O.C.G.A. § 19-5-6 (2019)

Annotations

JUDICIAL DECISIONS Respondent may recriminate and ask for a divorce. - Former Code 1933, § 30-106 did not support the conclusion that both parties may be entitled to a judgment of divorce. It clearly provides that a respondent in a divorce action may recriminate and ask for a divorce and not that both parties may be granted a divorce. Brackett v. Brackett, 217 Ga. 84, 121 S.E.2d 146, 1961 Ga. LEXIS 383 (1961). Effect given to wife’s counterclaim in divorce action. - Wife, when sued for divorce, may set up in answer any matter which should be subject of counterclaim, and by such counterclaim recriminate her husband and pray for permanent alimony. When the wife so pleads, her counterclaim is the legal equivalent of an independent suit for alimony. Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95, 1953 Ga. LEXIS 299 (1953). When plaintiff fails to make out case, the defendant may proceed to introduce evidence to support the plaintiff’s allegations for a divorce. Owen v. Owen, 54 Ga. 526, 54 Ga. 527, 1875 Ga. LEXIS 245 (1875). Counterclaim interposed by wife in husband’s suit for divorce is legal equivalent of independent action and is treated, in short, as a mere ancillary suit. State rules of procedure, pleading, and practice as applicable to divorce cases do not require that an answer taking the character of a crossclaim (now counterclaim) be filed at the term to which the plaintiff’s case is made returnable, or before the regular call of the appearance docket. Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95, 1953 Ga. LEXIS 299 (1953).

Wife’s right to proceed with a counterclaim for alimony is unaffected by withdrawal, or by a dismissal, for any reason of the original suit. Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95, 1953 Ga. LEXIS 299 (1953). Libel for divorce on ground of cruelty. - To be libel for divorce on ground of cruelty, the defendant may in answer recriminate plaintiff’s adultery. Johns v. Johns, 29 Ga. 718, 1860 Ga. LEXIS 283 (1860); Rowell v. Rowell, 209 Ga. 572, 74 S.E.2d 833, 1953 Ga. LEXIS 329 (1953). Recriminatory charge of adultery committed by plaintiff after commencement of divorce action is valid defense and upon a proper application at any time before the final decree, if such application is made immediately after the discovery of the fact, the court should permit the defendant to put in a supplemental answer for the purpose of setting up such matter as a new defense. Rowell v. Rowell, 209 Ga. 572, 74 S.E.2d 833, 1953 Ga. LEXIS 329 (1953). Judgment set aside when trial court struck allegation of adultery. - When it appears that trial court in an action for divorce struck an amendment to the defendant’s answer and counterclaim in which he recriminated the adultery of his wife, the plaintiff, which allegedly occurred after the parties separated and after the wife filed suit, good and sufficient cause for setting aside a verdict and judgment granting a total divorce and awarding permanent alimony is shown. Rowell v. Rowell, 209 Ga. 572, 74 S.E.2d 833, 1953 Ga. LEXIS 329 (1953).

RESEARCH REFERENCES Am. Jur. 2d. 24 Am. Jur. 2d, Divorce and Separation, § 238 et seq. Am. Jur. Pleading and Practice Forms. 8B Am. Jur. Pleading and Practice Forms, Divorce and Separation, §§ 46, 47.

C.J.S. 27A C.J.S., Divorce, §§ 232, 233, 345 et seq. ALR. Sufficiency of allegation of adultery in suit for divorce, 2 A.L.R. 1621. Necessity of pleading affirmative de-

fense in divorce suit, 76 A.L.R. 990. Subsequent adultery as recriminatory defense to desertion or cruelty, 101 A.L.R. 646.

Power of court to grant absolute divorce to both spouses upon showing of mutual fault, 13 A.L.R.3d 1364.