Georgia used to void any agreement in which one spouse promised not to defend the other’s divorce, but that rule no longer applies.
The Old Rule
In Beverly v. Beverly, 209 Ga. 468 (1953), a wife signed a settlement giving her monthly support, a house for life, and a car, and in exchange agreed that her husband would file for divorce, that she would make no defense, and that the case could be tried at the first term. The Georgia Supreme Court held the entire agreement void as contrary to public policy, and let her ask the court for alimony anyway despite everything she had already accepted under it.
What Changed in 1981
In Sanders v. Colwell, 248 Ga. 376 (1981), the Georgia Supreme Court abandoned that approach. It “decline[d] to require that this ‘fine line’ continue to be drawn” between a contract incident to a divorce and one facilitating a divorce, and declared “that agreements in contemplation of divorce settling issues of alimony, property division, child custody, child support and visitation are not invalid.” In doing so it overruled Warren v. Warren, 235 Ga. 234 (1975), and its predecessors.
So a settlement is not thrown out today merely because one spouse also promised not to fight the divorce.
What Still Applies
The bar in OCGA 19-5-4(a)(1) is still on the books. A court may refuse 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.”
That is a different question. Agreeing not to defend a case is not the same as agreeing to manufacture the misconduct the case is built on.
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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!