A spouse whose desertion caused the separation cannot receive alimony in Georgia, but the other spouse has to prove it.
What the Statute Says
OCGA 19-6-1(b) provides that “[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.” The same subsection requires the court to hear evidence of the cause of the separation even in a no-fault divorce. What desertion means is covered in our posts on desertion as a ground for divorce.
Who Has to Prove It
The burden is on the spouse resisting alimony. In Vereen v. Vereen, 284 Ga. 755 (2008), the Georgia Supreme Court described the statute as requiring that spouse to “establish[] by a preponderance of the evidence that the separation between the parties was caused by [the other] party’s adultery or desertion.”
Moving Out Is Not Automatically Desertion
In Cormier v. Cormier, 280 Ga. 693 (2006), the husband argued that his wife had deserted him. His only evidence was a note she left saying she “needed to get away for awhile,” written about two months before she filed for divorce. The court held that her “separation from husband for the two months preceding the filing for divorce did not establish wife’s desertion by a preponderance of the evidence,” and upheld the alimony award to her.
The Rule Is Older Than the Statute
The bar predates the current code. In Hudson v. Hudson, 189 Ga. 410 (1939), the Georgia Supreme Court held that “when the wife deserts her husband she will be denied support from him, by whatever name this support may be called, and regardless of the nature of the proceedings whereby it is sought.” The statute now applies to either spouse.
So leaving does not cost you alimony by itself. Leaving without cause, without consent, and with the intent to end the marriage can, if your spouse proves it.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!