Settling your divorce is not collusion, and a settlement agreement by itself is no reason for a Georgia court to refuse the divorce.
The Question the Court Asks
OCGA 19-5-4(a)(1) bars a divorce where “[t]he adultery, desertion, cruel treatment, or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing a divorce.” The focus is on the ground – whether the misconduct being sued on was arranged – not on whether the spouses reached terms.
What a Settlement Can Safely Contain
Bass v. Bass, 222 Ga. 378 (1966), is the clearest illustration. The husband argued that the couple’s agreement amounted to consent to the divorce and to collusion barring the action. The Georgia Supreme Court disagreed. The document “merely recited the fact that the suit was about to be filed, agreed upon division of property, the custody of their child, waived service of the suit, agreed for a trial of the case at the first term of the court and merely requested the court to approve the marriage settlement agreement.” None of that, the court held, “amounted to consent for divorce, or collusion.”
Settling a Case Both Spouses Filed
Similarly, in Wagner v. Wagner, 238 Ga. 404 (1977), a wife tried to set aside her divorce decree on the theory that the agreement it incorporated was void because its object was dissolving the marriage. The court found no merit in it. The agreement “had as its object the settlement of pending litigation in which both parties had sought a divorce.”
So the line falls between papering over an invented ground and resolving a dispute that already exists.
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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!