The spouse who asks a Georgia court to transfer or dismiss the divorce for forum non conveniens is the one who has to prove it.
Who Carries the Burden
In McInerney v. McInerney, 313 Ga. 462 (2022), the Georgia Supreme Court began with what is at stake: “The decision to dismiss a case properly filed in Georgia in favor of its resolution in a foreign forum is a momentous one that requires careful consideration in accordance with the provisions of the statute.” It then held that the burden of showing that the statutory factors support a dismissal “is on the moving party.”
The Burden Does Not Shift
The trial court in McInerney dismissed a Bryan County divorce in favor of Indiana, and one of its reasons was that the wife had offered “inadequate evidence” that her right to pursue her remedy would be compromised by the move. The Supreme Court held that this reversed the burden. It was the husband, as the moving party, “who has the burden of showing that this fourth factor favors dismissal.”
The court went on: “Though it may often be in the interest of the plaintiff to produce evidence with respect to forum non conveniens factors when opposing transfer or dismissal, the burden never leaves the moving party.”
What That Means for You
If your spouse moves to send the divorce elsewhere, you are not required to prove that Georgia is the better place. Your spouse has to prove that it is not. In practice you will still want to put your own evidence in front of the judge, because a trial court’s ruling on these motions is reviewed only for an abuse of discretion, and that is a hard standard to meet on appeal.
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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!