Condonation is something the defending spouse has to raise. A Georgia judge will not apply it for you.
What the Statute Says
OCGA 19-5-4(b) provides that “the respondent may plead in defense the conduct of the party bringing the action and the jury may, on examination of the whole case, refuse a divorce.” The right belongs to the spouse being sued, and it is exercised by pleading.
It Is an Affirmative Defense
In Adams v. Adams, 213 Ga. 875 (1958), the Georgia Supreme Court put it plainly: “Voluntary condonation and cohabitation subsequent to the acts complained of are matters of affirmative defense in the trial of the case upon its merits.”
So condonation belongs in your answer. Leave it out and you are relying on the judge to notice something you never asked for.
It Is Not Decided at a Temporary Hearing
Do not expect the issue resolved early. In Lybrand v. Lybrand, 204 Ga. 312 (1948), a husband appealed an award of temporary alimony and attorney’s fees, arguing that the couple had cohabited as husband and wife right up to the separation.
The Georgia Supreme Court affirmed the award. “Whether the wife condoned the alleged acts of cruelty is peculiarly a matter of defense in a trial of the case on its merits.” Even a strong condonation argument does not shut down a temporary award, because the merits are not what a temporary hearing decides.
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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!