No. A spouse who recriminates and asks for permanent alimony has a claim of their own, and it does not disappear when the other side walks away.
The Rule
Cohen v. Cohen, 209 Ga. 459 (1953), states it. A husband sued his wife for divorce on the ground of desertion. She answered, recriminated by charging him with cruel treatment and abandonment, and prayed for permanent alimony.
The Georgia Supreme Court held that when a spouse pleads that way, “her cross-action is the legal equivalent of an independent suit for alimony,” and that “the defendant’s right to proceed with a cross-action for alimony is unaffected by a withdrawal, or by a dismissal for any reason, of the original suit.”
The Modern Version
The reasoning is now written into OCGA 9-11-41(a)(2), which does not allow a case to be dismissed over the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.
Reed v. Reed, 295 Ga. 574 (2014), applied that in a divorce. A husband filed for divorce, his wife counterclaimed for a divorce of her own plus retirement pay, equitable division, alimony, health insurance and attorney fees, and he then voluntarily dismissed his complaint. The Georgia Supreme Court held that her counterclaim “was a complete claim which could be adjudicated without regard to Husband’s complaint,” so the case went forward on her pleading alone.
The Practical Point
What protects you is asking for something. A recriminating answer that seeks permanent alimony, equitable division, or a divorce of your own puts a live claim in front of the court. An answer that only denies what your spouse alleged leaves nothing behind when the petition goes away.
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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!