If there is evidence that both spouses are guilty of like conduct, a Georgia judge has to charge the jury on it whether anyone asks or not.
The Rule
Brackett v. Brackett, 217 Ga. 84 (1961), states it: “It is reversible error, when there is evidence that both parties to a divorce action are guilty of like conduct of cruel treatment, for the trial judge to fail to charge, without request,” that “if both parties are guilty of like conduct, then no divorce shall be granted.”
Two words in that sentence do the work. “Evidence,” because the trigger is what the testimony shows and not only what the pleadings say. And “without request,” because the duty falls on the judge and is not waived by a lawyer who fails to ask.
Examples
In Brackett itself, a husband sued for cruel treatment and his wife recriminated with cruel treatment of her own. Each said the other did “fuss, quarrel, and nag” and did various things to humiliate and embarrass them, and there was evidence to support each charge. The jury granted the husband a divorce. The Georgia Supreme Court reversed for the missing charge.
Similarly, in McClellan v. McClellan, 224 Ga. 355 (1968), both spouses sued on the ground of cruel treatment with evidence supporting each. The trial court “erred in failing to charge, even without request,” that if the jury found both parties guilty of like conduct, “the jury should refuse a divorce to either of them.”
The Grounds Pleaded Do Not Control
Brackett went further. Explaining Moon v. Moon, 216 Ga. 627 (1961), it held that even where one spouse sues for cruel treatment and the other for desertion, the charge is still required if there is evidence that both were guilty of like conduct.
Contact Us
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!