Yes. The six month residency requirement applies to the spouse who files for divorce in Georgia, not to the spouse who counterclaims for one.
What the Statute Says
OCGA 19-5-5(b) lists what a divorce petition has to show. One of those things is “[t]hat the applicant meets the residence requirements for bringing an action for divorce or that the applicant is bringing a counterclaim and is not required to meet the residence requirements.”
The residence requirement itself is in OCGA 19-5-2, which bars a Georgia court from granting a divorce to anyone who has not been a bona fide resident of the state for six months before filing. The counterclaim exception is written into the statute, so nothing more is needed to use it.
Why This Comes Up
The usual situation is a spouse who moves to Georgia, waits out the six months, and files here while you are still living somewhere else. You can answer, plead your own grounds, and ask the court for a divorce of your own, even though you could not have started the case yourself.
What the Exception Does Not Excuse
Residence is one requirement. Venue is another, and it is not waived by the same statute. In Herring v. Herring, 246 Ga. 462 (1980), a wife filed for separate maintenance in DeKalb County and her husband counterclaimed for divorce there. The Georgia Supreme Court held that venue for a counterclaim for divorce lies only in the county where the spouse answering that counterclaim lives, which was Rockdale County. The Court called this “a trap for the unwary.”
So a counterclaim for divorce is available to you no matter how long you have lived here. Where it can be heard is a separate question.
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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!