Misconduct that happens after the divorce is filed can still be pleaded, and a Georgia court cannot simply strike it out.
The Case
Rowell v. Rowell, 209 Ga. 572 (1953), is the decision. A wife sued her husband for divorce on the ground of cruel treatment. He denied it, recriminated by cross-action, and asked for a divorce in his own favor.
Nearly two years into the case he amended his answer to allege that she had committed adultery with a named man, on a date after the parties separated and after her suit was filed. The amendment was allowed and never demurred to. Then, in the middle of trial, the wife moved orally to strike it because the conduct came too late, and the judge struck it.
The Holding
The Georgia Supreme Court reversed. Its reasons were two.
First, the timing was no objection at all. The rule the Court adopted is that “a recriminatory charge of adultery committed by the plaintiff after the commencement of the [divorce] action is a valid defense,” and that on a proper application the court “should permit the defendant to put in a supplemental answer” setting it up.
Second, once the amendment was in, striking it took the defense away from the jury. “[I]t is elementary,” the Court said, “that a party to litigation has a right to have his written pleadings before the court and the jury upon the trial of the cause.”
Move Promptly
There is a condition attached. The application must come “at any time before the final decree, if such application is made immediately after the discovery of the fact.” So the time to amend is when you learn of the conduct, not when trial approaches.
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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!