If a term in a Georgia divorce settlement agreement is genuinely ambiguous, the doubt goes against the spouse who drafted it or who undertook the obligation.
The Statute
OCGA 13-2-2(5) provides: “If the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred.” So ambiguities “are to be construed most strongly against the drafter for whose benefit the writing was prepared,” Coker v. Coker, 265 Ga. App. 720 (2004), and an ambiguous term “must be construed against the party undertaking the contractual obligations.” Pate v. Pate, 280 Ga. 796 (2006).
An Example
In Pate, a husband agreed to pay child support of “twenty-five (25) percent of [Husband’s] gross income each month,” then routed his earnings through a professional corporation and paid support only on the salary it paid him. The trial court found “gross income” ambiguous, construed it against the husband as the obligor to reach the earnings assigned to the corporation, and found an arrearage of more than $314,000. The Georgia Supreme Court affirmed.
Two Limits
The rule is a tiebreaker, not a first resort; it applies only if an ambiguity survives the other rules of construction. In Dean v. Dean, 361 Ga. App. 698 (2021), a husband argued a tax clause should be read against his ex-wife because her lawyer drafted it. The argument failed because, read as a whole, the clause was not ambiguous.
And the parties can contract out of it. In Young v. Stump, 294 Ga. App. 351 (2008), the agreement recited that it was “a joint effort of the parties” to be “construed with fairness as between the parties and not more strictly enforced against one or the other party,” and the Court of Appeals held the rule “does not apply in this case.” Many agreements contain that sentence, so check yours.
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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!