A Georgia divorce filing sidelines a pending separate maintenance case. A divorce filed in another state does not.
It Happens by Statute, Not by Order
In Allen v. Allen, 194 Ga. 591 (1942), a wife had an alimony award, and her husband then filed for divorce, where the court made a new temporary alimony award “in lieu of all payments now being made.”
She complained that the second order never said the first proceeding was abated. The Georgia Supreme Court held that did not matter, because “the terms of the statute itself rendered the former proceeding ‘in abeyance.’” No one has to ask for it and no judge has to order it.
The Court also refused to consolidate the two cases, “since the purposes and questions involved in the two suits were different.”
An Out-of-State Divorce Does Not Count
Ward v. Ward, 223 Ga. 868 (1968), decides the other half. A husband had a divorce action pending in Alabama when his wife filed for alimony in Fulton County, and he argued her case had to abate.
It did not. The Court held that an action for alimony “will not abate upon a showing that a divorce action by the husband is pending in the State of Alabama.” It distinguished an earlier case where both suits had been filed in Georgia courts.
A Note on the Older Cases
Both decisions construe former Code section 30-213, the predecessor to OCGA 19-6-10. The operative language carried forward, and the current statute still conditions the action on there being “no action for divorce pending” and still provides that the proceeding “shall be held in abeyance” once a divorce is filed and the judge rules on alimony.
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