Asking for temporary alimony is not the same as asking for something the court must still decide, and it will not keep a Georgia divorce alive.
The Case
Palmer v. Palmer, 212 Ga. 616 (1956), draws the line. A husband sued his wife for divorce on the ground of cruel treatment. She denied the cruelty, denied that they were even separated, and asked the court to deny him a divorce and to award her temporary alimony and attorney fees while the case was pending. She did not recriminate and she did not ask for permanent alimony.
At the hearing she testified that the two of them had gone on living together in the same house, in the same room, after the suit was filed. Her husband offered no evidence to dispute that. He moved instead for leave to dismiss his own petition, and the judge let him.
The Holding
The Georgia Supreme Court affirmed. “In this case there is no prayer for permanent alimony,” it said, “and a prayer for temporary alimony is not one for such affirmative relief as would preclude the plaintiff in this case from dismissing his suit for divorce.”
Temporary alimony rides on the divorce case. Permanent alimony is a claim of its own.
The Rule Has Been Restated Since
Palmer applied a dismissal statute that the Civil Practice Act, as Arrendale v. Arrendale, 228 Ga. 295 (1971), puts it, “expressly repealed.” What replaced it, now OCGA 9-11-41(a)(2), asks a different question: whether the defendant pleaded a counterclaim, and if so whether that counterclaim can go forward on its own.
The practical answer is unchanged. If you want the case to survive your spouse’s change of heart, plead a counterclaim asking for relief rather than a prayer that only carries you to the final hearing.
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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!