2020 Georgia Code
Title 19 - Domestic Relations
Chapter 6 - Alimony and Child Support
Article 1 - General Provisions
§ 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.)

- For note discussing Georgia's child support laws, their problems, and some proposed solutions, see 11 Ga. L. Rev. 387 (1977).

ANALYSIS

• General Consideration
• Voluntary Separation
• Determining Alimony and Child Support

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).

- 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).

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).

- 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).

- 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).

- 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).

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).

- 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).

- 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).

- 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).

- 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 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).

- 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 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).

- 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 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).

- 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).

- 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).

- 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).

- 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.

- 27B C.J.S., Divorce, § 500 et seq.

- 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.