2020 Georgia Code
Title 19 - Domestic Relations
Chapter 5 - Divorce
§ 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).

- 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.

- 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).

ANALYSIS

• General Consideration
• Jury Trial
• Application

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).

- 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).

- 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).

- 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).

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).

- 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).

- 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 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).

- 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).

- 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).

- 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).

- 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).

- 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.

- 27A C.J.S., Divorce, § 5 et seq.

- 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.