A Georgia divorce defendant can respond with a motion to dismiss, with an answer, or with both.
Divorce Uses the Ordinary Pleading Rules
OCGA 19-5-8 is the starting point: “The same rules of pleading and practice applicable to ordinary civil actions shall apply to actions for divorce, alimony, and custody of minor children, except as otherwise specifically provided in this chapter.”
So there is no special divorce vocabulary. A motion to dismiss attacks the petition itself, such as where it shows on its face that a party could not lawfully have married. An answer is where everything that depends on facts belongs.
“Plea” Is an Older Word
Older Georgia divorce opinions speak of filing a “plea,” and OCGA 19-5-4(b) still says a respondent “may plead in defense” the other spouse’s conduct. But Roberts v. Farmer, 127 Ga. App. 237 (1972), refers to “the abolition of pleas as such” under the Civil Practice Act. There is no longer a separate pleading by that name.
The label is not what decides it. In Roberts, a defendant raised failure of consideration under the obsolete name of a plea instead of in the answer. The Court of Appeals held it still counted, because the filing gave the other side “fair notice of what he must meet as a defense.” What matters is that the defense is in front of the judge and that your spouse knows what it is.
A Motion Will Not Reach the Statutory Defenses
The four bars in OCGA 19-5-4(a) are a different matter. Subsection (b) commits them to the trier of fact, providing that the respondent may plead the conduct of the party bringing the action and that “the jury may, on examination of the whole case, refuse a divorce.”
Those defenses are proven at trial, not argued away at the beginning.
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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!