operate to change the person's domicile. Bellamy v. Bellamy, 187 Ga. 804, 2 S.E.2d 413 (1939).

Party who enters United States on temporary visa does not lack legal capacity to establish domicile in this state for the purposes of a divorce suit. Abou-Issa v. Abou-Issa, 229 Ga. 77, 189 S.E.2d 443 (1972).

Question of domicile is ordinarily mixed question of law and fact, and is for jury determination. Abou-Issa v. Abou-Issa, 229 Ga. 77, 189 S.E.2d 443 (1972); Campbell v. Campbell, 231 Ga. 214, 200 S.E.2d 899 (1973); Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).

Alleging and proving bona fide residence.

- One filing petition for divorce must allege and prove that one has been bona fide resident of the state for the length of time required by law. Jurisdiction of the subject matter cannot be conferred by consent. Dicks v. Dicks, 177 Ga. 379, 170 S.E. 245 (1933); Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686, 16 S.E.2d 135 (1941); Tate v. Tate, 220 Ga. 393, 139 S.E.2d 297 (1964).

Plaintiff in divorce action carries burden of proving jurisdiction of the court, and this duty is no less incumbent upon the defendant who asks for alimony; in neither instance can jurisdiction be conferred by consent or by waiver. Jones v. Jones, 181 Ga. 747, 184 S.E. 271 (1936).

This provision as to venue in divorce cases is mandatory and jurisdictional, and as against demurrer (now motion to dismiss) should be alleged, and must be proved, nor can jurisdiction be conferred on the superior court of a different county by waiver or consent. Wade v. Wade, 195 Ga. 748, 25 S.E.2d 683 (1943).

State provisions authorizing waiver of jurisdiction.

- Provisions of state law which authorize parties in certain cases to waive jurisdiction do not apply to divorce action. Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940).

Parties by plea or otherwise cannot waive jurisdiction so as to dispense with proof in the court that the plaintiff had been a bona fide resident of this state for 12 months (now 6 months) before the suit was filed. Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686, 16 S.E.2d 135 (1941).

Allegation of jurisdictional requirements was essential to applications for divorce. Owens v. Owens, 189 Ga. 338, 5 S.E.2d 883 (1939); Rice v. Rice, 223 Ga. 363, 155 S.E.2d 393 (1967).

It is necessary to allege the correct venue and to make affirmative proof thereof. Johnson v. Johnson, 188 Ga. 800, 4 S.E.2d 807 (1939).

Personal jurisdiction over party.

- Personal jurisdiction over the defendant is not a prerequisite to the grant of a divorce by a Georgia court. A party seeking a divorce must show only that the trial court had jurisdiction over the res of the marriage which results from his or her domicile in the state for the six-month period preceding the filing of the action. Abernathy v. Abernathy, 267 Ga. 815, 482 S.E.2d 265 (1997).

Failure to make proof of venue will render verdict for divorce subject to be set aside by proper procedure, and such proof is essential, even though the absence of this jurisdictional averment may be supplied by amendment. Wade v. Wade, 195 Ga. 748, 25 S.E.2d 683 (1943).

Dismissal for lack of residency affirmed.

- Trial court's finding that a wife was not a resident of DeKalb County, Georgia, and the court's order dismissing her DeKalb County divorce case were affirmed since the parties had sold their home in Georgia six months before the divorce was filed, and the wife's tax forms stated that she did not maintain a home in the United States, but rather that her bona fide residence was in South Africa; although the wife claimed that she intended to return to DeKalb County, the trial court properly applied the principle that the testimony of a party who offered herself as a witness in her own behalf at trial was to be construed most strongly against her when the testimony was self-contradictory, vague, or equivocal. Conrad v. Conrad, 278 Ga. 107, 597 S.E.2d 369 (2004).

Action subject to dismissal for failure to allege time of residence.

- When there was an absence of a proper allegation of "time of residence," a necessary jurisdictional allegation, an action for divorce was subject to the general demurrer (now motion to dismiss) on the ground that no cause of action was alleged, and the prayers for temporary and permanent alimony being incidental to the suit for divorce on the ground of cruel treatment, cannot be maintained as an independent action, but must fall with the divorce suit. Mullally v. Mullally, 199 Ga. 708, 35 S.E.2d 199 (1945).

Husband established that he was Georgia domiciliary.

- Trial court's finding that a husband in a divorce case failed to establish that he was a domiciliary of Georgia was error and was reversed since the husband and the wife had maintained a marital residence in Georgia for at least five years before the wife returned to Britain, where the husband continued to maintain his domicile in Georgia and intended to remain in Georgia, and where the husband, an Irish citizen, had obtained permanent resident alien status, had designated himself a year round Georgia resident on state tax returns, and had declared himself to be a non-resident of Britain for tax purposes. Cooke v. Cooke, 277 Ga. 731, 594 S.E.2d 370 (2004).

Even though the wife did not have sufficient minimum contacts with Georgia for the trial court to exercise jurisdiction over issues related to alimony, division of marital property, and attorney fees, the trial court had jurisdiction pursuant to O.C.G.A. § 19-5-2 to grant the divorce sought by the husband since the husband had lived in Georgia for at least six months. Ennis v. Ennis, 290 Ga. 890, 725 S.E.2d 311 (2012).

Domicile in Georgia.

- Trial court had jurisdiction to grant a divorce, as opposed to the State of New York trial court wherein the wife petitioned for a divorce, because there was some evidence to support the trial court's findings on domicile of the parties, including that the husband was stationed in the military in Georgia, they lived in military housing then purchased a home, and continued to live in that home until their separation. Black v. Black, 292 Ga. 691, 740 S.E.2d 613 (2013).

Cited in Lamont v. Lamont, 134 Ga. 523, 68 S.E. 96 (1910); Hansberger v. Hansberger, 182 Ga. 495, 185 S.E. 810 (1936); Bellamy v. Bellamy, 187 Ga. 56, 199 S.E. 745 (1938); Bellamy v. Bellamy, 187 Ga. 804, 2 S.E.2d 413 (1939); Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940); Moody v. Moody, 194 Ga. 843, 22 S.E.2d 837 (1942); Jones v. State, 70 Ga. App. 431, 28 S.E.2d 373 (1943); Tatum v. Tatum, 203 Ga. 406, 46 S.E.2d 915 (1948); Lorance v. Lorance, 216 Ga. 754, 119 S.E.2d 342 (1951); New Amsterdam Cas. Co. v. Thompson, 100 Ga. App. 677, 112 S.E.2d 273 (1959); Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818 (1966); Walton v. Walton, 223 Ga. 85, 153 S.E.2d 554 (1967); Cates v. Cates, 225 Ga. 612, 170 S.E.2d 416 (1969); Goulart v. Goulart, 237 Ga. 174, 227 S.E.2d 52 (1976); Charamond v. Charamond, 240 Ga. 34, 239 S.E.2d 362 (1977); Tanis v. Tanis, 240 Ga. 718, 242 S.E.2d 71 (1978); Bentley v. Bentley, 247 Ga. 85, 274 S.E.2d 338 (1981); Midkiff v. Midkiff, 275 Ga. 136, 562 S.E.2d 177 (2002); Sastre v. McDaniel, 293 Ga. App. 671, 667 S.E.2d 896 (2008).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, § 174 et seq.

C.J.S.

- 27A C.J.S., Divorce, §§ 146 et seq., 152 et seq., 164 et seq.

ALR.

- Nonresidence of one or both parties as affecting jurisdiction of court of suit or proceeding to annul divorce decree rendered in same state, 33 A.L.R. 469.

Separate domicile of wife for purposes of jurisdiction over subject-matter of suit by her for divorce or separation, 39 A.L.R. 710.

Nonresidence of defendant or cross complainant in a suit for divorce as affecting power to grant divorce in his or her favor, 89 A.L.R. 1203.

What constitutes residence or domicile within state for purpose of jurisdiction in divorce, 106 A.L.R. 6; 159 A.L.R. 496.

Attack on jurisdictional grounds on foreign decree of divorce rendered upon contested hearing on the jurisdictional facts, 118 A.L.R. 1524.

Estoppel to assert invalidity of decree of divorce for lack of domicile at divorce forum or failure to obtain jurisdiction of person of defendant, 140 A.L.R. 914; 153 A.L.R. 941; 175 A.L.R. 538.

Domicile or residence of person in the armed forces, 148 A.L.R. 1413; 149 A.L.R. 1471; 150 A.L.R. 1468; 151 A.L.R. 1468; 152 A.L.R. 1471; 153 A.L.R. 1442; 155 A.L.R. 1466; 156 A.L.R. 1465; 157 A.L.R. 1462; 158 A.L.R. 1474.

Duty to recognize and give effect to decrees of divorce rendered in other states, or in foreign country, as affected by constructive service of process or lack of domicile at divorce forum, 157 A.L.R. 1399; 1 A.L.R.2d 1385; 28 A.L.R.2d 1303.

Recognition as to marital status of foreign divorce decree attacked on ground of lack of domicil, since Williams decision, 1 A.L.R.2d 1385, 28 A.L.R.2d 1303.

Length or duration of domicile, as distinguished from fact of domicile, as a jurisdictional matter in divorce action, 2 A.L.R.2d 291.

Validity of statute permitting granting of divorces to nonresidents, 3 A.L.R.2d 666.

Denial of divorce in sister state or foreign country as res judicata in another suit for divorce between the same parties, 4 A.L.R.2d 107.

False allegation of plaintiff's domicile or residence in the state as ground for vacation of default decree of divorce, 6 A.L.R.2d 596.

Residence or domicile, for purpose of divorce action, of one in armed forces, 21 A.L.R.2d 1163.

Pendency of prior action for absolute or limited divorce between same spouses in same jurisdiction as precluding subsequent action of like nature, 31 A.L.R.2d 442.

Nature and location of one's business or calling as element in determining domicile in divorce cases, 36 A.L.R.2d 756.

Venue of divorce action in particular county as dependent on residence or domicile for a specified length of time, 54 A.L.R.2d 898.

Lack of insufficiency of allegations of plaintiff's residence or domicile in suit for divorce as ground for vacation of, or collateral attack on, divorce decree, 55 A.L.R.2d 1263.

What constitutes residence or domicile within state by citizen of another country for purpose of jurisdiction in divorce, 51 A.L.R.3d 223.

Validity of statute imposing durational residency requirements for divorce applicants, 57 A.L.R.3d 221.

Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce for servicemen, 73 A.L.R.3d 431.

Doctrine of forum non conveniens: assumption or denial of jurisdiction of action involving matrimonial dispute, 55 A.L.R.5th 647.

19-5-3. Grounds for total divorce.

The following grounds shall be sufficient to authorize the granting of a total divorce:

  1. Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
  2. Mental incapacity at the time of the marriage;
  3. Impotency at the time of the 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 to the husband;
  6. Adultery in either of the parties after marriage;
  7. Willful and continued desertion by either of the parties for the term of one year;
  8. The conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer;
  9. Habitual intoxication;
  10. Cruel treatment, which shall 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;
  11. Incurable mental illness. No divorce shall be granted upon this ground unless the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party; and he has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and the superintendent or other chief executive officer of the institution and one competent physician appointed by the court, after a thorough examination, make a certified statement under oath that it is their opinion that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party's mental health cannot be expected at any time during his life. Notice of the action must be served upon the guardian of the person of the mentally ill person and upon the superintendent or other chief executive officer of the institution in which the person is confined. In the event that there is no guardian of the person, then notice of the action shall be served upon a guardian ad litem, who shall be appointed by the court in which the divorce action is filed, and upon the superintendent or chief executive officer of the institution in which the person is confined. The guardian and superintendent shall be entitled to appear and be heard upon the issues. The status of the parties as to the support and maintenance of the mentally ill person shall not be altered in any way by the granting of the divorce;
  12. Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16; or
  13. The marriage is irretrievably broken. Under no circumstances shall the court grant a divorce on this ground until not less than 30 days from the date of service on the respondent.

(Laws 1850, Cobb's 1851 Digest, p. 226; Code 1863, § 1670; Code 1868, § 1711; Code 1873, § 1712; Code 1882, § 1712; Civil Code 1895, § 2426; Civil Code 1910, § 2945; Code 1933, § 30-102; Ga. L. 1946, p. 90, § 2; Ga. L. 1951, p. 744, § 1; Ga. L. 1962, p. 600, § 1; Ga. L. 1963, p. 288, § 1; Ga. L. 1971, p. 361, § 1; Ga. L. 1972, p. 633, § 1; Ga. L. 1973, p. 557, § 1; Ga. L. 1977, p. 1253, § 3; Ga. L. 2016, p. 864, § 19/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, added "or" at the end of paragraph (12).

Cross references.

- Criminal penalty for adultery, § 16-6-19.

Rights and privileges of persons hospitalized for mental illness generally, § 37-3-140 et seq.

Law reviews.

- For article discussing the irretrievably broken marriage as a ground for divorce, see 10 Ga. St. B.J. 9 (1973). For article surveying Georgia cases dealing with domestic relations from June 1977 through May 1978, see 30 Mercer L. Rev. 59 (1978). For note, "The Impact of the Revolution in Georgia's Divorce Law on Antenuptial Agreements," see 11 Ga. L. Rev. 406 (1977).

JUDICIAL DECISIONS

General Consideration

Law was capable of definition and application. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

Specified grounds required for dissolution of marriage.

- Marriage relationship cannot be dissolved in this state except upon grounds specified in this statute. Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818 (1944).

When jury authorized to find for divorce.

- Jury is authorized to find for divorce when evidence establishes grounds upon which the action is brought. Brackett v. Brackett, 217 Ga. 84, 121 S.E.2d 146 (1961).

When action for divorce is not available remedy.

- When marriage status never existed and complaint is not grounds for divorce, action for divorce is not available remedy to the petitioner. Gearllach v. Odom, 200 Ga. 350, 37 S.E.2d 184 (1946).

Previous undissolved marriage of one party is not grounds for divorce. Gearllach v. Odom, 200 Ga. 350, 37 S.E.2d 184 (1946); Pritchett v. Ellis, 201 Ga. 809, 41 S.E.2d 402 (1947); Lovett v. Zeigler, 224 Ga. 144, 160 S.E.2d 360 (1968).

Cited in Smith v. Smith, 167 Ga. 98, 145 S.E. 63 (1928); Baker v. Baker, 168 Ga. 478, 148 S.E. 151 (1929); Kendrick v. Kendrick, 173 Ga. 434, 160 S.E. 502 (1931); Twilley v. Twilley, 195 Ga. 291, 24 S.E.2d 41 (1943); Mackey v. Mackey, 198 Ga. 707, 32 S.E.2d 764 (1945); Ragans v. Ragans, 200 Ga. 890, 39 S.E.2d 162 (1946); Sorrow v. Sorrow, 203 Ga. 146, 45 S.E.2d 413 (1947); Brant v. Brant, 209 Ga. 151, 71 S.E.2d 209 (1952); Veazy v. Blair, 86 Ga. App. 721, 72 S.E.2d 481 (1952); Hinkle v. Hinkle, 209 Ga. 554, 74 S.E.2d 657 (1953); Anglin v. Anglin, 209 Ga. 823, 76 S.E.2d 498 (1953); Stimpson v. Stimpson, 213 Ga. 235, 98 S.E.2d 559 (1957); Morrison v. Morrison, 215 Ga. 143, 109 S.E.2d 519 (1959); Shivers v. Shivers, 215 Ga. 536, 111 S.E.2d 376 (1959); Phillips v. Phillips, 215 Ga. 606, 112 S.E.2d 594 (1960); Walston v. Walston, 216 Ga. 577, 118 S.E.2d 369 (1961); Mills v. Mills, 218 Ga. 686, 130 S.E.2d 221 (1963); Tolbert v. Tolbert, 221 Ga. 159, 143 S.E.2d 743 (1965); Davis v. Davis, 223 Ga. 657, 157 S.E.2d 444 (1967); Poulos v. Poulos, 226 Ga. 375, 174 S.E.2d 925 (1970); Harkness v. Harkness, 228 Ga. 184, 184 S.E.2d 566 (1971); Funderburk v. Funderburk, 229 Ga. 457, 192 S.E.2d 262 (1972); Southeastern Fid. Ins. Co. v. Fluellen, 128 Ga. App. 877, 198 S.E.2d 407 (1973); Barden v. Barden, 230 Ga. 663, 198 S.E.2d 869 (1973); Roberts v. Roberts, 231 Ga. 196, 200 S.E.2d 731 (1973); Ivey v. Ivey, 233 Ga. 45, 209 S.E.2d 590 (1974); Blois v. Blois, 234 Ga. 475, 216 S.E.2d 281 (1975); Anders v. Anders, 238 Ga. 79, 231 S.E.2d 64 (1976); Leachmon v. Leachmon, 239 Ga. 780, 238 S.E.2d 863 (1977); Ford v. Ford, 243 Ga. 763, 256 S.E.2d 446 (1979); Tobitt v. Tobitt, 249 Ga. 245, 290 S.E.2d 49 (1982).

Adultery

Adultery during marriage is ground for divorce by the other spouse, of whatever gender. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

Act of illicit sexual intercourse committed prior to marriage is not ground of divorce in this state. Stanley v. Stanley, 115 Ga. 990, 42 S.E. 374 (1902).

Adultery may involve homosexual relations.

- Person commits adultery when he or she has sexual intercourse with a "person" other than his or her spouse. Therefore, both extramarital homosexual, as well as heterosexual, relations constitute adultery. Owens v. Owens, 247 Ga. 139, 274 S.E.2d 484 (1981).

Petitioner not precluded from alleging adultery when discovered after separation.

- When the husband sought divorce on ground of adultery, among other grounds, the fact that the petitioner did not know of the adultery until after the separation did not prevent the petitioner from seeking a divorce based on adultery after learning of the adultery. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

Evidence of adultery.

- To be a viable ground for divorce, evidence of adultery must continue to be admissible. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

Adultery may be proved by circumstantial evidence, but such evidence must infer as a necessary conclusion that adultery was committed. But if such evidence is fairly susceptible of two interpretations, one consistent with innocence and the other with guilt, it is not sufficient to prove adultery. Johnson v. Johnson, 218 Ga. 28, 126 S.E.2d 229 (1962).

Requirements for inferring adultery from circumstantial evidence.

- There must be both opportunity and adulterous disposition for adultery to be inferred from circumstantial evidence. Johnson v. Johnson, 218 Ga. 28, 126 S.E.2d 229 (1962).

Cruel Treatment

"Cruel treatment," was willful infliction of pain, bodily or mental, upon the complaining party such as reasonably justifies an apprehension of danger to life, limb, or health. Odom v. Odom, 36 Ga. 286 (1867), overruled on other grounds, Wise v. Wise, 156 Ga. 459, 119 S.E. 410 (1923); Ring v. Ring, 118 Ga. 183, 44 S.E. 861 (1903); Ford v. Ford, 146 Ga. 164, 91 S.E. 42 (1916); Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922); Adams v. Adams, 195 Ga. 479, 24 S.E.2d 683 (1943); Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954); Ewing v. Ewing, 211 Ga. 803, 89 S.E.2d 180 (1955); Connor v. Connor, 212 Ga. 92, 90 S.E.2d 581 (1955); Moody v. Moody, 224 Ga. 13, 159 S.E.2d 394 (1968).

Cruel treatment, or cruelty in the broad and unrestricted sense in which it is used in the statute, is any act intended to torment, vex, or afflict, or which actually afflicts or torments without necessity; or any act of inhumanity, wrong, oppression, or injustice. Ross v. Ross, 169 Ga. 524, 150 S.E. 822 (1929); Morris v. Morris, 202 Ga. 431, 43 S.E.2d 639 (1947); Bell v. Bell, 213 Ga. 176, 97 S.E.2d 571 (1957).

Acts of cruelty must be such as to render cohabitation unsafe, or are likely to be attended with injury to the person or to the health of the wife. It must be the intention of the offending party to injure - to wound. It must be a willful act the purpose of which is to hurt. Ewing v. Ewing, 211 Ga. 803, 89 S.E.2d 180 (1955).

Cruel treatment justifying separation defined.

- Cruel treatment which would justify a wife in leaving her husband and living in a state of separation from him, while he is willing to have her come back to his home and live with him, should have the same definition as the cruel treatment which would afford grounds for divorce. Mell v. Mell, 190 Ga. 508, 9 S.E.2d 756 (1940); Mullikin v. Mullikin, 200 Ga. 638, 38 S.E.2d 281 (1946); Brown v. Brown, 217 Ga. 671, 124 S.E.2d 399 (1962).

Willfulness of cruel treatment is essential element which will authorize the grant of a divorce. Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940).

Intention to wound is necessary element of cruel treatment for which divorce will be granted. Connor v. Connor, 212 Ga. 92, 90 S.E.2d 581 (1955); Brown v. Brown, 228 Ga. 330, 185 S.E.2d 412 (1971).

Without element of willfullness, there can be no cruel treatment which will authorize the grant of a divorce upon that ground. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954); Vaughan v. Vaughan, 223 Ga. 298, 154 S.E.2d 592 (1967).

If the alleged acts of cruel treatment by the defendant toward the petitioner resulted from the defendant's emotionally unstable personality and not from a willful desire to wound the plaintiff, then the defendant was guilty of no cruel treatment which could authorize the grant of a divorce to the plaintiff on this ground. Connor v. Connor, 212 Ga. 92, 90 S.E.2d 581 (1955).

While husband's allegations as to matters transpiring before the reconciliation of the parties asserted conduct unbecoming a wife, they did not amount to allegations of cruel treatment since there was shown no willful infliction of pain such as would justify an apprehension of danger to life or health. Womble v. Womble, 214 Ga. 438, 105 S.E.2d 324 (1958).

Insane person cannot commit willful acts which amount to cruel treatment within the meaning of paragraph (10) of this statute. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954).

Divorce on grounds of cruel treatment presupposes bona fide separation. Sutton v. Sutton, 224 Ga. 140, 160 S.E.2d 385 (1968).

Separated spouses can commit cruel acts.

- Fact that spouses live separated does not make it impossible for either to commit cruel acts which may be the basis for a divorce. Slaughter v. Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940); Wiley v. Wiley, 231 Ga. 798, 204 S.E.2d 170 (1974).

Separation can occur when one spouse moves into another room with intent and purpose of suspending conjugal rights. Blasingame v. Blasingame, 249 Ga. 791, 294 S.E.2d 519 (1982).

Actual physical violence is not essential ingredient of cruel treatment as used in paragraph (10) of this statute, or as construed by the Supreme Court. Slaughter v. Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940).

Mental anguish may amount to cruelty.

- Mental anguish and wounded feelings, constantly aggravated by repeated insults and neglect, are as bad as actual bruises of the person, and that which produces the one is not more cruel than that which causes the other. Ross v. Ross, 169 Ga. 524, 150 S.E. 822 (1929); Duncan v. Duncan, 183 Ga. 570, 189 S.E. 18 (1936).

Commission of acts which outrage the feelings of modesty and decency, such as threatening to commit, or attempting to commit, adultery, or cursing, abusing, or using insulting and opprobrious language, when done between a husband and wife, whether by the husband to the wife, or by the wife to the husband, and in the knowledge or coming to the knowledge of both; these also, if persisted in and unatoned for, constitute cruel treatment. Ross v. Ross, 169 Ga. 524, 150 S.E. 822 (1929).

Words must be intended to wound.

- In absence of intention to wound, words do not constitute cruel treatment as contemplated by the law as a ground for divorce. Ewing v. Ewing, 211 Ga. 803, 89 S.E.2d 180 (1955).

Acts intended to cause anguish.

- Acts or conduct of the defendant which would not amount to cruel treatment when considered alone might be found by the jury to enter into an alleged calculated intent by the defendant of causing the petitioner great mental pain and anguish. Bell v. Bell, 213 Ga. 176, 97 S.E.2d 571 (1957).

Requirement of reasonable apprehension of injury.

- There is no requirement that plaintiff's health be actually injured, but only that there be reasonable apprehension of injury. Hardy v. Hardy, 221 Ga. 176, 144 S.E.2d 172 (1965).

Minor acts of temper not cruelty.

- Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to the cruelty against which the law can relieve. Ring v. Ring, 118 Ga. 183, 44 S.E. 861 (1903); Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954); Ewing v. Ewing, 211 Ga. 803, 89 S.E.2d 180 (1955).

Slight disagreements, and words inspired by transitory temper, were never intended by the statute as cause for setting aside a marriage contract. Brown v. Brown, 129 Ga. 246, 58 S.E. 825 (1907).

Single act of personal violence.

- As a general rule, single act of personal violence is not considered cruel treatment, but two or more such acts alone may furnish ground for divorce. Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922); Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954).

One act of cruelty, not of a violent or serious character, standing alone, is not a sufficient ground for a divorce. Brown v. Brown, 217 Ga. 671, 124 S.E.2d 399 (1962); Hearn v. Hearn, 220 Ga. 577, 140 S.E.2d 861 (1965).

When single act of cruelty may justify divorce.

- Single act of cruelty may be so severe and atrocious as to justify divorce; and a single act of cruel and inhuman treatment, accompanied by circumstances indicating a probability of a repetition of similar conduct, will warrant a divorce. Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922).

"Nagging" may be cruel treatment. Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940).

Allegations of "fussing and nagging" are sufficient to state a cause of action for divorce based on cruel treatment. Swindle v. Swindle, 221 Ga. 760, 147 S.E.2d 307 (1966).

Continuous course of ill conduct, such as nagging, injuriously affecting or endangering health of other spouse, might constitute cruel treatment as a ground of divorce, even though one incident in the course of conduct would not; and condoned acts in such a series of misconduct might be revived by the renewal and persistence of the conduct. Womble v. Womble, 214 Ga. 438, 105 S.E.2d 324 (1958).

Acts by wife, including continuous nagging and fussing, which were alleged in the husband's petition for divorce are sufficient to state a cause of action for divorce on the ground of cruel treatment. Cramer v. Cramer, 217 Ga. 414, 122 S.E.2d 729 (1961).

Allegations of continuous fussing and nagging were sufficient to charge cruel treatment. Hirsch v. Hirsch, 217 Ga. 590, 123 S.E.2d 915 (1962).

Constant nagging and false accusations can amount to cruel treatment. Hardy v. Hardy, 221 Ga. 176, 144 S.E.2d 172 (1965).

Affectionate attentions to other persons.

- Testimony of an unmarried woman as to attentions shown to her by the defendant, including a proposal of marriage, along with letters written by the defendant to the witness, containing terms of endearment and the like, is admissible to corroborate the testimony of the plaintiff as to cruel treatment. West v. West, 199 Ga. 378, 34 S.E.2d 545 (1945).

Circulating slanderous reports of infidelity.

- Circulation of reports of infidelity is such cruelty as would not only justify a separation, but would sustain an action for total divorce. Myrick v. Myrick, 67 Ga. 771 (1881); Glass v. Wynn, 76 Ga. 319 (1886)(This holding was said to be obiter in Ring v. Ring, 118 Ga. 183, 44 S.E. 861, 62 L.R.A. 878 (1903)).

Charge of adultery.

- Charging a wife who was undergoing "the change of life," in her presence, with incestuous adultery with her brother, and these charges producing such mental pain as to cause her to become ill and to keep her in bed, at times for as long as two weeks, is sufficient to authorize a verdict for total divorce on the ground of cruel treatment. Miller v. Miller, 139 Ga. 282, 77 S.E. 21 (1913).

Charge of unchastity.

- It is not cruel treatment to charge a wife with unchastity if she has been guilty thereof. Fuller v. Fuller, 108 Ga. 256, 33 S.E. 865 (1899).

Kicking one's wife, wounding and bruising her eye, head, and face, is cruel treatment sufficient to justify a divorce. Ozmore v. Ozmore, 41 Ga. 46 (1870).

Refusal to cohabit not cruel treatment.

- Mere proof that a wife declined to cohabit with her husband will not authorize the grant of a divorce to him on the ground of cruel treatment. Pinnebad v. Pinnebad, 134 Ga. 496, 68 S.E. 73 (1910).

Spouse's dishonesty to third person not cruelty.

- Dishonesty on the part of a husband in his dealings with a third party, not connected with his domestic relations or his treatment of his wife or the grounds of cruelty alleged in her petition, should not be brought to the attention of the jury in the charge, as possibly illustrating the conduct of the parties in respect to each other, on the issue of whether or not the plaintiff cruelly treated his wife. Anglin v. Anglin, 145 Ga. 822, 90 S.E. 73 (1916).

Taking legal action against spouse.

- That a wife brings action against her husband and recovers judgment against him for a debt due to her, and that after separation she sues him for temporary alimony and obtains a judgment in such action, does not constitute cruel treatment or furnish to the husband any basis for a suit for divorce. Pinnebad v. Pinnebad, 134 Ga. 496, 68 S.E. 73 (1910).

Alleging element of willfulness.

- Allegations that the acts done or words spoken were done intentionally and for the purpose of injuring or wounding the petitioner were sufficient to allege the element of willfulness in the infliction of mental pain. Swindle v. Swindle, 221 Ga. 760, 147 S.E.2d 307 (1966).

Alleged cruelty of a continuous nature.

- When cruelty alleged is of a continuous nature, it is not necessary to set forth dates of the cruelties complained of. Cramer v. Cramer, 217 Ga. 414, 122 S.E.2d 729 (1961).

Amending charges of cruelty.

- Charges of cruelty in petition, as basis for divorce, may be amended by other charges of cruelty, and the plaintiff is not required to set forth with exactitude the dates of cruelty continuous in character. Duncan v. Duncan, 183 Ga. 570, 189 S.E. 18 (1936).

Element of willfulness in jury charge.

- In charging upon cruel treatment, court should not omit reference to element of willfulness in the offense against the complaining party, nor fail to instruct the jury that it must be such as reasonably justifies the apprehension of the injuries referred to. Skellie v. Skellie, 152 Ga. 707, 111 S.E. 22 (1922).

Failure of judge to embrace element of willfulness in instruction requires grant of new trial, unless as a matter of law the court holds that the cruel treatment was willful. Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940).

Charge which embodied substantially definition of cruel treatment was not erroneous merely because not stated in the exact language of the Code. Bell v. Bell, 213 Ga. 176, 97 S.E.2d 571 (1957).

Cruelty presents question of law.

- What constitutes cruel treatment within the meaning of the law is a question of law for the court. Gholston v. Gholston, 31 Ga. 625 (1860); Brown v. Brown, 129 Ga. 246, 58 S.E. 825 (1907).

Adverse verdict on one claim of cruelty not bar to second action.

- Party who has once filed an action for divorce on the ground of cruel treatment, which resulted in a verdict and decree adverse to that party is not barred from thereafter filing a second petition on the same ground, but based on different acts, all of which were committed since the date of the former trial. Slaughter v. Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940).

Desertion

Willful and continued desertion.

- Willful and continued desertion by either party for a term of three years (now one) will authorize total divorce. Wilkinson v. Wilkinson, 159 Ga. 332, 125 S.E. 856 (1924).

Petitioner's consent to desertion is not grounds for divorce. Word v. Word, 29 Ga. 281 (1859); Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922).

Affirmative natural elements of desertion are two: the cohabitation ended, and the offending party's intent to desert. The statute creates a third affirmative element, the lapse of a definite period of time. Reagan v. Reagan, 221 Ga. 656, 146 S.E.2d 906 (1966).

There are three affirmative elements of desertion under law: the cohabitation ended, the offending party's intent to desert, and the lapse of a definite period of time. Cagle v. Cagle, 193 Ga. 34, 17 S.E.2d 75 (1941).

Desertion must be without legal justification, and without a breach of the continuity which the statute renders essential. Cagle v. Cagle, 193 Ga. 34, 17 S.E.2d 75 (1941); Reagan v. Reagan, 221 Ga. 656, 146 S.E.2d 906 (1966).

Desertion must be "willful."

- Desertion must not only have been continued for three years (now one) but must be "willful." Siniard v. Siniard, 145 Ga. 541, 89 S.E. 517 (1916).

Law required voluntary separation of one married party from other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other. Cagle v. Cagle, 193 Ga. 34, 17 S.E.2d 75 (1941); Reagan v. Reagan, 221 Ga. 656, 146 S.E.2d 906 (1966).

Separation by mutual consent does not constitute desertion. Born v. Born, 213 Ga. 830, 102 S.E.2d 170 (1958).

Voluntary separation is not desertion.

- While desertion as a ground for divorce must have been "willful," a separation based merely on a voluntary agreement by both parties that they shall live apart, will not constitute the necessary element of willfulness as to a desertion by either party. Allen v. Allen, 194 Ga. 591, 22 S.E.2d 136 (1942).

Denial of conjugal rights may amount to desertion.

- Within the meaning of the law, it was desertion by the wife, though she continues to reside in the matrimonial domicile, for her willfully, persistently, and without justification to deny her husband all his conjugal rights with the intention of casting him off as a husband completely and forever. The continuance of this state of affairs for three years (now one) affords cause of divorce on the grounds of desertion. Whitfield v. Whitfield, 89 Ga. 471, 15 S.E. 543 (1892); Pinnebad v. Pinnebad, 134 Ga. 496, 68 S.E. 73 (1910); Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215 (1937).

Continued refusal after request for renewal of relations.

- If the husband requests a resumption of the marital relation and a reconciliation in good faith, the refusal of the wife to resume cohabitation without justification or reasonable excuse manifests an intent to stay away and may constitute desertion on her part. Born v. Born, 213 Ga. 830, 102 S.E.2d 170 (1958).

One-year requirement for willful desertion.

- Evidence must show willful desertion for period of one year prior to filing of divorce action. Monroe v. Monroe, 218 Ga. 353, 127 S.E.2d 899 (1962).

Evidence going to show that the desertion was not "willful", or that the petitioner was consenting, is admissible for the respondent. Word v. Word, 29 Ga. 281 (1859).

Parties as witnesses on desertion issue.

- In an action for divorce by the husband against his wife alleging willful and continued desertion of the wife for a term of three years (now one), the husband is a competent witness; but he could not testify as to any facts derived by him from the confidential relation of husband and wife. Castello v. Castello, 41 Ga. 613 (1871).

Jury questions.

- Under paragraph (7) of former Code 1933, § 30-102 (see now O.C.G.A. § 19-5-3), even if the jury believed that appellant-husband had offered to resume marital relations and that appellee had refused to do so, a verdict for appellee would be proper because questions of good faith on the part of the husband in making the offer and whether the refusal of the wife to resume marital relations was justified or not under the circumstances and the period of time when the desertion began, are all for the determination of the jury. Reagan v. Reagan, 221 Ga. 656, 146 S.E.2d 906 (1966).

Marriage Irretrievably Broken

Constitutionality of divorce ground that marriage is irretrievably broken.

- Grant of divorce on ground that marriage is irretrievably broken does not violate due process, equal protection, privileges and immunities, right to the courts, and right to trial by jury clauses of the state and federal constitutions. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

Legislative intent in adding "no fault" ground of divorce was to manifest public policy of avoiding recriminations between married persons seeking a divorce. Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976).

Paragraph (13) amends public policy.

- Public policy of the state to hinder facility in the procurement of divorces has been amended to the extent that paragraph (13) of this statute facilitated the procurement of divorces. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

When paragraph (13) of this section conflicts with other sections.

- To the extent that paragraph (13) of this statute was in irreconcilable conflict with other statutes, it must be held to amend those statutes by implication. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

Irretrievably broken marriage is one where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation. McCoy v. McCoy, 236 Ga. 633, 225 S.E.2d 682 (1976).

No allocation of fault in irretrievably broken marriage.

- Under irretrievably broken ground, divorce is granted to both parties without allocation of fault. Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976).

Trial court is required to grant a divorce to both parties without fixing or placing fault on either party when a divorce is granted on the pleadings on irretrievably broken grounds. Herring v. Herring, 237 Ga. 771, 229 S.E.2d 756 (1976).

Divorce granted on irretrievably broken grounds should be granted to the parties equally. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

When traditional fault grounds alleged in addition to irretrievable break.

- Even when traditional fault allegations are put forth by affidavit, or as evidence at a hearing, on a motion for summary judgment on the irretrievably broken ground, the primary finding is merely that the marriage is one where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation no matter what the reasons are that have caused that result. Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976).

No proof of fault required to show marriage is "irretrievably broken."

- When parties do not specifically complain of the other's conduct, but merely state that their marital differences are insoluble and request a change of status, the only question is whether there are prospects for reconciliation. Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976).

No evidence requirement as to good faith effort.

- There is no requirement that evidence show that parties made good faith effort to make successful marriage, nor that the marriage became irretrievably broken through no fault of either party. Whitmire v. Whitmire, 236 Ga. 153, 223 S.E.2d 135 (1976).

Reconciliation and cohabitation of parties terminates action for divorce. This is a "no-fault" ground, and there can be no reconciliation on condition applicable to it, the breach of which condition would revive the action for divorce. Lindsay v. Lindsay, 241 Ga. 166, 244 S.E.2d 8 (1978).

In a case in which a complaint for divorce is brought upon the ground that the marriage was irretrievably broken, subsequent reconciliation and cohabitation of the parties terminates the action for divorce. Joiner v. Joiner, 246 Ga. 77, 268 S.E.2d 661 (1980).

Allegation of an irretrievably broken marriage is demonstrably false if the parties have resumed cohabitation or have reconciled for any period. Joiner v. Joiner, 246 Ga. 77, 268 S.E.2d 661 (1980).

Reconciliation and cohabitation did not divest court of jurisdiction.

- While cohabitation and reconciliation could be asserted as defenses to a pending divorce action, they did not divest a court of jurisdiction to enter a divorce decree; further, the court was authorized under O.C.G.A. § 19-5-3(13) to grant a divorce based on the evidence that the marriage was irretrievably broken. McCoy v. McCoy, 281 Ga. 604, 642 S.E.2d 18 (2007).

Whether possibility for reconciliation exists is subjective. When the issue is contested by one of the parties to the divorce action, all relevant evidence is admissible to aid in this determination. Whitmire v. Whitmire, 236 Ga. 153, 223 S.E.2d 135 (1976).

Party's failure to embark upon reconciliation in good faith.

- If one party does not embark upon reconciliation in good faith, it cannot amount to evidence of hope for the marriage. Joiner v. Joiner, 246 Ga. 77, 268 S.E.2d 661 (1980).

Mere fact that party maintains hope for reconciliation will not support finding that there are prospects for such. McCoy v. McCoy, 236 Ga. 633, 225 S.E.2d 682 (1976).

No-fault divorce may be granted by summary judgment when the movant seeks a divorce on the irretrievably broken grounds and pierces the opposing party's pleadings, which deny that the marriage is irretrievably broken. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

Summary judgment should be denied in a divorce proceeding when one of the parties moves for summary judgment on the issue of no-fault divorce and the other party opposes the motion by filing an affidavit expressing that party's opinion that the marriage is not irretrievably broken and there are genuine prospects for reconciliation. Whittington v. Whittington, 247 Ga. 79, 274 S.E.2d 333 (1981).

Party estopped to complain of divorce judgment granted under paragraph (13).

- When the court granted a divorce to the wife on the ground of the marriage being irretrievably broken she cannot later complain because one cannot complain of a judgment, order, or ruling that one's own procedure or conduct procured or aided in causing. Friedman v. Friedman, 233 Ga. 254, 210 S.E.2d 754 (1974).

Other Grounds for Divorce

Insanity at time of marriage is grounds for divorce. Huguley v. Huguley, 204 Ga. 692, 51 S.E.2d 445 (1949).

Natural impotence existing at time of marriage will void the marriage. Head v. Head, 2 Ga. 191 (1847).

No requirement as to petitioner's knowledge of impotency.

- In naming impotency as a ground for divorce, merely specified "Impotency at the time of the marriage," without any qualification as to knowledge of the petitioner thereof. Lovelace v. Lovelace, 179 Ga. 822, 177 S.E. 685 (1934).

Condonation of impotency is specific affirmative defense which must be alleged and proved by the party insisting upon it. Lovelace v. Lovelace, 179 Ga. 822, 177 S.E. 685 (1934).

"Menace."

- Any overt act of threatening character, short of actual assault, was "menace." Bryant v. Bryant, 192 Ga. 114, 14 S.E.2d 725 (1941).

When false representation of paternity not grounds for divorce.

- When woman prior to her marriage falsely and fraudulently represented to her prospective husband that he was the father of a child with which she was then pregnant, such representation would not be ground for the grant of a divorce based upon fraud, when it was shown that he married her to avoid a prosecution for seduction. Peacon v. Peacon, 197 Ga. 748, 30 S.E.2d 640 (1944).

There were three essential ingredients in grounds for divorce based on conviction for a crime of moral turpitude: the commission of the offense involving moral turpitude, the conviction for the offense, and a sentence for a term of two years or longer in the penitentiary. Holloway v. Holloway, 126 Ga. 459, 55 S.E. 191 (1906).

Right to divorce for criminal conviction is not affected by executive pardon granted after sentence has been imposed. Holloway v. Holloway, 126 Ga. 459, 55 S.E. 191 (1906).

Applicability of condonation.

- Condonation has no application between date of conviction and sentence and actual incarceration. Henderson v. Henderson, 235 Ga. 236, 219 S.E.2d 160 (1975).

Voluntary manslaughter conviction.

- Conviction of a married person of voluntary manslaughter followed by a sentence of imprisonment in the penitentiary for a term of two years or longer gives to the other party to the marriage a right to a divorce. Holloway v. Holloway, 126 Ga. 459, 55 S.E. 191 (1906).

Not necessary to show continual intoxication.

- In order to prove "habitual intoxication" on the part of the respondent, it is not essential to show that one was constantly and continuously drunk. Fuller v. Fuller, 108 Ga. 256, 33 S.E. 865 (1899).

Proof of drunkenness on one occasion insufficient.

- Testimony that the husband was "drunk" or "under the influence of liquor" on one occasion prior to the separation is wholly insufficient to sustain a divorce on the ground of habitual intoxication. Stimpson v. Stimpson, 213 Ga. 235, 98 S.E.2d 559 (1957).

Provision on incurable mental illness strictly construed.

- Since the settled law in this state is that, unless authorized by statute, insanity or other mental incapacity arising after marriage is not cause for divorce, any change in the settled law by statute making postnuptial insanity a ground for divorce should be strictly construed. Shelton v. Shelton, 209 Ga. 454, 74 S.E.2d 5 (1953).

Law did not create any new right to support and maintenance after a divorce granted to the husband on the grounds of incurable insanity. Morris v. Bruce, 98 Ga. App. 821, 107 S.E.2d 262 (1959).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, §§ 19 et seq., 324 et seq.

8B Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 32.

C.J.S.

- 27A C.J.S., Divorce, § 21 et seq.

ALR.

- Sufficiency of allegation of adultery in suit for divorce, 2 A.L.R. 1621.

Desertion as affected by element of remonstrance or resistance, 3 A.L.R. 503.

Forcing spouse to get rid of child by former marriage as cruelty constituting ground for divorce, 3 A.L.R. 803.

Abuse by relatives of other spouse as cruelty constituting ground for divorce, 3 A.L.R. 993.

Conduct amounting to treatment endangering life within statute defining grounds for divorce, 5 A.L.R. 712.

Venereal disease as ground for divorce or annulment of marriage, 5 A.L.R. 1016; 8 A.L.R. 1540.

Desertion as affected by intimations of a possible consent to the renewal of marital relations in the future, 12 A.L.R. 1391.

Misrepresentation or mistake as to identity or condition in life of one of the parties as affecting validity of marriage, 14 A.L.R. 121; 75 A.L.R. 663.

Divorce: offer after lapse of statutory period of desertion to resume marital relations, 18 A.L.R. 630.

Birth of child or miscarriage before or after lapse of normal period of gestation since access of husband as evidence of adultery, 21 A.L.R. 1457.

Divorce for desertion predicated upon conduct subsequent to a decree of separation, 25 A.L.R. 1047; 61 A.L.R. 1268.

Adultery by deserted spouse after desertion, as ground of divorce in favor of other spouse, 25 A.L.R. 1051.

Refusal of one spouse to live with relatives of other as affecting desertion as ground of divorce or separation, 47 A.L.R. 687.

Charges, in divorce suit, of marital misconduct as cruelty within statute defining grounds of divorce, 51 A.L.R. 1188.

Necessity that drunkenness to constitute ground for divorce shall continue until commencement of suit or later, 54 A.L.R. 331.

Divorce for desertion predicated upon conduct subsequent to a decree of separation, or divorce a mensa et thoro, 61 A.L.R. 1268.

Discretion as to denial of divorce or separation where statutory grounds are established, 74 A.L.R. 271.

Insistence on living with relatives as cruelty for purposes of divorce or separation, 76 A.L.R. 985.

Request or demand for resumption of marital relations as affected by conditions attached or alternatives suggested, 76 A.L.R. 1023.

Divorce a vinculo for desertion predicated upon conduct prior to decree of separation, 95 A.L.R. 234.

Subsequent adultery as recriminatory defense to desertion or cruelty, 101 A.L.R. 646.

Insanity as substantive ground of divorce or separation, 113 A.L.R. 1248; 24 A.L.R.2d 873.

What amounts to habitual intemperance, drunkenness, excessive drug use, and the like within statute relating to substantive grounds for divorce, 101 ALR6th 455.

Cruelty predicated upon acts or conduct during separation as ground for divorce or separation, 129 A.L.R. 160.

Character or nature of crime contemplated by statute as substantive ground for divorce, 135 A.L.R. 851.

Construction and application of statutory provision requiring security for maintenance of defendant as condition of divorce or annulment of marriage because of insanity, 141 A.L.R. 946.

Accusation of improper relations as cruelty constituting ground for divorce or separation, 143 A.L.R. 623.

Separation due to husband's refusal or inability to support wife as desertion within divorce statute, 150 A.L.R. 991.

Association or conduct of spouse with persons of opposite sex as cruelty or abusive treatment justifying divorce or separation, 157 A.L.R. 631.

Doctrine of comparative rectitude in divorce cases, 159 A.L.R. 734.

Conduct of plaintiff in divorce suit, not of itself a cause for divorce, as basis of defense of recrimination, 159 A.L.R. 1453.

Divorce on ground of husband's gifts of his property to third persons, 160 A.L.R. 620.

Recrimination as an absolute or qualified defense in divorce cases, 170 A.L.R. 1076.

Validity and construction of statute respecting divorce in favor of spouse whose husband or wife has obtained divorce in another state, 175 A.L.R. 293.

Testimony of children as to grounds of divorce of their parents, 2 A.L.R.2d 1329.

Avoidance of procreation of children as ground for divorce or annulment of marriage, 4 A.L.R.2d 227.

Antenuptial knowledge relating to alleged grounds as barring right to divorce, 15 A.L.R.2d 670.

Requisites of proof of insanity as a ground for divorce, 15 A.L.R.2d 1135.

What constitutes duress sufficient to warrant divorce or annulment of marriage, 16 A.L.R.2d 1430.

Insanity as affecting right to divorce or separation, 19 A.L.R.2d 144.

Conviction in another jurisdiction as within statute making conviction of crime a ground of divorce, 19 A.L.R.2d 1047.

Divorce: acts or omissions of spouse causing other spouse to leave home as desertion by former, 19 A.L.R.2d 1428.

Insanity as substantive ground of divorce or separation, 24 A.L.R.2d 873.

Racial, religious, or political differences as ground for divorce, separation, or annulment, 25 A.L.R.2d 928.

Wife's failure to follow husband to new domicile as constituting desertion or abandonment as ground for divorce, 29 A.L.R.2d 474.

Condonation of cruel treatment as defense to action for divorce or separation, 32 A.L.R.2d 107.

Charge of insanity or attempt to have spouse committed to mental institution as ground for divorce or judicial separation, 33 A.L.R.2d 1230.

Sufficiency of allegations of desertion, abandonment, or living apart as ground for divorce, separation, or alimony, 57 A.L.R.2d 468.

Concealed premarital unchastity or parenthood as ground of divorce or annulment, 64 A.L.R.2d 742.

What constitutes impotency as ground for divorce, 65 A.L.R.2d 776.

Charging spouse with criminal misconduct as cruelty constituting ground for divorce, 72 A.L.R.2d 1197.

Drunkenness, habitual intemperance, or use of drugs as constituting cruelty as a ground for divorce, 76 A.L.R.2d 419.

Homosexuality as ground for divorce, 78 A.L.R.2d 807.

Divorce: time of pendency of former suit for divorce, annulment, alimony, or maintenance as included in period of desertion, 80 A.L.R.2d 855.

Mistreatment of children as ground for divorce, 82 A.L.R.2d 1361.

Threats or attempts to commit suicide as cruelty or indignity constituting a ground for divorce, 86 A.L.R.2d 422.

Insistence on sex relations as cruelty or indignity constituting ground for divorce, 88 A.L.R.2d 553.

Acts occurring after commencement of suit for divorce as ground for decree under original complaint, 98 A.L.R.2d 1264.

Construction of statute making bigamy or prior lawful subsisting marriage to third person a ground for divorce, 3 A.L.R.3d 1108.

Single act as basis of divorce or separation on ground of cruelty, 7 A.L.R.3d 761.

Power of court to grant absolute divorce to both spouses upon showing of mutual fault, 13 A.L.R.3d 1364.

Fault of spouse as affecting right to divorce under statute making separation a substantive ground of divorce, 14 A.L.R.3d 502.

Concealment of or misrepresentation as to prior marital status as ground for annulment of marriage, 15 A.L.R.3d 759.

Retrospective effect of statute prescribing grounds of divorce, 23 A.L.R.3d 626.

Separation within statute making separation a substantive ground of divorce, 35 A.L.R.3d 1238.

Incapacity for sexual intercourse as ground for annulment, 52 A.L.R.3d 589.

Refusal of sexual intercourse as justifying divorce or separation, 82 A.L.R.3d 660.

Transvestism or transsexualism of spouse as justifying divorce, 82 A.L.R.3d 725.

What constitutes "incompatibility" within statute specifying it as substantive ground for divorce, 97 A.L.R.3d 989.

Insanity as defense to divorce or separation - post 1950 cases, 67 A.L.R.4th 277.

Homosexuality as ground for divorce, 96 A.L.R.5th 83.

What amounts to habitual intemperance, drunkenness, excessive drug use, and the like within statute relating to substantive grounds for divorce, 101 A.L.R.6th 455.

19-5-4. Effect of collusion, consent, guilt of like conduct, or condonation.

  1. No divorce shall be granted under the following circumstances:
    1. The adultery, desertion, cruel treatment, or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing a divorce;
    2. The party complaining of the adultery, desertion, cruel treatment, or intoxication of the other party was consenting thereto;
    3. Both parties are guilty of like conduct; or
    4. There has been a voluntary condonation and cohabitation subsequent to the acts complained of, with notice thereof.
  2. In all such cases, the respondent may plead in defense the conduct of the party bringing the action and the jury may, on examination of the whole case, refuse a divorce.

(Laws 1850, Cobb's 1851 Digest, p. 226; Code 1863, § 1673; Code 1868, § 1714; Code 1873, § 1715; Code 1882, § 1715; Civil Code 1895, § 2429; Civil Code 1910, § 2948; Code 1933, § 30-109.)

Law reviews.

- For note discussing treatment of condonation in various jurisdictions and advocating its abolition as a strict defense so as to promote reconciliation, see 20 Mercer L. Rev. 481 (1969). For note advocating abolition of the defense of recrimination, see 20 Mercer L. Rev. 484 (1969).

JUDICIAL DECISIONS

General Consideration

It is not necessary for wife to counterclaim for divorce to avail herself of this defense under the provisions of this statute. Minielly v. Minielly, 234 Ga. 434, 216 S.E.2d 271 (1975).

Reconciliation and cohabitatiion did not divest court of jurisdiction to grant divorce.

- While cohabitation and reconciliation could be asserted as defenses to a pending divorce action, they did not divest a court of jurisdiction to enter a divorce decree; further, the court was authorized under O.C.G.A. § 19-5-3(13) to grant a divorce based on the evidence that the marriage was irretrievably broken. McCoy v. McCoy, 281 Ga. 604, 642 S.E.2d 18 (2007).

Like Conduct

"Like conduct" construed.

- When the ground of divorce of the husband is cruel treatment occurring prior to the separation, and the wife's charge in her answer is adultery, this is not such "like conduct" as is contemplated by law. Schwartz v. Schwartz, 222 Ga. 460, 150 S.E.2d 809 (1966).

Cruel treatment and desertion are not "like conduct" within the meaning of the law so as to prohibit the grant of a divorce. Blois v. Blois, 234 Ga. 475, 216 S.E.2d 281 (1975).

Cruel treatment by the wife prior to separation vis-a-vis adultery of the husband after separation and an invalid Mexican divorce are not "like conduct". Blois v. Blois, 234 Ga. 475, 216 S.E.2d 281 (1975).

Cruel treatment of wife beating is "unlike" the cruel treatment of a wife's abusive and insulting language to her husband. Blois v. Blois, 234 Ga. 475, 216 S.E.2d 281 (1975).

If both parties have been guilty of like misconduct, no divorce shall be granted. Cohen v. Cohen, 196 Ga. 562, 27 S.E.2d 28 (1943).

Divorce denied to both parties who participate in quarreling.

- When plaintiff's testimony showed conclusively that any fussing and quarreling was participated in by both, neither party could be granted a divorce under this testimony. Davis v. Davis, 223 Ga. 657, 157 S.E.2d 444 (1967).

Condonation

"Condonation" is forgiveness, either expressed or implied, by a husband of his wife, or by a wife of her husband, for a breach of marital duty, with an implied condition that the offense shall not be repeated. Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922); Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215 (1937); Day v. Day, 210 Ga. 454, 81 S.E.2d 6 (1954); Poulos v. Poulos, 226 Ga. 375, 174 S.E.2d 925 (1970).

Condonation includes conditional forgiveness of all antecedent acts of cruelty, and such acts as may have been condoned will not be revived except by fresh acts of cruelty. Poulos v. Poulos, 226 Ga. 375, 174 S.E.2d 925 (1970).

Sexual intercourse is not essential element of condonation, although it is conclusive evidence thereof. Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922); Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215 (1937); Dixon v. Dixon, 211 Ga. 869, 89 S.E.2d 473 (1955); Poulos v. Poulos, 226 Ga. 375, 174 S.E.2d 925 (1970).

Mere request to resume marital relations not condonation.

- Fact that the plaintiff had a friendly interview with his wife, and requested her to return home and live with him, does not amount in law to a condonation. Johns v. Johns, 29 Ga. 718 (1859).

What constitutes condonation of cruel treatment.

- If, after an act of cruelty done by the husband to the wife, she lives with him for many years, and has by him numerous children, and would probably still live with him but for the interference of a child, the act is condoned by her. Buckholts v. Buckholts, 24 Ga. 238 (1858).

If a husband is guilty of cruel treatment toward his wife, or of adultery, and with full knowledge thereof she condones the offense and cohabits with him, and he is not guilty of any further misconduct, she can not thereafter, at her mere will, desert him. Davis v. Davis, 134 Ga. 804, 68 S.E. 594 (1910).

If there is no breach of condition after condonation, forgiveness stands complete and absolute. Condonation is not revocable at will. Davis v. Davis, 134 Ga. 804, 68 S.E.2d 594 (1910); Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922).

Condonation will not prevent divorce if based upon condition broken by the husband. Ozmore v. Ozmore, 41 Ga. 46 (1870).

Condonation and cohabitation after filing a suit for divorce, if conditioned upon the promise of the defendant not to again be guilty of the acts charged in the petition, will not prevent the plaintiff from proceeding with the original petition for divorce in the event of a breach of the condition and agreement on the part of the defendant. Day v. Day, 210 Ga. 454, 81 S.E.2d 6 (1954).

Resumption of cruelty vitiates condonation.

- When a husband filed a suit for divorce against his wife on the ground of cruel treatment, and subsequently the marital relations were resumed on the strength of the wife's promise to desist from the acts of cruel treatment as alleged in the petition, and when on resumption of marital relations the wife did not desist from such cruel treatment and another separation took place, the act of the husband in resuming the marital relation did not amount to condonation of the wife's cruel treatment when she failed to fulfill the agreement by virtue of which the marital relations were resumed. Bruce v. Bruce, 195 Ga. 868, 25 S.E.2d 654 (1943).

Revival of right when condition of condonation broken.

- If after the condonation the conduct of the husband is such as to revive the condoned acts and give to the wife a right to assert them, she is not debarred from so doing; nor is she prevented from setting up misconduct on his part after the condonation for the consideration of the jury in determining whether a divorce should be granted. Davis v. Davis, 134 Ga. 804, 68 S.E. 594, 30 L.R.A. (n.s.) 73, 20 Ann. Cas. 20 (1910); Harn v. Harn, 155 Ga. 502, 117 S.E. 383 (1923).

Question of condonation is peculiarly matter of defense in the trial of a divorce case on its merits. Lybrand v. Lybrand, 204 Ga. 312, 49 S.E.2d 515 (1948); Johnson v. Johnson, 210 Ga. 795, 82 S.E.2d 831 (1954).

Voluntary condonation and cohabitation subsequent to the acts complained of are matters of affirmative defense in the trial of the case upon its merits. Adams v. Adams, 213 Ga. 875, 102 S.E.2d 566 (1958).

Condonation may be more readily presumed against husband than wife, and condonation may be presumed from cohabitation which means dwelling together. Odom v. Odom, 39 Ga. 286 (1867), overruled on other grounds, Wise v. Wise, 156 Ga. 459, 119 S.E. 410 (1923); Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922); Paris v. Paris, 197 Ga. 162, 28 S.E.2d 452 (1943).

Condonation is not so readily presumed against the wife, as the husband. Knowledge of the guilt of the husband, and forgiveness by the wife, are not legally to be presumed, but must be clearly and distinctly proved, in order to bar her action. Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215 (1937); Livingston v. Livingston, 211 Ga. 420, 86 S.E.2d 288 (1955).

When presumption of condonation can be rebutted.

- Although presumption of condonation arises if parties occupy same room and bed, such presumption can be rebutted by showing that the party seeking forgiveness has resorted to the same acts of cruel treatment which caused the initial separation. Thornton v. Thornton, 232 Ga. 666, 208 S.E.2d 557 (1974).

Presumption rebutted when party clearly denies cohabitation.

- When the plaintiff wife testified that "we were not living as man and wife," and that "there was no condonation on my part of the acts" of the husband, the general presumption of matrimonial cohabitation and condonation by the wife, arising from their occupancy of the same set of apartments, was sufficiently rebutted, so as to fully authorize a finding in her favor on the question of condonation. Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215 (1937).

When presumption not overcome.

- Strong though rebuttable presumption that a marital act occurs when the parties occupy the same room is not overcome by testimony of the husband that they occupied separate beds and such an act did not occur, when he fails to give the facts and circumstances under which he found himself occupying the same room with his wife in a hotel, when the wife testifies that a marital act did occur. Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215 (1937).

Defense to pending divorce action only.

- O.C.G.A. § 19-5-4 establishes only that voluntary condonation and cohabitation constitute a defense to a pending divorce action, not a ground for setting aside a previously entered divorce decree; thus, it did not apply as a defense to a divorce decree and orders for custody and property division when the cohabitation occurred before, rather than after, filing of a divorce action. Southworth v. Southworth, 265 Ga. 671, 461 S.E.2d 215 (1995).

Moving party's admission to having committed adultery.

- Jury may refuse a divorce in cases when movant committed adultery, but in such circumstances the jury may, on examination of the whole case, grant a divorce. Williford v. Williford, 230 Ga. 543, 198 S.E.2d 181 (1973).

Jury Charge

Proper charge of mutual cruel treatment as "like conduct."

- After the judge charged the jury that, "if both were guilty of cruel treatment then you would refuse a divorce to both parties," this was a sufficient charge of the law that a divorce will not be granted either party when both are guilty of "like conduct". Childs v. Childs, 223 Ga. 435, 156 S.E.2d 21 (1967).

Error to fail to charge that jury should refuse divorce.

- When each party charges and proves cruel treatment by accusations alleged by the other to be false, and denial of love for the other, it is error to fail to charge, without request, that, if the jury found both parties guilty of like conduct, the jury should refuse a divorce to either of them. Moon v. Moon, 216 Ga. 627, 118 S.E.2d 473 (1961); McCartney v. McCartney, 217 Ga. 200, 121 S.E.2d 785 (1961); Schwartz v. Schwartz, 222 Ga. 460, 150 S.E.2d 809 (1966); Childs v. Childs, 223 Ga. 435, 156 S.E.2d 21 (1967); McClellan v. McClellan, 224 Ga. 355, 162 S.E.2d 425 (1968).

When there is evidence that both parties have been guilty of like conduct, it is reversible error to fail to charge, without request, that, if both parties have been guilty of like conduct then no divorce shall be granted. Brackett v. Brackett, 217 Ga. 84, 121 S.E.2d 146 (1961).

Error to overrule request for charge on definition of condonation.

- When the pleadings and the evidence show repeated separations and reconciliations, after promises not to repeat the misconduct, and then a breach of such promises, and the court charged that all such conduct could be considered unless condoned, the special ground complaining of the failure to charge a definition of condonation is meritorious, and since the question of whether or not there was condonation became a material issue in the case it was error to overrule the decision. Hall v. Hall, 220 Ga. 677, 141 S.E.2d 400 (1965).

Charge to jury when equal guilt involved.

- When the plaintiff's grounds for divorce are cruel treatment, and the defendant's cross-action (now counter-claim) seeks a divorce for desertion, it is reversible error to charge the jury that they may find a divorce in favor of both parties; to so find is a contradiction, contrary to the evidence and the law. Moon v. Moon, 216 Ga. 627, 118 S.E.2d 473 (1961).

While no objection was made by counsel for the wife to the instruction that a divorce could be granted to both parties when the jury could find that the parties were guilty of like conduct, this charge specifically authorized an invalid verdict, and it was a substantial error which is subject to review. Childs v. Childs, 223 Ga. 435, 156 S.E.2d 21 (1967).

Condonation presents jury question.

- Whether husband has condoned acts of alleged cruelty about which he complains is a question for determination by the jury. Paris v. Paris, 197 Ga. 162, 28 S.E.2d 452 (1943).

Party estopped to challenge validity of property settlement in collusive divorce.

- When the main relief sought by the plaintiff is the cancellation of certain conveyances and transfers and the recovery of real and personal property conveyed by him in pursuance of an agreement by which he obtained a divorce by collusion, he must come into a court of equity with clean hands and is estopped from attacking the validity of the decree thus self-induced. Fender v. Crosby, 209 Ga. 896, 76 S.E.2d 769 (1953).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, §§ 17, 125, 128, 135 et seq., 243, 366. 24A Am. Jur. 2d, Divorce and Separation, § 1033.

8B Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 81.

C.J.S.

- 27A C.J.S., Divorce, § 100 et seq.

ALR.

- Condonation of matrimonial offense without cohabitation, 6 A.L.R. 1157; 47 A.L.R. 576.

Adultery by deserted spouse after desertion, as ground of divorce in favor of other spouse, 25 A.L.R. 1051.

Doctrine of comparative rectitude in divorce cases, 63 A.L.R. 1132; 159 A.L.R. 734.

Subsequent adultery as recriminatory defense to desertion or cruelty, 101 A.L.R. 646.

Knowledge of offenses as condition of condonation as defense to suit or counterclaim for divorce, 109 A.L.R. 683.

Collusion as bar to divorce, 109 A.L.R. 832.

Individual acts of cohabitation between husband and wife as breaking continuity of abandonment, desertion, or separation, or as condonation thereof, 155 A.L.R. 132.

Divorce: necessity and sufficiency of corroboration of plaintiff's testimony concerning ground for divorce, 15 A.L.R.2d 170.

Revival of condoned adultery, 16 A.L.R.2d 585.

What amounts to connivance by one spouse at other's adultery, 17 A.L.R.2d 342.

Recrimination as defense to divorce sought on ground of incompatibility, 21 A.L.R.2d 1267.

Condonation of cruel treatment as defense to action for divorce or separation, 32 A.L.R.2d 107.

Fault of spouse as affecting right to divorce under statute making separation a substantive ground of divorce, 14 A.L.R.3d 502.

19-5-5. Petition; contents and verification; demand for detailed statement.

  1. The action for divorce shall be brought by written petition and process, the petition being verified by the petitioner.
  2. The petition shall show:
    1. The residence or last known address of the respondent;
    2. That the applicant meets the residence requirements for bringing an action for divorce or that the applicant is bringing a counterclaim and is not required to meet the residence requirements;
    3. The date of the marriage and the date of the separation;
    4. Whether or not there are any minor children of the parties and the name and age of each minor child;
    5. The statutory ground upon which a divorce is sought; and
    6. Where alimony or support or division of property is involved, the property and earnings of the parties, if such is known.
  3. The respondent, at any time before trial, may file with the court a written demand for a detailed statement of the facts on which the grounds in the petition are predicated. The respondent shall cause a copy of the demand to be served upon the petitioner or upon the petitioner's counsel of record and the facts demanded shall be added to the petition in the form of an amendment thereto.

(Laws 1802, Cobb's 1851 Digest, p. 223; Code 1863, § 1675; Code 1868, § 1716; Code 1873, § 1717; Code 1882, § 1717; Civil Code 1895, § 2432; Civil Code 1910, § 2951; Code 1933, § 30-105; Ga. L. 1946, p. 90, § 4; Ga. L. 1967, p. 761, § 1.)

Cross references.

- Time of trial in divorce cases involving service by publication, § 9-11-40.

Law reviews.

- For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For survey article on wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For note, "The Significance of Stokes v. Stokes: An Examination of Property Rights Upon Divorce in Georgia," see 16 Ga. L. Rev. 695 (1982).

JUDICIAL DECISIONS

Petition must show property.

- Law provided that if division of property was involved, petition shall show property. Davis v. Davis, 216 Ga. 305, 116 S.E.2d 219 (1960).

It is not necessary to render schedule of property when alimony or support is not sought. Davis v. Davis, 216 Ga. 305, 116 S.E.2d 219 (1960).

Law required that petition for divorce be verified, but did not require that the answer be verified. Harrison v. Harrison, 228 Ga. 126, 184 S.E.2d 147 (1971).

Mandatory verification of petition.

- Requirement that all petitions be verified by the petitioner is a mandatory provision and is manifestly a rule of pleading and not of evidence. Bell v. Bell, 202 Ga. 615, 44 S.E.2d 118 (1947).

Effect of unverified complaint.

- Fact that original complaint for divorce is not verified does not render suit null and void, but is an amendable defect. Edwards v. Edwards, 227 Ga. 307, 180 S.E.2d 358 (1971).

Sworn petition which has not been legally verified.

- Petition, having been sworn to by the plaintiff as required by law, was not subject to dismissal as showing on the petition's face that the petition was not legally verified. Bell v. Bell, 202 Ga. 615, 44 S.E.2d 118 (1947).

Provision requiring that the plaintiff swear to his or her petition being the only requirement of law that it be sworn to at all, it follows that, even if the plaintiff in such a divorce suit had not been legally empowered and required to verify his or her petition, the rule would simply be that no verification was necessary. Bell v. Bell, 202 Ga. 615, 44 S.E.2d 118 (1947).

Sufficiency of allegation concerning separation.

- Allegation that the parties live in the same family dwelling, when taken in connection with the further allegation that they "are living separate and apart," is a sufficient allegation of living in a state of separation, and does not render the petition subject to general demurrer (now motion to dismiss). Westberry v. Westberry, 173 Ga. 42, 159 S.E. 671 (1931).

Challenge to residency assertion was challenge to court's jurisdiction.

- In a divorce case, a husband's enumerations of error raising the issue of the wife's residency under O.C.G.A. § 19-5-5(b)(2) were challenges to the trial court's jurisdiction over the subject matter; these related to a motion to set aside under O.C.G.A. § 9-11-60(d)(1). Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 690 S.E.2d 397 (2010).

Cited in Hicks v. Hicks, 186 Ga. 362, 197 S.E. 878 (1938); Scott v. Scott, 192 Ga. 370, 15 S.E.2d 416 (1941); Ragans v. Ragans, 200 Ga. 890, 39 S.E.2d 162 (1946); Tatum v. Tatum, 203 Ga. 406, 46 S.E.2d 915 (1948); Huguley v. Huguley, 204 Ga. 692, 51 S.E.2d 445 (1949); Hinkle v. Hinkle, 209 Ga. 554, 74 S.E.2d 657 (1953); Fuller v. Fuller, 216 Ga. 131, 114 S.E.2d 881 (1960); Hughes v. Hughes, 218 Ga. 684, 130 S.E.2d 226 (1963); Goodwill v. Goodwill, 221 Ga. 757, 147 S.E.2d 313 (1966); Sutton v. Sutton, 224 Ga. 140, 160 S.E.2d 385 (1968); Mitchell v. Mitchell, 226 Ga. 678, 177 S.E.2d 89 (1970); Sparks v. Sparks, 127 Ga. App. 657, 194 S.E. 621 (1972); Auerback v. Maslia, 142 Ga. App. 184, 235 S.E.2d 594 (1977); Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980); Cavalino v. Cavalino, 601 F. Supp. 74 (N.D. Ga. 1984); Holler v. Holler, 257 Ga. 27, 354 S.E.2d 140 (1987); Pope v. Pope, 277 Ga. 333, 588 S.E.2d 736 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, § 216.

8B Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 68.

C.J.S.

- 27A C.J.S., Divorce, § 141 et seq.

ALR.

- Necessity of pleading affirmative defense in divorce suit, 76 A.L.R. 990.

Inclusion in bill for divorce or annulment of allegations and prayer to impress trust upon property or otherwise settle property rights, 93 A.L.R. 327.

Sufficiency of allegations of desertion, abandonment, or living apart as ground for divorce, separation, or alimony, 57 A.L.R.2d 468.

19-5-6. Grant of divorce to respondent without necessity of counterclaim.

When a petition for divorce is filed, the respondent may recriminate in his answer and ask a divorce in his favor. If, at the trial, the court or jury believes that the respondent rather than the petitioner is entitled to a divorce, they may so find upon legal proof.

(Ga. L. 1863-64, p. 45, § 1; Code 1868, § 1717; Code 1873, § 1718; Code 1882, § 1718; Civil Code 1895, § 2433; Civil Code 1910, § 2952; Code 1933, § 30-106; Ga. L. 1946, p. 90, § 5.)

JUDICIAL DECISIONS

Respondent may recriminate and ask for a divorce.

- Former Code 1933, § 30-106 did not support the conclusion that both parties may be entitled to a judgment of divorce. It clearly provides that a respondent in a divorce action may recriminate and ask for a divorce and not that both parties may be granted a divorce. Brackett v. Brackett, 217 Ga. 84, 121 S.E.2d 146 (1961).

Effect given to wife's counterclaim in divorce action.

- Wife, when sued for divorce, may set up in answer any matter which should be subject of counterclaim, and by such counterclaim recriminate her husband and pray for permanent alimony. When the wife so pleads, her counterclaim is the legal equivalent of an independent suit for alimony. Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95 (1953).

When plaintiff fails to make out case, the defendant may proceed to introduce evidence to support the plaintiff's allegations for a divorce. Owen v. Owen, 54 Ga. 526 (1875).

Counterclaim interposed by wife in husband's suit for divorce is legal equivalent of independent action and is treated, in short, as a mere ancillary suit. State rules of procedure, pleading, and practice as applicable to divorce cases do not require that an answer taking the character of a crossclaim (now counterclaim) be filed at the term to which the plaintiff's case is made returnable, or before the regular call of the appearance docket. Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95 (1953).

Wife's right to proceed with a counterclaim for alimony is unaffected by withdrawal, or by a dismissal, for any reason of the original suit. Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95 (1953).

Libel for divorce on ground of cruelty.

- To be libel for divorce on ground of cruelty, the defendant may in answer recriminate plaintiff's adultery. Johns v. Johns, 29 Ga. 718 (1859); Rowell v. Rowell, 209 Ga. 572, 74 S.E.2d 833 (1953).

Recriminatory charge of adultery committed by plaintiff after commencement of divorce action is valid defense and upon a proper application at any time before the final decree, if such application is made immediately after the discovery of the fact, the court should permit the defendant to put in a supplemental answer for the purpose of setting up such matter as a new defense. Rowell v. Rowell, 209 Ga. 572, 74 S.E.2d 833 (1953).

Judgment set aside when trial court struck allegation of adultery.

- When it appears that trial court in an action for divorce struck an amendment to the defendant's answer and counterclaim in which he recriminated the adultery of his wife, the plaintiff, which allegedly occurred after the parties separated and after the wife filed suit, good and sufficient cause for setting aside a verdict and judgment granting a total divorce and awarding permanent alimony is shown. Rowell v. Rowell, 209 Ga. 572, 74 S.E.2d 833 (1953).

Cited in Lowry v. Lowry, 170 Ga. 349, 153 S.E. 11 (1930); Hansberger v. Hansberger, 182 Ga. 495, 185 S.E. 810 (1936); Brock v. Brock, 183 Ga. 860, 190 S.E. 30 (1937); Twilley v. Twilley, 195 Ga. 291, 24 S.E.2d 41 (1943); Taylor v. Taylor, 195 Ga. 711, 25 S.E.2d 506 (1943); Ragans v. Ragans, 200 Ga. 890, 39 S.E.2d 162 (1946); Huguley v. Huguley, 204 Ga. 692, 51 S.E.2d 445 (1949); Veazy v. Blair, 86 Ga. App. 721, 72 S.E.2d 481 (1952); Jolley v. Jolley, 216 Ga. 51, 114 S.E.2d 534 (1960); Ivey v. Ivey, 233 Ga. 45, 209 S.E.2d 590 (1974); Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11 (1978).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, § 238 et seq.

8B Am. Jur. Pleading and Practice Forms, Divorce and Separation, §§ 46, 47.

C.J.S.

- 27A C.J.S., Divorce, §§ 232, 233, 345 et seq.

ALR.

- Sufficiency of allegation of adultery in suit for divorce, 2 A.L.R. 1621.

Necessity of pleading affirmative defense in divorce suit, 76 A.L.R. 990.

Subsequent adultery as recriminatory defense to desertion or cruelty, 101 A.L.R. 646.

Power of court to grant absolute divorce to both spouses upon showing of mutual fault, 13 A.L.R.3d 1364.

19-5-7. Transfer of property after filing of petition; lis pendens notice.

After a petition for divorce has been filed, no transfer of property by either party, except a bona fide transfer in payment of preexisting debts, shall pass title so as to avoid the vesting thereof according to the final verdict of the jury in the case; provided, however, that the title to real property shall not be affected by the filing of an action for divorce unless a notice of lis pendens, as provided for by Code Section 44-14-610, is filed in the office of the clerk of the superior court of the county in which the real property is situated and is recorded by the clerk in a book kept by him for that purpose.

(Orig. Code 1863, § 1677; Code 1868, § 1720; Code 1873, § 1721; Code 1882, § 1721; Civil Code 1895, § 2436; Civil Code 1910, § 2955; Code 1933, § 30-112; Ga. L. 1950, p. 365, § 1; Ga. L. 1979, p. 466, § 3; Ga. L. 1999, p. 81, § 19.)

JUDICIAL DECISIONS

Law should be strictly construed since it is a restraint upon the alienation of property by the owner. Chatsworth Lumber Co. v. White, 214 Ga. 798, 107 S.E.2d 827 (1959).

Construction.

- Restriction upon the free alienation of property by the owner is contrary to public policy, and will not be extended by construction beyond the plain intent and meaning of the law. Lamar v. Jennings, 69 Ga. 392 (1882); Russell v. Rice, 103 Ga. 310, 30 S.E. 37 (1898); Wallace v. Wallace, 189 Ga. 220, 5 S.E.2d 580 (1939).

When section is operative.

- Law was operative only on conveyances made during pendency of divorce action. Chatsworth Lumber Co. v. White, 214 Ga. 798, 107 S.E.2d 827 (1959).

Law did not affect conveyance after separation, but before action for divorce was filed. Wallace v. Wallace, 189 Ga. 220, 5 S.E. 580 (1939).

Section's effect upon alienation.

- Law operated to render alienation subordinate to any disposition of scheduled property made by jury in the final verdict. Stephens v. Stephens, 168 Ga. 630, 148 S.E. 522 (1929).

Law did not apply to suits for alimony alone but applied to cases when a divorce proceeding was pending. Davis v. Leach, 228 Ga. 139, 184 S.E.2d 454 (1971).

Law did not operate in favor of third parties. Lamar v. Jennings, 69 Ga. 392 (1882).

Equitable proceeding to set aside fraudulent conveyance.

- Former Code 1933, § 30-112 (see now O.C.G.A. § 19-5-7) did not prevent equitable proceeding against grantee to set aside fraudulent conveyance, under former Code 1933, §§ 28-101 and 28-201 (see now O.C.G.A. §§ 18-2-1 and former18-2-22), of real property by the husband with intent to defeat the wife's recovery of alimony since the grantee had knowledge or reason to suspect such intent since the grantee in such case was not an innocent purchaser. Wood v. McGahee, 211 Ga. 913, 89 S.E.2d 634 (1955).

Law contemplates rendition of final verdict by jury in the action for divorce, and did not contemplate that the restraint against alienation shall continue after rendition of such verdict was no longer possible. Chatsworth Lumber Co. v. White, 214 Ga. 798, 107 S.E.2d 827 (1959); Butler v. Hicks, 229 Ga. 72, 189 S.E.2d 416 (1972).

When property sold was included in the schedule, sale did not vest title in purchaser so as to prevent the vesting thereof in the wife, according to the verdict of the jury. The purchaser bought subject to the verdict, and the purchaser's want of actual notice does not protect the purchaser. Venable v. Craig, 44 Ga. 437 (1871).

When parties fail to schedule or incompletely schedule property, final decree leaves parties where it finds them, and the separate title of each to party to their property is unaffected by the decree. The same rule is applied to indebtednesses existing between them. Sparks v. Sparks, 127 Ga. App. 657, 194 S.E.2d 621 (1972).

Judgment obtained for pre-existing debt.

- Valid judgment obtained against the husband during the pendency of a suit for a divorce, founded on a debt contracted before the separation of the husband and wife, is a good lien upon property set apart to the wife on the final hearing. Carithers v. Venable, 52 Ga. 389 (1874).

Property disposed before institution of divorce action unaffected.

- Law construed in connection with its cognate sections did not restrict a transfer by a husband of his property, made bona fide and for value, prior to the institution of a divorce action, but was operative only on conveyances by the husband made during the pendency of a libel for divorce. Singleton v. Close, 130 Ga. 716, 61 S.E. 722 (1908).

Property not disposed of by verdict ultimately unaffected.

- Restraint on alienation imposed by law was operative only insofar as it rendered the alienation subordinate to any disposition of the specific property which might be made by the jury in the final verdict; and this restraint did not affect property not disposed of by the final verdict granting the divorce. Almand & George v. Seamans, 89 Ga. 309, 15 S.E. 320 (1892).

Property disposed before institution of divorce action unaffected absent lis pendens.

- Since a Chapter 7 debtor pre-petition executed a deed conveying the debtor's interest in property to the debtor's spouse as part of the parties' settlement agreement before a divorce proceeding was filed, constraint on alienation did not apply because the debtor did not allege that the debtor filed a notice of lis pendens. In re Randolph, 546 Bankr. 474 (Bankr. N.D. Ga. 2016).

Death of party releases restraint on alienation of property.

- When action for divorce filed by wife against her husband abated upon her death, there could be no verdict in the divorce suit as contemplated by law and there was no longer any restraint upon the alienation of the husband's property. Chatsworth Lumber Co. v. White, 214 Ga. 798, 107 S.E.2d 827 (1959).

Since the death of one of the parties makes a final verdict impossible, the restraint on the husband's transfer of title is removed. Butler v. Hicks, 229 Ga. 72, 189 S.E.2d 416 (1972).

Possession of realty by wife and children as inquiry notice.

- Actual possession of the realty by the former wife and children was sufficient to put all who might purchase from the husband on notice and on inquiry as to what interest, claim, or rights they might have therein, and this notice by reason of possession was effective as to the property possessed whether or not a lis pendens notice was filed under the requirements of law. Waddell v. City of Atlanta, 121 Ga. App. 94, 172 S.E.2d 862, cert. dismissed, 226 Ga. 631, 176 S.E.2d 801 (1970).

Effect of pendency of action on mortgage or conveyance.

- Mere pendency of action for alimony will not disable defendant therein from making bona fide mortgage or conveyance of unencumbered property over which the court has not taken nor been asked to take any direct jurisdiction in order to administer or secure it for application to the claim for alimony, and the mortgagee of such property has priority over a judgment for alimony subsequently rendered. Coulter v. Lumpkin, 94 Ga. 225, 21 S.E. 461 (1894).

Equity will, by injunction, prevent husband from alienating his property to defeat alimony, it being well established, if others cooperate with him to perpetrate such wrong, the same remedy is proper as against them. Gray Bros. v. Gray, 65 Ga. 193 (1880).

When injunction should not issue.

- Injunction should not issue when husband is neither attempting nor threatening to sell or encumber property, and no other grounds for the issuance of the writ is shown. Melvin v. Melvin, 129 Ga. 42, 58 S.E. 474 (1907); Ramsey v. Ramsey, 175 Ga. 685, 165 S.E. 624 (1932).

Not error to refuse charge of section when action for alimony only.

- In a suit by a wife against her husband for alimony when no suit for divorce was pending, and no schedule of the husband's property was filed, it is not error to refuse to give former Civil Code 1910, § 2955 in charge. Chandler v. Chandler, 161 Ga. 350, 130 S.E. 685 (1925).

Bona fides question for jury.

- It was a question of fact for the jury to decide whether a deed had been executed bona fides in payment of a pre-existing debt. Mathews v. Mathews, 162 Ga. 233, 133 S.E. 254 (1926).

Cited in Chero-Cola Co. v. May, 169 Ga. 273, 149 S.E. 895 (1929); Blevins v. Pittman, 189 Ga. 789, 7 S.E.2d 662 (1940); Lawrence v. Lawrence, 196 Ga. 204, 26 S.E.2d 283 (1943); McKoy v. Bush, 200 Ga. 759, 38 S.E.2d 669 (1946); Roach v. Roach, 212 Ga. 40, 90 S.E.2d 423 (1955); Heidelberg v. Smith, 214 Ga. 785, 107 S.E.2d 844 (1959); McClinton v. McClinton, 217 Ga. 283, 122 S.E.2d 112 (1961); Schofield v. Fearon, 169 Ga. App. 924, 315 S.E.2d 452 (1984); Vance v. Lomas Mtg. USA, Inc., 263 Ga. 33, 426 S.E.2d 873 (1993).

RESEARCH REFERENCES

8C Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 407.

C.J.S.

- 27A C.J.S., Divorce, § 212.

ALR.

- Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306.

Right of husband or wife to maintain replevin against other, 41 A.L.R. 1054.

Divorce as affecting estate by entireties, 52 A.L.R. 890; 59 A.L.R. 718.

Injunction pendente lite in suit for divorce or separation, 164 A.L.R. 321.

Trust income or assets as subject to claim against beneficiary for alimony, maintenance, or child support, 91 A.L.R.2d 262.

Appointment or discharge of receiver for marital or community property necessitated by suit for divorce or separation, 15 A.L.R.4th 224.

Lis pendens as applicable to suit for separation or dissolution of marriage, 65 A.L.R.4th 522.

Divorce and separation: effect of court prohibiting sale or transfer of property on party's right to change beneficiary of insurance policy, 68 A.L.R.4th 929.

Divorce and separation: health insurance benefits as marital asset, 81 A.L.R.6th 655.

19-5-8. Pleading and practice.

The same rules of pleading and practice applicable to ordinary civil actions shall apply to actions for divorce, alimony, and custody of minor children, except as otherwise specifically provided in this chapter. No verdict or judgment by default shall be taken in any such case but the allegations of the pleadings shall be established to the satisfaction of the court by the verified pleadings, by affidavit, by evidentiary hearing, or otherwise, as provided in Code Section 19-5-10.

(Ga. L. 1895, p. 44, § 9; Civil Code 1895, §§ 2440, 5074; Civil Code 1910, §§ 2959, 5658; Code 1933, § 30-113; Ga. L. 1958, p. 315, § 1; Ga. L. 1967, p. 226, § 44; Ga. L. 1987, p. 565, § 1.)

Law reviews.

- For article, "The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act," see 3 Ga. St. B.J. 383 (1967). For article, "Georgia Law of Alimony," see 4 Ga. St. B.J. 54 (1999).

JUDICIAL DECISIONS

Legislative intent.

- Laws peculiar to divorce suits clearly indicate an intention upon the part of the lawmaking power to impede the facility for obtaining divorces; and such purpose can only be attributed to a zealous regard for the well-being of society. Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940).

Evidence required to establish essential allegations in petition for divorce.

- Essential allegations in petition for divorce, including jurisdiction, must be established by evidence and the burden of proving such allegations rests upon the plaintiff. Moody v. Moody, 194 Ga. 843, 22 S.E.2d 837 (1942); Harmon v. Harmon, 209 Ga. 474, 74 S.E.2d 75 (1953).

Divorce granted by court lacking jurisdiction.

- Divorce granted by court having no subject matter or personal jurisdiction is nullity. Harmon v. Harmon, 209 Ga. 474, 74 S.E.2d 75 (1953).

In action for divorce it is necessary to allege correct venue, and to make affirmative proof thereof. Johnson v. Johnson, 188 Ga. 800, 4 S.E.2d 807 (1939).

Legal status of plaintiff's case, concerning plaintiff's right to verdict, is the same whether or not an answer is filed by the defendant or not. Lovelace v. Lovelace, 179 Ga. 822, 177 S.E. 685 (1934).

Construction with other law.

- O.C.G.A. § 9-11-55 is authority for the grant of default judgments; however, O.C.G.A. § 19-5-8 specifically exempts from the general ambit of § 9-11-55 issues with regard to the equitable division of marital property. Brown v. Brown, 271 Ga. 887, 525 S.E.2d 359 (2000).

Default judgment cannot be taken in divorce or alimony actions. Thus, even though notice of the hearing on the final decree is waived by failure to file responsive pleadings, the allegations of the petition must still be established by evidence. Youmans v. Youmans, 247 Ga. 529, 276 S.E.2d 837 (1981).

Although a default judgment was not permissible in a divorce case, O.C.G.A. § 19-5-8, a trial court did not err in entering a judgment of divorce on the pleadings pursuant to O.C.G.A. § 19-5-10(a) after a wife failed to file responsive pleadings, thereby waiving notice of the hearing under O.C.G.A. § 9-11-5. The trial court properly relied on the husband's verified complaint and domestic relations affidavit in dividing the parties' property. Ellis v. Ellis, 286 Ga. 625, 690 S.E.2d 155 (2010).

No default judgment.

- No provision has been made in this state by statute or otherwise for a judgment declaring a divorce suit to be in default as to pleadings. Jolley v. Jolley, 216 Ga. 51, 114 S.E.2d 534 (1960); Johnston v. Still, 225 Ga. 222, 167 S.E.2d 646 (1969).

Answer is not essential in domestic relations case because a default judgment may not be entered. Cagle v. Davis, 236 Ga. App. 657, 513 S.E.2d 16 (1999).

Child custody order in divorce case not a final judgment.

- Because neither the original court-ordered parenting plan nor the two subsequent orders amending the plan constituted a final judgment, and the determination of child custody became final only when the final judgment and decree in the divorce case was entered, the wife's motion for new trial, although the motion obviously referenced the bench trial on the child custody issues, was timely filed within 30 days of the date of the final judgment in the divorce case. Hoover v. Hoover, 295 Ga. 132, 757 S.E.2d 838 (2014).

Default judgment and child support action.

- Default judgment cannot be entered in an original action for child support. Likewise, a default judgment cannot be entered in a subsequent action for modification of a previous award of child support. Department of Human Resources v. Hedgepath, 204 Ga. App. 755, 420 S.E.2d 638 (1992).

Default judgment cannot be taken in child custody actions.

- Judgment cannot be taken by default in actions involving the custody of minor children. Wright v. Sanford, 243 Ga. 252, 253 S.E.2d 560 (1979).

Default judgment cannot be taken in habeas corpus custody cases. Wright v. Sanford, 243 Ga. 252, 253 S.E.2d 560 (1979).

Default provisions of Ga. L. 1967, p. 226, § 24 (see now O.C.G.A. § 9-11-55) have no application to divorce cases. Simpson v. Simpson, 240 Ga. 543, 242 S.E.2d 45 (1978).

Spouse's right to defend without filing answer cannot be used to deny existence of "issuable defense" and thereby defeat the right to jury trial provided by former Code 1933, § 30-101 (see now O.C.G.A. § 19-5-1). Trulove v. Trulove, 233 Ga. 896, 213 S.E.2d 868 (1975).

Requirement that evidence make prima facie case.

- It is court's duty not to permit verdict for divorce, unless evidence makes prima facie case showing that the defendant in the divorce action was a resident of the county at the time the suit was filed, and it was the duty of the jury to refuse a divorce unless this fact is proved by a preponderance of the testimony. McConnell v. McConnell, 135 Ga. 828, 70 S.E. 647 (1911); Lovelace v. Lovelace, 179 Ga. 822, 177 S.E. 685 (1934).

Preponderance of evidence sufficient to establish terms of lost antenuptial agreement.

- In a divorce case, applying the preponderance of the evidence standard, and deferring to the trial court's finding that both a husband and a wife believed their opposing positions regarding the contents of a lost antenuptial agreement, the husband failed to prove the terms of the lost agreement, and the agreement could not be enforced. Coxwell v. Coxwell, 296 Ga. 311, 765 S.E.2d 320 (2014).

Effect of mere failure to answer or contest particular evidence.

- Since a divorce cannot be granted by default, a mere failure to answer the complaint or a failure to contest some particular evidence would not be an admission that a divorce should be granted. Benefield v. Benefield, 224 Ga. 208, 160 S.E.2d 895 (1968).

Third parties with claims against marital property properly joined in divorce action.

- Trial court erred in entering a default judgment against the appellant because third parties are properly joined in a divorce action so as to facilitate resolution of the spouses' marital claims, and a claim against a non-spouse that involves marital property has always been considered an integral part of the divorce action. Brown v. Brown, 271 Ga. 887, 525 S.E.2d 359 (2000).

Attorney is entitled to the opening and concluding argument before the jury when the verdict for divorce and alimony is not demanded by the evidence and the defendant husband has introduced no evidence. Hogsed v. Hogsed, 230 Ga. 232, 196 S.E.2d 428 (1973).

Motion to set aside divorce decree.

- When a judgment and decree sought to be set aside were rendered in one term, and the motion to set aside came at a subsequent term, was not based on any defect appearing on the face of the record or pleadings, and was not accompanied by any brief of the evidence adduced upon the trial which resulted in the judgment and decree, the trial judge did not err in dismissing the motion to set aside. Prewett v. Prewett, 215 Ga. 425, 110 S.E.2d 638 (1959).

Cited in Dicks v. Dicks, 177 Ga. 379, 170 S.E. 245 (1933); Young v. Young, 188 Ga. 29, 2 S.E.2d 622 (1939); Davis v. Freeman, 190 Ga. 833, 10 S.E.2d 847 (1940); Tatum v. Tatum, 203 Ga. 406, 46 S.E.2d 915 (1948); Brackett v. Brackett, 217 Ga. 84, 121 S.E.2d 146 (1961); Patterson v. Patterson, 219 Ga. 186, 132 S.E.2d 201 (1963); Mitchell v. Mitchell, 226 Ga. 678, 177 S.E.2d 89 (1970); Harrison v. Harrison, 228 Ga. 126, 184 S.E.2d 147 (1971); Wallace v. Wallace, 229 Ga. 607, 193 S.E.2d 832 (1972); Barrett v. Barrett, 232 Ga. 840, 209 S.E.2d 181 (1974); Oliveros v. Oliveros, 237 Ga. 615, 229 S.E.2d 415 (1976); Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11 (1978); Herring v. Herring, 246 Ga. 462, 271 S.E.2d 857 (1980); Gambrell v. Gambrell, 246 Ga. 516, 272 S.E.2d 70 (1980); McElroy v. McElroy, 252 Ga. 553, 314 S.E.2d 893 (1984); Hammack v. Hammack, 281 Ga. 202, 635 S.E.2d 752 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Law required introduction of evidence sufficient to sustain verdict. 1958-59 Op. Att'y Gen. p. 85.

Divorce case was never in default, and since not in default, the case cannot be tried before the trial term, without consent of the parties. 1958-59 Op. Att'y Gen. p. 85.

Legal status of plaintiff's case, concerning plaintiff's right to verdict, is same whether or not answer is filed by the defendant. 1958-59 Op. Att'y Gen. p. 85.

Defendant should not be deprived of right to resist grant of total divorce whether defensive pleadings be filed or not. 1958-59 Op. Att'y Gen. p. 85.

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, § 216.

C.J.S.

- 27A C.J.S., Divorce, § 141 et seq.

ALR.

- Extraterritorial recognition and effect on marital status of decree of divorce rendered upon constructive or substituted service, 86 A.L.R. 1329; 143 A.L.R. 1294; 157 A.L.R. 1399; 163 A.L.R. 368; 1 A.L.R.2d 1385; 28 A.L.R.2d 1303.

Nonresidence of defendant or cross complainant in a suit for divorce as affecting power to grant divorce in his or her favor, 89 A.L.R. 1203.

Effect of noncompliance with statutes providing for appearance by prosecuting attorney or other representative of public in suit for divorce, 127 A.L.R. 732.

Jurisdiction upon constructive service in suit for divorce or separation as affected by relief sought in respect of separation agreement, 147 A.L.R. 673.

Power of court, in absence of express authority, to grant relief from judgment by default in divorce action, 157 A.L.R. 6; 22 A.L.R.2d 1312.

Default decree in divorce action as estoppel or res judicata with respect of marital property rights, 22 A.L.R.2d 724.

Decree in suit for separation as res judicata in subsequent suit for divorce or annulment, 90 A.L.R.2d 745.

Jurisdiction on constructive or substituted service, in divorce or alimony action, to reach property within state, 10 A.L.R.3d 212.

Right of one spouse, over objection, voluntarily to dismiss claim for divorce, annulment, or similar marital relief, 16 A.L.R.3d 283.

Right to jury trial in state court divorce proceedings, 56 A.L.R.4th 955.

19-5-9. Incompetency to serve as juror.

A juror who has conscientious scruples as to the granting of divorces shall be incompetent to serve in divorce cases. At the request of either party, the court may question the panel concerning such scruples.

(Laws 1840, Cobb's 1851 Digest, p. 225; Code 1863, § 1681; Code 1868, § 1724; Code 1873, § 1725; Code 1882, § 1725; Civil Code 1895, § 2443; Civil Code 1910, § 2962; Code 1933, § 30-114.)

Cross references.

- Challenging of jurors in civil cases generally, § 15-12-134.

19-5-10. Duty of judge in undefended divorce cases; appointment of attorney; evidentiary hearings; evidentiary attacks on prior judgments.

  1. In divorce cases which are not defended by the responding party, the judge shall determine that the asserted grounds for divorce are legal and sustained by proof or shall appoint an attorney of the court to discharge that duty for him.An evidentiary hearing for the determination of the existence of the grounds for divorce and for the determination of issues of alimony, child support, and child custody and other issues is authorized but not required.If no evidentiary hearing is held, the determination of such matters may be made upon the verified pleadings of either party, one or more affidavits, or such other basis or procedure as the court may deem proper in its discretion.
  2. The provisions of subsection (a) of this Code section shall apply to proceedings pending on July 1, 1987, as well as to proceedings filed on or after that date.
  3. Any motion to set aside or other proceeding to attack a judgment which attacks a judgment entered in a divorce case prior to July 1, 1987, and which is based upon an alleged failure to properly establish evidence supporting the judgment must be commenced prior to July 1, 1988, or thereafter be totally barred. The bar established by this subsection is in addition to and not in lieu of any other statute or rule of law which would operate as a bar to such a motion or other proceeding; and this subsection shall not operate to revive any otherwise barred right to prosecute any such motion or other proceeding.

(Orig. Code 1863, § 1687; Code 1868, § 1730; Code 1873, § 1735; Code 1882, § 1735; Civil Code 1895, § 2455; Civil Code 1910, § 2974; Code 1933, § 30-129; Ga. L. 1987, p. 565, § 2; Ga. L. 1990, p. 1315, § 1.)

Law reviews.

- For annual survey article discussing developments in domestic relations law, see 52 Mercer L. Rev. 213 (2000).

JUDICIAL DECISIONS

Legislative intent.

- Laws peculiar to divorce suits clearly indicate an intention upon the part of the lawmaking power to impede the facility for obtaining divorces; and such purpose can only be attributed to a zealous regard for the well-being of society. Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940).

Duty imposed by law was clearly placed on trial judge, and not the solicitor general (now district attorney), although the judge may appoint the solicitor general or some other attorney to discharge that duty for the judge. Boykin v. Martocello, 194 Ga. 867, 22 S.E.2d 790 (1942).

Judge must hear evidence and determine legality of grounds alleged.

- While there was no judgment by default in a divorce case, law meant no more than that in any divorce case when no defensive pleadings were filed it was incumbent upon the trial court to hear evidence in support of the plaintiff's grounds of divorce and make an affirmative finding therefrom that the grounds are legal and were sustained by proof. Harris v. Harris, 228 Ga. 562, 187 S.E.2d 139 (1972).

Duties of attorney appointed by judge.

- Since the solicitor general (now district attorney) was appointed to see that the grounds of a divorce were legal, and sustained by proof, the solicitor general might introduce evidence, and enter fully into the defense of the case. Creamer v. Creamer, 36 Ga. 618 (1867); Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95 (1953).

No authority to grant relief beyond pleadings.

- Although O.C.G.A. § 19-5-10 allows a court presiding over an undefended divorce case to conduct a hearing and make a determination on child support, it does not authorize a court to grant relief beyond that requested in the pleadings. Hackbart v. Hackbart, 272 Ga. 26, 526 S.E.2d 840 (2000).

Verified complaint and affidavit supported judgment of divorce and division of property.

- Although a default judgment was not permissible in a divorce case, O.C.G.A. § 19-5-8, a trial court did not err in entering a judgment of divorce on the pleadings pursuant to O.C.G.A. § 19-5-10(a) after a wife failed to file responsive pleadings, thereby waiving notice of the hearing under O.C.G.A. § 9-11-5. The trial court properly relied on the husband's verified complaint and domestic relations affidavit in dividing the parties' property. Ellis v. Ellis, 286 Ga. 625, 690 S.E.2d 155 (2010).

Award of child support.

- Since the husband was a Georgia resident and was personally served, the trial court erred to the extent that the court based the refusal to award child support upon the fact that his whereabouts were unknown; because he was served in Georgia and his current location was irrelevant to the jurisdiction of the trial court to determine his obligation for the support of his child. Russ v. Russ, 272 Ga. 438, 530 S.E.2d 469 (2000).

Cited in Tatum v. Tatum, 203 Ga. 406, 46 S.E.2d 915 (1948); Miller v. Miller, 214 Ga. 606, 106 S.E.2d 284 (1958); Jolley v. Jolley, 216 Ga. 51, 114 S.E.2d 534 (1960); Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 (1961).

19-5-11. Use of confession as evidence; corroboration.

The confessions of a party to acts of adultery or cruel treatment shall be received with great caution; if unsupported by corroborating circumstances and if made with a view to be evidence in the case, such confessions shall not be deemed sufficient to grant a divorce.

(Orig. Code 1863, § 1674; Code 1868, § 1715; Code 1873, § 1716; Code 1882, § 1716; Civil Code 1895, § 2430; Civil Code 1910, § 2949; Code 1933, § 30-110.)

Cross references.

- Criminal penalty for adultery, § 16-6-19.

JUDICIAL DECISIONS

Confessions of parties against themselves are admissible when there is no suspicion of collusion. Johns v. Johns, 29 Ga. 718 (1859).

Uncorroborated confessions.

- Confession of the respondent as to acts of adultery since the respondent's marriage, uncorroborated by other circumstances, will not authorize the granting of a divorce. Head v. Head, 2 Ga. 191 (1847); Woolfolk v. Woolfolk, 53 Ga. 661 (1875).

Total divorce will not be granted on evidence consisting exclusively in confessions of the defendant. Buckholts v. Buckholts, 24 Ga. 238 (1858).

Incriminating admission made by spouse in third person's presence.

- In a suit for divorce on the ground of adultery, an incriminating admission made by one spouse to the other in the known presence of a third person is not confidential or privileged, and the third person in whose presence the admission was made may testify to such admission on the trial of a divorce case between the parties. Cocroft v. Cocroft, 158 Ga. 714, 124 S.E. 346 (1924).

Cited in Collins v. Collins, 229 Ga. 222, 190 S.E.2d 539 (1972); McCoy v. McCoy, 236 Ga. 633, 225 S.E.2d 682 (1976).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, §§ 311, 321, 341 et seq.

C.J.S.

- 27A C.J.S., Divorce, § 244 et seq.

ALR.

- Birth of child or miscarriage before or after lapse of normal period of gestation since access of husband as evidence of adultery, 21 A.L.R. 1457.

Necessity of corroboration of admission or confession of ground of divorce or nullity, 40 A.L.R. 630.

Discretion as to denial of divorce or separation where statutory grounds are established, 74 A.L.R. 271.

Association or conduct of spouse with persons of opposite sex as cruelty or abusive treatment justifying divorce or separation, 157 A.L.R. 631.

Admissibility in divorce action for adultery of wife's statement that husband was not father of her child, 4 A.L.R.2d 567.

Divorce: necessity and sufficiency of corroboration of plaintiff's testimony concerning ground for divorce, 15 A.L.R.2d 170.

19-5-12. Form of judgment and decree.

  1. A final judgment of divorce shall be prepared so as to conform to the pleadings and the evidence and may restore a maiden or prior name, if requested. It shall be prepared in form substantially as follows:

    It is considered, ordered, and decreed by the court that the marriage contract heretofore entered into between the parties to this case, from and after this date, be and is set aside and dissolved as fully and effectually as if no such contract had ever been made or entered into.

    Petitioner and Respondent in the future shall be held and considered as separate and distinct individuals altogether unconnected by any nuptial union or civil contract whatsoever and both shall have the right to remarry.

    Decree and order entered this __________ day of ______________, ______.

    ___________________________________________________________________________

    Judge, Superior Court"

  2. When applicable, any one or more of the following clauses shall be included in the form of the judgment:

    The court restores to (Petitioner/Respondent) his/her prior or maiden name, to wit:

    _________________________________________________________________________.

    The court awards custody of the children of the parties asfollows:

    _________________________________________________________________________.

    The court fixes alimony as follows:

    _________________________________________________________________________.

  3. In any case which involves the determination of child support, the form of the judgment shall also include all of the information set forth in paragraph (2) of subsection (c) of Code Section 19-6-15. The final judgment shall have attached to it the child support worksheet containing the calculation of the final award of child support and any schedule that was prepared for the purpose of calculating the amount of child support. The final judgment shall specify a sum certain amount of child support to be paid.
  4. When applicable, the court shall also include in the final judgment the ability to use income deduction orders as set forth in Code Sections 19-6-30 and 19-6-32.
"FINAL JUDGMENT AND DECREE Upon consideration of this case, upon evidence submitted as provided by law, it is the judgment of the court that a total divorce be granted, that is to say, a divorce a vinculo matrimonii, between the parties to the above stated case upon legal principles.

(Laws 1802, Cobb's 1851 Digest, p. 224; Code 1863, § 3484; Code 1868, § 3507; Code 1873, § 3565; Code 1882, § 3565; Civil Code 1895, § 2438; Civil Code 1910, § 2957; Code 1933, § 30-116; Ga. L. 1946, p. 90, § 9; Ga. L. 1979, p. 466, § 4; Ga. L. 1995, p. 603, § 1; Ga. L. 1996, p. 453, § 5; Ga. L. 1999, p. 81, § 19; Ga. L. 2005, p. 224, § 4/HB 221; Ga. L. 2006, p. 583, § 3/SB 382; Ga. L. 2017, p. 646, § 1-1/SB 137.)

The 2017 amendment, effective July 1, 2017, in the form in subsection (a), added an opening quotation mark before "FINAL" at the beginning, substituted "individuals" for "persons" in the first sentence of the second paragraph, and added a closing quotation mark following "Judge, Superior Court" at the end; in subsection (b), substituted "When" for "Where" at the beginning of the first sentence; in subsection (c), substituted "all of the information set forth in paragraph (2) of subsection (c) of Code Section 19-6-15" for "provisions indicating both parents' income, the number of children for which support is being provided, the presumptive amount of child support award calculation, and, if the presumptive amount of child support is rebutted, the award amount and the basis for the rebuttal award" in the first sentence, and substituted "any schedule that was prepared for the purpose of calculating the amount of child support" for "Schedule E pertaining to deviations" in the second sentence; and substituted the present provisions of subsection (d) for the former provisions, which read: "Where applicable, the court shall also include in the order the provisions of Code Section 19-6-30 concerning continuing garnishment for support and language in compliance with Code Section 19-6-32 concerning income deduction orders.".

Cross references.

- Recording of divorces in vital records, § 31-10-21.

Provision for collection of child support by continuing garnishment for support, § 19-6-30.

Editor's notes.

- Ga. L. 1995, p. 603, § 4, not codified by the General Assembly, provides that it is the intention of Sections 1 and 2 of that Act to encourage judges in divorce cases to require all couples involved in contested divorces to go to mediation to attempt a mutually agreeable settlement.

Ga. L. 2005, p. 224, § 1/HB 221, not codified by the General Assembly, provides that: "The General Assembly finds and declares that it is important to assess periodically child support guidelines and determine whether existing guidelines continue to be viable and effective or whether they have failed or ceased to accomplish their original policy objectives. The General Assembly further finds that supporting Georgia's children is vitally important to the citizens of Georgia. Therefore, the General Assembly has determined that it is in the best interests of the state and its citizenry to undertake an evaluation of the child support guidelines on a continuing basis. The General Assembly declares that it is important that all of Georgia's children are provided with adequate financial support whether the children's parents are living together or not living together. The General Assembly finds that both parents have a continuing obligation with respect to providing financial and emotional stability for their child or children. It is the hope of the members of the General Assembly that all parents work together to advance the best interest of their children."

Ga. L. 2006, p. 583, § 10(b)/SB 382, not codified by the General Assembly, provides: "Sections 1 through 7 of this Act shall become effective on January 1, 2007, and shall apply to all pending civil actions on or after January 1, 2007."

Law reviews.

- For article, "Alimony and Child Support: Limit Issuance or Renewal of Licenses for Failure to Comply with Child Support Order," see 13 Ga. St. U.L. Rev. 127 (1996). For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 73 (2005). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 103 (2006). For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 169 (1995).

JUDICIAL DECISIONS

Decree fixing status of parties treated as judgment quasi in rem. So far as the adjudication fixes the status of the parties, the judgment concludes both parties and strangers; but, beyond the adjudication of the status, the decree does not conclude strangers. McDonald v. McDonald, 232 Ga. 190, 205 S.E.2d 850 (1974).

Verdict construed as for plaintiff when form fails to specify.

- When both parties to a divorce suit introduced evidence in support of their respective prayers for divorce, and the jury returned a verdict in the form prescribed by law, without stating whether the verdict was for the plaintiff or the defendant, the verdict would be construed to be for the plaintiff. Gardner v. Gardner, 206 Ga. 669, 58 S.E.2d 416 (1950); Fried v. Fried, 208 Ga. 861, 69 S.E.2d 862 (1952); Newman v. Newman, 223 Ga. 278, 154 S.E.2d 581 (1967).

Verdict for plaintiff is not concurrent with one for defendant and decree based upon nonconcurrent verdicts is void, and should be set aside on proper motion. Hyde v. Hyde, 200 Ga. 635, 38 S.E.2d 287 (1946).

Judgment not set aside when language used substantially conforms to section.

- Verdict and judgment which was not couched in the exact language contained in the statute but the language used was substantially the same, the verdict was not subject to being set aside. De Gouras v. De Gouras, 205 Ga. 362, 53 S.E.2d 759 (1949).

Incorporation of custody judgment in divorce decree.

- When custody is decided by juvenile court, it is unnecessary to incorporate custody judgment in divorce decree. Saade v. Saade, 238 Ga. 620, 234 S.E.2d 530 (1977).

Decree should accurately reflect a settlement reached by the parties; therefore, the trial court cannot be allowed to make substantive additions in voluntary agreements made before the court. Robinson v. Robinson, 261 Ga. 330, 404 S.E.2d 435 (1991).

Substantially conforming to agreement.

- Although a spouse alleged on appeal that a motion to set aside that portion of the divorce decree which dealt with the issue of child support, which incorporated the parties' settlement agreement, was properly granted because the decree failed to set forth a specific baseline dollar amount for child support, as required by O.C.G.A. § 19-5-12, the decree contained stated dollar amounts which could be considered baseline payments; hence, pursuant to O.C.G.A. § 19-6-15 as applicable at the time, the trial court properly found that the spouse was liable for paying child support for two children in the range of 23 to 28 percent of the spouse's gross income. Scott v. Scott, 282 Ga. 36, 644 S.E.2d 842 (2007).

Cited in Taylor v. Taylor, 195 Ga. 711, 25 S.E.2d 506 (1943); Ragans v. Ragans, 200 Ga. 890, 39 S.E.2d 162 (1946); Pate v. Citizens & S. Nat'l Bank, 203 Ga. 442, 47 S.E.2d 277 (1948); Huguley v. Huguley, 204 Ga. 692, 51 S.E.2d 445 (1949); Carnegie v. Carnegie, 206 Ga. 77, 55 S.E.2d 583 (1949); McDonald v. Hester, 115 Ga. App. 740, 155 S.E.2d 720 (1967); Shaw v. Shaw, 224 Ga. 747, 164 S.E.2d 723 (1968); Moore v. Moore, 229 Ga. 600, 193 S.E.2d 608 (1972); Loftis v. Loftis, 236 Ga. 637, 225 S.E.2d 685 (1976); Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977); Shell v. Shell, 239 Ga. 566, 238 S.E.2d 99 (1977); Harwell v. Harwell, 248 Ga. 578, 285 S.E.2d 12 (1981); Urquhart v. Urquhart, 272 Ga. 548, 533 S.E.2d 80 (2000).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, §§ 357, 358, 361, 362.

C.J.S.

- 27A C.J.S., Divorce, § 345 et seq.

ALR.

- Divorce decree as res judicata in respect of community property, 85 A.L.R. 339.

Decree of divorce or annulment by court having jurisdiction as binding upon one not a party, as to facts adjudicated, 87 A.L.R. 203.

Effect of failure of divorce decree to show whether divorce was granted to the husband or to the wife, 133 A.L.R. 556.

Remedy of party against whom preliminary decree for divorce is rendered in event of failure or refusal of prevailing party to request entry of final decree, 151 A.L.R. 849.

Divorce decree as res judicata in independent action involving property settlement agreement, 32 A.L.R.2d 1145.

Power of court to award absolute divorce in favor of party who desires only limited decree, or vice versa, 14 A.L.R.3d 703.

Support provisions of judicial decree or order as limit of parent's liability for expenses of child, 35 A.L.R.5th 757.

19-5-13. Disposition of property in accordance with verdict.

The verdict of the jury disposing of the property in a divorce case shall be carried into effect by the court by entering such judgment or decree or taking such other steps as are usual in the exercise of the court's equitable powers to execute effectually and fully the jury's verdict.

(Orig. Code 1863, § 1680; Code 1868, § 1723; Code 1873, § 1724; Code 1882, § 1724; Civil Code 1895, § 2442; Civil Code 1910, § 2961; Code 1933, § 30-118.)

Cross references.

- Identification of spouses' separate property, Ga. Const. 1983, Art. I, Sec. I, Para. XXVII and § 19-3-9.

Law reviews.

- For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For survey article on wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For annual survey of domestic relations law, see 35 Mercer L. Rev. 127 (1983). For article, "Tax Aspects of Divorce and Separation and the Innocent Spouse Rules," see 3 Ga. St. U.L. Rev. 201 (1987). For article, "The Civil Jurisdiction of State and Magistrate Courts," see 24 Ga. St. B.J. 29 (1987). For note, "Georgia Becomes A Quasi Community Property State," see 17 Ga. St. B.J. 134 (1981). For note, "The Significance of Stokes v. Stokes: An Examination of Property Rights Upon Divorce in Georgia," see 16 Ga. L. Rev. 695 (1982). For comment, "The Georgia Supreme Court's Creation of an Equitable Interest in Marital Property - Yours? Mine? Ours!," see 34 Mercer L. Rev. 449 (1982).

JUDICIAL DECISIONS

Settlement of property rights can be made in divorce action. Hendrix v. Hendrix, 224 Ga. 662, 163 S.E.2d 917 (1968); Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

Court has ancillary jurisdiction to determine equitable interest of either spouse in real or personal property owned, either in whole or in part, by the other spouse. Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

Jurisdiction of marriage and of property within territory.

- When the husband is a nonresident, served by publication, the court, having jurisdiction of the res of the marriage relation, may render a valid decree of divorce; and under the court's additional powers given by the statutes, having incidental equity jurisdiction over the res of the property within its territory, it may render a valid judgment or decree in rem with respect to such property when necessary to enforce the wife's claim to permanent alimony. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937).

Court or jury has authority to award property of one spouse to the other spouse based solely on an equitable division of property. Bedford v. Bedford, 246 Ga. 780, 273 S.E.2d 167 (1980).

Trier hearing an alimony case has the authority to award to one spouse real property titled in the name of the other spouse since the basis of such award is neither alimony, partitioning, trust, nor fraud, but is equitable division of property. Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

Improper in personam judgment award.

- When wife's failure to have received $25,000 was not the result of the husband's willful disobedience, but of the fiduciary's apparent misappropriation of the fund, the trial court erred in subsequently ordering that the husband was required to pay this sum, as this had the erroneous effect of amending the judgment to make it an in personam judgment against the husband, in the nature of an award of lump sum alimony, which was totally inconsistent with the jury's in rem award to wife of the $25,000, as a component of the equitable property division. Wagan v. Wagan, 263 Ga. 376, 434 S.E.2d 475 (1993).

Because a jury expressly declined to make an equitable division of property between the parties, and the husband did not pray for alimony, the parties' ownership interests in any marital property not addressed by the jury in its specific award of alimony to the wife remained as they were before the decree was entered. Mitchell v. Mitchell, 263 Ga. 182, 430 S.E.2d 350 (1993).

Medical license is not property.

- Husband's medical school education and license may not be considered "marital property," subject to equitable division. The value of these assets is too speculative to calculate, being simply the possibility of enhanced earnings they provide. That potential may never be realized for any number of reasons. Lowery v. Lowery, 262 Ga. 20, 413 S.E.2d 731 (1992).

Value of stock in closely-held corporation.

- In dividing the marital property of the parties to a divorce action, the court was not bound by the value set forth in a buy-sell provision of a stockholder agreement in placing a value on the stock of a closely-held corporation for purposes of marital division, as the buy-sell price did not reflect the true market value. Barton v. Barton, 281 Ga. 565, 639 S.E.2d 481 (2007).

Decree should carry verdict into effect, and not destroy the verdict. Gilbert v. Gilbert, 151 Ga. 520, 107 S.E. 490 (1921); Wise v. Wise, 156 Ga. 459, 119 S.E. 410 (1923).

Changes to agreement.

- Final version of the settlement agreement adopted by the trial court over the objections of the defendant included several provisions either not included in the original or different than those initially agreed upon; those changes and additions to the parties agreement rendered the trial court's adoption of the subsequently drafted final version error. DeGarmo v. DeGarmo, 269 Ga. 480, 499 S.E.2d 317 (1998).

Alteration of divorce decree in contempt proceeding.

- Trial court erred in finding that a husband was not in contempt of a divorce decree because of impossibility, illegality, and a reasonable desire for clarification and in substantially altering the divorce decree as the husband forfeited the husband's automatically-granted appeal of the decree by the husband's failure to pay costs; the husband never moved to set aside the decree and the contempt proceeding was not the vehicle to alter the divorce decree. Smith v. Smith, 281 Ga. 204, 636 S.E.2d 519 (2006).

Trial court erred in holding a husband in contempt for refusing to sign an agreed domestic relations order because the trial court erroneously modified a divorce decree; in supplying the missing percentage allocation of a husband's military retirement benefits, the trial court did more than construe or clarify imprecise language in the agreement because the trial court eschewed the plain language of the agreement allocating to the wife only such amounts as the Navy would "require" and substituted for that provision a fifty percent allocation. Morgan v. Morgan, 288 Ga. 417, 704 S.E.2d 764 (2011).

Spousal responsibility for paying note.

- Divorce decree settling spousal responsibility for paying note is not binding upon noteholder. McDonald v. McDonald, 232 Ga. 190, 205 S.E.2d 850 (1974).

Trover and conversion relating to property awarded in divorce decree.

- O.C.G.A. § 19-5-13 does not divest the state courts of jurisdiction over trover or conversion actions in which the alleged trover or conversion results from the defendant's retention of property awarded to the plaintiff in a final divorce decree. Dunlap v. Pope, 177 Ga. App. 539, 339 S.E.2d 662 (1986).

If state court retains jurisdiction over property, federal court cannot appoint receiver.

- Since a court hearing a suit for divorce and division of property asserts quasi in rem jurisdiction over the marital property, where the court's order providing for the sale of the property and division of the proceeds had not yet been complied with, that court still had and continued to exercise quasi in rem jurisdiction over the property, and the federal district court therefore had no power to appoint a receiver to effectuate the sale of the property as required by the divorce decree. Cavalino v. Cavalino, 601 F. Supp. 74 (N.D. Ga. 1984).

Equitable division when spouse conveyed property to parent prior to divorce action.

- Property which a spouse conveyed by deed to the spouse's parent before the other spouse filed for a divorce was not subject to equitable division in the divorce action brought by the other spouse because the other spouse chose to abandon the avenue for recovery that the other spouse initiated to show that the property was still subject to equitable division. Armour v. Holcombe, 288 Ga. 50, 701 S.E.2d 169 (2010).

Generic final decree upheld.

- Given all of the relevant facts and circumstances regarding the parties' marriage, the trial court did not abuse the court's discretion in finding that the proper disposition was to enter a generic final judgment severing the marital relationship; hence, the trial court properly chose to allow the parties' ownership interests in any marital property to remain as they were before the decree was entered. Stanley v. Stanley, 281 Ga. 672, 642 S.E.2d 94 (2007).

Valuation of property not required.

- Considering the lack of any evidence of the value of the maintenance work performed by the husband, the testimony of the wife that he was paid for this work, the fact that the husband used a portion of the property rent-free as a commercial recording studio, and the fact that the property paid for the mortgage through the property's own rents, the trial court had evidentiary support for the court's finding that any increased value in the property attributable to the husband's contributions and the expenditure of marital funds was nominal, and therefore a calculation of the current market value of the property was not needed. As there was ample evidence supporting the court's conclusion, the trial court did not abuse the court's broad discretion to divide marital property equitably. Pina v. Pina, 290 Ga. 878, 725 S.E.2d 301 (2012).

Equitable division of marital property upheld.

- Trial court did not err in denying a husband's motion for new trial as the wife presented sufficient evidence from which an equitable division of the value of two properties at issue could have been determined at the time the property's value began to include an element of marital property. Maddox v. Maddox, 278 Ga. 606, 604 S.E.2d 784 (2004).

Former husband failed to carry the burden of proving error in the trial court's division of property in a divorce action; although each spouse is entitled to an allocation of the marital property based upon his or her respective equitable interest therein, an award is not erroneous simply because one party receives a seemingly greater share of the marital property. Harmon v. Harmon, 280 Ga. 118, 622 S.E.2d 336 (2005).

In a divorce proceeding, a spouse's claim on appeal that the evidence at trial was strongly against the jury's verdict failed because the evidence was sufficient to authorize the verdict; the jury was presented with evidence of the parties' assets and liabilities and of their disparate earning power. Moxley v. Moxley, 281 Ga. 326, 638 S.E.2d 284 (2006).

On appeal from an order equitably distributing the parties' marital property, inasmuch as the issues on appeal depended upon the factual determinations made by the trial court as fact-finder, and neither party asked the trial court to make factual findings, the Supreme Court of Georgia was unable to conclude that the trial court's equitable distribution of marital property was improper as a matter of law or as a matter of fact. Crowder v. Crowder, 281 Ga. 656, 642 S.E.2d 97 (2007).

Because conflicting evidence was presented concerning the values of the parties' assets as well as the premarital and marital contributions of each spouse, the trial court, sitting as the trier of fact, was required to determine whether and to what extent a particular asset was marital or non-marital, exercise the court's discretion, and then divide the marital property equitably; hence, inasmuch as the issues on appeal depended upon the factual determinations made by the trial court as fact finder, and neither party asked the trial court to make factual findings, the equitable distribution of marital property was not improper as a matter of law or fact. Mathis v. Mathis, 281 Ga. 865, 642 S.E.2d 832 (2007).

Pension benefits.

- Trial court did not abuse court's discretion in failing to classify the employer contributions to the parties' pension accounts as marital property, and then equitably divide the parties' entire pension benefits, because inasmuch as the issues on appeal depended upon the factual determinations made by the trial court, and neither party requested that the court make factual findings, the Supreme Court of Georgia had no choice but to uphold the trial court's decision. Further, although the husband's pension was marital property, the trial court was at least authorized to find, and might have indeed found, that in light of the wife's own vested retirement benefits, the absence of certain details therein, the wife's earnings potential, and other factors, an equitable distribution could best be achieved by actually dividing only the parties' contributions as employees to their pensions. Taylor v. Taylor, 283 Ga. 63, 656 S.E.2d 828 (2008).

On appeal from an order dividing the parties' marital property, no error resulted from the trial court's order allowing one spouse to retain that spouse's separate property, as the other spouse executed a quitclaim deed to the property, and the record showed that the other spouse contributed significantly to the amount of debt secured by the property, ultimately diminishing the property's worth; moreover, given the overall distribution of assets between the parties and the detailed findings regarding the assets, no abuse resulted from allowing the one spouse to retain a retirement account. Wood v. Wood, 283 Ga. 8, 655 S.E.2d 611 (2008).

Award of certain personal property to a husband in the parties' divorce action was not an abuse of discretion because the wife failed to show that the trial court treated the wife inequitably in the court's decision regarding what constituted a fair division of the marital property between the parties; an equitable division did not necessarily require an equal division. Rumley-Miawama v. Miawama, 284 Ga. 811, 671 S.E.2d 827 (2009).

In a divorce action, a trial court did not abuse the court's discretion in declining to apply the doctrine of judicial estoppel to defeat the wife's claim to any share of her retirement accounts because the husband failed to show that the wife's retirement accounts were not excludable or exempt from the bankruptcy estate under 11 U.S.C. § 522(d)(12). Klardie v. Klardie, 287 Ga. 499, 697 S.E.2d 207 (2010).

At least some evidence supported the jury's determination that the husband's Individual Retirement Account (IRA) was the husband's separate property because as the final arbiter of questions of fact and witness credibility, the jury was free to reject portions of the husband's testimony and conclude from the remaining evidence that the particular IRA in the husband's name could in fact have remained separate property. Curran v. Scharpf, 290 Ga. 780, 726 S.E.2d 407 (2012).

Final decree upheld.

- With respect to a final divorce decree that merely included a provision that one spouse would retain title to eight parcels of real property that had been held exclusively in that spouse's name, because no transcript of the evidence admitted at trial was presented, the court had to presume that the evidence supported the trial court's award of none of the parcels to the other spouse. Dasher v. Dasher, 283 Ga. 436, 658 S.E.2d 571 (2008).

Cited in Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685 (1956); Davis v. Davis, 216 Ga. 305, 116 S.E.2d 219 (1960); Goodwill v. Goodwill, 221 Ga. 757, 147 S.E.2d 313 (1966); Cotts v. Cotts, 245 Ga. 138, 263 S.E.2d 163 (1980); Holler v. Holler, 257 Ga. 27, 354 S.E.2d 140 (1987); Nix v. Nix, 185 Bankr. 929 (Bankr. N.D. Ga. 1994).

RESEARCH REFERENCES

"Increased Earning Power" of a Professional Degree or License as an Asset to be Equitably Distributed in Divorce Proceedings, 60 Am. Jur. Trials 391.

C.J.S.

- 27C C.J.S., Divorce, §§ 896 et seq., 992 et seq.

ALR.

- Divorce as affecting estate by entireties, 52 A.L.R. 890; 59 A.L.R. 718.

Divorce decree as res judicata in respect of community property, 85 A.L.R. 339.

Effect of death of party to divorce suit before final decree, 104 A.L.R. 654; 158 A.L.R. 1205.

Propriety and effect of provision in decree in divorce suit in respect of policy of insurance on life of husband, 145 A.L.R. 522.

Divorce of insured and beneficiary as affecting the latter's right in life insurance, 175 A.L.R. 1220.

Divorce decree purporting to award life insurance to husband as terminating wife-beneficiary's rights notwithstanding failure to formally change beneficiary, 70 A.L.R.3d 348.

Property settlement agreement as affecting divorced spouse's right to recover as named beneficiary under former spouse's life insurance policy, 31 A.L.R.4th 59.

Proper date for valuation of property being distributed pursuant to divorce, 34 A.L.R.4th 63.

Spouse's dissipation of marital assets prior to divorce as factor in divorce court's determination of property division, 41 A.L.R.4th 416.

Divorce: equitable distribution doctrine, 41 A.L.R.4th 481.

Divorce and separation: treatment of stock options for purposes of dividing marital property, 46 A.L.R.4th 640.

Valuation of stock options for purposes of divorce court's property distribution, 46 A.L.R.4th 689.

Divorce: excessiveness or adequacy of trial court's property award - modern cases, 56 A.L.R.4th 12.

Divorce: propriety of property distribution leaving both parties with substantial ownership interest in same business, 56 A.L.R.4th 862.

Divorce property distribution: real estate or trust property in which interest vested before marriage and was realized during marriage, 60 A.L.R.4th 217.

Divorce property distribution: treatment and method of valuation of future interest in real estate or trust property not realized during marriage, 62 A.L.R.4th 107.

Divorce: propriety of using contempt proceeding to enforce property settlement award or order, 72 A.L.R.4th 298.

Divorce and separation: goodwill in medical or dental practice as property subject to distribution on dissolution of marriage, 76 A.L.R.4th 1025.

Valuation of goodwill in accounting practice for purposes of divorce court's property distribution, 77 A.L.R.4th 609.

Divorce and separation: goodwill in accounting practice as property subject to distribution on dissolution of marriage, 77 A.L.R.4th 645.

Valuation of goodwill in law practice for purposes of divorce court's property distribution, 77 A.L.R.4th 683.

Valuation of goodwill in medical or dental practice for purposes of divorce court's property distribution, 78 A.L.R.4th 853.

Accrued vacation, holiday time, and sick leave as marital or separate property, 78 A.L.R.4th 1107.

Divorce and separation: goodwill in law practice as property subject to distribution on dissolution of marriage, 79 A.L.R.4th 171.

Divorce and separation: consideration of tax consequences in distribution of marital property, 9 A.L.R.5th 568.

Divorce and separation: attorney's contingent fee contracts as marital property subject to distribution, 44 A.L.R.5th 671.

Copyright, patent, or other intellectual property as marital property for purposes of alimony, support, or divorce settlement, 80 A.L.R.5th 487.

Divorce decree or settlement agreement as affecting divorced spouse's right to recover as named beneficiary on former spouse's individual retirement account, 99 A.L.R.5th 637.

Division of lottery proceeds in divorce proceedings, 124 A.L.R.5th 537.

Inherited property as marital or separate property in divorce action, 38 A.L.R.6th 313.

Divorce and separation: appreciation in value of separate property during marriage with contribution by either spouse as separate or community property (doctrine of "active appreciation"), 39 A.L.R.6th 205.

19-5-14. New trial.

New trials may be granted in actions for divorce as in other cases.

(Orig. Code 1863, § 1679; Code 1868, § 1722; Code 1873, § 1723; Code 1882, § 1723; Civil Code 1895, § 2441; Civil Code 1910, § 2960; Code 1933, § 30-130.)

Cross references.

- New trial generally, T. 5, C. 5.

JUDICIAL DECISIONS

It is not cause for grant of new trial that verdict found generally in favor of plaintiff for a total divorce, without in express terms referring to the status of the defendant. Miller v. Miller, 139 Ga. 282, 77 S.E. 21 (1913).

Attorney with notice of trial but failing to notify client.

- Former husband was not entitled to a new trial in a divorce action because the husband's attorney had actual notice of the trial date but failed to notify the husband; thus, a meritorious reason did not exist for granting a new trial. Arkwright v. Arkwright, 284 Ga. 545, 668 S.E.2d 709 (2008).

Trial court and appellate court can grant partial new trial on an issue or issues in a case that are severable from other issues in the case, and therefore it is likewise proper for a litigant to move for a partial new trial in a divorce and alimony case when the issues are severable. Swindell v. Swindell, 231 Ga. 167, 200 S.E.2d 736 (1973).

Cited in Gholston v. Gholston, 31 Ga. 625 (1860); Rorie v. Rorie, 132 Ga. 719, 64 S.E. 1070 (1909); Dugas v. Dugas, 201 Ga. 190, 39 S.E.2d 658 (1946); Huguley v. Huguley, 204 Ga. 692, 51 S.E.2d 445 (1949); Taylor v. Taylor, 212 Ga. 637, 94 S.E.2d 744 (1956).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, § 355 et seq.

C.J.S.

- 27A C.J.S., Divorce, § 341 et seq.

19-5-15. Effect of divorce.

A total divorce annuls a marriage from the time of the rendition of the decree, unless the divorce is granted for a cause rendering the marriage void originally, in which case the divorce serves to annul the marriage from its inception. However, the issue of the marriage shall not be rendered born out of wedlock by a divorce, except in cases of pregnancy of the wife by a man other than the husband at the time of the marriage, unknown to the husband.

(Laws 1806, Cobb's 1851 Digest, p. 225; Ga. L. 1861, p. 62, § 1; Code 1863, § 1682; Code 1868, § 1725; Code 1873, § 1726; Code 1882, § 1726; Civil Code 1895, § 2444; Civil Code 1910, § 2963; Code 1933, § 30-119; Ga. L. 1988, p. 1720, § 2.)

Law reviews.

- For article, "Annulment of Marriage in Georgia," see 5 Ga. B.J. 22 (1942).

JUDICIAL DECISIONS

Wife ceases to be member of husband's family.

- Upon dissolution of marriage by total divorce, the wife ceases to be a member of the husband's family effectually as if she were dead. Burns v. Lewis, 86 Ga. 591, 13 S.E. 123 (1891).

Upon a divorce vinculo obtained by wife, defendant ceases to be her husband and accordingly his marital rights terminate. Barclay v. Warning, 58 Ga. 86 (1877).

Final verdict of total divorce shows jury intent to dissolve marriage.

- Final verdict being in favor of a total divorce for the plaintiff admits of no construction but that the jury intended the marriage should be dissolved. Chance v. Chance, 60 Ga. App. 889, 5 S.E.2d 399 (1939).

Common-law marriage.

- When a former wife did not consistently claim or engage in conduct consistent with the existence of a common-law marriage, saying she was divorced or single when it was convenient for her to do so, there was insufficient proof of a common-law marriage. In re Estate of Dunn, 236 Ga. App. 211, 511 S.E.2d 575 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Previous divorce not bar to remarriage of same parties.

- Previously dissolved marriage neither bars the subsequent creation of a marital relationship between the same parties nor does it serve in any way as evidence of a latter state of marriage between these parties. 1965-66 Op. Att'y Gen. No. 66-69.

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, §§ 1, 4.

C.J.S.

- 27A C.J.S., Divorce, § 1 et seq.

ALR.

- Death or divorce as affecting relationship by affinity as regards insurance, 99 A.L.R. 593.

Action under declaratory judgment act to test validity or effect of a decree of divorce, 124 A.L.R. 1336.

Divorce decree as res judicata or estoppel as to previous marital status, against or in favor of third person, 20 A.L.R.2d 1163.

Effect of divorce, separation, desertion, unfaithfulness, and the like upon right to administer upon estate of spouse, 34 A.L.R.2d 876.

Cohabitation under marriage contracted after divorce decree as adultery, where decree is later reversed or set aside, 63 A.L.R.2d 816.

Determination of paternity, legitimacy, or legitimation in action for divorce, separation, or annulment, 65 A.L.R.2d 1381.

Effect, in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support or custody order made incidental thereto, 78 A.L.R.3d 846.

19-5-16. Restoration of maiden or prior name.

In all divorce actions, a party may pray in his pleadings for the restoration of a maiden or prior name. If a divorce is granted, the judgment or decree shall specify and restore to the party the name so prayed for in the pleadings.

(Ga. L. 1880-81, p. 121, § 1; Code 1882, § 3586a; Civil Code 1895, § 2446; Civil Code 1910, § 2965; Code 1933, § 30-121.)

Cross references.

- Proceedings for change of name generally, T. 19, C. 12.

JUDICIAL DECISIONS

Cited in Schwartz v. Schwartz, 237 Ga. 56, 226 S.E.2d 591 (1976).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, § 365.

ALR.

- Correct name of married woman, 35 A.L.R. 417.

Right of married woman to use maiden surname, 67 A.L.R.3d 1266.

19-5-17. Determination of parties' rights; preventing remarriage forbidden.

When a divorce is granted, the jury or the judge, as the case may be, shall determine the rights of the parties. No person shall be placed under a disability that would prevent remarriage.

(Code 1868, § 1726; Code 1873, § 1727; Code 1882, § 1727; Civil Code 1895, § 2445; Civil Code 1910, § 2964; Code 1933, § 30-122; Ga. L. 1946, p. 90, § 12; Ga. L. 1960, p. 1024, § 1; Ga. L. 1979, p. 466, § 5.)

JUDICIAL DECISIONS

"Rights and disabilities" (now "rights" only) and "divorce."

- Former Code 1933, § 30-122 (see now O.C.G.A. § 19-5-17) did not mean that granting of divorce to one party automatically granted other party divorce as the words "rights and disabilities" (now "rights" only) and "divorce" were not synonymous terms. Schwartz v. Schwartz, 222 Ga. 460, 150 S.E.2d 809 (1966).

Reversible error as to jury charge.

- It is reversible error to charge that, if the jury grants one party a divorce as a matter of law, the opposite party should also be granted a divorce; "rights and disabilities" (now "rights" only) and "divorce" are not synonymous terms. Perlotte v. Perlotte, 218 Ga. 27, 126 S.E.2d 220 (1962).

RESEARCH REFERENCES

ALR.

- Inhibition by decree of divorce, or statute of state or country in which it is granted, against remarriage, as affecting a marriage celebrated in another state or country, 32 A.L.R. 1116; 51 A.L.R. 325.

CHAPTER 6 ALIMONY AND CHILD SUPPORT

Article 1 General Provisions.
Article 2 Georgia Child Support Commission.
Cross references.

- Procedure for appeals from judgments or orders granting or refusing temporary or permanent alimony or holding or declining to hold persons in contempt of such alimony judgments or orders, § 5-6-35.

Domestic relations long-arm statute, § 9-10-91(5).

Administrative Rules and Regulations.

- Office of Child Support Recovery, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Human Services, Chapter 290-7.

Law reviews.

- For annual survey of domestic relations law, see 35 Mercer L. Rev. 127 (1983). For annual survey of law of domestic relations, see 38 Mercer L. Rev. 179 (1986). For article, "Gender and Justice in the Courts: A Report to the Supreme Court of Georgia by the Commission on Gender Bias in the Judicial System," see 8 Ga. St. U.L. Rev. 539 (1992). For annual survey of domestic relations law, see 43 Mercer L. Rev. 243 (1991). For annual survey article on domestic relations, see 50 Mercer L. Rev. 217 (1998). For note appraising the Georgia domestic relations long-arm statute, see 18 Ga. L. Rev. 691 (1984). For note on 1995 amendments and enactments of sections in this chapter, see 12 Ga. St. U.L. Rev. 169 (1995).

JUDICIAL DECISIONS

Term "former spouse" equates with "parent" when considering child support issues.

- For the purposes of O.C.G.A. T. 19, Ch. 6 of the Georgia Domestic Relations Code, the term "former spouse" is equated with "parent" when considering issues of child support. Monroe v. Taylor, 259 Ga. App. 600, 577 S.E.2d 810 (2003).

RESEARCH REFERENCES

Change in Circumstances Justifying Modification of Child Support Order, 1 POF2d 1.

Wife's Ability to Support Herself, 2 POF2d 99.

Forensic Economics - Use of Economists in Cases of Dissolution of Marriage, 17 POF2d 345.

Abandonment of Marriage Without Cause - Defense in Alimony, Spousal Support, or Separate Maintenance Proceeding, 27 POF2d 737.

Spousal Support on Termination of Marriage, 32 POF2d 439.

Modification of Spousal Support Award, 32 POF2d 491.

Legal Malpractice in Domestic Relations, 44 POF2d 377.

Amount of Allowance for Attorney Fees in Domestic Relations Action, 45 POF2d 699.

Modification of Spousal Support on Ground of Supported Spouse's Cohabitation, 6 POF3d 765.

ALR.

- Validity and enforceability of escalation clause in divorce decree relating to alimony and child support, 19 A.L.R.4th 830.

Excessiveness or adequacy of amount of money awarded as permanent alimony following divorce, 28 A.L.R.4th 786.

Order awarding temporary support or living expenses upon separation of unmarried partners pending contract action based on services relating to personal relationship, 35 A.L.R.4th 409.

Divorce and separation: treatment of stock options for purposes of dividing marital property, 46 A.L.R.4th 640.

Valuation of stock options for purposes of divorce court's property distribution, 46 A.L.R.4th 689.

Postmajority disability as reviving parental duty to support child, 48 A.L.R.4th 919.

Court's authority to reinstitute parent's support obligation after terms of prior decree have been fulfilled, 48 A.L.R.4th 952.

Necessity that divorce court value property before distributing it, 51 A.L.R.4th 11.

Divorce and separation: method of valuation of life insurance policies in connection with trial court's division of property, 54 A.L.R.4th 1203.

Divorce: excessiveness or adequacy of combined property division and spousal support awards - modern cases, 55 A.L.R.4th 14.

Right to jury trial in state court divorce proceedings, 56 A.L.R.4th 955.

Divorce: order requiring that party not compete with former marital business, 59 A.L.R.4th 1075.

Divorce property distribution: real estate or trust property in which interest vested before marriage and was realized during marriage, 60 A.L.R.4th 217.

Insanity as defense to divorce or separation suit - post-1950 cases, 67 A.L.R.4th 277.

Divorce and separation: effect of court prohibiting sale or transfer of property on party's right to change beneficiary of insurance policy, 68 A.L.R.4th 929.

What constitutes order made pursuant to state domestic relations law for purposes of qualified domestic relations order exception to antialienation provision of Employee Retirement Income Security Act of 1974 (29 USCS § 1056(d)), 79 A.L.R.4th 1081.

Parent's child support liability as affected by other parent's fraudulent misrepresentation regarding sterility or use of birth control, or refusal to abort pregnancy, 2 A.L.R.5th 337.

Authority of court, upon entering default judgment, to make orders for child custody or support which were not specifically requested in pleadings of prevailing party, 5 A.L.R.5th 863.

Spouse's right to set off debt owed by other spouse against accrued spousal or child support payments, 11 A.L.R.5th 259.

ARTICLE 1 GENERAL PROVISIONS

Editor's notes.

- Ga. L. 2005, p. 224, § 1/HB 221, not codified by the General Assembly, provides that: "The General Assembly finds and declares that it is important to assess periodically child support guidelines and determine whether existing guidelines continue to be viable and effective or whether they have failed or ceased to accomplish their original policy objectives. The General Assembly further finds that supporting Georgia's children is vitally important to the citizens of Georgia. Therefore, the General Assembly has determined that it is in the best interests of the state and its citizenry to undertake an evaluation of the child support guidelines on a continuing basis. The General Assembly declares that it is important that all of Georgia's children are provided with adequate financial support whether the children's parents are living together or not living together. The General Assembly finds that both parents have a continuing obligation with respect to providing financial and emotional stability for their child or children. It is the hope of the members of the General Assembly that all parents work together to advance the best interest of their children."

19-6-1. Alimony defined; when authorized; how determined; lien on estate of party dying prior to order; certain changes in parties' assets prohibited.

  1. Alimony is an allowance out of one party's estate, made for the support of the other party when living separately. It is either temporary or permanent.
  2. A party shall not be entitled to alimony if it is established by a preponderance of the evidence that the separation between the parties was caused by that party's adultery or desertion. In all cases in which alimony is sought, the court shall receive evidence of the factual cause of the separation even though one or both of the parties may also seek a divorce, regardless of the grounds upon which a divorce is sought or granted by the court.
  3. In all other cases in which alimony is sought, alimony is authorized, but is not required, to be awarded to either party in accordance with the needs of the party and the ability of the other party to pay. In determining whether or not to grant alimony, the court shall consider evidence of the conduct of each party toward the other.
  4. Should either party die prior to the court's order on the issue of alimony, any rights of the other party to alimony shall survive and be a lien upon the estate of the deceased party.
  5. Pending final determination by the court of the right of either party to alimony, neither party shall make any substantial change in the assets of the party's estate except in the course of ordinary business affairs and except for bona fide transfers for value.

(Orig. Code 1863, § 1688; Code 1868, § 1731; Code 1873, § 1736; Code 1882, § 1736; Civil Code 1895, § 2456; Civil Code 1910, § 2975; Code 1933, § 30-201; Ga. L. 1977, p. 1253, § 4; Ga. L. 1979, p. 466, § 6.)

Editor's notes.

- Ga. L. 1979, p. 466, § 6, superseded the former version of Code 1933, § 30-201, in that it changed the language of the former section to provide that alimony may be assessed against either spouse. Cases decided prior to the 1979 enactment appear to remain valid except insofar as they may imply that a wife only is entitled to receive alimony or a husband only is obligated to pay alimony.

Law reviews.

- For a survey of Georgia cases in the area of domestic relations from June 1979 through May 1980, see 32 Mercer L. Rev. 51 (1980). For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For article, "Tax Aspects of Divorce and Separation and the Innocent Spouse Rules," see 3 Ga. St. U.L. Rev. 201 (1987). For article, "Georgia's Constitutional Scheme for State Appellate Jurisdiction," see 6 Ga. St. B.J. 24 (2001). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For annual survey of domestic relations law, see 58 Mercer L. Rev. 133 (2006). For annual survey of domestic relations law, see 59 Mercer L. Rev. 139 (2007). For annual survey of domestic relations law, see 60 Mercer L. Rev. 121 (2008). For annual survey of law on domestic relations, see 62 Mercer L. Rev. 105 (2010). For note, "Georgia Becomes A Quasi Community Property State," see 17 Ga. St. B.J. 134 (1981). For note, "The Significance of Stokes v. Stokes: An Examination of Property Rights Upon Divorce in Georgia," see 16 Ga. L. Rev. 695 (1982). For comment, "The Georgia Supreme Court's Creation of an Equitable Interest in Marital Property - Yours? Mine? Ours!," see 34 Mercer L. Rev. 449 (1982).

JUDICIAL DECISIONS

General Consideration

Former language of section unconstitutional.

- Statute imposed alimony obligations on husbands but not wives and violated the equal protection clause of the U.S. Const., amend. 14, and was therefore unconstitutional. Stitt v. Stitt, 243 Ga. 301, 253 S.E.2d 764 (1979).

Statute did not violate the due process clause of the state or federal Constitution because the legislative intent is clear and the statute provides "fair notice" of the statute's meaning. Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979).

Challenge to constitutionality.

- Pro se litigant sued government and court officials alleging Georgia's alimony provisions, O.C.G.A. § 19-6-1 et seq., violated: (1) the right to privacy, protections of the equal protection clause, and prohibitions against involuntary servitude as contained in the U.S. Constitution; and (2) the right to privacy, due process provisions, equal protection provisions, privileges and immunities clause, prohibitions on involuntary servitude, and prohibitions against legislation based on social status as guaranteed by the Georgia Constitution. However, the federal court determined that the plaintiff must raise these constitutional challenges as part of the litigant's state divorce proceedings, and, furthermore, that Georgia had an important state interest in enforcing these provisions. Cormier v. Green, 141 Fed. Appx. 808 (11th Cir. July 12, 2005)(Unpublished).

O.C.G.A. § 19-6-1 provides that a party shall not be entitled to alimony if separation was caused by that party's adultery, and that in alimony cases the court shall receive evidence of the factual cause of the separation and the conduct of each party toward the other. Owens v. Owens, 247 Ga. 137, 274 S.E.2d 484 (1981).

Legislation amending this statute meets single subject matter requirement of Ga. Const. 1976, Art. III, Sec. VII, Para. IV (see now Ga. Const. 1983, Art. III, Sec. V, Para III), because the legislation's provisions all relate to changes in divorce and alimony procedure necessitated by the advent of "no fault" divorce, and because the lien provision has a natural connection with the main object of the legislation. Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979).

Proceedings for divorce and alimony have always been regarded as equitable. Early v. Early, 243 Ga. 125, 252 S.E.2d 618 (1979).

Jurisdiction.

- Once personal jurisdiction in divorce proceeding exists, jurisdiction continues with respect to alimony. May v. May, 162 Ga. App. 560, 290 S.E.2d 495 (1982).

No duty to determine amount when alimony not awarded.

- In an action dissolving the marriage between the parties, having concluded that alimony would not be awarded, the trial court's consideration of the factors relevant to determining the amount thereof was obviated. Stanley v. Stanley, 281 Ga. 672, 642 S.E.2d 94 (2007).

Permanent alimony in conjunction with absolute divorce was unknown to common law or to the ecclesiastical courts. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937).

Permanent alimony statutory in nature.

- Right to alimony after absolute divorce, and the granting in fee of a portion of the estate of the husband to the wife as permanent alimony is derivable solely from statutory provisions. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937).

Alimony was introduced into divorce proceedings by early ecclesiastical courts of England, and in the early practice of these courts it was defined to be that support which the husband, on separation, is bound to provide for the wife, and is measured by the wants of the wife and the circumstances and the ability of the husband to pay. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937).

Term "alimony" is derived from Latin word which primarily meant to nourish; that is, to supply the necessities of life. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937).

As general rule, meaning of "alimony" is restricted to money; and unless expressly authorized by statute, no award can be made out of the property of the husband, divesting him of title to the same. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937).

Phrase "prior to the court's order on the issue of alimony," refers to either temporary or permanent alimony. Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979).

Purpose.

- Object of alimony is the support of children as well as the wife. Eskew v. Eskew, 199 Ga. 513, 34 S.E.2d 697 (1945).

Fundamental basis of the law is to require the husband to pay necessary expenses of his wife and minor children. Finch v. Finch, 213 Ga. 199, 97 S.E.2d 576 (1957).

Purpose of alimony is to provide support for wife (now either spouse) and minor children, the amount to be determined from consideration of needs and ability to pay. McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967).

Strongest governmental purpose for Georgia's alimony laws is the provision of support for a needy spouse. Sims v. Sims, 245 Ga. 680, 266 S.E.2d 493 (1980).

Alimony is never for purpose of penalizing the husband or wife for his or her misconduct. McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967).

Claim for alimony is different from ordinary debt. Kirby v. Johnson, 188 Ga. 701, 4 S.E.2d 643 (1939); Jackson v. Jackson, 203 Ga. 296, 46 S.E.2d 483 (1948).

Dischargeability in bankruptcy.

- Bankruptcy Court erred in ruling that the jury award of $250,000.00 lump sum alimony was in the nature of alimony, maintenance, or support and thus was nondischargeable pursuant to 11 U.S.C. § 523. Ackley v. Ackley, 187 Bankr. 24 (N.D. Ga. 1995).

Jury award which requires appellant to pay appellee $3,000.00 per month for 84 months is not in the nature of alimony, maintenance, or support and thus is dischargeable pursuant to 11 U.S.C. § 523. Appling v. Rees, 187 Bankr. 27 (N.D. Ga. 1995).

Fact that a lump sum alimony award to a wife was non-modifiable did not negate the possibility that the award was for the wife's maintenance and support; even though a lump sum alimony award was in the "nature" of a property settlement, when the evidence showed that the lump sum award was for the wife's maintenance and support, the finding that it was for that purpose, rather than a division of property which was dischargeable in bankruptcy, was affirmed. Daniel v. Daniel, 277 Ga. 871, 596 S.E.2d 608 (2004).

Alimony is not required to be awarded in no-fault divorce cases. McElroy v. McElroy, 242 Ga. 84, 249 S.E.2d 538 (1978).

Former wife is entitled to seek permanent alimony from her husband's estate in the form of property, a lump sum award, or periodic payments until the date of death. Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979).

Lump sum installment award.

- Discrete lump sum installment award by a jury can reasonably be interpreted as a recognition of pre-existing property rights based on equitable considerations, the satisfaction of a marital support obligation, which may include rehabilitation, or both. Nix v. Nix, 185 Bankr. 929 (Bankr. N.D. Ga. 1994).

Wife and minor children when living separate and apart from husband have legal demand upon him for support and maintenance, which is called alimony. To enforce this legal demand she may bring action and in the same proceeding move to set aside any fraudulent transfer of his property. McGahee v. McGahee, 204 Ga. 91, 48 S.E.2d 675 (1948).

Law defining alimony contemplates "allowance" by judgment or decree of court, and not a mere provision for support in a private contract between the parties, even when the contract contains a recital that it is accepted by the wife "in full settlement of all alimony" and of all liability therefor. Hayes v. Hayes, 191 Ga. 237, 11 S.E.2d 764 (1940).

Alimony distinguished from property settlement.

- Provisions in a decree specifying periodic payments to be made until a sum certain has been paid is a property settlement, while provision for periodic payments over a given time, or unlimited time, with no indication of a gross amount other than by multiplying the amounts due by the number of payment periods is alimony. Taulbee v. Taulbee, 243 Ga. 52, 252 S.E.2d 481 (1979); Hathcock v. Hathcock, 246 Ga. 233, 271 S.E.2d 147 (1980).

When other provisions of agreement provided specifically for weekly payments of alimony, payments of $2,000 per year for ten years irrespective of remarriage or death of either party were a property settlement rather than alimony. Hathcock v. Hathcock, 246 Ga. 233, 271 S.E.2d 147 (1980).

Fact that parties call payments "alimony" for income tax purposes is not controlling. Hathcock v. Hathcock, 246 Ga. 233, 271 S.E.2d 147 (1980).

Both temporary award pending action, and amount fixed on final trial are alimony, and each is an allowance out of the husband's (now spouse's) estate, made for the support of the wife when living separate from him. Pelot v. Pelot, 193 Ga. 316, 18 S.E.2d 548 (1942).

Hospitalization insurance for wife is element of support, and is alimony. Roberts v. Roberts, 229 Ga. 689, 194 S.E.2d 100 (1972).

Obligation of husband to pay wife's debts is element of support and is "alimony". Beach v. Beach, 224 Ga. 701, 164 S.E.2d 114 (1968).

Husband's obligation to make a lump-sum cash payment to his ex-wife could not be characterized as alimony for garnishment purposes, when the terms of the divorce decree described an exchange of assets between the parties, and it was clear that alimony was not involved. Boyd v. Boyd, 191 Ga. App. 718, 382 S.E.2d 730 (1989).

Divorce decree is ineffectual to vest in wife any interest in property acquired by husband in future as such expectation or interest cannot be a part of his estate out of which an allowance of alimony can be made. Meeks v. Kirkland, 228 Ga. 607, 187 S.E.2d 296 (1972).

Attorney's fees in divorce and alimony proceedings are not allowed as such, but as an intrinsic part of alimony awarded for the purpose of enabling the wife to contest the issues between herself and her husband. Summers v. Summers, 212 Ga. 614, 94 S.E.2d 725 (1956).

Spouse may settle claims and waive alimony.

- Wife may, for a consideration, settle her claims against her husband's property by private agreement, and waive all claims for support, maintenance, or alimony. In re Smith, 436 F. Supp. 469 (N.D. Ga. 1977).

Alimony secured by promissory notes enforceable.

- When in a divorce case the parties agreed upon a sum of money, payable in monthly installments, the several installments being represented by negotiable promissory notes payable to the wife and secured by a deed to land, the manifest intention of the parties was to fix a lump sum alimony, for which the husband would be unconditionally liable, and marriage of the wife to another man after obtaining a divorce would be no defense against payment of the notes and would not prevent the holder from enforcing payment as provided in the security deed. Brown v. Farkas, 195 Ga. 653, 25 S.E.2d 411 (1943).

Settlement of temporary alimony enforceable to prevent court order of temporary alimony.

- There is no express statutory law dealing with settlements of temporary alimony, but they are lawful and enforceable as a bar to the wife's recovering temporary alimony in court. Finch v. Finch, 213 Ga. 199, 97 S.E.2d 576 (1957).

Court may not adopt temporary settlement absent authorization in agreement.

- When agreement relating to temporary alimony contained no authorization that it be made the judgment of the court, the court could not lawfully make it such. Finch v. Finch, 213 Ga. 199, 97 S.E.2d 576 (1957).

Parental obligation to support child not applicable to alimony proceedings.

- Statutory provision that the parent was liable for the support of his minor child has no application to proceedings for alimony. Eskew v. Eskew, 199 Ga. 513, 34 S.E.2d 697 (1945).

Award of alimony is erroneous when there is no prayer for that relief. Pray v. Pray, 223 Ga. 215, 154 S.E.2d 208 (1967).

Grant or refusal of temporary alimony is question for court; that of permanent alimony is for jury to determine. Brown v. Brown, 224 Ga. 90, 160 S.E.2d 343 (1968).

Judgment denying divorce and permanent alimony does not constitute res judicata or estoppel preventing recovery of temporary alimony for support and for the payment of attorney's fees incurred in prosecuting or defending the divorce and alimony proceeding. Chlupacek v. Chlupacek, 226 Ga. 520, 175 S.E.2d 834 (1970).

Retirement benefits.

- Payments a husband was to make to his wife on his salary included retirement benefits. Guntin v. Guntin, 263 Ga. 241, 430 S.E.2d 6 (1993).

Military retirement pay.

- Subjecting appellee's military pension to distribution as alimony did not conflict with the mandate of U.S. Supreme Court decision protecting military retirement benefits from distribution as community property in a divorce action, since Georgia law protects the ex-spouse by awarding alimony based on need and does not grant absolute right to one-half of such pension. Stumpf v. Stumpf, 249 Ga. 759, 294 S.E.2d 488 (1982).

Jury can hear evidence concerning all of the appellee's assets, including the appellee's military retirement pay, as relevant to an award of alimony, and the trial court erred when the court entered an order keeping evidence of such retirement pay from the jury. Stumpf v. Stumpf, 249 Ga. 759, 294 S.E.2d 488 (1982).

Trial court's order that a husband designate a wife as the beneficiary of the survivor benefit plan under the husband's military pension was proper as essentially a life insurance protecting the husband's alimony obligation to the wife, even though the husband's pension was the husband's separate pre-marital property. Hipps v. Hipps, 278 Ga. 49, 597 S.E.2d 359 (2004).

Portion of the order declaring that payment of the husband's military retirement benefits shall continue until the wife dies or remarries was contrary to law because the wife was to be awarded an equitable portion of the husband's military retirement benefits as part of the equitable division of marital property that survived the wife's death or remarriage. Frost v. Frost, 299 Ga. 278, 787 S.E.2d 693 (2016).

Social security, interest, and dividends derived from a variety of sources are not compensation from an employer for services rendered and thus are not included in "salary" for alimony purposes. Guntin v. Guntin, 263 Ga. 241, 430 S.E.2d 6 (1993).

Trial court's award was excessive based on an exaggerated determination of the spouse's earning capacity. Duncan v. Duncan, 262 Ga. 872, 426 S.E.2d 857 (1993).

No error when some evidence supported decision.

- When some evidence supported the trial court's decision, the trial court did not err in the court's determination of the amount of spousal support to be paid by a husband, including the wife's attorney fees. Bloomfield v. Bloomfield, 282 Ga. 108, 646 S.E.2d 207 (2007).

Alimony award proper.

- Alimony award was not improper because, inter alia, there was nothing in the record to show the trial court did not take into account the evidence adduced at trial; moreover, the transcript showed many questions and comments by the trial court, several of which indicated that the court considered the wife's needs, the husband's ability to pay, and the factors set forth in O.C.G.A. § 19-6-5(a). Sprouse v. Sprouse, 285 Ga. 468, 678 S.E.2d 328 (2009).

Trial court did not abuse the court's discretion in setting alimony at $1,250 per month, pursuant to O.C.G.A. §§ 19-6-1(c) and19-6-5(a), because the trial court properly considered, inter alia, the value of the husband's pension, the overwhelming marital debt, the husband's contribution of inherited assets to the marriage, and the wife's recent promotion, accompanied by a raise in salary and benefits. Hammond v. Hammond, 290 Ga. 518, 722 S.E.2d 729 (2012).

Finding as to husband's income proper.

- Trial court's findings supporting the court's child support and alimony awards were proper because the trial court considered, inter alia, the husband's personal expenses paid by the husband's companies and the husband's loan application and financial affidavit in arriving at the court's determination of the husband's income; additionally, the trial court took into account the wife's status as a stay-at-home mother since the birth of the parties' son, the husband's conduct towards the wife, and the wife's potential income from the trial court's award to the wife of one of the husband's companies. The evidence also supported the trial court's finding that no deviation from the presumptive child support award was warranted under O.C.G.A. § 19-6-15(i) based on the alimony award. Walton v. Walton, 285 Ga. 706, 681 S.E.2d 165 (2009).

Legal malpractice claim when client denied alimony.

- In a legal malpractice action, in which the client alleged that the client was wrongfully denied alimony due to the mishandling of the case, summary judgment was properly granted to the attorney and the law firm as the client failed to establish a question of fact as to whether the attorney's conduct caused the client's damages because there was no evidence that the client would have succeeded on a counterclaim for alimony as the client had no inherent right to alimony, and there was no evidence regarding the ex-spouse's financial status or ability to pay; and the client failed to establish proximate causation as the client could not show that but for the attorney's and the law firm's error, the outcome would have been different. Edwards v. Moore, 351 Ga. App. 147, 830 S.E.2d 494 (2019).

Cited in Lundy v. Lundy, 162 Ga. 42, 132 S.E. 389 (1926); Lowry v. Lowry, 170 Ga. 349, 153 S.E. 11 (1930); McLendon v. McLendon, 192 Ga. 70, 14 S.E.2d 477 (1941); Attaway v. Attaway, 193 Ga. 51, 17 S.E.2d 72 (1941); Joel Bailey Davis, Inc. v. Poole, 194 Ga. 824, 22 S.E.2d 795 (1942); Green v. Starling, 203 Ga. 10, 45 S.E.2d 188 (1947); Von Kamp v. Gary, 204 Ga. 875, 52 S.E.2d 591 (1949); Finch v. Finch, 213 Ga. 199, 97 S.E.2d 576 (1957); Shivers v. Shivers, 215 Ga. 536, 111 S.E.2d 376 (1959); Thome v. Thome, 218 Ga. 359, 127 S.E.2d 916 (1962); Hewlett v. Hewlett, 220 Ga. 656, 140 S.E.2d 898 (1965); Hudson v. Hudson, 220 Ga. 730, 141 S.E.2d 453 (1965); Bugden v. Bugden, 225 Ga. 413, 169 S.E.2d 337 (1969); Barnes v. Barnes, 230 Ga. 226, 196 S.E.2d 390 (1973); Ryle v. Ryle, 130 Ga. App. 680, 204 S.E.2d 339 (1974); Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458 (1974); Mullinax v. Mullinax, 234 Ga. 553, 216 S.E.2d 802 (1975); Byrd v. Byrd, 238 Ga. 569, 233 S.E.2d 799 (1977); Gorman v. Gorman, 239 Ga. 312, 236 S.E.2d 652 (1977); Kitchens v. Kitchens, 239 Ga. 643, 238 S.E.2d 429 (1977); Carr v. Carr, 240 Ga. 161, 240 S.E.2d 50 (1977); Stock v. Commissioner, 551 F.2d 614 (5th Cir. 1977); Moore v. Moore, 240 Ga. 588, 242 S.E.2d 100 (1978); Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978); Bryan v. Bryan, 242 Ga. 826, 251 S.E.2d 566 (1979); Ford v. Ford, 243 Ga. 763, 256 S.E.2d 446 (1979); Stitt v. Stitt, 243 Ga. 730, 256 S.E.2d 461 (1979); Sims v. Sims, 245 Ga. 680, 266 S.E.2d 493 (1980); Smith v. Smith, 245 Ga. 684, 266 S.E.2d 496 (1980); Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980); Owens v. Owens, 247 Ga. 139, 274 S.E.2d 484 (1981); Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981); Head v. Hook, 248 Ga. 818, 285 S.E.2d 718 (1982); Hurley v. Hurley, 249 Ga. 220, 290 S.E.2d 70 (1982); Jackson v. Jackson, 253 Ga. 576, 322 S.E.2d 725 (1984); Smith v. Smith, 254 Ga. 450, 330 S.E.2d 706 (1985); Courtney v. Courtney, 256 Ga. 97, 344 S.E.2d 421 (1986); Head v. Head, 234 Ga. App. 469, 507 S.E.2d 214 (1998).

Valid Marriage Required

Existence of valid marriage is essential to recovery of alimony. Foster v. Foster, 178 Ga. 791, 174 S.E. 532 (1934); Reed v. Reed, 202 Ga. 508, 43 S.E.2d 539 (1947).

Right to recover alimony depends upon a valid, subsisting marriage between the applicant and the party out of whose estate the allowance of alimony is claimed, and this is true even though it is claimed only for the support of a child. Eskew v. Eskew, 199 Ga. 513, 34 S.E.2d 697 (1945).

When marriage void due to previous marriage or legal incapacity.

- On an interlocutory hearing, when it appeared conclusively from the pleadings and the evidence that no valid marriage ever existed between the parties, either because of a previously undissolved marriage or because of the legal incapacity of one of the parties to enter into the marital contract, the trial court could not properly make an award of temporary alimony and counsel fees to the wife. Reed v. Reed, 202 Ga. 508, 43 S.E.2d 539 (1947).

Grant of alimony improper when marriage void due to minority of parties.

- When at the time of purported marriage, and at the time of order granting alimony on the application of the mother for the support of their child, the partner was less than 17 years of age (now 16 years of age) the grant of such judgment against him was contrary to law, since there was no valid marriage to support it, and whether the father could in some way be held liable for support of the child, he could not be subject to such liability through a claim of alimony. Eskew v. Eskew, 199 Ga. 513, 34 S.E.2d 697 (1945).

Spouse not estopped to set up invalidity of marriage in alimony action.

- Although the applicant for temporary alimony and the alleged husband lived together some years after the marriage ceremony between them was performed, inasmuch as the disqualification to marry was not removed, the husband was not estopped from setting up the invalidity of his marriage to the plaintiff in the action for alimony. Reed v. Reed, 202 Ga. 508, 43 S.E.2d 539 (1947).

Factors to Be Considered

Necessities of spouse entitled to alimony, and spouse's ability to pay alimony, are controlling factors to be considered and followed in making an allowance for alimony, temporary or permanent. Robertson v. Robertson, 207 Ga. 686, 63 S.E.2d 876 (1951); Wills v. Wills, 215 Ga. 556, 111 S.E.2d 355 (1959).

Trial court did not err in awarding a wife $200,000 in lump-sum alimony, to be paid in monthly installments of $3,500 for five years because the record contained some evidence supporting the court's finding that the husband could pay the alimony awarded and that the wife needed it in as much as the husband was capable of earning a minimum of $150,000 per year, lived with a girlfriend, and had virtually no living expenses, and the wife was forced to leave the marital residence due to its foreclosure, worked part-time as a waitress and was enrolled in college, and struggled with tuition payments as well as day-to-day living expenses. Driver v. Driver, 292 Ga. 800, 741 S.E.2d 631 (2013).

Spouse's "ability to pay" may be found from his or her assets or earning capacity. Although a person's income is some evidence of that person's earning capacity, it is not the only such evidence. A college student has capacity to earn even though his or her income is less than that of a person employed full time. Gordan v. Gordan, 244 Ga. 21, 257 S.E.2d 528 (1979).

Ability to earn an income is one factor which may be considered by the jury in awarding alimony to the wife, and the jury may award alimony on this basis although the husband may be temporarily impoverished. Pierce v. Pierce, 241 Ga. 96, 243 S.E.2d 46 (1978).

Husband's enhanced and wife's suppressed income potential during marriage properly considered.

- In determining the amount of child support and alimony a husband was required to pay, the trial court correctly considered the parties' income and other assets, as well as the fact that during the marriage, the husband enhanced the ability to increase the husband's income potential and suppressed the wife's ability to earn the income. McCoy v. McCoy, 281 Ga. 604, 642 S.E.2d 18 (2007).

Indebtedness of parties is one factor to be considered in determining permanent alimony. Hardy v. Hardy, 221 Ga. 176, 144 S.E.2d 172 (1965).

Portion of proceeds from future sale of nonmarital property as alimony was not error.

- Award of alimony to the wife in the form of a portion of the proceeds of a future sale was proper as the award was clearly made for the wife's maintenance and support; the trial court determined that the wife's earning capacity was diminished due to an unspecified disability, pursuant to O.C.G.A. § 19-6-5, and it appeared that in practicality, the marital home was the only non-liquid asset from which an award of alimony could be made. Smelser v. Smelser, 280 Ga. 92, 623 S.E.2d 480 (2005).

Jury may consider husband's present income and any previous allotment voluntarily made for support of the wife since the court may always give consideration to securing for the wife the same social standing, comforts, and luxuries of life as she probably would have enjoyed had there been no separation. Wills v. Wills, 215 Ga. 556, 111 S.E.2d 355 (1959).

Relevance of conduct evidence.

- In a divorce action wherein the wife challenged the trial court's denial of the wife's claim of alimony, the wife failed to demonstrate that the trial court did not weigh the several items of conduct evidence presented as to negative behavior on the part of the husband allegedly presented, such as causing the foreclosure of the marital home thereby harming the wife's credit and causing the wife to expend sums for the support of the couple's minor child; the reviewing court found that the transcript established that the evidence was not presented to the trial court for that purpose and no objection was made on that basis. Jackson v. Jackson, 282 Ga. 459, 651 S.E.2d 92 (2007).

Wife's desertion not established.

- Sole evidence of a wife's desertion, offered by the husband, was a note given to him by the wife stating that she was leaving because she "needed to get away for awhile;" the note was given to the husband approximately two months before the wife filed a complaint for divorce, and the wife's separation from the husband for the two months preceding the filing for divorce did not establish the wife's desertion by a preponderance of the evidence; the trial court did not abuse the court's discretion in awarding alimony to the wife. Cormier v. Cormier, 280 Ga. 693, 631 S.E.2d 663 (2006).

Parties' conduct toward each other is relevant in cases in which alimony is sought by the wife. Bigham v. Bigham, 243 Ga. 171, 253 S.E.2d 91 (1979).

Factual causes of separation and conduct of parties is admissible on question of determining amount of alimony, even though the husband concedes that the wife is entitled to alimony in the case, and evidence of acts of misconduct occurring prior to the date of the enactment of this statute, as well as prior to the date of trial, is not void for retrospectivity. Davidson v. Davidson, 243 Ga. 848, 257 S.E.2d 269 (1979).

Wife failed to establish that a trial court manifestly abused the trial court's discretion in denying the wife's claim for alimony based on her allegations that the husband abandoned the family; failed to support the couple's minor child; and caused the marital house to go into foreclosure as there was also evidence before the trial court that the wife initiated the parties' separation; that the wife was gainfully employed and had been so throughout most of the marriage; that the wife failed to cooperate with the husband in taking steps to alleviate the family's financial problems; that the wife had mismanaged marital funds and run up extravagant bills; that the wife failed to take advantage of low-cost health insurance coverage for the couple's minor child provided by the husband's employer; and that the wife unilaterally sold or otherwise disposed of the husband's share of the couple's personal property. Jackson v. Jackson, 282 Ga. 459, 651 S.E.2d 92 (2007).

Evidence of conduct subsequent to separation is relevant to show that such conduct prevented reconciliation of the parties. Hand v. Hand, 244 Ga. 41, 257 S.E.2d 507 (1979).

Prestatute conduct should be admitted where relevant. Thus, former Code 1933, § 30-201 (see now O.C.G.A. § 19-6-1) may be applied to pre-July 1, 1977, acts of misconduct and is not void for retrospectivity. Bryan v. Bryan, 242 Ga. 826, 251 S.E.2d 566 (1979).

Evidence of spouse's husband's adultery occurring before this statute became effective is admissible because the spouse had no vested right to commit adultery. Morris v. Morris, 244 Ga. 120, 259 S.E.2d 65 (1979).

Adultery must be shown by means other than party testimony.

- To the extent that the adultery of either spouse is admissible under O.C.G.A. § 19-6-1, it must be proved through evidence other than the testimony of the parties. Owens v. Owens, 247 Ga. 139, 274 S.E.2d 484 (1981).

Adultery must be cause of separation to constitute bar.

- Subsection (b) of O.C.G.A. § 19-6-1 does not provide a bar in every instance of adultery. It is a bar only when the adultery has been shown to be the cause of the separation between the parties. Clements v. Clements, 255 Ga. 714, 342 S.E.2d 463 (1986).

Adultery by both parents.

- Trial court did not err in finding that the wife's adultery did not cause the dissolution of the parties' marriage as there was evidence of adultery by both parties as well as evidence that the husband had physically injured the wife and that the husband's return to Ohio to work for his father caused the dissolution of the marriage; thus, even if the trial court's order that the husband pay a certain debt could be considered to be alimony, the order did not violate O.C.G.A. § 19-6-1(b). Alejandro v. Alejandro, 282 Ga. 453, 651 S.E.2d 62 (2007).

Even though adulterous spouse cannot obtain alimony, equitable property division is still permissible. Peters v. Peters, 248 Ga. 490, 283 S.E.2d 454 (1981).

Conduct of parties relevant when equitable division of property in issue.

- When equitable division of property is in issue, conduct of parties, both during marriage and with reference to cause of divorce, is relevant and admissible. Peters v. Peters, 248 Ga. 490, 283 S.E.2d 454 (1981).

Recovery, as alimony, of expenses incurred in uncovering evidence of adultery.

- When spouse seeking alimony incurs expenses in employing private investigator in order to uncover evidence of adultery committed by other spouse, these expenses are, at discretion of trial court, recoverable as part of alimony award. Dunham v. Belinky, 248 Ga. 479, 284 S.E.2d 397 (1981).

Adultery not proven thus no attorney's fees.

- First spouse was entitled to alimony and attorney's fees as the second spouse had failed to show, pursuant to O.C.G.A. § 19-6-1(b), that the first spouse had engaged in adultery. Vereen v. Vereen, 284 Ga. 755, 670 S.E.2d 402 (2008).

Lump-sum alimony award was not dischargeable.

- Lump-sum alimony award determined under federal law to be "actually in the nature of alimony, maintenance, or support" is not dischargeable pursuant to 11 U.S.C. § 523(a) (5), even though the award does not terminate upon the death or remarriage of the recipient. Myers v. Myers, 61 Bankr. 891 (Bankr. N.D. Ga. 1986).

Distinction between periodic and lump sum alimony.

- Obligation to pay periodic alimony and child support terminates at the death of either party while the obligation to pay lump sum alimony in installments over a period of time does not. Winokur v. Winokur, 258 Ga. 88, 365 S.E.2d 94 (1988).

When the words of the documents creating the obligation state the exact amount of each payment and the exact number of payments to be made without other limitations, conditions, or statements of intent, the obligation is for one lump sum payable in installments. Winokur v. Winokur, 258 Ga. 88, 365 S.E.2d 94 (1988).

Needs of child to whom payer has no responsibility.

- Needs of wife's child from previous marriage cannot be taken into account in determining amount of alimony to be awarded to wife, but jury may take into account the expense of the child to the wife in determining the amount of alimony. Barber v. Barber, 257 Ga. 488, 360 S.E.2d 574 (1987).

Award of alimony erroneous because record completely devoid of any evidence of spouse's ability to pay.

- Trial court's award of lump sum alimony in the amount of $36,500 was erroneous because although the spouse's need for resources to meet reasonable housing desires and expected medical bills justified an award of alimony, the record was completely devoid of any evidence of the other spouse's ability to pay the lump sum alimony award; the paying spouse's separate estate consisted solely of an asset that could not be transferred or otherwise converted into cash, and a $500 a week income. Coker v. Coker, 286 Ga. 20, 685 S.E.2d 70 (2009).

Temporary Alimony

So long as divorce litigation is pending, trial judge is authorized to exercise discretion in continuing temporary alimony. Brown v. Brown, 224 Ga. 90, 160 S.E.2d 343 (1968).

Court will not very strictly scrutinize conduct for purpose of determining right to temporary alimony. Walden v. Walden, 169 Ga. 586, 151 S.E. 22 (1929).

Judge may base grant of temporary alimony on application for permanent alimony.

- When a husband and wife are living separately, and no action for divorce is pending, and the wife has instituted against the husband an action for permanent alimony, it is not illegal for the judge on her application, after the required notice to the husband, to grant temporary alimony. Pelot v. Pelot, 193 Ga. 316, 18 S.E.2d 548 (1942).

Proportion of estate to be given as permanent or temporary alimony is matter of judicial discretion; it is always less in the latter than in the former case as the court will not encourage vexatious suits by large grants to the wife. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937).

Temporary alimony and attorney's fees are awarded to afford wife (now spouse) means of contesting all the issues between herself and the husband. Walden v. Walden, 169 Ga. 586, 151 S.E. 22 (1929), later appeal, 171 Ga. 444, 155 S.E. 919 (1930); Huggins v. Huggins, 202 Ga. 738, 44 S.E.2d 778 (1947).

Temporary alimony pending action for permanent alimony does not cease with judgment when case is appealed to Supreme Court, but continues (within the discretion of the court) until the termination of the litigation in all the courts. McKay v. McKay, 93 Ga. App. 42, 90 S.E.2d 627 (1955); Brown v. Brown, 224 Ga. 90, 160 S.E.2d 343 (1968).

Amount of temporary alimony absolute unless modified by judge.

- When a judge, in the exercise of judicial discretion, has fixed and allowed temporary alimony pending the cause for divorce and alimony or for permanent alimony, the right to the amount allowed becomes absolute until the final determination of the cause, unless in the meantime the allowance be revoked or modified by the judge. Brown v. Brown, 224 Ga. 90, 160 S.E.2d 343 (1968).

Judge's discretion as to temporary alimony not disturbed absent abuse.

- Appellate court may not control the discretion of a trial judge in awarding temporary alimony and attorney fees, unless it can be clearly shown by an appellant that the trial court committed grievous error or a gross abuse of discretion. Bowman v. Bowman, 242 Ga. 259, 248 S.E.2d 654 (1978).

As a matter of law "temporary alimony" includes attorney's fees. Finch v. Finch, 213 Ga. 199, 97 S.E.2d 576 (1957).

Attorney's fees are an intrinsic part of temporary alimony awarded for the purpose of enabling the wife to contest the issues between herself and her husband. Brown v. Brown, 224 Ga. 90, 160 S.E.2d 343 (1968).

Temporary alimony, including attorney's fees and expenses of litigation, is a part of alimony which a husband is required to supply for the support of his wife. Brown v. Brown, 224 Ga. 90, 160 S.E.2d 343 (1968).

Death of Party

Lien provision of subsection (d) of former Code 1933, § 30-201 did not create new rights in wife extending beyond date of husband's death. Instead, the lien clause preserved an inchoate right to temporary or permanent alimony existing at the date of death for subsequent determination and satisfaction from the estate. Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979).

Right to support survives as lien on estate after spouse dies.

- When the husband dies before an order awarding temporary alimony has been entered by the court and before a divorce has been granted, the wife's right to support during the period of separation until the date of death survives as a lien on the estate. Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979).

Alimony payments terminate on death of spouse obligated to pay.

- According to the weight of authority, a decree, granted in connection with an absolute divorce, for the regular periodical payments of alimony to the wife for her maintenance and support is terminated upon the husband's death, in the absence, at least, of some stipulation in the order which would require payments after his death. Berry v. Berry, 208 Ga. 285, 66 S.E.2d 336 (1951).

Attorney fees authorized after party dies.

- Trial court is authorized to award attorney fees for legal services performed on behalf of a party to a divorce action when, during the pendency of the action, the party dies. Love v. Love, 251 Ga. 846, 310 S.E.2d 504 (1984).

Property subject to division despite title change upon death.

- When the issue of the division of marital assets of a former husband and wife had not been resolved at the time of the husband's death, property acquired as a direct result of the labor and investments of the former husband during the course of the marriage was subject to equitable division in spite of the fact that it was titled in the former wife's name after the former husband's death as a matter of contract law. White v. White, 253 Ga. 267, 319 S.E.2d 447 (1984).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24A Am. Jur. 2d, Divorce and Separation, §§ 571 et seq., 587 et seq., 662 et seq., 671 et seq.

C.J.S.

- 27B C.J.S., Divorce, § 500 et seq.

ALR.

- Right to alimony, counsel fees, or suit money in case of invalid marriage, 4 A.L.R. 926; 110 A.L.R. 1283.

Financial condition of parties as affecting allowance of suit money in divorce suit, 35 A.L.R. 1099.

Alimony as affected by remarriage, 64 A.L.R. 1269; 112 A.L.R. 246.

Gratuities or expectations as affecting amount of alimony, 66 A.L.R. 219.

Wife in respect of her right to maintenance or alimony as within protection of statute or rule avoiding conveyances or transfers in fraud of creditors or persons to whom maker is under legal liability, 79 A.L.R. 421.

Power to reopen decree of divorce which is silent as to or expressly provides against alimony so as to permit modification in that regard, 83 A.L.R. 1248.

Retrospective operation of statutes relating to alimony or suit money in divorce, 97 A.L.R. 1188.

Power of court to appoint receiver of future earnings of husband in order to enforce judgment for alimony, 106 A.L.R. 588.

Directing payment of alimony to trustee, 170 A.L.R. 253.

Misconduct of wife to whom divorce is decreed as affecting allowance of alimony, or amount allowed, 9 A.L.R.2d 1026.

Pension of husband as resource which court may consider in determining amount of alimony, 22 A.L.R.2d 1421.

Allowance of permanent alimony to wife against whom divorce is granted, 34 A.L.R.2d 313.

Right to allowance of permanent alimony in connection with decree of annulment, 54 A.L.R.2d 1410.

Husband's right to alimony, maintenance, suit money, or attorneys' fees, 66 A.L.R.2d 880.

Allocation or apportionment of previous combined award of alimony and child support, 78 A.L.R.2d 1110.

Court's establishment of trust to secure alimony or child support in divorce proceedings, 3 A.L.R.3d 1170.

Wife's possession of independent means as affecting her right to alimony pendente lite, 60 A.L.R.3d 728.

Evaluation of interest in law firm or medical partnership for purposes of division of property in divorce proceedings, 74 A.L.R.3d 621.

Provision in divorce decree requiring husband to pay certain percentage of future salary increases as additional alimony or child support, 75 A.L.R.3d 493.

Statute expressly allowing alimony to wife, but not expressly allowing alimony to husband, as unconstitutional sex discrimination, 85 A.L.R.3d 940.

Adulterous wife's right to permanent alimony, 86 A.L.R.3d 97.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no-fault divorce, 86 A.L.R.3d 1116.

Pension or retirement benefits as subject to award or division by court in settlement of property rights between spouses, 94 A.L.R.3d 176.

Spouse's professional degree or license as marital property for purposes of alimony, support, or property settlement, 4 A.L.R.4th 1294.

Husband's death as affecting periodic payment provisions of separation agreement, 5 A.L.R.4th 1153.

Validity and enforceability of escalation clause in divorce decree relating to alimony and child support, 19 A.L.R.4th 830.

Divorce and separation: appreciation in value of separate property during marriage without contribution by either spouse as separate or communal property, 24 A.L.R.4th 453.

Excessiveness or adequacy of amount of money awarded for alimony and child support combined, 27 A.L.R.4th 1038.

Reconciliation as affecting decree for limited divorce, separation, alimony, separate maintenance, or spousal support, 36 A.L.R.4th 502.

Divorced or separated spouse's living with member of opposite sex as affecting other spouse's obligation or support under separation agreement, 47 A.L.R.4th 38.

Divorce: excessiveness or adequacy of combined property division and spousal support awards - modern cases, 55 A.L.R.4th 14.

Death of obligor spouse as affecting alimony, 79 A.L.R.4th 10.

Divorce: court's authority to institute or increase spousal support award after discharge of prior property award in bankruptcy, 87 A.L.R.4th 353.

Divorce and separation: award of interest on deferred installment payments of marital asset distribution, 10 A.L.R.5th 191.

Alimony as affected by recipient spouse's remarriage in absence of controlling specific statute, 47 A.L.R.5th 129.

Validity, construction, and application of provision in separation agreement affecting distribution or payment of attorney's fees, 47 A.L.R.5th 207.

Propriety of equalizing income of spouses through alimony awards, 102 A.L.R.5th 395.

Spouse's professional degree or license as marital property for purposes of alimony, support, or property settlement, 3 A.L.R.6th 447.

Divorce and separation: health insurance benefits as marital asset, 81 A.L.R.6th 655.

19-6-2. Attorney's fees; when and how granted; enforcement.

  1. The grant of attorney's fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights, shall be:
    1. Within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party; and
    2. A final judgment as to the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not.
  2. Nothing contained in this Code section shall be construed to mean that attorney's fees shall not be awarded at both the temporary hearing and the final hearing.
  3. An attorney may bring an action in his own name to enforce a grant of attorney's fees made to him pursuant to this Code section.

(Code 1933, § 30-202.1, enacted by Ga. L. 1967, p. 591, § 1; Ga. L. 1976, p. 1017, § 1; Ga. L. 1977, p. 312, § 1; Ga. L. 1979, p. 466, § 8; Ga. L. 1985, p. 877, § 1.)

Law reviews.

- For article, "Attorney's Fees in Alimony and Divorce Cases," see 19 Ga. B.J. 23 (1956). For survey of Georgia cases dealing with domestic relations from June 1977 through May 1978, see 30 Mercer L. Rev. 59 (1978). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For article, "Domestic Relations Law," see 53 Mercer L. Rev. 265 (2001). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of domestic relations law, see 58 Mercer L. Rev. 133 (2006). For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For annual survey on domestic relations, see 65 Mercer L. Rev. 107 (2013). For annual survey on domestic relations, see 69 Mercer L. Rev. 83 (2017). For annual survey on domestic relations, see 71 Mercer L. Rev. 83 (2019).

JUDICIAL DECISIONS

General Consideration

Law was constitutional and any modification or repeal must necessarily be made by the General Assembly of Georgia and not by the court. Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458 (1974), cert. denied, 421 U.S. 929, 95 S. Ct. 1656, 44 L. Ed. 2d 87 (1975).

Court must consider financial circumstances.

- When the trial court did not consider the financial circumstances of both parties as part of the court's determination of the amount of attorney fees, if any, to be allowed in a contempt proceeding, there was no evidence that the ex-wife was able to pay the attorney fees ordered. Thus, if she failed to pay the awarded fees, the failure would not necessarily be a refusal to abide by the court's order, but might simply arise from an inability to pay, tantamount to imprisonment for debt. Thedieck v. Thedieck, 220 Ga. App. 764, 470 S.E.2d 265 (1996).

Attorneys' fees award to the creditor (the debtor's former spouse) that was related to the debtor's unsuccessful efforts to obtain modifications to the divorce decree was not a domestic support obligation (DSO) as defined in the Bankruptcy Code and, thus, was not a priority claim because there was no express determination by the Georgia state court that the fees were awarded as support based upon the relative financial circumstances of the parties rather than as a sanction for frivolous litigation. Mosely v. Mosely (In re Mosely), 577 Bankr. 419 (Bankr. N.D. Ga. 2017).

Court's express reservation of jurisdiction.

- Fact that court may expressly reserve jurisdiction to make additional award does not mean such reservation is mandatory. Richardson v. Richardson, 237 Ga. 830, 229 S.E.2d 641 (1976).

Court jurisdiction over matter of attorney fees.

- Trial court does not lose jurisdiction of matter of attorney fees simply because term of court ended. Richardson v. Richardson, 237 Ga. 830, 229 S.E.2d 641 (1976).

O.C.G.A. § 19-6-2(a) is inapplicable to child custody modification actions. Wilson v. Perkins, 344 Ga. App. 869, 811 S.E.2d 518 (2018).

No application to child custody and support dispute.

- In a child custody and support contempt proceeding, the trial court did not err in finding the mother in contempt but erred in awarding the father attorney's fees under O.C.G.A. § 9-15-14 without holding a hearing regarding reasonable and necessary fees, and erred in awarding fees under O.C.G.A. § 19-6-2, because that section applied only to cases of divorce and alimony. Dingle v. Carter, 350 Ga. App. 255, 829 S.E.2d 604 (2019).

Fee award modifiable while suit pending.

- Although the grant of attorney fees is a final judgment which may be enforced by attachment or by writ notwithstanding reconciliation of the parties, this does not necessarily mean that the fee award, like other elements of temporary alimony, may not be modified by the court at any time while the suit is pending and is within the jurisdiction of the court. Haim v. Haim, 251 Ga. 618, 308 S.E.2d 179 (1983).

Words "on account" need not appear in temporary order to prevent the award of attorney fees from being final and complete. Richardson v. Richardson, 237 Ga. 830, 229 S.E.2d 641 (1976).

Oral pronouncement of fees must be reduced to writing.

- Husband's concern about the interest rate of 11.25 percent imposed on an award of attorneys fees was justified under circumstances in which the husband asserted that the date of the judgment was October 1, 2007, and the applicable prime rate was 7.75 percent, while the wife argued that the applicable prime rate was 8.25 percent, the rate on July 20, 2007, the day the trial court orally pronounced the court's judgment; however, an oral pronouncement was not a judgment. It had to have been reduced to writing and entered as a judgment to have been effective. Mongerson v. Mongerson, 285 Ga. 554, 678 S.E.2d 891 (2009), overruled on other grounds, 288 Ga. 670, 706 S.E.2d 456 (2011).

Reversal required when inaccurate income statement relied upon.

- Final judgment and decree of divorce had to be partially reversed as to alimony and attorney's fees because the judgment relied on an inaccurate statement of the husband's income. Lutz v. Lutz, 302 Ga. 500, 807 S.E.2d 336 (2017).

Findings in order awarding attorney fees not clear.

- Award of attorney fees to a mother in a child custody and support proceeding was vacated because although in the modification order the trial court made references to factors that indicate that the award was being made under O.C.G.A. § 9-15-14(b) due to sanctionable conduct, the trial court also referred to the relative financial position of the parties, which would indicate the award was being made under O.C.G..A § 19-6-2; thus, further proceedings on the issue of attorney fees was required. Wilson v. Guerrero, 353 Ga. App. 501, 838 S.E.2d 588 (2020).

Cited in Roberts v. Roberts, 226 Ga. 203, 173 S.E.2d 675 (1970); Margeson v. Givens, 231 Ga. 552, 203 S.E.2d 186 (1974); Mullinax v. Mullinax, 234 Ga. 553, 216 S.E.2d 802 (1975); Evans v. Evans, 242 Ga. 57, 247 S.E.2d 857 (1978); Swinson v. Swinson, 242 Ga. 305, 248 S.E.2d 675 (1978); Kight v. Kight, 242 Ga. 563, 250 S.E.2d 451 (1978); Griffin v. Griffin, 243 Ga. 149, 253 S.E.2d 80 (1979); Atkins v. Zachary, 243 Ga. 453, 254 S.E.2d 837 (1979); Ford v. Ford, 243 Ga. 763, 256 S.E.2d 446 (1979); Stitt v. Stitt, 243 Ga. 730, 256 S.E.2d 461 (1979); Kaufmann v. Kaufmann, 246 Ga. 266, 271 S.E.2d 175 (1980); Griffin v. Griffin, 248 Ga. 743, 285 S.E.2d 710 (1982); Keith v. Keith, 248 Ga. 819, 286 S.E.2d 434 (1982); Reno v. Reno, 249 Ga. 855, 295 S.E.2d 94 (1982); Easler v. Fuller, 169 Ga. App. 110, 311 S.E.2d 534 (1983); Norman v. Norman, 255 Ga. 32, 334 S.E.2d 687 (1985); Cotting v. Cotting, 261 Ga. App. 370, 582 S.E.2d 527 (2003); Cotting v. Cotting, 261 Ga. App. 370, 582 S.E.2d 527 (2003); Page v. Baylard, 281 Ga. 586, 642 S.E.2d 14 (2007); Stanley v. Stanley, 281 Ga. 672, 642 S.E.2d 94 (2007); Wood v. Wood, 283 Ga. 8, 655 S.E.2d 611 (2008); Mongerson v. Mongerson, 285 Ga. 554, 678 S.E.2d 891 (2009), overruled on other grounds, 288 Ga. 670, 706 S.E.2d 456 (2011); Harris v. Williams, 304 Ga. App. 390, 696 S.E.2d 131 (2010); Baars v. Freeman, 288 Ga. 835, 708 S.E.2d 273 (2011); Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011); Blumenshine v. Hall, 329 Ga. App. 449, 765 S.E.2d 647 (2014); Bankston v. Warbington, 332 Ga. App. 29, 771 S.E.2d 726 (2015); Islamkhan v. Khan, 299 Ga. 548, 787 S.E.2d 731 (2016).

Attorney's Fees

Georgia law permits award of attorney fees in original action for temporary or permanent alimony in an amount sufficient to ensure proper legal representation. Hilsman v. Hilsman, 245 Ga. 555, 266 S.E.2d 173 (1980).

Purpose of allowing attorney fees.

- Allowance of attorney's fees in applications for divorce or alimony is a necessary provision to enable the wife to properly protect her interests. Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258 (1972).

In the allowance of attorney's fees, while the financial condition of the husband must have due weight with the court, still, except in cases where the husband is unable to pay a fee, or more than merely nominal compensation, the allowance for attorney's fees should be sufficient to insure to the wife proper legal representation by a competent attorney. Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258 (1972).

Purpose of allowing attorney fees to the wife is to enable her to contest issues between herself and her husband, and the amount of such fees is to be set in accord with this purpose. Richardson v. Richardson, 237 Ga. 830, 229 S.E.2d 641 (1976).

Purpose of allowing attorney fees is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved. Johnson v. Johnson, 260 Ga. 443, 396 S.E.2d 234 (1990).

Pursuant to Georgia law, when awarded, attorney fees under O.C.G.A. § 19-6-2 are awarded as an intrinsic part of temporary alimony. Vakharwala v. Vakharwala, 301 Ga. 251, 799 S.E.2d 797 (2017).

Attorney fees are part of alimony. McClain v. McClain, 237 Ga. 80, 227 S.E.2d 5 (1976).

Award of attorney fees in divorce proceedings constitutes alimony and therefore is nondischargeable in bankruptcy. Westmoreland, Patterson & Moseley v. Painter, 21 Bankr. 846 (Bankr. M.D. Ga. 1982).

Attorney fees are considered temporary alimony. Ford v. Ford, 245 Ga. 569, 266 S.E.2d 183 (1980).

Attorney fees improperly awarded in modification action when original proceedings arose out of divorce action.

- Attorney fees improperly awarded in action to set aside paternity and modification of child support, as the proceedings did not arise out of the original divorce case, as required by O.C.G.A. § 19-6-2, but arose instead out of a paternity and modification action. Cothran v. Mehosky, 286 Ga. App. 640, 649 S.E.2d 838 (2007).

Award not authorized in legitimation proceeding.

- In a proceeding to legitimate a child, the trial court erred in awarding the custodial parent attorney's fees under O.C.G.A. § 19-6-2(a) as the statute only permitted such an award in alimony and divorce cases. Appling v. Tatum, 295 Ga. App. 78, 670 S.E.2d 795 (2008).

Trial court has authority to exercise sound discretion in awarding or denying attorney's fees. Wilson v. Wilson, 243 Ga. 637, 256 S.E.2d 334 (1979).

Attorney fees in an action for nonpayment of alimony and child support are within the discretion of the trial court. Aycock v. Aycock, 251 Ga. 104, 303 S.E.2d 456 (1983).

Attorney's fees in child custody proceeding.

- In a child custody proceeding, the trial court's award of attorney fees to the father pursuant to O.C.G.A. § 19-6-2 was in error because the statute only applied to attorney's fees in alimony and divorce cases. Dingle v. Carter, Ga. App. , S.E.2d (Apr. 24, 2019).

Discretion of judge as to amount of allowance will not be controlled, unless there is an abuse of discretion. Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258 (1972).

Appellate court may not control the discretion of a trial judge in awarding temporary alimony and attorney fees, unless it can be clearly shown by an appellant that the trial court committed grievous error or a gross abuse of discretion. Bowman v. Bowman, 242 Ga. 259, 248 S.E.2d 654 (1978).

In a divorce action wherein both parties presented evidence regarding each parties' respective financial conditions, the trial court did not err by denying the wife's claim for attorney fees pursuant to O.C.G.A. § 19-6-2; additionally, contrary to the wife's argument, the husband's alleged unwillingness to settle the divorce proceedings was irrelevant to the inquiry whether attorney fees should be awarded. Jackson v. Jackson, 282 Ga. 459, 651 S.E.2d 92 (2007).

Consideration of parties' financial circumstances.

- In a divorce action, in the absence of a transcript, an appellate court had to presume that, in accordance with O.C.G.A. § 19-6-2(a)(1), the trial court had considered the parties' financial circumstances and did not abuse the court's discretion in not ordering one spouse to pay the other spouse's attorney's fees. Dasher v. Dasher, 283 Ga. 436, 658 S.E.2d 571 (2008).

In a divorce action, a trial court properly considered the parties' financial circumstances under O.C.G.A. § 19-6-2(a)(1) in awarding a former wife $16,000 in attorney's fees. Arkwright v. Arkwright, 284 Ga. 545, 668 S.E.2d 709 (2008).

In a divorce proceeding, there was no merit to a husband's contention that the trial court actually based the court's award of attorney's fees to a wife on O.C.G.A. § 9-15-14 merely because the court noted the impact of the husband's litigious conduct on the reasonableness of the attorney fees the wife incurred because the trial court expressly awarded the wife attorney fees pursuant to O.C.G.A. § 19-6-2 and explicitly stated that the court was looking solely at the parties' financial circumstances and disregarding the husband's conduct in making the court's award. Kautter v. Kautter, 286 Ga. 16, 685 S.E.2d 266 (2009).

In a divorce proceeding, a trial court's failure to award attorney's fees to a former spouse under O.C.G.A. § 19-6-2 was not an abuse of discretion as the trial court properly considered the relative financial positions of the parties. Hunter v. Hunter, 289 Ga. 9, 709 S.E.2d 263 (2011).

In an appeal pursuant to Ga. S. Ct. R. 34(4), a trial court did not abuse the court's discretion by considering evidence that the husband and wife received financial assistance from a close relative (their respective mothers) since there was no statutory limitation on the type of evidence of financial circumstances a trial court may consider when a trial court makes an attorney's fee award under O.C.G.A. § 19-6-2 and because the award of fees under § 19-6-2 was within the trial court's discretion. Jarvis v. Jarvis, 291 Ga. 818, 733 S.E.2d 747 (2012).

Trial court did not abuse the court's discretion by awarding the husband attorney fees under O.C.G.A. § 19-6-2, despite the award not being sustainable under O.C.G.A. § 9-15-14(b), because the record showed that the court carefully considered the parties' relative financial positions, their obligations under the final decree, and the substantial costs incurred by both parties, and the husband was awarded substantially less than the total amount of fees claimed to have been incurred in the litigation. Hoard v. Beveridge, 298 Ga. 728, 783 S.E.2d 629 (2016).

Fact that a party in a divorce proceeding was able to pay for a portion of their fee obligation during the course of a lengthy and contentious divorce proceeding did not deprive the trial court of the court's statutory authority to award fees under O.C.G.A. § 19-6-2. Hoard v. Beveridge, 298 Ga. 728, 783 S.E.2d 629 (2016).

Trial court did not abuse the court's discretion by denying the wife's request for attorney's fees because the record reflected that the trial court considered the relative financial positions of the parties and some evidence supported the decision. Frost v. Frost, 299 Ga. 278, 787 S.E.2d 693 (2016).

Award of attorney fees to ex-wife under O.C.G.A. § 19-6-2 was affirmed as the trial court's order contained sufficient factual findings as to the parties' finances and the ex-husband's disagreement with that conclusion was not the basis for reversal. Reid v. Reid, 348 Ga. App. 550, 823 S.E.2d 860 (2019), cert. denied, 2019 Ga. LEXIS 689 (Ga. 2019).

Trial court was not precluded from awarding attorney fees to the ex-wife pursuant to O.C.G.A. § 19-6-2 because she remarried and her entitlement to and ability to seek alimony discontinued as the trial court considered both parties regarding their financial circumstances at the hearing, made specific findings concerning the ex-husband's assertions regarding his inability to pay his court-ordered obligations and overall financial circumstances, and his contempt. McCarthy v. Ashment, 353 Ga. App. 270, 835 S.E.2d 745 (2019).

Property settlement agreement precluded award of attorney fees to spouse.

- In a divorce action, the trial court erred by awarding $5,000 in attorney fees to the wife pursuant to O.C.G.A. § 19-6-2(a) because attorney fees under § 19-6-2(a) were precluded by the parties' settlement agreement waiving alimony. Dovel v. Dovel, 352 Ga. App. 423, 834 S.E.2d 918 (2019).

Attorney's fees award proper.

- There was no abuse of discretion in the trial court's award of $50,000 in attorney's fees to the wife in a divorce case; the trial court considered evidence of the financial circumstances of the parties and evidence that the wife incurred over $75,000 in litigation expenses in her efforts to obtain necessary financial documents and to effectively present the complicated financial issues raised in the case.

Trial court did not err in awarding the ex-husband attorney fees as the court awarded fees incurred during the litigation and properly considered the parties' relative financial positions in awarding the fees. Rowles v. Rowles, 351 Ga. App. 246, 830 S.E.2d 589 (2019), cert. denied, 2020 Ga. LEXIS 156 (Ga. 2020).

Contempt

Contempt for refusing to allowing fiance to attend therapy sessions.

- Attorney fee award to the father was vacated and the case remanded to the trial court for reconsideration of the issue based on the appellate court concluding that the trial court erred in finding the mother in contempt for refusing to allow the father's fianc to attend therapy sessions. Sullivan v. Harper, 352 Ga. App. 427, 834 S.E.2d 921 (2019).

19-6-3. Temporary alimony; petition and hearing; factors considered; discretion of judge; revision and enforcement of order; effect of failure to comply.

  1. Whenever an action for divorce or for permanent alimony is pending, either party may apply at any time to the presiding judge of the court in which the same is pending, by petition, for an order granting the party temporary alimony pending the issuance of a final judgment in the case. After hearing both parties and the evidence as to all the circumstances of the parties and as to the fact of marriage, the court shall grant an order allowing such temporary alimony, including expenses of litigation, as the condition of the parties and the facts of the case may justify.
  2. In arriving at a decision, the judge shall consider the peculiar necessities created for each party by the pending litigation and any evidence of a separate estate owned by either party. If the separate estate of the party seeking alimony is ample as compared with that of the other party, temporary alimony may be refused.
  3. At a hearing on the application for temporary alimony, the merits of the case are not in issue; however, the judge, in fixing the amount of alimony, may inquire into the cause and circumstances of the separation rendering the alimony necessary and in his discretion may refuse it altogether.
  4. On application, an order allowing temporary alimony shall be subject to revision by the court at any time and may be enforced either by writ of fieri facias or by attachment for contempt.
  5. A failure to comply with the order allowing temporary alimony shall not deprive a party of the right either to prosecute or to defend the case.

(Orig. Code 1863, §§ 1689-1692; Code 1868, §§ 1732-1735; Code 1873, §§ 1737-1740; Code 1882, §§ 1737-1740; Civil Code 1895, §§ 2457-2460; Civil Code 1910, §§ 2976-2979; Code 1933, §§ 30-202, 30-203, 30-204, 30-205; Ga. L. 1979, p. 466, §§ 7, 9, 10.)

Law reviews.

- For article, "Attorney's Fees in Alimony and Divorce Cases," see 19 Ga. B.J. 23 (1956). For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For comment, "Antenuptial Agreements and Divorce in Georgia: Scherer v. Scherer," see 17 Ga. L. Rev. 231 (1982).

JUDICIAL DECISIONS

General Consideration

Law providing that alimony judgment may be enforced by writ of fi. fa. was constitutional. Wood v. Atkinson, 231 Ga. 271, 201 S.E.2d 394 (1973), appeal dismissed, 416 U.S. 901, 94 S. Ct. 1603, 40 L. Ed. 2d 106 (1974).

History of application of section.

- Prior to the passage of the married woman's property act, it was the rule and practice in this state, almost as a matter of course, to grant temporary alimony to the wife in her pending divorce suit. Frankel v. Frankel, 212 Ga. 643, 94 S.E.2d 728 (1956).

Temporary alimony is common-law right; it was an established right in England when we adopted the common law, and it is no less a common-law right because it grew up under the ecclesiastical courts. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937).

Prior to any statute on the subject, it was held that the courts had the power to provide temporary alimony for the wife as incidental to the power to grant divorce. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937).

"Order" of court contemplated by statute was order by court of this state and not an order of a court of a foreign state; thus, a court could not issue an alimony order by virtue of a foreign decree since the court's power was merely to issue an ordinary money judgment based on the foreign decree. Henderson v. Henderson, 86 Ga. App. 812, 72 S.E.2d 731 (1952).

As foreign alimony decrees occupy the same status as ordinary foreign money judgments so far as Georgia courts are concerned, such decrees must be reduced to judgment in this state before the decrees can be enforced in this state. When the decrees are reduced to judgment in Georgia, the decrees can only be enforced by execution as other money judgments. Henderson v. Henderson, 86 Ga. App. 812, 72 S.E.2d 731 (1952).

Two prerequisites to temporary alimony award.

- Two things are necessary to entitle the plaintiff in divorce to temporary alimony, namely, marriage, and the pendency of a suit for divorce, because the duty of the husband to support his wife is based upon the existence of a marriage between them. Methvin v. Methvin, 15 Ga. 97 (1854); Frith v. Frith, 18 Ga. 273 (1855); Pennaman v. Pennaman, 153 Ga. 647, 112 S.E. 829 (1922).

Before temporary alimony can be allowed, there must be pending suit for divorce or for alimony; and, if there is neither, no allowance for temporary alimony can be made. Sellers v. Sellers, 175 Ga. 47, 164 S.E. 769 (1932).

Party against whom alimony is allowed, should have notice and an opportunity of being heard. Goss v. Goss, 29 Ga. 109 (1859); Luke v. Luke, 154 Ga. 800, 115 S.E. 666 (1923).

Existing conjugal relation.

- Right to temporary alimony, including attorney's fees, rests upon existing conjugal relation; and when a final verdict and decree of divorce has been granted to the parties prior to the institution by the former wife of an ancillary motion or petition for attorney's fees, and since marital relation was entirely dissolved and destroyed, the rights of the former wife to recover and the liability of the former husband to pay temporary alimony were extinguished. Harrison v. Harrison, 208 Ga. 70, 65 S.E.2d 173 (1951).

Woman's right to alimony, attorney's fees, and interlocutory relief depends upon her present - not past or future - status as wife. Until a challenged divorce judgment is actually set aside, there is no pending action for divorce or permanent alimony as is required for the grant of temporary alimony or other relief. Thome v. Thome, 218 Ga. 359, 127 S.E.2d 916 (1962).

Instances in which court cannot award alimony.

- Court cannot award alimony when proceedings were not under former Code 1933, § 30-204 (see now O.C.G.A. § 19-6-3) for temporary alimony pending an action for divorce, or under former Code 1933, § 30-213 (see now O.C.G.A. § 19-6-10) for alimony when no action for divorce is pending, these being the only two instances when a court can award alimony. Henderson v. Henderson, 86 Ga. App. 812, 72 S.E.2d 731 (1952).

No final adjudication of property rights at temporary alimony hearing.

- Trial court may not at temporary alimony hearing make final adjudication of property rights of those parties before it. Walton v. Walton, 223 Ga. 85, 153 S.E.2d 554 (1967).

Effect of spouse's death on right to temporary alimony.

- When the husband dies before an order awarding temporary alimony has been entered by the court and before a divorce has been granted, the wife's right to support during the period of separation until the date of death survives as a lien on the estate. Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979).

When the husband dies after a divorce has been granted but before any determination of temporary or permanent alimony has been made, the wife's inchoate right to temporary alimony from separation until the date of death survives as a lien on the estate. This determination can be made after the husband's death, and the executor may attempt to prove any disability which would deprive the wife of her right to alimony. Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979).

No hearing before successor judge.

- Order by the successor judge had to be reversed because no hearing on the wife's motion for temporary alimony was held by the successor judge prior to the entry of an order, and there was no suggestion in the record that the judge conducted an independent review of the evidence previously submitted by the parties akin to a permissible review of affidavits. Triola v. Triola, 299 Ga. 220, 787 S.E.2d 206 (2016).

Judge is authorized to deny temporary alimony when there is evidence that wife voluntarily abandoned husband, or when there is evidence that the separation between the husband and wife was caused by the adultery of the wife, uncondoned by the husband. Bullock v. Bullock, 188 Ga. 699, 4 S.E.2d 630 (1939).

When wife has willfully deserted husband, it is error to award temporary alimony. Hudson v. Hudson, 189 Ga. 410, 5 S.E.2d 912 (1939).

Wife is not entitled to an award of temporary alimony or attorney's fees since it appears without dispute that she abandoned her husband and refuses to live with him without just cause. Mullikin v. Mullikin, 200 Ga. 638, 38 S.E.2d 281 (1946); Frankel v. Frankel, 212 Ga. 643, 94 S.E.2d 728 (1956).

When wife abandoned husband without just cause, it is the duty of the court to deny temporary alimony and attorney's fees. Acree v. Acree, 201 Ga. 359, 40 S.E.2d 54 (1946).

Decree for temporary alimony is rendered void by subsequent voluntary cohabitation of the parties. Embry v. Embry, 228 Ga. 468, 186 S.E.2d 104 (1971).

Visitation privileges and alimony.

- Neither visitation privileges nor alimony should be conditioned upon compliance with the other. Griffin v. Griffin, 226 Ga. 781, 177 S.E.2d 696 (1970).

Spouse's right to use credit following temporary alimony award.

- While the court is authorized to prohibit the wife from using the credit of the husband for necessaries in an award of temporary alimony, the wife is a feme sole as to her separate estate and the court has no power to prohibit her from using credit extended solely to her in her individual capacity. Barnett v. Barnett, 231 Ga. 808, 204 S.E.2d 168 (1974).

Findings of fact and law not required in temporary alimony proceeding.

- Because merits are not in issue, proceedings on temporary alimony do not require findings of fact and law. Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915 (1977).

Grant or refusal of temporary alimony is question for the court; that of permanent alimony is for the jury to determine. Aud v. Aud, 199 Ga. 714, 35 S.E.2d 198 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946).

Judgment denying temporary alimony is appealable. Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575 (1970).

Judgment for temporary alimony cannot be treated as final so long as either party has the right to have the judgment reviewed by the Supreme Court. George v. George, 233 Ga. 637, 212 S.E.2d 813 (1975).

Temporary alimony pending an action for permanent alimony does not cease with judgment in superior court, when the case is brought to the Supreme Court, but continues within the discretion of the court until the termination of the litigation in all the courts. Holleman v. Holleman, 69 Ga. 676 (1882); Aud v. Aud, 199 Ga. 714, 35 S.E.2d 198 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946); Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796 (1954); McKay v. McKay, 93 Ga. App. 42, 90 S.E.2d 627 (1955); Moody v. Moody, 237 Ga. 374, 228 S.E.2d 788 (1976), cert. denied, 431 U.S. 921, 97 S. Ct. 2192, 53 L. Ed. 2d 234 (1977); Pierce v. Pierce, 241 Ga. 96, 243 S.E.2d 46 (1978).

Temporary alimony continues when awarded until final termination of the cause. McKay v. McKay, 93 Ga. App. 42, 90 S.E.2d 627 (1955).

Judgment for temporary alimony continues in force and effect until a final judgment in the case, until the termination of the litigation of all courts, and as long as the case is pending, including litigation in the Supreme Court. Chlupacek v. Chlupacek, 226 Ga. 520, 175 S.E.2d 834 (1970); George v. George, 233 Ga. 637, 212 S.E.2d 813 (1975).

Cited in Potter v. Potter, 145 Ga. 60, 88 S.E. 546 (1916); Webb v. Webb, 165 Ga. 305, 140 S.E. 872 (1927); Bradley v. Bradley, 168 Ga. 648, 148 S.E. 591 (1929); Giradot v. Giradot, 170 Ga. 905, 154 S.E. 352 (1930); Pace v. Bergquist, 173 Ga. 112, 159 S.E. 678 (1931); Walker v. Walker, 177 Ga. 743, 171 S.E. 292 (1933); Collins v. Collins, 180 Ga. 194, 178 S.E. 446 (1935); Mosely v. Mosely, 181 Ga. 543, 182 S.E. 849 (1935); Deaderick v. Deaderick, 182 Ga. 96, 185 S.E. 89 (1936); Kennedy v. Kennedy, 182 Ga. 586, 186 S.E. 553 (1936); Statham v. Statham, 182 Ga. 805, 187 S.E. 17 (1936); Grant v. Grant, 184 Ga. 339, 191 S.E. 98 (1937); Thomas v. Smith, 185 Ga. 243, 194 S.E. 502 (1937); Brim v. Brim, 185 Ga. 359, 195 S.E. 157 (1938); Bulloch v. Bulloch, 188 Ga. 699, 4 S.E.2d 630 (1939); Fulenwider v. Fulenwider, 188 Ga. 856, 5 S.E.2d 20 (1939); Hudson v. Hudson, 189 Ga. 410, 5 S.E.2d 912 (1939); Roberts v. Roberts, 190 Ga. 649, 10 S.E.2d 62 (1940); Ayers v. Ayers, 191 Ga. 777, 13 S.E.2d 778 (1941); Evans v. Evans, 191 Ga. 752, 14 S.E.2d 95 (1941); Allen v. Allen, 194 Ga. 591, 22 S.E.2d 136 (1942); Twilley v. Twilley, 195 Ga. 297, 24 S.E.2d 46 (1943); Verner v. Verner, 195 Ga. 592, 24 S.E.2d 666 (1943); Cox v. Cox, 197 Ga. 260, 29 S.E.2d 83 (1944); Aud v. Aud, 199 Ga. 714, 35 S.E.2d 198 (1945); Moss v. Moss, 200 Ga. 8, 36 S.E.2d 431 (1945); Lybrand v. Lybrand, 204 Ga. 312, 49 S.E.2d 515 (1948); Murray v. Murray, 206 Ga. 702, 58 S.E.2d 420 (1950); Johnson v. Johnson, 207 Ga. 508, 52 S.E.2d 908 (1950); Carter v. Carter, 208 Ga. 329, 66 S.E.2d 734 (1951); Meeks v. Meeks, 209 Ga. 588, 74 S.E.2d 861 (1953); Swinson v. Swinson, 210 Ga. 110, 78 S.E.2d 25 (1953); Harbuck v. Harbuck, 210 Ga. 220, 78 S.E.2d 508 (1953); Womble v. Womble, 214 Ga. 438, 105 S.E.2d 324 (1958); Wills v. Wills, 215 Ga. 556, 111 S.E.2d 355 (1959); Johnson v. Johnson, 218 Ga. 28, 126 S.E.2d 229 (1962); Adams v. Adams, 218 Ga. 286, 127 S.E.2d 365 (1962); Thome v. Thome, 218 Ga. 359, 127 S.E.2d 916 (1962); Roehrman v. Roehrman, 219 Ga. 52, 131 S.E.2d 558 (1963); Choate v. Choate, 219 Ga. 250, 132 S.E.2d 671 (1963); Walton v. Walton, 219 Ga. 729, 135 S.E.2d 886 (1964); Hardee v. Hardee, 222 Ga. 309, 149 S.E.2d 686 (1966); Smith v. Smith, 222 Ga. 313, 149 S.E.2d 683 (1966); White v. Bowen, 223 Ga. 94, 153 S.E.2d 706 (1967); Lovett v. Lovett, 225 Ga. 251, 167 S.E.2d 590 (1969); Roberts v. Roberts, 226 Ga. 203, 173 S.E.2d 675 (1970); Chlupacek v. Chlupacek, 226 Ga. 520, 175 S.E.2d 834 (1970); Stroud v. Stroud, 226 Ga. 769, 177 S.E.2d 574 (1970); Fint v. Johnson, 229 Ga. 188, 190 S.E.2d 32 (1972); Wood v. Atkinson, 229 Ga. 179, 190 S.E.2d 46 (1972); Goldman v. Goldman, 230 Ga. 245, 196 S.E.2d 427 (1973); Maloof v. Maloof, 231 Ga. 811, 204 S.E.2d 162 (1974); Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458 (1974); Mullinax v. Mullinax, 234 Ga. 553, 216 S.E.2d 802 (1975); Stern v. Stern, 235 Ga. 212, 219 S.E.2d 106 (1975); Daniel v. Daniel, 239 Ga. 466, 238 S.E.2d 108 (1977); Wills v. Wills, 239 Ga. 656, 238 S.E.2d 360 (1977); Carter v. Carter, 240 Ga. 597, 242 S.E.2d 94 (1978); Antico v. Antico, 241 Ga. 294, 244 S.E.2d 820 (1978); Ford v. Ford, 243 Ga. 763, 256 S.E.2d 446 (1979); Stitt v. Stitt, 243 Ga. 730, 256 S.E.2d 461 (1979); Brodie v. Brodie, 155 Ga. App. 593, 271 S.E.2d 725 (1980); McKinnon v. McKinnon, 158 Ga. App. 776, 282 S.E.2d 220 (1981); Upton v. Duck, 249 Ga. 267, 290 S.E.2d 92 (1982); Shelor v. Shelor, 259 Ga. 462, 383 S.E.2d 895 (1989).

Pleadings and Evidence

Requirement of pleadings and evidence of marriage.

- No judgment for temporary alimony may be rendered in absence of pleadings and evidence that showed parties to be married. Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946).

Fact of the marriage of the parties is a matter to be determined in the hearing on temporary alimony. The determination of this issue in a temporary alimony hearing is not binding on a jury in a subsequent annulment trial. Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893 (1973).

Pleadings in alimony case stand on same footing as those in injunction proceeding. Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628 (1943).

Rules of evidence need not be strictly enforced in temporary alimony hearings. Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915 (1977).

Rules of evidence are not as strictly applied at an interlocutory hearing on an application for temporary alimony as in the final trial of the case. Gaulding v. Gaulding, 184 Ga. 689, 192 S.E. 724 (1937); Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575 (1970).

On hearing for temporary alimony, judge may hear testimony either by affidavits or orally. Rogers v. Rogers, 103 Ga. 763, 30 S.E. 659 (1898); Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628 (1943).

Pleadings sworn to considered in evidence without formal introduction.

- On the hearing of an application for temporary alimony, pleadings sworn to from the knowledge of the affiant, and not from the affiant's own information and belief, may be considered in evidence without formal introduction. Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628 (1943).

Attorney's Fees

Attorney's fees are treated as part of temporary alimony and may be allowed by the court although there was no separate prayer for those fees. Stokes v. Stokes, 127 Ga. 160, 56 S.E. 303 (1906); Durham v. Durham, 160 Ga. 586, 128 S.E. 788 (1925); McClain v. McClain, 237 Ga. 80, 227 S.E.2d 5 (1976); Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977); Ford v. Ford, 245 Ga. 569, 266 S.E.2d 183 (1980).

Statute comprehended allowance to the wife of attorney's fees for representing her in the case as a part of temporary alimony. Thomas v. Smith, 185 Ga. 243, 194 S.E. 502 (1937); Brim v. Brim, 185 Ga. 359, 195 S.E. 157 (1938).

Attorney fees are part of temporary alimony. Tucker v. Tucker, 164 Ga. App. 477, 298 S.E.2d 159 (1982).

"Expenses of litigation" referred to in statute were those incurred in divorce or alimony action. Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893 (1973).

Attorney's fees were allowed as "expenses of litigation," and were a part of temporary alimony within the terms of statute. Lewis v. Lewis, 215 Ga. 7, 108 S.E.2d 812 (1959).

Counsel fees are allowed to the wife as a part of "expenses of litigation" pending an action for divorce or an action for the wife for permanent alimony. Woodward v. Woodward, 193 Ga. 892, 20 S.E.2d 430 (1942).

Counsel fees for representing a wife in an application for permanent alimony are allowable as expenses of litigation, as temporary alimony is allowed. Powell v. Powell, 196 Ga. 694, 27 S.E.2d 393 (1943).

Attorney's fees may be awarded without specific award of temporary alimony. Walton v. Walton, 223 Ga. 85, 153 S.E.2d 554 (1967).

Attorney's fees not recoverable when party voluntarily ends action.

- When wife who had brought suit for divorce, permanent alimony, temporary alimony, and attorney's fees notified her attorneys in writing that she did not desire to prosecute the case any further, and requested them to dismiss the action, the judge erred in allowing her attorneys to continue the prosecution in their own behalf, in order to prove and recover attorney's fees for the services rendered in the case by them, and in view of the statutes and public policy in this state relating to the subject, the judgment awarding attorney's fees was an abuse of discretion by the judge, and would be reversed. Williams v. Williams, 188 Ga. 536, 4 S.E.2d 195 (1939).

Rationale behind award of temporary alimony.

- Temporary alimony is awarded to afford wife (now either party) means of contesting all issues between herself and her husband in such a case. La Fitte v. La Fitte, 171 Ga. 404, 155 S.E. 521 (1930); Huggins v. Huggins, 202 Ga. 738, 44 S.E.2d 778 (1947); Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796 (1954); White v. Bowen, 223 Ga. 94, 153 S.E.2d 706 (1967); Leonard v. Leonard, 236 Ga. 623, 225 S.E.2d 9 (1976); Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977); Gordon v. Gordon, 244 Ga. 21, 257 S.E.2d 528 (1979).

Necessity of allowance of attorney's fees.

- Allowance of attorney's fees is necessary provision to enable wife (now either party) to properly protect her interest, which has been recognized from earliest times. Preston v. Preston, 160 Ga. 200, 127 S.E. 860 (1925); Maxwell v. Maxwell, 177 Ga. 483, 170 S.E. 362 (1933); Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258 (1972).

Wife might be lawfully awarded temporary alimony in the form of attorney fees to enable her to prosecute her case even though she ultimately loses it. Sullivan v. Sullivan, 224 Ga. 679, 164 S.E.2d 130 (1968).

Allowance for attorney's fees should be sufficient to ensure to the wife proper legal representation by a competent attorney; and the exercise of sound legal discretion in applying these principles in the allowance of attorney's fees will not be disturbed. Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258 (1972); Hodges v. Hodges, 235 Ga. 848, 221 S.E.2d 597 (1976).

Granting of allowance for attorney's fees is properly function of judge as an incident to the grant of temporary alimony for the purpose of enabling the wife to be properly represented in the litigation. Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940).

Judicial discretion as to allowed sum of attorney fees.

- Judge may allow as counsel fees such sum as in the judge's discretion appears proper under all the facts and circumstances of the case, although there is no evidence before the judge fixing any amount as the value of the services rendered and to be rendered by the plaintiff's counsel. Sweat v. Sweat, 123 Ga. 801, 51 S.E. 716 (1905); Preston v. Preston, 160 Ga. 200, 127 S.E. 860 (1925).

Criterion for amount of attorney's fees.

- Reasonable compensation for such counsel as are necessary in the case should be the criterion in determining the amount to be allowed as expenses of litigation. Rogers v. Rogers, 103 Ga. 763, 30 S.E. 659 (1898); Preston v. Preston, 160 Ga. 200, 127 S.E. 860 (1925).

Litigation expenses may include transcription costs.

- General requirement in civil cases that the cost of transcribing the evidence and the cost of the record were paid by the appellant did not prevent the appellant wife from being reimbursed these expenses by the appellee husband in divorce cases if the trial judge saw fit in the judge's discretion to award such expenses. Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11 (1978).

Judge is not bound to hear expert evidence as to counsel fees. Bradley v. Bradley, 233 Ga. 83, 210 S.E.2d 1 (1974).

While trial court is vested with sound discretion to award or refuse to award attorney fees based on the financial condition of parties and other circumstances of the case, the court may not decline to grant attorney fees solely because no expert evidence as to their value was presented. Webster v. Webster, 250 Ga. 57, 295 S.E.2d 828 (1982).

It is error to require husband to reimburse for fees paid to attorneys in previous litigation between the parties in another court. Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893 (1973).

Fee award modifiable while suit pending.

- Although the grant of attorney fees is a final judgment which may be enforced by attachment or by writ notwithstanding reconciliation of the parties, this does not necessarily mean that the fee award, like other elements of temporary alimony, may not be modified by the court at any time while the suit is pending and is within the jurisdiction of the court. Haim v. Haim, 251 Ga. 618, 308 S.E.2d 179 (1983).

Award of attorney fees as alimony is not subject to discharge in bankruptcy. Leonard v. Leonard, 236 Ga. 623, 225 S.E.2d 9 (1976).

Determining Amount of Award

Provision for temporary alimony is somewhat different in character and purpose from award of permanent alimony, inasmuch as it is designed to meet the exigencies arising out of the domestic crisis of a pending proceeding for divorce. Childs v. Childs, 203 Ga. 9, 45 S.E.2d 418 (1947); Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977).

When parties have agreed upon annuity for maintenance, no temporary alimony will be allowed. McLaren v. McLaren, 33 Ga. 99 (1864).

Court has full power and authority to make agreement between parties as to temporary alimony its judgment under the facts of the case, and it is a valid judgment not subject to change without the intervention of the court, despite provision in the agreement that it should continue until further agreement of the parties. Evans v. Evans, 62 Ga. App. 618, 9 S.E.2d 99 (1940).

Court may refuse to approve agreement if it is shown by one of the parties that the agreement was procured by fraud or duress. Williams v. Williams, 243 Ga. 6, 252 S.E.2d 404 (1979).

Trial judge is empowered to allow temporary alimony from date of separation to the date of the hearing. Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893 (1973).

Amount of temporary alimony is not limited to fair proportion of husband's income, but may trench upon the corpus of his estate. Walton v. Walton, 219 Ga. 729, 135 S.E.2d 886 (1964).

Proportion of estate to be given as temporary alimony is a matter of judicial discretion. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937).

Available resources from which alimony might be paid.

- It is proper for court to consider available resources from which alimony might be paid. Available resources is defined as either capacity to labor and earn or the ownership of property. Hannah v. Hannah, 191 Ga. 134, 11 S.E.2d 779 (1940); Walton v. Walton, 219 Ga. 729, 135 S.E.2d 886 (1964).

Necessities of wife and husband's ability to pay are controlling factors in making an allowance for alimony. Walton v. Walton, 219 Ga. 729, 135 S.E.2d 886 (1964); McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967); Barnett v. Barnett, 231 Ga. 808, 204 S.E.2d 168 (1974); Childre v. Childre, 237 Ga. 437, 228 S.E.2d 829 (1976); Williams v. Williams, 243 Ga. 6, 252 S.E.2d 404 (1979).

Factors to consider in award.

- What will be a support for the wife pendente lite depends upon the wealth of the husband, her personal income, if any, aside from his property, the number of children or others dependent upon him, and the circle of society in which she is accustomed to move; the amount is not limited to a fair proportion of income, but may trench upon the corpus of his estate. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937).

Amount of temporary alimony is determined by respective wealth and earning capacity of the parties, and the standard of living before the separation. Hall v. Hall, 220 Ga. 677, 141 S.E.2d 400 (1965).

Court may give consideration to securing for wife same social standing, comforts, and luxuries of life as she probably would have enjoyed had there been no separation. Walton v. Walton, 219 Ga. 729, 135 S.E.2d 886 (1964).

When it appears wife has separate estate, court should take into consideration the estate's present value and annual income as compared to the husband's and his obligations to support other members of the family before putting the entire burden of the wife's support upon him. Hawes v. Hawes, 66 Ga. 142 (1880). See also Methvin v. Methvin, 15 Ga. 97, 60 Am. Dec. 664 (1854).

Judicial inquiry into cause and circumstances of separation.

- On hearing of application for temporary alimony, judge may inquire into cause and circumstances of the separation. Rogers v. Rogers, 103 Ga. 763, 30 S.E. 659 (1898); Ray v. Ray, 106 Ga. 260, 32 S.E. 91 (1898).

Trial court may consider the cause of separation in awarding temporary alimony. Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977).

Court has authority to award use of home and household goods to the wife as temporary alimony. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937); Golden v. Golden, 209 Ga. 915, 76 S.E.2d 697 (1953).

Temporary alimony in form of temporary use and possession of property.

- Trial court may award temporary alimony in form of temporary use and possession of property, although in awarding temporary alimony in such form, the trial judge may not make a final adjudication of title or property rights. Williams v. Williams, 243 Ga. 6, 252 S.E.2d 404 (1979).

Reasonable allowance for temporary alimony is proper, even though husband may have no property or employment, and be merely of a robust health with an earning capacity. Taylor v. Taylor, 189 Ga. 110, 5 S.E.2d 374 (1939); Golden v. Golden, 209 Ga. 915, 76 S.E.2d 697 (1953).

Discretion of Trial Court

Temporary alimony is matter entirely within discretion of trial judge, and it was still the duty of the judge to allow a reasonable amount as temporary alimony for the support of the wife and for attorney's fees, to enable her to support herself until the final trial of the case and enable her to employ counsel to assert her rights before a jury. Brown v. Brown, 169 Ga. 580, 151 S.E. 14 (1929).

Broad judicial discretion.

- In passing upon question of temporary alimony, trial judge is vested with broad discretion. Maxwell v. Maxwell, 177 Ga. 483, 170 S.E. 362 (1933).

In granting or denying temporary alimony and attorney's fees to the wife, pending a suit by or against her for divorce, the trial judge is vested with sound legal discretion. Long v. Long, 91 Ga. 606, 13 S.E.2d 349 (1941).

Matter of temporary alimony is usually within the sound discretion of the trial judge. Williams v. Williams, 243 Ga. 6, 252 S.E.2d 404 (1979).

Temporary alimony may not be arbitrarily refused.

- While judge, in the judge's discretion, may refuse temporary alimony altogether, the judge may not arbitrarily refuse the temporary alimony. Maxwell v. Maxwell, 177 Ga. 483, 170 S.E. 362 (1933).

Discretion of trial court not controlled unless abused.

- Supreme Court will not control the discretion of the trial court in allowing temporary alimony, unless it has been flagrantly abused. Carlton v. Carlton, 44 Ga. 216 (1871); Besore v. Besore, 49 Ga. 378 (1873); Etheridge v. Etheridge, 149 Ga. 44, 99 S.E. 37 (1919); Metcalf v. Metcalf, 153 Ga. 775, 112 S.E. 828 (1922); Osborne v. Osborne, 157 Ga. 902, 122 S.E. 877 (1924); Brown v. Brown, 159 Ga. 323, 125 S.E. 712 (1924); Preston v. Preston, 160 Ga. 200, 127 S.E. 860 (1925); Tillman v. Tillman, 187 Ga. 567, 1 S.E.2d 676 (1939); Lybrand v. Lybrand, 204 Ga. 312, 49 S.E.2d 515 (1948); Chambless v. Chambless, 214 Ga. 431, 105 S.E.2d 221 (1958); Johnson v. Johnson, 236 Ga. 647, 225 S.E.2d 36 (1976).

Discretion of the trial judge in allowing or disallowing temporary alimony will not be controlled unless that discretion is shown to have been flagrantly abused. Caswell v. Caswell, 179 Ga. 676, 177 S.E. 247 (1934); Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628 (1943); Cook v. Cook, 197 Ga. 703, 30 S.E.2d 479 (1944); Hightower v. Hightower, 202 Ga. 643, 44 S.E.2d 116 (1947); Brannen v. Brannen, 208 Ga. 88, 65 S.E.2d 161 (1951); Golden v. Golden, 209 Ga. 915, 76 S.E.2d 697 (1953).

Judgment will not ordinarily be disturbed.

- Unless under the peculiar facts and circumstances of a case a judgment allowing or refusing temporary alimony shows abuse of the discretion vested in the judge, the judge's judgment will not be disturbed. Mathis v. Mathis, 199 Ga. 55, 33 S.E.2d 428 (1945); Frankel v. Frankel, 212 Ga. 643, 94 S.E.2d 728 (1956). See also Houston v. Houston, 186 Ga. 140, 197 S.E. 237 (1938); Childs v. Childs, 203 Ga. 9, 45 S.E.2d 418 (1947); Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258 (1972); Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893 (1973); Williams v. Williams, 243 Ga. 6, 252 S.E.2d 404 (1979).

When evidence conflicts.

- When the testimony as to the material facts on an application for alimony is conflicting, and there is enough to support the finding of the lower court, the Supreme Court will not interfere with the judge's discretion. Glass v. Wynn, 76 Ga. 319 (1886); Heaton v. Heaton, 102 Ga. 578, 27 S.E. 677 (1897); Kelly v. Kelly, 146 Ga. 362, 91 S.E. 120 (1917).

When, on application for temporary alimony and attorney's fees, the evidence is conflicting, the discretion of the judge in allowing such amounts of alimony and fees as seem reasonable and appropriate will not be disturbed by this court. Nolan v. Nolan, 179 Ga. 677, 177 S.E. 248 (1934).

When, under the evidence, a marked conflict was presented as to the cause and circumstances of the separation of the parties, it could not be said that the refusal of the trial judge to allow temporary alimony was a flagrant abuse of discretion. Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628 (1943).

When the trial judge inquires into the cause of the separation of the parties, and the evidence is conflicting as to the cause of the separation, the judge's discretion in disallowing temporary alimony, including expenses of litigation, will not be controlling. Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575 (1970). See also Gaulding v. Gaulding, 184 Ga. 689, 192 S.E. 724 (1937); Hall v. Hall, 185 Ga. 502, 195 S.E. 731 (1938); Bartlett v. Bartlett, 228 Ga. 541, 186 S.E.2d 754 (1972).

When the record shows there was a conflict in the evidence which authorized the trial court to use the court's discretion in determining the amount of the court's award, the Supreme Court will not interfere with the trial court's discretion unless there is a flagrant abuse of discretion. Barnett v. Barnett, 231 Ga. 808, 204 S.E.2d 168 (1974).

Abuse of discretion is legal ground for reversing judgment for temporary alimony. Alford v. Alford, 190 Ga. 562, 9 S.E.2d 895 (1940).

Reversal of judgment.

- When judge did not exercise discretion as to whether to allow temporary alimony, judgment must be reversed. Joyner v. Joyner, 197 Ga. 479, 29 S.E.2d 266 (1944).

When wife was employed and owned property, grant of temporary alimony against insolvent husband was abuse of discretion. Hamilton v. Hamilton, 174 Ga. 624, 163 S.E. 158 (1932).

Enforcement Procedures

Writ of fi. fa.

- Right to temporary alimony may be enforced by writ of fi. fa. Gibson v. Patterson, 75 Ga. 549 (1885).

Alimony may be collected by garnishment unless husband shows that new conditions have arisen justifying a change in terms. Halpern v. Austin, 385 F. Supp. 1009 (N.D. Ga. 1974).

Contempt and garnishment as enforcement methods.

- Alimony judgment may be enforced either by execution or by attachment for contempt against the person of the husband, and the two remedies for the judgment's enforcement may be lawfully and concurrently pursued to work a satisfaction of the judgment and neither one can be pled in abatement of the other. Lenett v. Lutz, 215 Ga. 369, 110 S.E.2d 628 (1959).

Both garnishment and contempt actions may be pursued simultaneously for the collection or satisfaction of the payments owed. Herring v. Herring, 138 Ga. App. 145, 225 S.E.2d 697 (1976); Brodie v. Brodie, 155 Ga. App. 593, 271 S.E.2d 725 (1980).

Both contempt and garnishment are appropriate methods of enforcing temporary alimony. Morrison v. Morrison, 153 Ga. App. 818, 266 S.E.2d 521 (1980).

Execution for alimony may also issue at same time as proceedings for contempt are initiated, and the proceeding for contempt does not prevent or suspend the execution. Lipton v. Lipton, 211 Ga. 442, 86 S.E.2d 299 (1955).

Clerk of court is required by law to issue fi. fa. for payment of alimony on request of plaintiff; and a judgment need not be obtained from the court for that purpose. Stephens v. Stephens, 171 Ga. 590, 156 S.E. 188 (1930).

When judgment for alimony is payable in installments, no fi. fa. issued can lawfully include any amount included in previous fi. fa. but, if such is done, it is a defect which may be cured by amendment. Stephens v. Stephens, 171 Ga. 590, 156 S.E. 188 (1930).

Alimony judgments are subject to dormancy and revival statutes and any applicable statute of limitation. Bryant v. Bryant, 232 Ga. 160, 205 S.E.2d 223 (1974).

Lump-sum alimony judgment is dormant after expiration of seven years and is not subject to revival after the expiration of ten years. Bryant v. Bryant, 232 Ga. 160, 205 S.E.2d 223 (1974).

Alimony installments that became due within seven years preceding execution are collectible and enforceable. Bryant v. Bryant, 232 Ga. 160, 205 S.E.2d 223 (1974); O'Neil v. Williams, 232 Ga. 170, 205 S.E.2d 226 (1974).

Revival of dormant installment payments of alimony judgments.

- Installment payments of alimony judgments that are dormant are subject to being revived through the applicable statutory revival procedure. Bryant v. Bryant, 232 Ga. 160, 205 S.E.2d 223 (1974); O'Neil v. Williams, 232 Ga. 170, 205 S.E.2d 226 (1974).

Temporary order regarding alimony pending appeal of final judgment is enforceable through contempt proceedings pending review of the divorce judgment in this court. Walker v. Walker, 239 Ga. 175, 236 S.E.2d 263 (1977).

Distinction between civil and criminal contempt for nonpayment of alimony.

- Purpose of civil contempt is to coerce compliance with court order; if alimony payments are current when alleged contemnor appears in court, a coercive sentence would be inappropriate; full payment at time of hearing is not necessarily a defense to criminal contempt, however, because criminal contempt is imposed as punishment for past willful failure to obey court's order (i.e., make timely payments). Hopkins v. Jarvis, 648 F.2d 981 (5th Cir. 1981).

Law makes nonpayment of alimony contempt regardless of whether order of court commands payment of alimony. Robbins v. Robbins, 221 Ga. 627, 146 S.E.2d 628 (1966); Joyce v. Joyce, 236 Ga. 601, 225 S.E.2d 25 (1976). See also Coggins v. Coggins, 223 Ga. 421, 156 S.E.2d 40 (1967); Shepherd v. Shepherd, 223 Ga. 609, 157 S.E.2d 268 (1967); Sullivan v. Sullivan, 224 Ga. 679, 164 S.E.2d 130 (1968); Roberts v. Roberts, 229 Ga. 689, 194 S.E.2d 100 (1972); Duke v. Smith, 242 Ga. 207, 248 S.E.2d 617 (1978); Martin v. Martin, 244 Ga. 68, 257 S.E.2d 903 (1979).

When contempt is not proper remedy to compel obedience to judgment.

- Contempt is not proper remedy to compel obedience to judgment that merely declares rights of parties in accordance with agreement between the parties in regard to the allowance of reasonable visitation privileges. The only portion of such a divorce and alimony decree which may be enforced by punishment for contempt is that which commands the parties to obey, and this has been construed only to extend to the payment of alimony unless the order expressly commands the parties to give full recognition of the others' rights. Palmer v. Bunn, 218 Ga. 244, 127 S.E.2d 372 (1962).

When contract setting alimony is incorporated in divorce decree, decree is enforceable by contempt. McClain v. McClain, 235 Ga. 659, 221 S.E.2d 561 (1975).

Contempt proceeding impermissible when alimony award void.

- Award of temporary alimony by a court not having jurisdiction of the parties, or void for any other cause, cannot be made the basis of the valid proceeding for contempt. Hagan v. Hagan, 209 Ga. 313, 72 S.E.2d 295 (1952).

When original judgment for divorce was void for lack of jurisdiction, court erred in requiring payment of alimony and attaching respondent as for contempt. Jones v. Jones, 181 Ga. 747, 184 S.E. 271 (1936).

While the power to enforce a decree for alimony by attachment for contempt by the judges of the superior courts of this state is adequate yet, if in such a proceeding it appears that the judgment awarding alimony is void for any reason, the husband is privileged to collaterally attack the judgment, and in such case the court has no power to punish him for contempt. Allen v. Baker, 188 Ga. 696, 4 S.E.2d 642 (1939).

Defenses to contempt for failure to pay alimony.

- One defense to either civil or criminal contempt for failure to pay alimony and child support would be that payments were in fact timely made, and another defense common to both civil and criminal contempt would be that alleged contemnor is financially unable to make payments; an additional defense to civil contempt would be that payments, although not timely made, are current at time of hearing. Hopkins v. Jarvis, 648 F.2d 981 (5th Cir. 1981).

Estoppel to plead void award.

- When a party, in temporary alimony proceedings, contends that he is not subject to a judgment therefor because he had made a final alimony settlement with his wife by contract, under the doctrine of estoppel by judgment, he is concluded in a subsequent contempt proceeding from contending that the judgment awarding temporary alimony was void because he was never his wife's lawful husband. Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946).

Contempt proceedings for refusal to abide by alimony decrees authorize only conditional punishment pending the contemnor purging oneself by paying such sums as the contemnor is able as shown by the evidence. Stanton v. Stanton, 223 Ga. 664, 157 S.E.2d 453 (1967).

Attachment for contempt was civil proceeding in nature.

- Purpose of the proceeding for contempt being to compel payment of money allowed as alimony, and not solely for the purpose of vindicating the authority of the court, the attachment of the husband for contempt was in the nature of a civil proceeding. Curtright v. Curtright, 187 Ga. 122, 200 S.E. 711 (1938).

Attachment for contempt not available against nonresident.

- Attachment for contempt is not an available remedy for failure to pay alimony when the husband is a nonresident. Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685 (1956).

Enforcement by attachment against party resident in other county.

- Superior court awarding alimony in virtue of the court's jurisdiction originally invoked by the plaintiff in a divorce suit had jurisdiction to enforce the court's payment by attachment for contempt against the plaintiff after the plaintiff had changed the plaintiff's residence to another county. Curtright v. Curtright, 187 Ga. 122, 200 S.E. 711 (1938).

Imprisonment for civil contempt in alimony case constitutionally permissible.

- Imprisonment for civil contempt in a case involving alimony, when the contemnor, although ordered imprisoned, may purge oneself prior to the imprisonment, is constitutionally permissible. Kaufmann v. Kaufmann, 246 Ga. 266, 271 S.E.2d 175 (1980).

Imprisonment for criminal contempt in alimony case constitutionally permissible.

- Finding of criminal contempt with the sanction of unconditional imprisonment for nonpayment of alimony is constitutionally permissible. Kaufmann v. Kaufmann, 246 Ga. 266, 271 S.E.2d 175 (1980).

Enforcement of alimony judgment by attachment for contempt is not imprisonment for debt. Heflinger v. Heflinger, 172 Ga. 889, 159 S.E. 242 (1931).

Imprisonment for contempt is always conditional and solely within sound discretion of judge and the judge may at any time, in the exercise of that discretion, discharge one so imprisoned. The Supreme Court will not interfere with the discretion vested in the trial judge unless the judge's discretion has been manifestly abused. Corriher v. McElroy, 209 Ga. 885, 76 S.E.2d 782 (1953).

When court should resort to imprisonment for contempt.

- Imprisonment for contempt ought never to be resorted to, except as penal process, founded on the unwillingness of the party to obey; the moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party, because it is only the contempt, the disobedience upon which the power rests. Corriher v. McElroy, 209 Ga. 885, 76 S.E.2d 782 (1953).

When uncontroverted evidence shows husband's inability to pay judgment awarded for alimony, it is error to keep him in jail under an order adjudging him in contempt; but when his ability to pay may be drawn from the evidence and reasonable deductions therefrom, it is not erroneous to decline to discharge him from confinement. The punishment of the husband for contempt by confinement in jail is a remedial process to secure to the wife the alimony awarded her. Heflinger v. Heflinger, 172 Ga. 889, 159 S.E. 242 (1931).

When the evidence showed without dispute that the defendant was financially unable to pay the sum awarded as alimony and attorney's fees, it was error to adjudge that he was in contempt of court because of his failure to pay the sums. Porter v. Porter, 178 Ga. 784, 174 S.E. 527 (1934).

Wife has no right to require that the defendant be imprisoned for contempt of court because of his failure to pay the full amount when he is unable to pay the full amount. We do not allow imprisonment for debt in this state. Corriher v. McElroy, 209 Ga. 885, 76 S.E.2d 782 (1953).

Proof by husband of inability to comply with judgment for alimony is good defense to a rule for contempt. Snider v. Snider, 190 Ga. 381, 9 S.E.2d 654 (1940).

Good faith showing.

- It is not sufficient for defendant to show merely that he has no money, or property which he might convert into money, with which to satisfy the alimony installments, but it must be made to appear clearly that he has in good faith exhausted all the resources at his command and has made a diligent and bona fide effort to comply with the order of the court. Snider v. Snider, 190 Ga. 381, 9 S.E.2d 654 (1940).

Determination of whether party is in contempt for failure to pay alimony is question for discretion of judge, and the Supreme Court will not interfere with the discretion vested in the trial judge unless that discretion has been manifestly abused. Burch v. Kenmore, 206 Ga. 277, 56 S.E.2d 508 (1949).

Trial court has discretion whether or not, under the facts in a case, to adjudicate the defendant in contempt of court, and the discretion of the trial court will not be disturbed unless abused. Martin v. Martin, 209 Ga. 850, 76 S.E.2d 390 (1953).

Trial court in a contempt case has wide discretion to determine whether the court's orders have been violated. The court's determination will not be disturbed on appeal in the absence of an abuse of discretion. Kaufmann v. Kaufmann, 246 Ga. 266, 271 S.E.2d 175 (1980).

Modification of divorce decree in contempt proceeding.

- Trial court has no authority in contempt proceeding to modify divorce decree. Stanley v. Stanley, 244 Ga. 417, 260 S.E.2d 328 (1979).

Court may not modify a previous decree in a contempt order; however, a court may always interpret and clarify the court's own orders. The test to determine whether an order is clarified or modified is whether the clarification is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification. Kaufmann v. Kaufmann, 246 Ga. 266, 271 S.E.2d 175 (1980).

Revision of Order

When judge has fixed temporary alimony, right to amount allowed becomes absolute unless revoked or modified by the judge. Aud v. Aud, 199 Ga. 714, 35 S.E.2d 198 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946).

Order granting temporary alimony is always in breast of court, and the court is authorized at any time, in the exercise of sound discretion, to revise or revoke such an order. Brim v. Brim, 185 Ga. 359, 195 S.E. 157 (1938); Williams v. Williams, 194 Ga. 332, 21 S.E.2d 229 (1942).

Court has power to alter or revoke at any time the court's judgments awarding temporary alimony. Alford v. Alford, 190 Ga. 562, 9 S.E.2d 895 (1940). See also Banda v. Banda, 192 Ga. 5, 14 S.E.2d 479 (1941); Strickland v. Strickland, 201 Ga. 293, 39 S.E.2d 483 (1946); Golden v. Golden, 209 Ga. 915, 76 S.E.2d 697 (1953).

Trial judge has wide discretion in fixing temporary alimony, and in subsequently modifying the temporary alimony. Williams v. Williams, 206 Ga. 341, 57 S.E.2d 190 (1950).

Discretion in modifying prior order for temporary alimony is similar to discretion in granting or refusing such alimony, and an abuse of discretion in either case is legal ground for reversing the judgment. Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796 (1954).

Right to revise temporary alimony not limited to instances when there is change in condition of parties. Brim v. Brim, 185 Ga. 359, 195 S.E. 157 (1938).

Power of the trial court to set aside a prior order for alimony which has not been affirmed by the Supreme Court does not depend solely upon a change of conditions subsequent to the grant of the previous order. In all cases, the trial judge's order setting aside a prior award of temporary alimony must be based upon evidence, and the exercise of the judge's discretion must be legal and not arbitrary. Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796 (1954).

Court may consider party's request for revision based on inability to pay.

- If, after an allowance for temporary alimony and counsel fees, the husband becomes unable to meet the payments, he is entitled to show this, and the court has jurisdiction to entertain an application for a reduction of the amounts. Taylor v. Taylor, 189 Ga. 110, 5 S.E.2d 374 (1939); Childs v. Childs, 203 Ga. 9, 45 S.E.2d 418 (1947).

Additional services rendered by attorney.

- When it is shown that attorney was compelled to render additional services, court may increase temporary alimony. Snider v. Snider, 183 Ga. 734, 189 S.E. 512 (1937).

Adultery as cause for modification of temporary alimony.

- Adultery on the part of the wife subsequent to the grant of temporary alimony, or prior thereto but unknown to the husband until after the granting of the order for temporary alimony, is a sufficient cause to warrant the court in modifying or revoking the order. Jennison v. Jennison, 136 Ga. 202, 71 S.E. 244, 1912C Am. Cas. 441 (1911).

Revocation or modification of previous order.

- It is error, upon subsequent hearing, to revoke or modify previous order solely upon consideration of evidence adduced at previous hearing and additional evidence as to the value of the attorney's services. Brim v. Brim, 185 Ga. 359, 195 S.E. 157 (1938).

Temporary alimony award affirmed by Supreme Court.

- Trial judge may not set aside award of temporary alimony when award has been affirmed by Supreme Court, in the absence of additional facts such as would authorize a revocation or modification of the prior order. Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796 (1954).

After final decree in divorce and alimony action is rendered, trial court is without jurisdiction to award further counsel fees on application made subsequent to such final decree. Jones v. Jones, 221 Ga. 284, 144 S.E.2d 388 (1965).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24A Am. Jur. 2d, Divorce and Separation, §§ 586 et seq., 774 et seq.

8B Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 212 et seq.

8B Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 212 et seq.

C.J.S.

- 27B C.J.S., Divorce, § 511 et seq.

ALR.

- Statute expressly or impliedly denying power to enforce by process of contempt, order, judgment, or decree, for money, as applicable to order or decree for alimony, 8 A.L.R. 1156.

Right of wife to allowance of counsel fees to prosecute or defend appeal in matrimonial action, 18 A.L.R. 1494.

Financial condition of parties as affecting allowance of suit money in divorce suit, 35 A.L.R. 1099.

Liability of husband in independent action for services rendered by attorney to wife in divorce suit, 42 A.L.R. 315.

Nonpayment of alimony or suit money as ground for denying right to participate in trial or other proceeding in suit for divorce, 62 A.L.R. 663.

Demand as condition precedent to enforcement of payment of alimony by contempt proceedings, 63 A.L.R. 1220.

Findings or order upon application for alimony pendente lite in action for divorce or separation as res judicata, 105 A.L.R. 1406.

Allowance against husband in suit for divorce, of amount for expense of taking deposition of wife or paying cost of her transportation to place of trial, 111 A.L.R. 1098.

What provisions in divorce suit for financial benefit of wife, other than for payment of money to her or her agents or attorneys, are enforceable by contempt proceedings, 124 A.L.R. 145.

Power of appellate court to grant alimony, maintenance, or attorneys' fees pending appeal in matrimonial suit, 136 A.L.R. 502.

Contempt proceedings to enforce payment of alimony or support as affected by security for its payment or availability of other remedy for its enforcement, 136 A.L.R. 689.

Right to allowance of counsel fees to wife in action for divorce or separation, as affected by misconduct or lack of good faith of her attorney, 150 A.L.R. 1181.

Final decree or dismissal of suit for divorce as affecting subsequent enforceability by contempt or otherwise of past defaults in payment of temporary alimony, 154 A.L.R. 530.

Decree of divorce a vinculo as affecting prior award of alimony or support ordered or decreed in a suit for divorce a mensa et thoro or for separate maintenance, 166 A.L.R. 1004.

Order granting or refusing motion for temporary alimony or suit money in divorce action as appealable, 167 A.L.R. 360.

Wife's misconduct or fault as affecting her right to temporary alimony or suit money, 2 A.L.R.2d 307.

Decree for alimony rendered in another state or country (or domestic decree based thereon) as subject to enforcement by equitable remedies or by contempt proceedings, 18 A.L.R.2d 862.

Pleading and burden of proof, in contempt proceedings, as to ability to comply with order for payment of alimony or child support, 53 A.L.R.2d 591.

Use of affidavits to establish contempt, 79 A.L.R.2d 657.

Right to credit for payments on temporary alimony pending appeal, against liability for permanent alimony, 86 A.L.R.2d 696.

Wife's possession of independent means as affecting her right to alimony pendente lite, 60 A.L.R.3d 728.

Excessiveness or adequacy of money awarded as temporary alimony, 26 A.L.R.4th 1218.

Court's authority to award temporary alimony or suit money in action for divorce, separate maintenance, or alimony where the existence of a valid marriage is contested, 34 A.L.R.4th 814.

Divorce: excessiveness or adequacy of combined property division and spousal support awards - modern cases, 55 A.L.R.4th 14.

Power to modify spousal support award for a limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent, 62 A.L.R.4th 180.

Withholding visitation rights for failure to make alimony or support payments, 65 A.L.R.4th 1155.

19-6-4. When permanent alimony authorized; how enforced.

  1. Permanent alimony may be granted in the following cases:
    1. In cases of divorce;
    2. In cases of voluntary separation; or
    3. Where one spouse, against the will of that spouse, is abandoned or driven off by the other spouse.
  2. A grant of permanent alimony may be enforced either by writ of fieri facias or by attachment for contempt.

(Orig. Code 1863, §§ 1691, 1693; Code 1868, §§ 1734, 1736; Code 1873, §§ 1739, 1744; Code 1882, §§ 1739, 1744; Civil Code 1895, §§ 2459, 2464; Civil Code 1910, §§ 2978, 2983; Code 1933, §§ 30-204, 30-210; Ga. L. 1979, p. 466, §§ 10, 15.)

Editor's notes.

- Ga. L. 1979, p. 466 amended prior law so as to provide that alimony may be assessed against either spouse. Cases decided prior to the 1979 enactment appear to remain valid except insofar as they may imply that a wife only is entitled to receive alimony or a husband only is obligated to pay the same.

Law reviews.

- For annual survey on domestic relations, see 69 Mercer L. Rev. 83 (2017).

JUDICIAL DECISIONS

Former Code 1933, §§ 30-210, 30-211, 30-212 and 30-213 plainly provided for alimony which may be sought in the wife's (now either spouse's) suit for divorce, her suit for alimony alone, or in a suit by the husband for divorce. The wife's right cannot be defeated by a failure of the husband to obtain a divorce. Ridgeway v. Ridgeway, 224 Ga. 310, 161 S.E.2d 866 (1968).

Alimony not mandatory.

- Former Code 1933, §§ 30-207, 30-209, and 30-210 did not declare that alimony must or shall be granted in any case. Brown v. Brown, 230 Ga. 566, 198 S.E.2d 182 (1973).

Alimony in any form is simply support for the wife (now either spouse), supplied by the husband, and it rests entirely upon the law requiring the husband to support his wife. It makes no difference what this support is called, whether "temporary alimony" or "permanent alimony" or "necessaries." It is the same thing, and intended for the same purpose in each instance. Hudson v. Hudson, 189 Ga. 410, 5 S.E.2d 912 (1939).

Alimony need not be awarded in every case.

- It is not law that in every case in which wife is granted total divorce, permanent alimony must also be awarded to her. Various other facts and circumstances may require consideration. Simmons v. Simmons, 194 Ga. 649, 22 S.E.2d 399 (1942); Brown v. Brown, 230 Ga. 566, 198 S.E.2d 182 (1973).

Action for alimony without prayer for divorce.

- Wife (now either spouse) has the right to sue her husband, residing in this state, for alimony, after a voluntary separation, without suing for divorce, and without the necessity of showing a legal residence as required in a suit for divorce. Craig v. Craig, 53 Ga. App. 632, 186 S.E. 755 (1936).

Wife (now either spouse) can bring action for alimony without prayer for divorce or she may be entitled to alimony in connection with a divorce. Sherman v. United States, 334 F. Supp. 1311 (N.D. Ga. 1971), modified, 462 F.2d 577 (5th Cir. 1972).

Failure of divorce action will not bar action for alimony.

- Failure of the wife's divorce action will not bar subsequent action for permanent alimony based upon the allegation that the parties are living in a state of voluntary separation. Davenport v. Davenport, 210 Ga. 687, 82 S.E.2d 654 (1954).

Effect of foreign state decree for alimony upon Georgia action.

- Fact that decree of another state was for alimony will not make Georgia action on such decree alimony case, since it is simply an action on a debt of record, and accordingly, such a suit in a Georgia court does not come within the statutes and more liberal rules as to extraordinary relief in favor of a wife, who has already filed or is about to file in this state an action for divorce and alimony or alimony alone, and who needs such additional equitable protection against threatened conveyances by the husband until the termination of the question of alimony. Lawrence v. Lawrence, 196 Ga. 204, 26 S.E.2d 283 (1943).

Full force and effect given to contracts for payment of alimony.

- Contracts for payment of alimony should be given full force and effect and continue for the period provided by the contract which may be beyond the death of the husband. Sherman v. United States, 334 F. Supp. 1311 (N.D. Ga. 1971), modified, 462 F.2d 577 (5th Cir. 1972).

Agreement to pay alimony is enforceable when obligation is part of overall settlement. Sherman v. United States, 334 F. Supp. 1311 (N.D. Ga. 1971), modified, 462 F.2d 577 (5th Cir. 1972).

Alimony improper if no legal marriage existed between parties.

- In this state a judge of the superior court has no power to grant a judgment awarding alimony, if at the time of the institution of suit therefor the relationship of husband and wife does not exist between the parties, by reason of the marriage being void ab initio or by reason of a total divorce theretofore granted between the parties. Allen v. Baker, 188 Ga. 696, 4 S.E.2d 642 (1939).

Alimony improper when evidence shows common-law marriage did not exist.

- When the evidence demanded a finding that the plaintiff did not enter into a common-law marriage de praesenti with the defendant, which is a valid married status in this state, and there being in this state no common-law marriage de futuro cum copula, the court erred in allowing alimony and attorney's fees on either theory of alleged common-law marriage between the parties. Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608 (1943).

Wife properly denied permanent alimony when guilty of willful desertion.

- If willful desertion by the wife demands a denial of temporary alimony in such a judgment, to allow her permanent alimony in the same case after a jury has determined that the facts show she is guilty of the identical wrong for which she was denied temporary alimony would be an inconsistency that could not be justified. Hudson v. Hudson, 189 Ga. 410, 5 S.E.2d 912 (1939).

Alimony denied to wife.

- Alimony should not be awarded to wife who abandons husband without just cause. Mullikin v. Mullikin, 200 Ga. 638, 38 S.E.2d 281 (1946).

Abandonment as ground for alimony is not required to continue for specific period of time. Shivers v. Shivers, 215 Ga. 536, 111 S.E.2d 376 (1959).

When husband obtains divorce for cruel treatment, jury determines whether they will allow wife permanent alimony, and a charge restricting the right of the wife to alimony to a verdict solely in her favor is error. Shivers v. Shivers, 215 Ga. 536, 111 S.E.2d 376 (1959).

When prior maintenance award is entirely superseded.

- When trial court adjudicates issue of permanent alimony, prior maintenance award is entirely superseded. Browne v. Browne, 242 Ga. 107, 249 S.E.2d 594 (1978).

Court hearing a divorce case has the authority, if alimony is sought and the court sees fit to do so, to enter a permanent alimony award which will supersede a prior separate maintenance judgment. Browne v. Browne, 242 Ga. 107, 249 S.E.2d 594 (1978).

When no valid divorce granted, decree awarding alimony will be set aside without prejudice to plaintiff wife and the minor children. Harmon v. Harmon, 209 Ga. 474, 74 S.E.2d 75 (1953).

Distinction between civil and criminal contempt for nonpayment of alimony.

- Purpose of civil contempt is to coerce compliance with court order; if alimony payments are current when alleged contemnor appears in court, a coercive sentence would be inappropriate; full payment at time of hearing is not necessarily a defense to criminal contempt, however, because criminal contempt is imposed as punishment for past willful failure to obey the court's order (i.e., make timely payments). Hopkins v. Jarvis, 648 F.2d 981 (5th Cir. 1981).

Defenses to contempt for failure to pay alimony.

- One defense to either civil or criminal contempt for failure to pay alimony and child support would be that payments were in fact timely made and another defense common to both civil and criminal contempt would be that alleged contemnor is financially unable to make payments; an additional defense to civil contempt would be that payments, although not timely made, are current at time of hearing. Hopkins v. Jarvis, 648 F.2d 981 (5th Cir. 1981).

Lump-sum alimony award was not dischargeable.

- Lump-sum alimony award determined under federal law to be "actually in the nature of alimony, maintenance, or support" is not dischargeable pursuant to 11 U.S.C. § 523(a)(5), even though the award does not terminate upon the death or remarriage of the recipient. Myers v. Myers, 61 Bankr. 891 (Bankr. N.D. Ga. 1986).

Cited in Gore v. Plair, 173 Ga. 88, 159 S.E. 698 (1931); Cash v. Cash, 177 Ga. 47, 169 S.E. 311 (1933); Kennedy v. Kennedy, 182 Ga. 586, 186 S.E. 553 (1936); Brock v. Brock, 183 Ga. 860, 190 S.E. 30 (1937); Fulenwider v. Fulenwider, 188 Ga. 856, 5 S.E.2d 20 (1939); Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940); Mell v. Mell, 190 Ga. 508, 9 S.E.2d 756 (1940); McCallie v. McCallie, 192 Ga. 699, 16 S.E.2d 562 (1941); Powell v. Powell, 199 Ga. 723, 35 S.E.2d 298 (1945); Acree v. Acree, 201 Ga. 359, 40 S.E.2d 54 (1946); Green v. Starling, 203 Ga. 10, 45 S.E.2d 188 (1947); Dempsey v. Dempsey, 203 Ga. 225, 46 S.E.2d 156 (1948); Spain v. Spain, 203 Ga. 411, 47 S.E.2d 279 (1948); Moore v. Moore, 205 Ga. 355, 53 S.E.2d 343 (1949); Craddock v. Foster, 205 Ga. 534, 54 S.E.2d 406 (1949); Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95 (1953); Atha v. Atha, 210 Ga. 540, 81 S.E.2d 454 (1954); Endicott v. Endicott, 213 Ga. 631, 100 S.E.2d 458 (1957); Hardee v. Hardee, 222 Ga. 309, 149 S.E.2d 686 (1966); Stanton v. Stanton, 223 Ga. 664, 157 S.E.2d 453 (1967); Boggus v. Boggus, 236 Ga. 126, 223 S.E.2d 103 (1976); McKinnon v. McKinnon, 158 Ga. App. 776, 282 S.E.2d 220 (1981); Head v. Head, 234 Ga. App. 469, 507 S.E.2d 214 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24A Am. Jur. 2d, Divorce and Separation, §§ 233, 577, 664.

8C Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 344 et seq.

8C Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 228.

C.J.S.

- 27B C.J.S., Divorce, § 592 et seq.

ALR.

- Right to impose fine for failure to pay alimony, 14 A.L.R. 717.

Specific performance, or other equitable enforcement, of agreement for wife's support or alimony, 154 A.L.R. 323.

Inherent power of court to secure future payment of alimony and support money, 165 A.L.R. 1243.

Allowance of permanent alimony to wife against whom divorce is granted, 34 A.L.R.2d 313.

Right to allowance of permanent alimony in connection with decree of annulment, 54 A.L.R.2d 1410; 81 A.L.R.3d 281.

Enforcement of claim for alimony against exemptions, 54 A.L.R.2d 1422.

Allowance of alimony in lump sum in action for separate maintenance without divorce, 61 A.L.R.2d 946.

Power to modify spousal support award for a limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent, 62 A.L.R.4th 180.

Withholding visitation rights for failure to make alimony or support payments, 65 A.L.R.4th 1155.

Divorce: propriety of using contempt proceeding to enforce property settlement award or order, 72 A.L.R.4th 298.

19-6-5. Factors in determining amount of alimony; effect of remarriage on obligations for alimony.

  1. The finder of fact may grant permanent alimony to either party, either from the corpus of the estate or otherwise. The following shall be considered in determining the amount of alimony, if any, to be awarded:
    1. The standard of living established during the marriage;
    2. The duration of the marriage;
    3. The age and the physical and emotional condition of both parties;
    4. The financial resources of each party;
    5. Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;
    6. The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
    7. The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
    8. Such other relevant factors as the court deems equitable and proper.
  2. All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided.

(Laws 1806, Cobb's 1851 Digest, pp. 224, 225; Code 1863, § 1676; Code 1868, § 1719; Code 1873, § 1720; Code 1882, § 1720; Civil Code 1895, § 2435; Civil Code 1910, § 2954; Code 1933, § 30-209; Ga. L. 1966, p. 160, § 1; Ga. L. 1979, p. 466, § 14; Ga. L. 1981, p. 615, § 1; Ga. L. 1982, p. 3, § 19.)

Editor's notes.

- Ga. L. 1979, p. 466 amended prior law so as to provide that alimony may be assessed against either spouse. Cases decided prior to the 1979 enactment appear to remain valid except insofar as they may imply that a wife only is entitled to receive alimony or a husband only is obligated to pay the same.

Law reviews.

- For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For annual survey of domestic relations law, see 58 Mercer L. Rev. 133 (2006). For article, "Are We Witnessing the Erosion of Georgia's Separate Property Distinction?," see 13 Ga. St. B.J. 14 (2007). For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For annual survey of law on domestic relations, see 62 Mercer L. Rev. 105 (2010). For article on domestic relations, see 66 Mercer L. Rev. 65 (2014). For note, "The Significance of Stokes v. Stokes: An Examination of Property Rights Upon Divorce in Georgia," see 16 Ga. L. Rev. 695 (1982). For comment, "The Georgia Supreme Court's Creation of an Equitable Interest in Marital Property - Yours? Mine? Ours!," see 34 Mercer L. Rev. 449 (1982).

JUDICIAL DECISIONS

General Consideration

Constitutionality.

- Former Code 1933, § 30-209 (see now O.C.G.A. § 19-6-5), insofar as it undertook to affect the obligations of a valid contract in existence at the time of statute's passage so as to provide for the duration of alimony is null and void as violative of Ga. Const. 1945, Art. I, Sec. III, Para. II (see now Ga. Const. 1983, Art. I, Sec. I, Para. X) and U.S. Const., Art. I, Sec. X, Cl. I. Candler v. Wilkerson, 223 Ga. 520, 156 S.E.2d 358 (1967).

Statute was strictly construed, and the effect should not be extended beyond its terms. Landis v. Sanner, 146 Ga. 606, 91 S.E. 688 (1917).

Statute did not declare that alimony must or shall be granted in any case, although it has been held that when the wife has no separate estate or means of support and the husband is able to support her, a verdict granting a divorce but denying alimony is contrary to law as to the latter feature. Simmons v. Simmons, 194 Ga. 649, 22 S.E.2d 399 (1942); Brown v. Brown, 230 Ga. 566, 198 S.E.2d 182 (1973).

Statute was a restraint upon alienation of property, and the statute's effect on title, when the husband has conveyed pending a suit for divorce and alimony, should be strictly construed. Perry v. First Mut. Bldg. & Loan Ass'n, 174 Ga. 914, 164 S.E. 804 (1932).

Statute was applicable to wife's remarriage to anyone, thus the wife may retain the property previously awarded her as permanent alimony regardless of her remarriage to her former husband or to anyone else. Travis v. Travis, 227 Ga. 406, 181 S.E.2d 61 (1971).

"Alimony" in its strict or technical sense contemplates money payments at regular intervals. Hamilton v. Finch, 238 Ga. 78, 230 S.E.2d 881 (1976).

Alimony may be awarded either from husband's earnings or from corpus of his estate as by granting to the wife the title or use of property in the possession of the husband. Jones v. Jones, 220 Ga. 753, 141 S.E.2d 457 (1965).

No duty to determine amount when alimony not awarded.

- In an action dissolving the marriage between the parties, having concluded that alimony would not be awarded, the trial court's consideration of the factors relevant to determining the amount thereof was obviated. Stanley v. Stanley, 281 Ga. 672, 642 S.E.2d 94 (2007).

Award to wife reversed when alimony not sought and wife could support herself.

- Award of alimony to a wife was reversed because she never asserted a claim for alimony in her pleadings, but sought an annulment, the husband had no notice that alimony would be an issue, and he objected to litigating the issue when the issue was raised; O.C.G.A. § 9-11-15(b) did not apply because the husband did not consent to litigating the issue, but clearly objected when the issue was raised. Sedehi v. Chamberlin, 344 Ga. App. 512, 811 S.E.2d 24 (2018), cert. denied, 2018 Ga. LEXIS 484 (Ga. 2018).

No requirement that findings be included in decree.

- Alimony award was not improper because, inter alia, with respect to alimony, there was no statutory requirement that findings be included in the decree. Sprouse v. Sprouse, 285 Ga. 468, 678 S.E.2d 328 (2009).

It was not valid objection to award of alimony that husband had no "estate" out of which it can be paid because the award may be "from the corpus of the estate or otherwise." Poppell v. O'Quinn, 131 Ga. App. 223, 205 S.E.2d 509 (1974).

Husband's enhanced and wife's suppressed income potential during marriage properly considered.

- In determining the amount of child support and alimony a husband was required to pay, the trial court correctly considered the parties' income and other assets, as well as the fact that during the marriage, the husband enhanced his ability for increase in income potential and suppressed the wife's ability for increased income potential. McCoy v. McCoy, 281 Ga. 604, 642 S.E.2d 18 (2007).

It was not a valid objection that alimony award payment is to be made at future time; because otherwise there would be no continuing liability for future sums. Poppell v. O'Quinn, 131 Ga. App. 223, 205 S.E.2d 509 (1974).

Purpose of alimony is to provide support for wife (now either party) and minor children, the amount to be determined from consideration of needs and ability to pay. McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967).

Alimony is never for the purpose of penalizing husband or wife for his or her misconduct. McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967).

Alimony should never be excessive; and, with proper regard for the husband's ability, it should never be inadequate or insufficient for his wife's support in keeping with the family standard of living established by the husband. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954).

No error when some evidence supported decision.

- When some evidence supported the trial court's decision, the trial court did not err in the court's determination of the amount of spousal support to be paid by a husband, including the wife's attorney fees. Bloomfield v. Bloomfield, 282 Ga. 108, 646 S.E.2d 207 (2007).

Consent judgments for alimony have been uniformly recognized in this state, and have been given the same force and effect as judgments rendered in due course of litigation upon findings by a jury. Estes v. Estes, 192 Ga. 94, 14 S.E.2d 681 (1941).

Parties cannot change or alter decree of permanent alimony. Martin v. Martin, 209 Ga. 850, 76 S.E.2d 390 (1953).

Dischargeability in bankruptcy.

- Bankruptcy Court erred in ruling that the jury award of $250,000.00 lump sum alimony was in the nature of alimony, maintenance, or support and thus was nondischargeable pursuant to 11 U.S.C. § 523. Ackley v. Ackley, 187 Bankr. 24 (N.D. Ga. 1995).

Agreement to pay insurance premiums.

- Portion of a settlement agreement creating an obligation to pay insurance premiums constitutes periodic alimony rather than equitable property division, which, absent a manifest intention of the parties to the contrary, the obligation to pay periodic alimony terminates on the death of the paying spouse or of the surviving spouse. Gray v. Higgins, 205 Ga. App. 52, 421 S.E.2d 341 (1992).

Court may order that spouse receive insurance policy when order in accord with verdict.

- When the decision that the plaintiff-wife receive the policy of life insurance is in full accord with the undisputed evidence and the verdict of the jury in a divorce case, the trial court did not err in inserting provisions requiring the husband to carry out the purpose and intent of that verdict. Ritchea v. Ritchea, 244 Ga. 476, 260 S.E.2d 871 (1979).

Obligation to maintain life insurance terminated.

- Because the cost to the husband and the value to the wife of the requirement that he maintain $100,000 in life insurance for her benefit for 12 years were indefinite when the decree was entered, as the amount of that award depended on how long the husband would live, the award was periodic alimony as a matter of law; and, as permanent periodic alimony, the husband's life insurance obligation terminated upon the wife's remarriage because the divorce decree did not expressly provide otherwise. White v. Howard, 295 Ga. 210, 758 S.E.2d 824 (2014).

Military retirement pay.

- Trial court's order that a husband designate a wife as the beneficiary of the survivor benefit plan under the husband's military pension was proper, as essentially a life insurance protecting the husband's alimony obligation to the wife, even though the husband's pension was the husband's separate pre-marital property. Hipps v. Hipps, 278 Ga. 49, 597 S.E.2d 359 (2004).

Alimony obligation ambiguous.

- If the alimony obligation is ambiguous, it is the function of the trial court to resolve that ambiguity and determine the intent of the parties following the ordinary rules of construction. Fisher v. Fredrickson, 262 Ga. 229, 416 S.E.2d 512 (1992), overruled on other grounds, Andrews v. Whitaker, 265 Ga. 76, 433 S.E.2d 735 (1995).

Order to pay hospital costs as part of alimony too vague.

- In action for permanent alimony, portion of verdict that defendant "shall pay the total cost of the operation and hospitalization of plaintiff" was too vague and indefinite to authorize a decree as to these items, the pleadings being equally as indefinite in reference to operation and hospitalization, and the court erred in overruling the motion to arrest the judgment, so far as the judgment applied to these subjects. Martin v. Martin, 183 Ga. 787, 189 S.E. 843 (1937).

Jury may grant sum certain as alimony.

- Rendering of a money judgment for a sum certain as alimony is within the power of the jury. Roberson v. Roberson, 199 Ga. 627, 34 S.E.2d 836 (1945).

Lump sum installment award.

- Discrete lump sum installment award by a jury can reasonably be interpreted as a recognition of pre-existing property rights based on equitable considerations, the satisfaction of a marital support obligation, which may include rehabilitation, or both. Nix v. Nix, 185 Bankr. 929 (Bankr. N.D. Ga. 1994).

Estate not liable for continued alimony to wife.

- Since a provision in the parties' separation agreement entitling the wife to alimony until she remarried or died did not evidence a manifest intention to reverse the normal rule that the death of the obligor terminated the obligation to pay alimony, and the settlement agreement lacked a clear expression of intent to extend alimony payments beyond the death of the ex-husband, the trial court properly denied the wife's motion to hold the estate responsible for the alimony obligation. Findley v. Findley, 280 Ga. 454, 629 S.E.2d 222 (2006).

Jury instructions.

- When, in a divorce suit resulting in the divorce of both parties, the wife prays for permanent alimony and the jury awards her none, a ground of her motion for new trial which complains that the court nowhere in the court's charge instructed the jury as to what is permanent alimony, or under what circumstances the jury would in the jury's discretion be authorized to grant the alimony, is meritorious and affords cause for the grant of a new trial, since the evidence is such as to justify the jury in granting permanent alimony. Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940).

Motion to set aside judgment sustained when alimony award grossly inadequate.

- When verdict for permanent alimony was grossly inadequate and insufficient the motion to vacate it and set the judgment aside for that reason should have been sustained. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954).

Unacceptable stipulation as to alimony.

- Trial court's failure to inform the parties during the trial that their stipulation as to alimony was unacceptable, or to afford the parties an opportunity in a later hearing to address the issue with evidence, was reversible error. Hodges v. Hodges, 261 Ga. 843, 413 S.E.2d 191 (1992).

Following obligations in a divorce agreement were deemed dischargeable in bankruptcy proceedings: (1) the obligation to pay additional "alimony" of $432.69 per month for 12 years, regardless of remarriage or death, to cover the monthly first mortgage payments on the former marital home; (2) the assumption of a second mortgage on the home; (3) the assumption of a bank note secured by the ex-spouse's car; and (4) payment of the ex-spouse's law school expenses. Bedingfield v. Bedingfield, 42 Bankr. 641 (S.D. Ga. 1983).

Evidence of unvested retirement funds was relevant and admissible on the issue of alimony. Courtney v. Courtney, 256 Ga. 97, 344 S.E.2d 421 (1986).

Discovery of information regarding trust.

- When the husband was a beneficiary and cotrustee of a trust, the sole asset of which was stock in a company owned by members of his family, the wife was entitled to production at a deposition of certain evidence, including testimony and documents regarding the formation of the trust, the value and financial records of the company, and the compensation and benefits that the husband received from the company, although the company was entitled to an order which would provide reasonable protection for the company's legitimate proprietary concerns regarding the company's financial information. McGinn v. McGinn, 273 Ga. 292, 540 S.E.2d 604 (2001).

Trust to fund future payments authorized.

- Discretion accorded trial courts under the child support guidelines included authorizing the use of a trust to secure unaccrued child support obligations. Henry v. Beacham, 301 Ga. App. 160, 686 S.E.2d 892 (2009), cert. denied, No. S10C0537, 2010 Ga. LEXIS 350 (Ga. 2010).

Child support order properly created a trust to secure unaccrued child support obligations because it was in the child's best interests since the father had numerous other child support obligations, he had been in arrears of a temporary support order, and he spent large amounts of money while having large debts. Henry v. Beacham, 301 Ga. App. 160, 686 S.E.2d 892 (2009), cert. denied, No. S10C0537, 2010 Ga. LEXIS 350 (Ga. 2010).

Cited in Meadows v. Meadows, 161 Ga. 90, 129 S.E. 659 (1925); Smith v. Smith, 167 Ga. 98, 145 S.E. 63 (1928); Chero-Cola Co. v. May, 169 Ga. 273, 149 S.E. 895 (1929); Lowry v. Lowry, 170 Ga. 349, 153 S.E. 11 (1930); Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937); Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940); Norvell v. Norvell, 192 Ga. 1, 14 S.E.2d 440 (1941); Fried v. Fried, 211 Ga. 149, 84 S.E.2d 576 (1954); Tolbert v. Tolbert, 221 Ga. 159, 143 S.E.2d 743 (1965); DuPree v. DuPree, 224 Ga. 52, 159 S.E.2d 708 (1968); Standridge v. Standridge, 224 Ga. 102, 160 S.E.2d 377 (1968); Bryant v. Bryant, 224 Ga. 360, 162 S.E.2d 391 (1968); Crawford v. Schelver, 226 Ga. 105, 172 S.E.2d 686 (1970); Butterworth v. Butterworth, 227 Ga. 301, 180 S.E.2d 549 (1971); Rowe v. Rowe, 228 Ga. 302, 185 S.E.2d 69 (1971); Sessler v. Sessler, 230 Ga. 527, 198 S.E.2d 178 (1973); Weaver v. Dutton, 232 Ga. 832, 209 S.E.2d 175 (1974); Morris v. Padgett, 233 Ga. 750, 213 S.E.2d 647 (1975); Mullinax v. Mullinax, 234 Ga. 553, 216 S.E.2d 802 (1975); Anthony v. Anthony, 237 Ga. 753, 229 S.E.2d 609 (1976); Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976); Bisno v. Bisno, 239 Ga. 388, 236 S.E.2d 755 (1977); Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977); Stock v. Commissioner, 551 F.2d 614 (5th Cir. 1977); In re Smith, 436 F. Supp. 469 (N.D. Ga. 1977); Taylor v. Taylor, 243 Ga. 506, 255 S.E.2d 32 (1979); Burns v. Rivers, 244 Ga. 631, 261 S.E.2d 581 (1979); Sims v. Sims, 245 Ga. 680, 266 S.E.2d 493 (1980); Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980); Head v. Hook, 248 Ga. 818, 285 S.E.2d 718 (1982); Biggers v. Biggers, 250 Ga. 248, 297 S.E.2d 257 (1982).

Factors to be Considered

Question of alimony cannot be determined by mathematical formula as the facts and circumstances in each case are different. Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).

In absence of any mathematical formula, jurors are given wide latitude in fixing the amount of alimony and child support, and to this end jurors are to use their experience as enlightened persons in judging the amount necessary for support under the evidence as disclosed by the record and all the facts and circumstances of the case. McNally v. McNally, 223 Ga. 246, 154 S.E.2d 209 (1967); Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).

Alimony should be adjusted to wife's necessities and consistent with husband's ability to pay. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954).

Necessities of the wife, when entitled to alimony, and the husband's ability to pay alimony, are the controlling factors to be considered and followed in making an allowance for alimony; thus, awards therefor which are substantially disproportionate to either should not be permitted to stand. Fried v. Fried, 211 Ga. 149, 84 S.E.2d 576 (1954); Childs v. Childs, 224 Ga. 531, 163 S.E.2d 693 (1968); Baldwin v. Baldwin, 226 Ga. 680, 177 S.E.2d 85 (1970); Moon v. Moon, 237 Ga. 635, 229 S.E.2d 440 (1976).

Controlling factors to be considered by the jury in making an award of permanent alimony and child support are the necessities of the wife and the husband's ability to pay. McCarthy v. McCarthy, 225 Ga. 326, 168 S.E.2d 164 (1969).

Two controlling factors in determining whether or not an alimony or child support award is excessive are the wife's and children's need for the award and the husband's ability to pay the award. Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).

Ability to earn income is one factor which may be considered by the jury in awarding alimony to the wife, and it may award alimony on this basis although the husband may be temporarily impoverished. Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).

Expert may testify regarding a husband's future earning capacity to the extent the wife contends that differs from his present income. Lowery v. Lowery, 262 Ga. 20, 413 S.E.2d 731 (1992).

Property as well as income of husband is considered in determining ability to pay alimony. Weiner v. Weiner, 219 Ga. 44, 131 S.E.2d 561 (1963).

Portion of proceeds from future sale of nonmarital property as alimony was not error.

- Award of alimony to the wife in the form of a portion of the proceeds of a future sale was proper as the award was clearly made for the wife's maintenance and support; the trial court determined that the wife's earning capacity was diminished due to an unspecified disability, pursuant to O.C.G.A. § 19-6-5, and it appeared that in practicality, the marital home was the only non-liquid asset from which an award of alimony could be made. Smelser v. Smelser, 280 Ga. 92, 623 S.E.2d 480 (2005).

Evidence of husband's debts is relevant in determining his financial status; evidence of a wife's debts is also relevant to a proper determination of alimony. Kosikowski v. Kosikowski, 240 Ga. 381, 240 S.E.2d 846 (1977).

Reasonable allowance under all circumstances is proper even though husband has no property or employment. Mulcay v. Mulcay, 223 Ga. 309, 154 S.E.2d 607 (1967).

Jury is authorized to consider wife's separate estate. This has reference to the estate's size and amount at the time of the dissolution of the marriage. Howard v. Howard, 228 Ga. 760, 187 S.E.2d 868 (1972).

Separate estate and earning capacity of the wife should be considered by the jury in determining alimony. Moon v. Moon, 237 Ga. 635, 229 S.E.2d 440 (1976).

Source of wife's estate is not relevant to any issue which the jury must decide. Howard v. Howard, 228 Ga. 760, 187 S.E.2d 868 (1972).

Jury may also take account of spouse's sacrifice of earning potential.

- If, to please the husband, the wife devotes her energy and time to the home and family, thereby sacrificing her public earning potential, the jury should be able to take these factors into consideration in awarding alimony to her. Moon v. Moon, 237 Ga. 635, 229 S.E.2d 440 (1976).

Wife's manner of living, her material resources, and her income, if any, are factors jury may consider in determining what amount may be necessary for the support and maintenance of the wife. Kosikowski v. Kosikowski, 240 Ga. 381, 240 S.E.2d 846 (1977).

Given that the financial statements of both parties and the transcript of the final hearing established that the trial court considered the length of the marriage, the wife's absence from the labor market while giving birth to and raising six children, and the disadvantages associated with the wife's late arrival into employment outside the home, the trial court did not abuse the court's discretion in awarding the wife 12 years of alimony. Rieffel v. Rieffel, 281 Ga. 891, 644 S.E.2d 140 (2007).

Jury may take into account wife's former position in community as the wife of the defendant husband, her manner of living, her material resources and her income, if any. Moon v. Moon, 237 Ga. 635, 229 S.E.2d 440 (1976).

Jury may consider social standing and luxuries of life which spouse had been enjoying and would have continued to enjoy had there been no separation. Bodrey v. Bodrey, 246 Ga. 122, 269 S.E.2d 14 (1980).

In determining amount of alimony, jury may also consider such factors as age and health of the parties involved. Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).

Age, health, mental resources, and other factors considered.

- On the husband's ability to pay, the jury may take into consideration his age, the condition of his health, his material resources, his present income, and any previous allowance voluntarily made by the husband for the support of the wife. Fried v. Fried, 211 Ga. 149, 84 S.E.2d 576 (1954).

In determining what amount may be necessary for the support and maintenance of the wife, the jury may take into consideration the wife's age, the condition of her health, her former position in the community as the wife of the defendant and her manner of living, her material resources, and her income, if any. Fried v. Fried, 211 Ga. 149, 84 S.E.2d 576 (1954).

Obligation by one spouse concerning child may be relevant in deciding alimony. Kosikowski v. Kosikowski, 240 Ga. 381, 240 S.E.2d 846 (1977).

Questions of innocence or guilt are irrelevant in fixing amount of alimony. Such matters are proper considerations in deciding whether to grant or deny alimony, but not in fixing alimony's amount. Hall v. Hall, 220 Ga. 677, 141 S.E.2d 400 (1965).

Jury is not authorized to consider the conduct or misconduct of either party in a suit for alimony as to the question of the amount of alimony. McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967).

Lump sum alimony amount excessive when no evidence of spouse's present or future ability to pay.

- Judgment for alimony in a lump sum for the benefit of the wife, which, from all the evidence, the husband could not presently pay, and under all reasonable inferences authorized by the evidence could not be paid in the future from his anticipated income was without evidence to support it, excessive and contrary to law. Weatherford v. Weatherford, 204 Ga. 553, 50 S.E.2d 323 (1948).

Military retirement pay as subject to alimony.

- Subjecting the appellee's military pension to distribution as alimony did not conflict with the mandate of U.S. Supreme Court decision protecting military retirement benefits from distribution as community property in a divorce action since Georgia law protects the ex-spouse by awarding alimony based on need and does not grant absolute right to one-half of such pension. Stumpf v. Stumpf, 249 Ga. 759, 294 S.E.2d 488 (1982).

Jury can hear evidence concerning all of the appellee's assets, including the appellee's military retirement pay, as relevant to an award of alimony, and the trial court erred when the court entered an order keeping evidence of such retirement pay from the jury. Stumpf v. Stumpf, 249 Ga. 759, 294 S.E.2d 488 (1982).

Contingent fee agreements are too remote, speculative, and uncertain to be considered marital assets in making an equitable division of property. Goldstein v. Goldstein, 262 Ga. 136, 414 S.E.2d 474 (1992).

Wife's caring for dependent child is relevant in estimating income available from her separate estate.

- Wife's manner of living, her material resources, and her income, if any, are factors the jury may take into consideration in determining what amount may be necessary for her support and maintenance, thus wife's fulfilling of her maternal obligations to a dependent adult son is relevant to her manner of living and pertains directly to estimating any income she might have available from her separate estate. McDonald v. McDonald, 248 Ga. 702, 285 S.E.2d 711 (1982).

Burden of showing alimony obligation.

- When the settlement agreement in a divorce provided that the husband would pay the wife $200 per month alimony for six years, and would thereafter pay $100 in alimony "permanently," and the wife subsequently remarried, the word "permanently" as used in this agreement was ambiguous and therefore insufficient to meet the exception to O.C.G.A. § 19-6-5 that when "otherwise provided" an alimony obligation does not terminate upon remarriage (obligation created prior to decision in Daopoulos v. Daopoulos, 257 Ga. 71, 354 S.E.2d 828 (1987)). Edwards v. Benefield, 260 Ga. 236, 392 S.E.2d 1 (1990).

Retirement benefits considered.

- Trial court did not err in considering a husband's future retirement benefits under the Railroad Retirement Act of 1974, 45 U.S.C. § 231 et seq., as income to the husband for purposes of determining an adequate alimony award pursuant to O.C.G.A. § 19-6-5; there was no violation of the Supremacy Clause of U.S. Const., Art. VI, C. 2, as there was no conflict with federal law by the state court's consideration of the benefits in a family law context. Lanier v. Lanier, 278 Ga. 881, 608 S.E.2d 213 (2005).

Denial of alimony upheld.

- Wife failed to establish that a trial court manifestly abused the trial court's discretion in denying the wife's claim for alimony based on her allegations that the husband abandoned the family; failed to support the couple's minor child; and caused the marital house to go into foreclosure as there was also evidence before the trial court that the wife initiated the parties' separation; that the wife was gainfully employed and had been so throughout most of the marriage; that the wife failed to cooperate with the husband in taking steps to alleviate the family's financial problems; that the wife had mismanaged marital funds and run up extravagant bills; that the wife failed to take advantage of low-cost health insurance coverage for the couple's minor child provided by the husband's employer; and that the wife unilaterally sold or otherwise disposed of the husband's share of the couple's personal property. Jackson v. Jackson, 282 Ga. 459, 651 S.E.2d 92 (2007).

Award of lump-sum alimony upheld on appeal.

- Trial court did not abuse the court's discretion by failing to consider the factors set forth under O.C.G.A. § 19-6-5 because a review of the bench trial transcript showed that, prior to entering a lump-sum alimony in one spouse's favor, the trial court considered extensive testimony regarding all of the relevant factors set forth in § 19-6-5(a), including both parties' employment, assets, debts, income streams, and potential for future earnings; moreover, despite the other spouse's contrary claim, the award was not entered in order to prevent the other spouse from discharging the award in bankruptcy. Wood v. Wood, 283 Ga. 8, 655 S.E.2d 611 (2008).

Award of alimony appropriate based on consideration of factors.

- Alimony award of $1,000 in a divorce action was appropriate because the trial court properly considered, under O.C.G.A. § 19-6-5(a), each parties' gross income and living conditions, the duration of the marriage, and the age and physical conditions of the parties. Arkwright v. Arkwright, 284 Ga. 545, 668 S.E.2d 709 (2008).

Lump sum alimony award to a wife of monthly payments of $5,000 for the first year, $4,000 for the following two years, and $3,000 for the final year was proper because there was evidence supporting the trial court's finding that the wife was capable of updating skills and reentering the work force, and the trial court's consideration of the parties' respective financial resources. Patel v. Patel, 285 Ga. 391, 677 S.E.2d 114 (2009).

Trial court did not abuse the court's discretion in setting alimony at $1,250 per month, pursuant to O.C.G.A. §§ 19-6-1(c) and19-6-5(a), because the trial court properly considered, inter alia, the value of the husband's pension, the overwhelming marital debt, the husband's contribution of inherited assets to the marriage, and the wife's recent promotion, accompanied by a raise in salary and benefits. Hammond v. Hammond, 290 Ga. 518, 722 S.E.2d 729 (2012).

Award of alimony erroneous because record completely devoid of any evidence of spouse's ability to pay.

- Trial court's award of lump sum alimony in the amount of $36,500 was erroneous because although the spouse's need for resources to meet reasonable housing desires and expected medical bills justified an award of alimony, the record was completely devoid of any evidence of the other spouse's ability to pay the lump sum alimony award; the paying spouse's separate estate consisted solely of an asset that could not be transferred or otherwise converted into cash, and a $500 a week income. Coker v. Coker, 286 Ga. 20, 685 S.E.2d 70 (2009).

Court free to consider parties entire relationship including cohabitation period.

- Alimony award was not improper because, inter alia, under the catchall provision of O.C.G.A. § 19-6-5(a)(8), the trial court was free to consider the parties' entire relationship, including periods of premarital cohabitation, in determining alimony. Sprouse v. Sprouse, 285 Ga. 468, 678 S.E.2d 328 (2009).

Effect of Remarriage

Right to receive alimony ceases upon remarriage. Woodward v. Woodward, 245 Ga. 550, 266 S.E.2d 170 (1980).

Summary judgment was properly granted to a former husband in his declaratory judgment action, seeking a determination that his obligation to make "periodic alimony" payments to his former wife pursuant to the parties' divorce settlement agreement ceased upon the wife's remarriage pursuant to O.C.G.A. § 19-6-5(b) as the settlement agreement was clear and unambiguous in its designation of certain payments as a form of periodic alimony rather than as equitable distribution; contract interpretation principles under O.C.G.A. §§ 13-2-2(4) and13-2-3 supported that interpretation of the agreement. Crosby v. Lebert, 285 Ga. 297, 676 S.E.2d 192 (2009).

Statute dealt with remarriage and did not apply to husband's obligations under contract between the parties, made the judgment of the court in a divorce decree, which constituted a part of the "property settlement" between the parties. Vereen v. Arp, 237 Ga. 241, 227 S.E.2d 331 (1976); Hollandsworth v. Hollandsworth, 242 Ga. 790, 251 S.E.2d 532 (1979).

The 1966 amendment to former Code 1933, § 30-209 refers only to "permanent alimony" and did not apply to "property settlement," and would not, therefore, be applicable to the provisions of a contract making property divisions. Shepherd v. Shepherd, 223 Ga. 609, 157 S.E.2d 268 (1967).

Provision in statute for termination of alimony on remarriage was not applicable to property settlement. Newell v. Newell, 237 Ga. 708, 229 S.E.2d 449 (1976).

Alimony in lump sum is in nature of property settlement, whether designated as such or as alimony. Newell v. Newell, 237 Ga. 708, 229 S.E.2d 449 (1976); Hamilton v. Finch, 238 Ga. 78, 230 S.E.2d 881 (1976); Elliott v. Elliott, 243 Ga. 160, 253 S.E.2d 88 (1979).

Lump sum award for alimony is not divested by remarriage when the jury has not specified otherwise. Davis v. Welch, 220 Ga. 515, 140 S.E.2d 199 (1965).

Statute releasing a husband from his obligation to pay permanent alimony has reference only to installment payments in the future and not to a lump sum obligation. Eastland v. Candler, 226 Ga. 588, 176 S.E.2d 89 (1970).

Remarriage prior to awarding of alimony bars payment of lump sum and periodic payments of alimony. Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977).

Any lump sum or periodic alimony is barred by remarriage if the former wife remarries prior to the entry of the final judgment. Kristensen v. Kristensen, 240 Ga. 670, 242 S.E.2d 132 (1978).

Settlement agreement of parties, incorporated into divorce decree, is property settlement agreement. Elliott v. Elliott, 243 Ga. 160, 253 S.E.2d 88 (1979).

It was not necessary for agreement incorporated into decree to provide expressly that alimony shall cease upon remarriage because the statute expressly provided that such obligations cease upon remarriage unless otherwise provided. Burns v. Rivers, 244 Ga. 631, 261 S.E.2d 581 (1979).

O.C.G.A. § 19-6-5 basically applies to unperformed obligations to make installment payments of alimony. Moore v. Moore, 249 Ga. 27, 287 S.E.2d 185 (1982).

O.C.G.A. § 19-6-5 does not apply to unperformed obligations to effectuate property settlements. Moore v. Moore, 249 Ga. 27, 287 S.E.2d 185 (1982).

Installment payments under lump sum agreement incorporated in decree are due even after remarriage. Hamilton v. Finch, 238 Ga. 78, 230 S.E.2d 881 (1976).

Periodic payments to be made until sum certain has been paid is property settlement, and remarriage will not terminate the husband's responsibility to continue making the payments. Wimpey v. Pope, 246 Ga. 545, 272 S.E.2d 278 (1980).

When installments relate to real property, the installments are items of property settlement, not terminable upon wife's remarriage. Solomon v. Solomon, 241 Ga. 188, 244 S.E.2d 2 (1978).

Payment of mortgage.

- When the agreement between the parties does not provide for any alimony payments for the support of the wife, but is more in the nature of a property settlement, and the agreement sub judice provides for a sum certain by providing that the monthly payments "shall continue until the mortgage is full paid," the obligation to make the mortgage payments is a lump sum settlement to be paid in installments and is not permanent alimony. Bennett v. Bennett, 236 Ga. 764, 225 S.E.2d 264 (1976).

Section not applicable when evidence shows intent that payments continue despite remarriage.

- When it appeared from the agreement itself that the parties contemplated payments made would coincide with the period of time when the children were to be supported and would survive the wife's remarriage, even though the payments were in the nature of alimony to the wife, under the facts the parties themselves provided otherwise to allow the payments to continue, and the provisions of the statute which would automatically terminate the payments upon the wife's remarriage did not apply. Wiley v. Wiley, 243 Ga. 271, 253 S.E.2d 750 (1979).

Express inclusion of gross amount is indicative of intent that recipient receive it without termination in the event of remarriage, whereas the contrary intent is indicated when no gross amount is given. Nash v. Nash, 244 Ga. 749, 262 S.E.2d 64 (1979).

Provision that alimony not cease upon remarriage authorized.

- Trial court was authorized to provide in a final divorce decree that alimony obligations would not cease upon wife's remarriage. Allen v. Allen, 265 Ga. 53, 452 S.E.2d 767 (1995).

Jury verdict different from decree.

- Even though the jury's verdict did not specify that the husband's alimony obligations terminated upon the wife's remarriage, inclusion of such provision in the final decree was not erroneous under O.C.G.A. § 19-6-5. Metzler v. Metzler, 267 Ga. 892, 485 S.E.2d 459 (1997).

Court construes alimony obligation.

- In deciding whether the alimony obligation terminated upon the former spouse's remarriage, the trial court must construe the alimony obligation to determine whether the parties have "provided otherwise" to avoid termination of alimony on remarriage. Fisher v. Fredrickson, 262 Ga. 229, 416 S.E.2d 512 (1992), overruled on other grounds, Andrews v. Whitaker, 265 Ga. 76, 433 S.E.2d 735 (1995).

Alimony obligation did not survive the wife's remarriage when the settlement agreement did not contain language from which it could be concluded that the alimony obligation would continue following the wife's remarriage, nor language creating an ambiguity regarding the issue. Crosby v. Tomlinson, 263 Ga. 522, 436 S.E.2d 8 (1993).

Resulting trust is not alimony, and right to claim the trust is not barred by remarriage of one of the parties. Price v. Price, 243 Ga. 4, 252 S.E.2d 402 (1979).

Father's duty to provide support and maintenance for minor children does not cease with wife's remarriage. Wimpey v. Pope, 246 Ga. 545, 272 S.E.2d 278 (1980).

Defendant's payments on mobile home which are in nature of support for children are not "periodic alimony." Wimpey v. Pope, 246 Ga. 545, 272 S.E.2d 278 (1980).

Attorney's fees are part of temporary alimony, and remarriage does not preclude such award. Kristensen v. Kristensen, 240 Ga. 670, 242 S.E.2d 132 (1978).

Effect of remarriage on I.R.S. presumption of alimony's deductibility.

- In Georgia, the remarriage of a former wife operates to deprive a divorced husband of the I.R.S.'s presumption of tax deductible alimony status for lump-sum payments unless the divorce decree specifically provides for the continuation of alimony. Strealdorf v. Commissioner, 726 F.2d 1521 (11th Cir. 1984).

Property set aside as wife's separate property remains such, notwithstanding parties' remarriage to each other.

- Property which, on granting of divorce, was set aside to wife and became her sole and separate property remains her separate estate, notwithstanding divorced parties are subsequently remarried to each other. Moore v. Moore, 249 Ga. 27, 287 S.E.2d 185 (1982).

Burden of showing alimony obligation after remarriage.

- In order for a court to hold that an instrument "provides otherwise" than the general rule that remarriage terminates permanent alimony obligations within the meaning of subsection (b) of O.C.G.A. § 19-6-5, it must expressly refer to remarriage of the recipient and specify that event shall not terminate the permanent alimony obligations created thereby and be clear and unequivocal. Daopoulos v. Daopoulos, 257 Ga. 71, 354 S.E.2d 828 (1987).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24A Am. Jur. 2d, Divorce and Separation, §§ 683 et seq., 700.

C.J.S.

- 27A C.J.S., Divorce, §§ 345, 353 et seq., 372, 378 et seq., 399, 400.

ALR.

- Earning capacity or prospective earnings of husband as basis of alimony, 6 A.L.R. 192; 139 A.L.R. 207.

Alimony as affected by remarriage, 30 A.L.R. 79; 64 A.L.R. 1269; 112 A.L.R. 246; 48 A.L.R.2d 270.

Ability or inability to pay alimony as affected by ownership of exempt property or funds, 131 A.L.R. 224.

Propriety of direction that specific property of husband be transferred to wife as alimony, or in lieu of, or in addition to, alimony, 133 A.L.R. 860.

Propriety and effect of anticipatory provision in decree for alimony in respect of remarriage or other change of circumstances, 155 A.L.R. 609.

Change in financial condition or needs of husband or wife as ground for modification of decree for alimony or maintenance, 18 A.L.R.2d 10.

Remarriage of wife as affecting husband's obligation under separation agreement to support her or to make other money payments to her, 48 A.L.R.2d 318; 45 A.L.R.3d 1033.

Construction and effect of clause in divorce decree providing for payment of former wife's future medical expenses, 71 A.L.R.2d 1236.

Propriety of reference in connection with fixing amount of alimony, 85 A.L.R.2d 801.

Excessiveness of amount of money awarded as permanent alimony where divorce is or has been granted, 1 A.L.R.3d 6.

Adequacy of amount of money awarded as permanent alimony where divorce is or has been granted, 1 A.L.R.3d 123.

Spouse's acceptance of payments under alimony or property settlement or child support provisions of divorce judgment as precluding appeal therefrom, 29 A.L.R.3d 1184.

Annulment of later marriage as reviving prior husband's obligations under alimony decree or separation agreement, 45 A.L.R.3d 1033.

Divorce or separation: consideration of tax liability or consequences in determining alimony or property settlement provisions, 51 A.L.R.3d 461.

Effect of remarriage of spouses to each other on permanent alimony provisions in final divorce decree, 52 A.L.R.3d 1334.

Divorce: provision in decree that one party obtain or maintain life insurance for benefit of other party or child, 59 A.L.R.3d 9.

Evaluation of interest in law firm or medical partnership for purposes of division of property in divorce proceedings, 74 A.L.R.3d 621.

Provision in divorce decree requiring husband to pay certain percentage of future salary increases as additional alimony or child support, 75 A.L.R.3d 493.

Propriety in divorce proceedings of awarding rehabilitative alimony, 97 A.L.R.3d 740.

Spouse's professional degree or license as marital property for purposes of alimony, support, or property settlement, 4 A.L.R.4th 1294.

Validity and enforceability of escalation clause in divorce decree relating to alimony and child support, 19 A.L.R.4th 830.

Divorce and separation: appreciation in value of separate property during marriage without contribution by either spouse as separate or communal property, 24 A.L.R.4th 453.

Excessiveness or adequacy of amount of money awarded as permanent alimony following divorce, 28 A.L.R.4th 786.

Spouse's right to discovery of closely held corporation records during divorce proceeding, 38 A.L.R.4th 145.

Divorce: excessiveness or adequacy of combined property division and spousal support awards - modern cases, 55 A.L.R.4th 14.

Divorce: excessiveness or adequacy of trial court's property award - modern cases, 56 A.L.R.4th 12.

Divorce and separation: attributing undisclosed income to parent or spouse for purposes of making child or spousal support award, 70 A.L.R.4th 173.

Consideration of obligated spouse's earnings from overtime or "second job" held in addition to regular full-time employment in fixing alimony or child support awards, 17 A.L.R.5th 143.

Divorce and separation: attorney's contingent fee contracts as marital property subject to distribution, 44 A.L.R.5th 671.

Alimony as affected by recipient spouse's remarriage in absence of controlling specific statute, 47 A.L.R.5th 129.

Excessiveness or inadequacy of lump-sum alimony award, 49 A.L.R.5th 441.

Consideration of obligor's personal-injury recovery or settlement in fixing alimony or child support, 59 A.L.R.5th 489.

Effect of same-sex relationship on right to spousal support, 73 A.L.R.5th 599.

19-6-6. Liability after grant of alimony.

  1. When permanent alimony is granted, the party liable for alimony shall cease to be liable for any debt or contract of the former spouse of the liable party.
  2. Upon the grant of permanent alimony, the property of the liable party set apart for the support of the former spouse shall not be subject to the liable party's debts or contracts as long as the former spouse of the liable party shall live.

(Orig. Code 1863, § 1697; Code 1868, § 1740; Code 1873, § 1750; Code 1882, § 1750; Civil Code 1895, § 2470; Civil Code 1910, § 2989; Code 1933, § 30-216; Ga. L. 1979, p. 466, § 20.)

RESEARCH REFERENCES

ALR.

- Garnishment or attachment of property to enforce order or decree for alimony or allowance in suit for divorce or separation, 56 A.L.R. 841.

Right of wife or child by virtue of right to support to maintain action to set aside conveyance by husband or parent as fraudulent, without reducing claim to judgment, 164 A.L.R. 524.

19-6-7. Interest in deceased party's estate after grant of permanent alimony.

After permanent alimony is granted, upon the death of the party liable for the alimony the other party shall not be entitled to any further interest in the estate of the deceased party by virtue of the marriage contract between the parties; however, such permanent provision shall be continued to the other party or a portion of the deceased party's estate equivalent to the permanent provision shall be set apart to the other party.

(Orig. Code 1863, § 1699; Code 1868, § 1742; Code 1873, § 1752; Code 1882, § 1752; Civil Code 1895, § 2472; Civil Code 1910, § 2991; Code 1933, § 30-218; Ga. L. 1979, p. 466, § 21.)

Law reviews.

- For comment criticizing Berry v. Berry, 208 Ga. 285, 66 S.E.2d 336 (1951), holding death of husband terminates duty to pay alimony, see 14 Ga. B.J. 240 (1951).

JUDICIAL DECISIONS

Separation agreement not addressing alimony.

- Since the separation agreement entered into between the deceased and his common-law wife did not address the issue of alimony, O.C.G.A. § 19-6-7 does not apply; the agreement contained mutual promises regarding visitation, child support, and the division of the real and personal property of the parties, yet did not specifically address any matters regarding alimony or spousal maintenance. Beals v. Beals, 203 Ga. App. 81, 416 S.E.2d 301, cert. denied, 203 Ga. App. 905, 416 S.E.2d 301 (1992).

Regular periodical payments of alimony are terminated upon husband's death, in the absence, at least, of some stipulation in the order which would require payments after the husband's death. Berry v. Berry, 208 Ga. 285, 66 S.E.2d 336 (1951), for comment, see 14 Ga. B.J. 240 (1951).

When alimony is awarded solely to the wife by a decree of court, and the decree does not specifically provide that the alimony payments shall continue after the death of the husband, the wife's claim for alimony is terminated upon the husband's death. Ramsay v. Sims, 209 Ga. 228, 71 S.E.2d 639 (1952), overruled on other grounds, Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981).

Obligation to pay alimony terminates upon the death of the obligor, absent, of course, a clear express agreement to the contrary. Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981).

Valid contracts settling property enforceable after death of party.

- Valid and enforceable contract may be made by a husband and wife, when they are living in a bona fide state of separation, settling all issues as to alimony for the wife, and providing for the support of minor children. When such a contract is made, providing for the settlement of questions pertaining to the joint property, and provision is made for the support of minor children, it is a general rule that such contracts are valid and enforceable after the death of the husband. Ramsay v. Sims, 209 Ga. 228, 71 S.E.2d 639 (1952), overruled on other grounds, Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981).

Doctrine of virtual or equitable legitimation.

- When decedent's actions indicated that he was in the process of taking all the necessary steps to ensure that the child whom he and the appellant cohabitant had conceived would be born into a legitimate family environment, and everything necessary for his divorce from his estranged wife was complete except for the final decree, and there was clear and convincing evidence that decedent intended for his unborn child to be born into a legitimate family environment, his unexpected death will not defeat the claim of the child, who may inherit under the doctrine of virtual legitimation. Simpson v. King, 259 Ga. 420, 383 S.E.2d 120 (1989).

Allowance of permanent alimony bars wife of her rights to year's support from her husband's estate. Stewart v. Stewart, 43 Ga. 294 (1871); Harris v. Davis, 115 Ga. 950, 42 S.E. 266 (1902); Hall v. First Nat'l Bank, 89 Ga. App. 853, 81 S.E.2d 522, cert. denied, 348 U.S. 896, 75 S. Ct. 215, 99 L. Ed. 704 (1954).

If permanent alimony is either granted by judgment of a court, or the alimony suit is settled by contract between the parties, whereby she accepts money or property in settlement of the claim for permanent alimony, and such contract is not annulled by subsequent cohabitation and reconciliation, it bars her of her right of year's support from her husband's estate, and she ceases to have any further interest in his estate in her right as wife. McKie v. McKie, 213 Ga. 582, 100 S.E.2d 580 (1957).

Effect of settlement contract executed in lieu of alimony.

- When there was a valid contract between husband and wife, "in settlement of all claims for alimony, attorney's fees, and support of herself, which have accrued or may accrue afterwards," and when it was stipulated in the same contract that the wife released the husband from "any and all obligations to make further provision for her support," the wife had no further interest in the husband's estate for year's support. Gore v. Plair, 173 Ga. 88, 159 S.E. 698 (1931).

Claim sustainable under oral agreement.

- O.C.G.A. §§ 19-6-7 and19-6-8 did not apply to bar surviving husband's claim of year's support against wife's estate because they do not encompass oral agreements that fail to provide or otherwise address alimony or support issues. Bird v. Bishop, 207 Ga. App. 11, 427 S.E.2d 301 (1993).

Cited in Hayes v. Hayes, 248 Ga. 526, 283 S.E.2d 875 (1981); Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981); Wilson v. Willard, 183 Ga. App. 204, 358 S.E.2d 859 (1987); Head v. Head, 234 Ga. App. 469, 507 S.E.2d 214 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24A Am. Jur. 2d, Divorce and Separation, § 697.

C.J.S.

- 27B C.J.S., Divorce, §§ 592 et seq., 630.

ALR.

- Death of husband as affecting alimony, 18 A.L.R. 1040; 39 A.L.R.2d 1406.

Right of wife after husband's death to enforce provision of separation agreement for continuance of payments for her support as affected by intervening divorce decree, 147 A.L.R. 708.

Husband's death as affecting periodic payment provision of separation agreement, 5 A.L.R.4th 1153.

Death of obligor spouse as affecting alimony, 79 A.L.R.4th 10.

19-6-8. Voluntary separation, abandonment, or driving off of spouse - Agreement for support as bar to alimony.

In cases of voluntary separation or in cases where one spouse, against the will of that spouse, is abandoned or driven off by the other spouse, a party voluntarily, by contract or other written agreement made with his spouse, may make an adequate provision for the support and maintenance of such spouse, consistent with the means of the party and the former circumstances of the spouse. Such an agreement shall be a bar to the right of the spouse to permanent alimony.

(Orig. Code 1863, § 1694; Code 1868, § 1737; Code 1873, § 1745; Code 1882, § 1745; Civil Code 1895, § 2465; Civil Code 1910, § 2984; Code 1933, § 30-211; Ga. L. 1979, p. 466, § 16.)

Law reviews.

- For article, "Conflict of Laws Between Community Property and Common Law States in Division of Marital-Property on Divorce," see 12 Mercer L. Rev. 287 (1961). For note, "The Impact of the Revolution in Georgia's Divorce Law on Antenuptial Agreements," see 11 Ga. L. Rev. 406 (1977).

JUDICIAL DECISIONS

Applicability of section.

- Provisions of statute must not be confused with temporary alimony settlements. Finch v. Finch, 213 Ga. 199, 97 S.E.2d 576 (1957).

Statute had no application to cases after parties' agreement was made court's judgment of permanent alimony. Stanton v. Stanton, 223 Ga. 664, 157 S.E.2d 453 (1967).

Voluntary deed as bar to permanent alimony is limited to two instances, voluntary separation or when the wife, against her will, is abandoned or driven off by the husband, and it contemplates the release of the husband from the wife's claims for permanent alimony. Stanton v. Stanton, 223 Ga. 664, 157 S.E.2d 453 (1967).

Action by wife based solely upon contract for support is not action for alimony or an "alimony case" within the constitutional provision relating to jurisdiction of the Supreme Court. Hayes v. Hayes, 191 Ga. 237, 11 S.E.2d 764 (1940).

Agreement for separate support allowance to wife.

- Valid agreement may be made between husband and wife, contemplating immediate separation, for a separate allowance to the wife for her support. Green v. Starling, 203 Ga. 10, 45 S.E.2d 188 (1947).

Support contract valid whether made after separation or immediately before.

- Contract providing for the wife's support which is made after a separation has taken place, or immediately before a separation which has already been determined upon, is valid and enforceable. Richards v. Richards, 85 Ga. App. 605, 69 S.E.2d 911 (1952).

Separation agreement void when provisions tend to promote dissolution of marriage.

- Agreement pleaded by husband as a bar to the right of wife to be awarded alimony, containing provision that either party "may at any time bring his or her action for divorce, and the same will not be contested, provided the proceeding is based upon some other lawful ground than that which will involve the character or chastity of either party of this agreement," rendered the agreement void as tending to promote a dissolution of the marriage relation, and constituted no bar to the claim of the wife for alimony in a divorce proceeding subsequently instituted by the husband. Law v. Law, 186 Ga. 113, 197 S.E. 272 (1938).

Estoppel when one accepts benefits under separation agreement.

- When one accepts benefits under separation agreement, one is estopped to set aside divorce decree which gave rise to the agreement. Sikes v. Sikes, 231 Ga. 105, 200 S.E.2d 259 (1973).

Effect of voluntary cohabitation upon support agreement.

- Upon subsequent voluntary cohabitation, a separation support agreement shall be annulled and set aside. Powell v. Powell, 196 Ga. 694, 27 S.E.2d 393 (1943).

Return of property received under agreement.

- It is not necessary for wife to return property received under agreement in order for the subsequent voluntary cohabitation to render the agreement a nullity. The husband effectually gave his consent to annulling the agreement by resuming the marital status. Powell v. Powell, 196 Ga. 694, 27 S.E.2d 393 (1943).

Contract for installment payments enforceable by executor.

- When the husband promises to pay a lump sum for the wife's support, payable in installments, and the wife dies before all the installments are paid, her executor may sue for the unpaid installments as they severally mature. Melton v. Hubbard, 135 Ga. 128, 68 S.E. 1101 (1910).

Decree should accurately reflect a settlement reached by the parties; therefore, the trial court cannot be allowed to make substantive additions in voluntary agreements made before the court. Robinson v. Robinson, 261 Ga. 330, 404 S.E.2d 435 (1991).

Claim sustainable under oral agreement.

- O.C.G.A. §§ 19-6-7 and19-6-8 did not apply to bar surviving husband's claim of year's support against wife's estate because they do not encompass oral agreements that fail to provide or otherwise address alimony or support issues. Bird v. Bishop, 207 Ga. App. 11, 427 S.E.2d 301 (1993).

Cited in Gore v. Plair, 173 Ga. 88, 159 S.E. 698 (1931); Craig v. Craig, 53 Ga. App. 632, 186 S.E. 755 (1936); Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937); Evans v. Evans, 191 Ga. 752, 14 S.E.2d 95 (1941); Wren v. Wren, 199 Ga. 851, 36 S.E.2d 77 (1945); Ridgeway v. Ridgeway, 224 Ga. 310, 161 S.E.2d 866 (1968); Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976); Worthington v. Worthington, 250 Ga. 730, 301 S.E.2d 44 (1983).

RESEARCH REFERENCES

C.J.S.

- 27B C.J.S., Divorce, §§ 516 et seq., 527 et seq., 610 et seq., 623 et seq.

ALR.

- What amounts to a "final division and distribution" of estate within statute allowing such in lieu of alimony, 1 A.L.R. 1106.

Validity of separation agreement as affected by fraud, coercion, unfairness, or mistake, 5 A.L.R. 823.

Rights and remedies as between husband and wife in respect of separation agreement invalid as contrary to public policy, 109 A.L.R. 1174.

Validity of provision of separation agreement for cessation or diminution of payments for wife's support upon specified event, 4 A.L.R.2d 732.

Parol evidence to show duration of written contract for support or maintenance, 14 A.L.R.2d 897.

Construction and effect of provision in separation agreement that wife is to have portion of "income," "total income," "net income," and the like, 79 A.L.R.2d 609.

Divorce: power of court to modify decree for alimony or support of spouse which was based on agreement of parties, 61 A.L.R.3d 520.

19-6-9. Voluntary separation, abandonment, or driving off of spouse - Equity may compel support.

Absent the making of a voluntary contract or other agreement, as provided in Code Section 19-6-8, and on the application of a party, the court, exercising its equitable powers, may compel the spouse of the party to make provision for the support of the party and such minor children as may be in the custody of the party.

(Orig. Code 1863, § 1695; Code 1868, § 1738; Code 1873, § 1746; Code 1882, § 1746; Civil Code 1895, § 2466; Civil Code 1910, § 2985; Code 1933, § 30-212; Ga. L. 1979, p. 466, § 17.)

JUDICIAL DECISIONS

Statute was constitutional and any modification or repeal must necessarily be made by the General Assembly of Georgia and not by the court. Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458 (1974), cert. denied, 421 U.S. 929, 95 S. Ct. 1656, 44 L. Ed. 2d 87 (1975).

Statute plainly provides for alimony which may be sought in the wife's suit for divorce, her suit for alimony alone, or in a suit by the husband for divorce. The wife's right cannot be defeated by a failure of the husband to obtain a divorce. Ridgeway v. Ridgeway, 224 Ga. 310, 161 S.E.2d 866 (1968).

Right to sue for alimony without suing for divorce.

- Wife has right to sue her husband for alimony, after voluntary separation, without suing for divorce, and without the necessity of showing a legal residence as required in a suit for divorce. Craig v. Craig, 53 Ga. App. 632, 186 S.E. 755 (1936).

Court may render judgment affecting property to enforce alimony claims.

- Under additional powers given by the statutes, having incidental equity jurisdiction over the res of property within its territory, a court may render a valid judgment in rem with respect to such property when necessary to enforce the wife's claim to permanent alimony. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937).

Personal jurisdiction over nonresident in former spouse's action to terminate alimony.

- Action of nonresident wife in bringing suit in Georgia to domesticate foreign divorce decree does not constitute the "transaction of business" so as to permit Georgia courts to assert in personam jurisdiction over her in husband's subsequent actions to terminate alimony. Stone v. Stone, 254 Ga. 519, 330 S.E.2d 887 (1985).

Cited in Evans v. Evans, 191 Ga. 752, 14 S.E.2d 95 (1941); Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685 (1956); Murphey v. Murphey, 215 Ga. 19, 108 S.E.2d 872 (1959); Mullinax v. Mullinax, 234 Ga. 553, 216 S.E.2d 802 (1975).

RESEARCH REFERENCES

ALR.

- Garnishment or attachment of property to enforce order or decree for alimony or allowance in suit for divorce or separation, 56 A.L.R. 841.

Divorced wife's failure to comply with order or decree as affecting her right to enforce provision for alimony, 88 A.L.R. 199.

Decree for alimony rendered in another state or foreign country as subject to enforcement by equitable remedies or by contempt proceedings, 97 A.L.R. 1197; 18 A.L.R.2d 862.

Jurisdiction of equity courts in the United States, without the aid of statute expressly conferring it, to entertain independent suit for alimony or separate maintenance without divorce or judicial separation, 141 A.L.R. 399.

Court's establishment of trust to secure alimony or child support in divorce proceedings, 3 A.L.R.3d 1170.

Power of court which denied divorce, legal separation, or annulment, to award custody or make provisions for support of child, 7 A.L.R.3d 1096.

Father's liability for support of child furnished after divorce decree which awarded custody to mother but made no provision for support, 91 A.L.R.3d 530.

Validity and enforceability of escalation clause in divorce decree relating to alimony and child support, 19 A.L.R.4th 830.

Separation agreements: enforceability of provision affecting property rights upon death of one party prior to final judgment of divorce, 67 A.L.R.4th 237.

Divorce: court's authority to institute or increase spousal support award after discharge of prior property award in bankruptcy, 87 A.L.R.4th 353.

19-6-10. Voluntary separation, abandonment, or driving off of spouse - Petition for alimony or child support when no divorce pending - Order and enforcement; equitable remedies; effect of filing for divorce.

When spouses are living separately or in a bona fide state of separation and there is no action for divorce pending, either party, on the party's own behalf or on the behalf of the minor children in the party's custody, if any, may institute a proceeding by petition, setting forth fully the party's case. Upon three days' notice to the other party, the judge may hear the same and may grant such order as he might grant were it based on a pending petition for divorce, to be enforced in the same manner, together with any other remedy applicable in equity, such as appointing a receiver and the like. Should the petition proceed to a hearing before a jury, the jury may render a verdict which shall provide the factual basis for equitable relief as in Code Section 19-6-9. However, such proceeding shall be held in abeyance when a petition for divorce is filed bona fide by either party and the judge presiding has made his order on the motion for alimony. When so made, the order shall be a substitute for the aforesaid decree in equity as long as the petition is pending and is not finally disposed of on the merits.

(Ga. L. 1870, p. 413, § 4; Code 1873, § 1747; Code 1882, § 1747; Civil Code 1895, § 2467; Civil Code 1910, § 2986; Code 1933, § 30-213; Ga. L. 1979, p. 466, § 18.)

Law reviews.

- For note discussing Georgia's child support laws, their problems, and some proposed solutions, see 11 Ga. L. Rev. 387 (1977).

JUDICIAL DECISIONS

General Consideration

Constitutionality.

- Act of October 28, 1870, from which Ga. L. 1870, p. 413, was taken, was not unconstitutional as referring to more than one subject matter, or as containing matter different from that expressed in its title. An examination of the Act will show that alimony and custody of children was the only subject matter referred to therein. Halleman v. Halleman, 65 Ga. 476 (1880).

Intention of legislature was to deny alimony actions when divorce was pending in this state, but not to deny the right to maintain such action when a divorce action was pending in another state. Ward v. Ward, 223 Ga. 868, 159 S.E.2d 81 (1968).

It was clearly the legislative intention that questions of alimony shall be determined in a divorce action, if one was pending; and that an application for permanent alimony could be filed only in those instances when no divorce action was pending. Ward v. Ward, 223 Ga. 868, 159 S.E.2d 81 (1968).

Action for permanent alimony and action for divorce have different purposes but both grow out of the marriage relationship, and relate to the same subject matter. Ward v. Ward, 223 Ga. 868, 159 S.E.2d 81 (1968).

Former Code 1933, § 30-213 (see now O.C.G.A. § 19-6-10) was to be construed and applied in connection with former Code 1933, §§ 30-202, 30-203, 30-204, and 30-205 (see now O.C.G.A. § 19-6-3), which authorized the judge to grant temporary alimony in actions for divorce or actions for permanent alimony where the parties are living in a bona fide state of separation. When so considered and applied, former Code 1933, § 30-213 authorized the judge, on application of the wife upon three days' notice to the husband, to grant alimony. Evans v. Evans, 191 Ga. 752, 14 S.E.2d 95 (1941).

Former Code 1933, § 30-213 (see now O.C.G.A. § 19-6-10) should be construed and applied in connection with former Code 1933, §§ 30-211 and 30-212 (see now O.C.G.A. §§ 19-6-8 and19-6-9), which authorize a husband by deed to make provision for his wife in lieu of alimony, but on failure to make such provision voluntarily he may be compelled to do so in equity. Evans v. Evans, 191 Ga. 752, 14 S.E.2d 95 (1941).

Statute plainly provided for alimony which may be sought in action for alimony alone. The wife's right cannot be defeated by a failure of the husband to obtain a divorce. Ridgeway v. Ridgeway, 224 Ga. 310, 161 S.E.2d 866 (1968).

Statute did not operate to deny maintenance of alimony action when divorce was pending in another state at the time the proceeding for alimony was filed in this state. Hicks v. Hicks, 226 Ga. 798, 177 S.E.2d 690 (1970).

Statute, insofar as the statute required personal service upon the other party, applied only when no divorce was pending at the time such action for alimony was filed and when an original action for alimony was filed and when the original action for alimony and separate maintenance was brought by the wife against the husband while the parties are living separate and apart. Walker v. Walker, 228 Ga. 615, 187 S.E.2d 289 (1972).

Court cannot award alimony if proceedings were not under former Code 1933, § 30-202 (see now O.C.G.A. § 19-6-3) for temporary alimony pending divorce under former Code 1933, § 30-213 (see now O.C.G.A. § 19-6-10) for alimony if no action for divorce was pending, these being the only two instances when a court can award alimony. Henderson v. Henderson, 86 Ga. App. 812, 72 S.E.2d 731 (1952).

Cause of separation was immaterial in a suit under this statute. Glass v. Wynn, 76 Ga. 319 (1886).

That cause of separation is immaterial does not establish inviolable rule that the mere fact of separation (not mutually voluntary) will give to the wife the right of alimony. Coley v. Coley, 128 Ga. 654, 58 S.E. 205 (1907); Sikes v. Sikes, 143 Ga. 314, 85 S.E. 193 (1915).

Wife cannot maintain proceeding under statute against husband who was minor, without a guardian ad litem. Huley v. Huley, 154 Ga. 321, 114 S.E. 184 (1922).

Joinder of parties.

- In a proceeding for alimony, injunction and receiver and other necessary relief may be granted, and to this end all necessary parties may be joined as defendants with the husband. Price v. Price, 90 Ga. 244, 15 S.E. 774 (1892); Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685 (1956).

General provisions regarding service of process did not apply to proceeding for alimony. In such cases there are special statutory methods of service, and in them there are no provisions for service upon the opposite party by leaving a copy at that person's place of residence or most notorious place of abode. In these instances, personal service was necessary. Strickland v. Willingham, 49 Ga. App. 355, 175 S.E. 605 (1934).

Notice required by statute must be served upon defendant personally, and not upon defendant's counsel, and the service must be personal, and made by the sheriff or a deputy in order to confer upon the court jurisdiction of the defendant and the subject-matter. Stallings v. Stallings, 127 Ga. 464, 56 S.E. 469 (1907); Chapman v. Chapman, 157 Ga. 330, 121 S.E. 328 (1924).

Leaving notice at defendant's most notorious place of abode is insufficient to give the court jurisdiction. Baldwin v. Baldwin, 116 Ga. 471, 42 S.E. 727 (1902).

Cited in Clark v. Clark, 78 Ga. 79 (1886); Giradot v. Giradot, 170 Ga. 905, 154 S.E. 352 (1930); Carroll v. Carroll, 173 Ga. 310, 160 S.E. 342 (1931); Kennedy v. Kennedy, 182 Ga. 586, 186 S.E. 553 (1936); Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937); McCallie v. McCallie, 192 Ga. 699, 16 S.E.2d 562 (1941); Williams v. Williams, 194 Ga. 332, 21 S.E.2d 229 (1942); Allen v. Allen, 194 Ga. 591, 22 S.E.2d 136 (1942); Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943); Lawrence v. Lawrence, 196 Ga. 204, 26 S.E.2d 283 (1943); Cox v. Cox, 197 Ga. 260, 29 S.E.2d 83 (1944); Acree v. Acree, 201 Ga. 359, 40 S.E.2d 54 (1946); Dempsey v. Dempsey, 203 Ga. 225, 46 S.E.2d 156 (1948); Moore v. Moore, 205 Ga. 355, 53 S.E.2d 343 (1949); Gaither v. Gaither, 205 Ga. 572, 54 S.E.2d 600 (1949); Murphey v. Murphey, 215 Ga. 19, 108 S.E.2d 872 (1959); Kennison v. Lee, 217 Ga. 155, 121 S.E.2d 821 (1961); Allen v. Allen, 227 Ga. 845, 183 S.E.2d 356 (1971).

Voluntary Separation

Wife has right to sue for alimony, after voluntary separation, without suing for divorce, and without the necessity of showing a legal residence as required in a suit for divorce. Craig v. Craig, 53 Ga. App. 632, 186 S.E. 755 (1936).

By the terms of the statute, provision was made for the grant of alimony when the husband and wife shall be living separate, or shall be bona fide in a state of separation, and there shall be no action for divorce pending. Shepherd v. Shepherd, 236 Ga. 425, 223 S.E.2d 818 (1976).

Action for separate maintenance was separate from divorce action.

- Although an action for separate maintenance and an action for divorce both grow out of the marriage relationship and relate to the same subject matter, they have different purposes and raise different questions. An action for separate maintenance is authorized when spouses are living separately or in a bona fide state of separation and there is no action for divorce pending, pursuant to O.C.G.A. § 19-6-10. Pampattiwar v. Hinson, 326 Ga. App. 163, 756 S.E.2d 246 (2014).

Agreement to live apart constitutes voluntary separation.

- When a husband and wife agreed that she should live at her sister's (he living at a different place), and that he would support her, it amounted to a voluntary separation, and a petition for alimony could be brought. Hawes v. Hawes, 66 Ga. 142 (1880).

Spouse need not show grounds for divorce if bona fide voluntary separation shown.

- If a wife brings an action for temporary and permanent alimony without a prayer for divorce, under former Code 1933, § 30-213 (see now O.C.G.A. § 19-6-10), and the undisputed evidence shows not only a bona fide state of separation, but that the original separation arose by mutual agreement of the parties, it was unnecessary for the wife to show cruel treatment or some other legal ground for a divorce, or that her husband had "abandoned" her or "driven her from the home," as provided by former Code 1933, §§ 30-204 and 30-210 (see now O.C.G.A. § 19-6-4), or that acts of the husband and not of herself caused the separation, in order to authorize the judge to exercise the judge's discretion and allow temporary alimony. Fulenwider v. Fulenwider, 188 Ga. 856, 5 S.E.2d 20 (1939).

Determining Alimony and Child Support

In actions for alimony without divorce, judges are empowered to determine care and custody of minor children pending the litigation, and judges are empowered to provide for their permanent custody thereafter. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941).

Alimony granted shall be suspended "when a petition for divorce is filed bona fide by either party and the judge presiding has made his order on the motion for alimony." Shepard v. Shepard, 236 Ga. 425, 223 S.E.2d 818 (1976).

Suspension of alimony when petition for divorce filed.

- Grant of alimony when the husband and wife shall be living separate, or shall be bona fide in a state of separation, and there shall be no action for divorce pending shall be suspended when a petition for divorce shall be filed bona fide by either party, and the judge presiding shall have made the judge's order on the motion for alimony. Tobin v. Tobin, 93 Ga. App. 568, 92 S.E.2d 304 (1956).

Separate maintenance orders superseded by divorce decree.

- Trial court's order setting aside prior separate maintenance orders on the basis of the husband's concession as to cohabitation with the wife was superfluous since the orders that were entered in connection with the prior separate maintenance action were superseded by a final divorce decree. Southworth v. Southworth, 265 Ga. 671, 461 S.E.2d 215 (1995).

Custody award not necessarily superseded by divorce action.

- When permanent child custody has been awarded to a party in a separate maintenance proceeding, the other party is not necessarily entitled to obtain a change of custody in a subsequent divorce action because the Child Custody Intrastate Jurisdiction Act, O.C.G.A. Art. 2, Ch. 9, T. 19, acts as a constraint. Thompson v. Thompson, 241 Ga. App. 616, 526 S.E.2d 576 (1999).

Prior maintenance award superseded by permanent alimony award in divorce action.

- When, in a divorce case, the trial court adjudicates the issue of permanent alimony, a prior maintenance award is entirely superseded. Browne v. Browne, 242 Ga. 107, 249 S.E.2d 594 (1978).

When a petition for divorce is filed after a separate maintenance order has been entered, an order for alimony entered in the divorce case shall be a substitute for the separate maintenance order. Browne v. Browne, 242 Ga. 107, 249 S.E.2d 594 (1978).

When divorce decree silent as to alimony.

- When such alimony as provided for by statute had been granted the wife, and subsequently a total divorce granted the husband, but the divorce decree was silent as to alimony, the divorce decree did not have the effect of rendering the alimony decree functus officio. Tobin v. Tobin, 93 Ga. App. 568, 92 S.E.2d 304 (1956); Shepard v. Shepard, 236 Ga. 425, 223 S.E.2d 818 (1976).

Subsequent divorce without alimony order not defense to liability for permanent alimony previously ordered.

- When a final decree of permanent alimony has been entered, to which no exception was taken, it is no defense to the husband's liability therefor that subsequently to that judgment one of the parties obtained a total divorce, in the decree for which no reference was made to alimony. Tobin v. Tobin, 93 Ga. App. 568, 92 S.E.2d 304 (1956).

Lump sum award part of separate estate.

- Lump sum alimony or property division made in a separate maintenance action becomes part of the separate estate of the party to whom it is awarded; only a periodic alimony award is affected by the subsequent award of alimony in a divorce case. Goodman v. Goodman, 253 Ga. 281, 319 S.E.2d 455 (1984).

Assets acquired after separate- maintenance judgment not subject to equitable division.

- Employer and employee contributions to the husband's deferred-compensation accounts, stock-option plans, and other assets acquired after a 1980 separate-maintenance judgment were not marital property subject to equitable division, regardless of whether they were categorized as newly acquired assets or as appreciation of previously awarded assets. Goodman v. Goodman, 257 Ga. 63, 355 S.E.2d 62 (1987).

Previous award of alimony, whether temporary or permanent, is not abated by mere filing of divorce action by the wife. Roberts v. Roberts, 212 Ga. 770, 95 S.E.2d 689 (1956).

Dismissal of permanent alimony action does not bar wife's right to past due temporary alimony.

- Dismissal of the action for alimony does not terminate the right of the wife to enforce the installments of temporary alimony which became due before such dismissal. Williams v. Williams, 194 Ga. 332, 21 S.E.2d 229 (1942).

Previous award of right to temporary alimony terminates on dismissal of action.

- When a wife's petition for permanent and temporary alimony was dismissed for want of prosecution, a previous award of temporary alimony to the wife, based upon such petition, terminates with such dismissal. Williams v. Williams, 194 Ga. 332, 21 S.E.2d 229 (1942).

Until there is proceeding by petition, judge has no jurisdiction to grant alimony under this statute. That statute contemplated a suit with process duly issued. Wilson v. Wilson, 170 Ga. 340, 153 S.E. 9, later appeal, 170 Ga. 341, 153 S.E. 10 (1930).

Consolidation of husband's divorce action with wife's alimony action did not eliminate separate suit under former Code 1933, § 30-213 (see now O.C.G.A. § 19-6-10) and become merely a suit for divorce or divorce and alimony under former Code 1933, §§ 30-204 and 30-210 (see now O.C.G.A. § 19-6-4) since the granting of a divorce was necessary to sustain a verdict for alimony. Craddock v. Foster, 205 Ga. 534, 54 S.E.2d 406 (1949).

Prior decree refusing divorce no bar.

- Verdict and decree against the wife in the suit for divorce was no bar to the allowance of alimony to her in a subsequent proceeding brought under the statute. King v. King, 151 Ga. 361, 106 S.E. 906 (1921); Brisendine v. Brisendine, 152 Ga. 745, 111 S.E. 22 (1922).

Action could proceed for alimony alone when prayer for divorce stricken.

- In an action in which the petitioner prayed for divorce, equitable relief, temporary and permanent alimony, and when in the course of the proceeding the prayer for divorce was stricken, the petition as amended could proceed as to alimony. Estes v. Estes, 192 Ga. 94, 14 S.E.2d 681 (1941).

When action for permanent alimony has been dismissed for want of prosecution, no further relief can be granted thereon. A petition "supplementary" to and expressly made a part of the first petition will not authorize a grant of permanent alimony or additional temporary alimony to the wife. Williams v. Williams, 194 Ga. 322, 21 S.E.2d 229 (1942).

Error to fail to instruct on what constitutes cruel treatment justifying separation and alimony.

- Trial court erred in failing to instruct the jury as to what would constitute such cruel treatment as would justify the wife in leaving her husband's home and thereby bring about a state of separation so as to entitle her to permanent alimony. Atha v. Atha, 210 Ga. 540, 81 S.E.2d 454 (1954).

After a suit was brought for permanent alimony, based on a bona fide state of separation under former Code 1933, §§ 30-2504, 30-210, and 30-213 (see now O.C.G.A. §§ 19-6-4 and19-6-10), and the wife complained that she was compelled to leave her husband's home on account of cruel treatment, the most important part of the court's instructions must necessarily relate to the character of the acts and the conduct on the part of the husband which the jury would be authorized to find amounted to cruel treatment. Atha v. Atha, 210 Ga. 540, 81 S.E.2d 454 (1954).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24A Am. Jur. 2d, Divorce and Separation, §§ 633, 924.

19 Am. Jur. Pleading and Practice Forms, Parent and Child, § 56 et seq.

C.J.S.

- 27B C.J.S., Divorce, § 500 et seq.

ALR.

- Jurisdiction of court of state of which neither party is a resident over suit between husband and wife for alimony or division of property rights without divorce, 74 A.L.R. 1242.

Earning capacity or prospective earnings of husband as basis for alimony, 139 A.L.R. 207.

Jurisdiction of equity courts in the United States, without the aid of statute expressly conferring it, to entertain independent suit for alimony or separate maintenance without divorce or judicial separation, 141 A.L.R. 399.

Defenses available to husband in civil suit by wife for support, 10 A.L.R.2d 466; 36 A.L.R.4th 502.

Allowance of alimony in lump sum in action for separate maintenance without divorce, 61 A.L.R.2d 946.

Adjudication of property rights of spouses in action for separate maintenance, support, or alimony without divorce, 74 A.L.R.2d 316.

Power of court which denied divorce, legal separation, or annulment, to award custody or make provisions for support of child, 7 A.L.R.3d 1096.

Excessiveness or adequacy of amount of money awarded as separate maintenance, alimony, or support for spouse without absolute divorce, 26 A.L.R.4th 1190.

Reconciliation as affecting decree for limited divorce separation, alimony, separate maintenance, or spousal support, 36 A.L.R.4th 502.

Divorce: excessiveness or adequacy of combined property division and spousal support awards - modern cases, 55 A.L.R.4th 14.

19-6-11. Voluntary separation, abandonment, or driving off of spouse - Petition for alimony or child support when no divorce pending - Appeals.

A judgment of the superior court in a case brought under Code Section 19-6-10 shall be appealable on the same terms as are prescribed in divorce cases.

(Ga. L. 1870, p. 413, § 5; Code 1873, § 1748; Code 1882, § 1748; Civil Code 1895, § 2468; Civil Code 1910, § 2987; Code 1933, § 30-214; Ga. L. 1946, p. 726, § 1.)

JUDICIAL DECISIONS

Appeals in temporary alimony cases generally should not be taken unless the trial court committed grievous error or a gross abuse of discretion. Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915 (1977).

Cited in Walker v. Walker, 178 Ga. 663, 173 S.E. 828 (1934); Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937); Langston v. Langston, 189 Ga. 120, 5 S.E.2d 336 (1939).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24A Am. Jur. 2d, Divorce and Separation, § 750.

C.J.S.

- 27B C.J.S., Divorce, § 500 et seq.

ALR.

- Remarriage as affecting right to appeal from divorce decree, 29 A.L.R.3d 1167.

Spouse's acceptance of payments under alimony or property settlement or child support provisions of divorce judgment as precluding appeal therefrom, 29 A.L.R.3d 1184.

19-6-12. Voluntary separation, abandonment, or driving off of spouse - Effect of subsequent cohabitation between spouses on permanent alimony.

The subsequent voluntary cohabitation of spouses, where there has been no total divorce between them, shall annul and set aside all provision made either by deed or decree for permanent alimony; provided, however, that the rights of children under any deed of separation or voluntary provision or decree for alimony shall not be affected by such subsequent voluntary cohabitation of the spouses.

(Orig. Code 1863, § 1698; Code 1868, § 1741; Code 1873, § 1751; Code 1882, § 1751; Civil Code 1895, § 2471; Civil Code 1910, § 2990; Code 1933, § 30-217.)

JUDICIAL DECISIONS

Statute applies when two events occur: when parties (1) while married to each other, (2) voluntarily cohabit with each other. Travis v. Travis, 227 Ga. 406, 181 S.E.2d 61 (1971).