Considering Divorce in Georgia? Be Aware of the State’s Fault vs. No-Fault Options

Preparing for and executing the dissolution of a marriage is rarely an easy process. Many couples are satisfied with declaring “irreconcilable differences” and getting through the matter as quickly as possible. However, in Georgia, state law provides for two paths to end the marriage: “No-fault” and “fault” divorce.

What is the difference between no-fault and fault divorce?

Georgia is a no-fault divorce state, meaning that either party can file for divorce by claiming that the union is beyond repair. The term no-fault essentially means that there are irreconcilable differences that cannot be bridged, and the union should be dissolved. Proof of cause is not required in this instance and thus the process is quicker, somewhat more discreet and ultimately easier for all parties.

Fault divorce is still an option for parties seeking divorce in Georgia. Fault grounds can be thought of as one spouse’s conduct caused the marriage to fail.  However, fault grounds come with a burden of proof. A spouse who seeks fault divorce must prove that the other spouse committed at least one of 12 grounds. Those grounds include infidelity, moral turpitude, desertion, habitual intoxication, insanity and cruelty, among others. Filing fault divorce can lengthen the process and create a typically higher stress, litigious process for all parties.

Is fault difficult to prove?

Generally, yes. To prove the other spouse is at fault, the plaintiff must have evidence of the fault that must be valid before the court and the claims must stand up to cross-examination by the other spouse’s attorney. In addition, the specific grounds for divorce become public record, which can heighten the stress and complications of the divorce proceedings.

What are the pros and cons of a fault filing?

The pros of fault divorce are few. Public accusation of fault (and the revelation of potentially embarrassing details) can create pressure on the accused spouse to negotiate more favorable outcomes for the filing spouse. Filing on fault grounds can also give the plaintiff their “day in court,” so to speak. If the plaintiff is the breadwinner, fault divorce may give them leverage to help reduce alimony payments.

Beyond those two points, the cons generally outweigh the pros. Mainly, proving fault in a divorce is difficult. It’s hard to defend the accusations as well as to prove them. The defending spouse has several options that most likely will negate the divorce filing, including claiming a prior existing marriage, insanity, recrimination, collusion, condonation and connivance. Generally, these claims can easily lead to dismissal of the suit, greatly increasing the risk of filing on fault grounds.

How then, should couples best proceed?

About 95% of the time, we recommend couples proceed through divorce under no-fault grounds. That’s because there is no burden of proof required, the reasons for the divorce are purposefully vague and the process is much easier on all parties.

In the relatively rare instance that fault grounds are pursued, no fault can be used as a safety net or fallback position should the fault grounds be dismissed. This tack can also provide some flexibility as the plaintiff navigates the divorce process.

We highly recommend that any spouse or couple seeking divorce begin the process by consulting with their family law attorney. Experienced counsel can help map out the process and provide guidance on the options available for couples in Georgia.

 

Jordan Miceli is an associate at Boyd Collar Nolen Tuggle & Roddenbery. She handles a wide variety of family law matters, with a focus on complex divorce litigation, pre- and post-nuptial agreements, and child custody and support disputes, particularly for high-net-worth clients.