No. OCGA 19-6-10 opens the door only when “there is no action for divorce pending” between the parties.
Why the Rule Exists
The point is to keep everything in one case. A separate maintenance action and a divorce action both decide support, so allowing them to run side by side would invite two courts to answer the same question differently.
What if a Divorce Is Filed Later
The statute anticipates that. A separate maintenance proceeding “shall be held in abeyance when a petition for divorce is filed bona fide by either party and the judge presiding has made his or her order on the motion for alimony. When so made, the order shall be a substitute for the aforesaid decree in equity as long as the petition is pending and is not finally disposed of on the merits.”
Notice that abeyance takes two steps. Filing the divorce alone is not enough. The divorce judge also has to rule on alimony.
Suspended Is Not Erased
Shepherd v. Shepherd, 236 Ga. 425 (1976), shows why the distinction matters. After a wife obtained an alimony award, her husband filed for divorce, and the divorce court denied her temporary alimony. He then stopped paying under the earlier award.
The Georgia Supreme Court held the earlier award was “merely ‘in abeyance’ pending final trial of the divorce case.” It also observed that “[s]hould the trial court in the divorce action adjudicate the issue of permanent alimony, the prior award will be entirely superseded.”
So a divorce filing suspends what you already have. Only a divorce decree that actually resolves alimony replaces it.
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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!