In Georgia you can ask for a divorce in your answer, and the court can grant it to you rather than to the spouse who filed first.
The Statute
OCGA 19-5-6 is short and does the whole job: “When a petition for divorce is filed, the respondent may recriminate in his answer and ask a divorce in his favor. If, at the trial, the court or jury believes that the respondent rather than the petitioner is entitled to a divorce, they may so find upon legal proof.”
Recrimination in this form works as a counterclaim. You are not just denying what your spouse alleged – you are putting your own grounds in front of the court and asking for relief on them.
What the Statute Does Not Do
Read quickly, OCGA 19-5-6 looks like it lets a judge hand both spouses a divorce. It does not.
The Georgia Supreme Court took an older decision apart on exactly this point in Brackett v. Brackett, 217 Ga. 84 (1961). The statute, it held, “clearly provides that a respondent in a divorce action may recriminate and ask for a divorce, (and not that both parties may be granted a divorce).”
The word that does the work is “instead.” What the statute authorizes is a finding that the respondent, “instead of the petitioner, is entitled to divorce.”
Why Anyone Would Bother
If both spouses want out, it may not matter much who is granted the divorce. It matters when one spouse does not want out, when the grounds alleged are damaging, or when the conduct that caused the separation will be argued about later on alimony and property.
Recriminating with grounds of your own is how you keep your version of the marriage in the case rather than only denying your spouse’s.
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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!