No. A Georgia court cannot condition your divorce on having tried to save the marriage first.
The Case
Whitmire v. Whitmire, 236 Ga. 153 (1976), settles it. Both spouses pled that the marriage was irretrievably broken. The trial court nonetheless refused to grant the divorce, entering findings that both parties were guilty of cruel treatment.
The evidence, in the Georgia Supreme Court’s summary, was that “the parties had been quarreling, threatening, fighting, and even shooting.”
The Court described what the trial court’s order actually accomplished: “The effect of the trial court’s order is to require these parties to reunite and make every reasonable effort to make a successful marriage, or remain separate and married.”
The Holding
That is not the law. Where both parties plead that the marriage is irretrievably broken, the Court held, “there is no requirement that the evidence show that the parties made a good faith effort to make a successful marriage, nor that the marriage became irretrievably broken through no fault of either party.”
Refusing the divorce on that basis “was therefore error.”
Efforts Still Count as Evidence
There is a distinction worth keeping straight. In a contested case, what you did or did not try is relevant, just not required.
As Whitmire put it, “[i]n a contested ‘irretrievably broken’ divorce case, evidence of efforts to save the marriage, or the absence thereof, is to be considered with all other relevant evidence in determining whether there is a possibility of reconciliation.”
So counseling and attempted reconciliations are admissible on the question of whether hope remains. They are not a prerequisite to filing.
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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!