You can raise your spouse’s misconduct in a Georgia divorce without asking for a divorce yourself.
The Statute Gives You a Shield
OCGA 19-5-4(b) provides that “the respondent may plead in defense the conduct of the party bringing the action and the jury may, on examination of the whole case, refuse a divorce.”
Nothing in that sentence requires you to want a divorce. It gives the spouse who was sued a way to defeat the petition and stay married, which matters when you oppose the divorce outright.
You Can Prove It on Cross-Examination
Cohen v. Cohen, 196 Ga. 562 (1943), shows the defense being used this way. A wife sued her husband for divorce on the ground of cruel treatment. He made his whole case on cross-examination, trying to ask her whether she had been guilty of conduct like that she was charging against him. The judge cut the questioning off.
The Georgia Supreme Court reversed. “In a suit for divorce based on cruel treatment,” it held, “if it be shown that both parties have been guilty of like misconduct, no divorce shall be granted.” Refusing to let the husband ask “was harmful error.”
Pleading Misconduct Is Not the Same as Pleading a Ground
There is a limit to what a bare defense accomplishes. In Schwartz v. Schwartz, 222 Ga. 460 (1966), a wife answered her husband’s cruel treatment petition by alleging that he had committed adultery, but she did not pray for a divorce.
Because she had not sought a divorce on that ground, the Georgia Supreme Court held it was not error for the trial court to fail to charge the jury on adultery at all, no request for such a charge having been made.
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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!