2020 Georgia Code
Title 19 - Domestic Relations
Chapter 6 - Alimony and Child Support
Article 1 - General Provisions
§ 19-6-1. Alimony Defined; When Authorized; How Determined; Lien on Estate of Party Dying Prior to Order; Certain Changes in Parties' Assets Prohibited
- 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.
- 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.
- 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.
- 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.
- 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 L. 1979, p. 466, § 6, superseded the former version of Code 1933, § 30-201, in that it changed the language of the former section to provide that alimony may be assessed against either spouse.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
- Valid Marriage Required
- Factors to Be Considered
- Temporary Alimony
- Death of Party
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).
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.