Posted On: January 21, 2013

May a Judge Refuse to Grant a Georgia Divorce When The Parties Allege Their Marriage is Irretrievably Broken?

In Georgia, there are 13 grounds for divorce. The most popular ground for divorce is that the parties’ marriage is “irretrievably broken.” Because it is not necessary for either party to allege any fault in order to obtain a divorce based on the ground that the marriage is irretrievably broken, divorce granted on this ground are often referred to as “no fault” divorces. Although it is not necessary for a judge to find that the marriage was broken due to any fault or either party, a judge must still find that the parties’ marriage is indeed broken before a divorce may be granted on this basis. Thus, the answer to the question posed by the title is yes, a judge may indeed refuse to grant a divorce to a couple who allege that their marriage is irretrievably broken.

When one spouse initiates a divorce action based on the ground that the marriage is irretrievably broken, the other spouse may indeed resist or contest the divorce action. Minielly v. Minielly, 234 Ga. 434 (1975). In a contested irretrievably broken divorce case, all evidence of the marital relationship is admissible for consideration by the judge or a jury, including evidence of efforts to save the marriage, or the absence of such efforts. Harwell v. Harwell, 233 Ga. 89 (1974). The main issue that a judge or jury hearing a contested irretrievably broken divorce case is whether there is any prospect for reconciliation between the parties. See Minielly supra. If sufficient evidence is presented that the parties will likely or have already reconciled or resumed cohabitation, the court may either dismiss the action for divorce or refuse to grant the divorce. See Lindsay v. Lindsay, 241 Ga. 166 (1978).

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC