§ 19-5-3.Grounds for total divorce

Georgia recognizes thirteen grounds for a total divorce, and every petition must name the statutory ground relied on (§ 19-5-5(b)(5)). The last ground, that the marriage is irretrievably broken, requires no proof of misconduct, but it carries a firm timing rule. Under no circumstances may the court grant a divorce on it until not less than 30 days from the date of service on the respondent. The clock starts at service, not at filing. Fault can still matter even in a no-fault case. Under § 19-6-1(b), a party is not entitled to alimony if the separation was caused by that party’s adultery or desertion, and the court must hear evidence of the cause of the separation regardless of the divorce ground.

The first five grounds concern defects present when the couple married: intermarriage within the prohibited degrees of blood or marriage (see § 19-3-3); mental incapacity at the time of the marriage; impotency at the time of the marriage; force, menace, duress or fraud in obtaining the marriage; and the wife’s pregnancy, at the time of the marriage, by a man other than the husband, unknown to the husband. Several of these overlap with the causes that make a marriage void. Section 19-4-2 lets parties to a void marriage choose divorce if grounds exist, and under § 19-5-15 a divorce granted for a cause that made the marriage void originally annuls the marriage from its inception.

The next seven grounds concern conduct or conditions during the marriage: adultery by either party after marriage; willful and continued desertion by either party for one year; conviction of either party for an offense involving moral turpitude with a sentence of imprisonment in a penal institution of two years or longer; habitual intoxication; cruel treatment, defined as the willful infliction of pain, bodily or mental, that reasonably justifies apprehension of danger to life, limb or health; incurable mental illness; and habitual drug addiction, meaning addiction to a controlled substance as defined in Article 2 of Chapter 13 of Title 16. Section 19-5-4 bars a divorce in cases of collusion, consent, like conduct or condonation, and § 19-5-11 treats confessions of adultery or cruel treatment with caution.

The incurable-mental-illness ground has the strictest proof. The ill spouse must have been adjudged mentally ill by a court or certified as mentally ill by two physicians who personally examined the spouse; must have been confined in an institution or under continuous treatment for at least two years immediately before the action began; and the institution’s superintendent or chief executive officer and one competent physician appointed by the court must give a certified statement under oath that the spouse cannot understand the marriage relationship and that recovery cannot be expected. Notice must go to the spouse’s guardian and the superintendent, or to a court-appointed guardian ad litem if there is no guardian. The divorce does not change the parties’ status as to the ill spouse’s support and maintenance. The section was last amended in 2016.