No. Answering a cruel treatment petition with proof of adultery does not trigger Georgia’s like conduct bar.
The Case
Schwartz v. Schwartz, 222 Ga. 460 (1966), decided it. A husband sued his wife for divorce on the ground of cruel treatment, all of it occurring before the parties separated in 1959. She denied the cruelty and answered that he had committed adultery.
His adultery was not in serious dispute. After a New York consent order of separation, he obtained a Mexican divorce in 1961, remarried, and had two children with his second wife. A New York court later declared the Mexican divorce void.
The Holding
The wife argued that the trial court should have charged the jury, without any request from her, that no divorce shall be granted where both parties are guilty of like conduct.
The Georgia Supreme Court disagreed. It was “not error for the court to fail to charge that if both parties had been guilty of like conduct then no divorce should be granted where plaintiff charged defendant with cruel treatment and defendant in her answer charged plaintiff with adultery committed after their separation and after he had procured a Mexican divorce, which was later declared void by a New York court, as they were not guilty of like conduct.”
What That Leaves You
Blois v. Blois, 234 Ga. 475 (1975), later read Schwartz the same way, treating Georgia’s separate fault grounds as not being like conduct as to one another. The bar in OCGA 19-5-4(a)(3) is narrower than it sounds, and Georgia does not refuse a divorce simply because both spouses behaved badly.
That does not make the adultery irrelevant. It can be its own ground for divorce, and it can bear on alimony. It is just not a defense to a cruel treatment claim.
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