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

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).