Mutual fault will stop a Georgia divorce sought on a fault ground. It will not stop one sought on the ground that the marriage is irretrievably broken.
The Bar Is Aimed at the Fault Grounds
OCGA 19-5-4(a) is written around conduct. Its first two paragraphs name “[t]he adultery, desertion, cruel treatment, or intoxication complained of,” and the Georgia Supreme Court has read the whole section the same way. As it put it in Blois v. Blois, 234 Ga. 475 (1975), the statute “refers to four of those grounds, adultery, desertion, cruel treatment and intoxication (habitual).”
Irretrievable brokenness, the thirteenth ground at OCGA 19-5-3(13), is not one of the four. It requires no misconduct by anyone, so there is nothing for a like conduct finding to attach to.
The Same Evidence, Two Different Answers
Whitmire v. Whitmire, 236 Ga. 153 (1976), shows both halves at once. Each spouse sued for divorce on two grounds, cruel treatment and irretrievable brokenness. The trial judge denied the divorce on both.
On the fault ground, he was right, and nobody argued otherwise – the Court noted that “[t]he husband does not contend that the trial court erred regarding its findings that both parties were guilty of cruel treatment.” The like conduct bar did exactly what it is for.
On the no-fault ground he was reversed. Where both spouses plead that the marriage is irretrievably broken, the Court held, “[i]t was therefore error to refuse to grant a divorce to the parties on this ground.”
What That Means for You
If you want out of a Georgia marriage and your spouse can point to conduct of your own, the practical answer is to plead the no-fault ground. Recrimination has nothing to bite on there.
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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!