The spouse who asserts a claim in a Georgia divorce carries the burden of proving it.
Opposing a Claim Does Not Shift the Burden
In Hussey v. Hussey, 273 Ga. 735 (2001), a husband filed for divorce and his wife counterclaimed for divorce, alimony, and damages for battery. After all the evidence was in, the divorce was granted on the wife’s own motion, leaving only her alimony and damages claims for the jury. The trial court reasoned that the husband bore the burden of showing his wife was not entitled to alimony. The Georgia Supreme Court disagreed: “An attempt to negate a claim for alimony does not shift the burden of proof to the party contesting alimony.”
So the fact that your spouse fights your claim does not move the proof onto your spouse.
Why the Burden Decides Who Speaks Last
Under OCGA 9-10-186, “[i]n civil actions, where the burden of proof rests with the plaintiff, the plaintiff is entitled to the opening and concluding arguments except that if the defendant introduces no evidence or admits a prima-facie case, the defendant shall be entitled to open and conclude.”
Hussey applied that rule, restating that “[t]he party on whom the burden of proof rests has the right to open and conclude the cause before the jury.” Because the wife bore the burden on every issue that reached the jury, she was entitled to open and close, and letting her husband do it instead required reversal.
Waiting Does Not Waive It
The Court also held that the wife had not given up the right by waiting to raise it until after her husband testified. Until the divorce was granted, he was still the plaintiff pressing his own claim and still carried the burden on it, so there was nothing for her to assert yet.
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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!