O.C.G.A. § 19-6-4 (2019)

Annotations

Editor’s notes. Ga. L. 1979, p. 466 amended prior law so as to provide that alimony may be assessed against either spouse. Cases decided prior to the 1979 enactment appear

to remain valid except insofar as they may imply that a wife only is entitled to receive alimony or a husband only is obligated to pay the same. Law reviews. For annual survey on domestic relations, see 69 Mercer L. Rev. 83 (2017).

JUDICIAL DECISIONS Former Code 1933, §§ 30-210, 30211, 30-212 and 30-213 plainly provided for alimony which may be sought in the wife’s (now either spouse’s) suit for divorce, her suit for alimony alone, or in a suit by the husband for divorce. The wife’s right cannot be defeated by a failure of the husband to obtain a divorce. Ridgeway v. Ridgeway, 224 Ga. 310, 161 S.E.2d 866, 1968 Ga. LEXIS 754 (1968). Alimony not mandatory. - Former Code 1933, §§ 30-207, 30-209, and 30-210 did not declare that alimony must or shall be granted in any case. Brown v. Brown, 230 Ga. 566, 198 S.E.2d 182, 1973 Ga. LEXIS 983 (1973). Alimony in any form is simply support for the wife (now either spouse), supplied by the husband, and it rests entirely upon the law requiring the husband to support his wife. It makes no difference what this support is called, whether “temporary alimony” or “permanent alimony” or “necessaries.” It is the same thing, and intended for the same purpose in each instance. Hudson v. Hudson, 189 Ga. 410, 5 S.E.2d 912, 1939 Ga. LEXIS 716 (1939). Alimony need not be awarded in every case. - It is not law that in every case in which wife is granted total divorce, permanent alimony must also be awarded to her. Various other facts and circumstances may require consideration. Simmons v. Simmons, 194 Ga. 649, 22 S.E.2d 399, 1942 Ga. LEXIS 642 (1942); Brown v. Brown, 230 Ga. 566, 198 S.E.2d 182, 1973 Ga. LEXIS 983 (1973). Action for alimony without prayer for divorce. - Wife (now either spouse) has the right to sue her husband, residing in this state, for alimony, after a voluntary separation, without suing for divorce, and without the necessity of showing a legal

residence as required in a suit for divorce. Craig v. Craig, 53 Ga. App. 632, 186 S.E. 755, 1936 Ga. App. LEXIS 347 (1936). Wife (now either spouse) can bring action for alimony without prayer for divorce or she may be entitled to alimony in connection with a divorce. Sherman v. United States, 334 F. Supp. 1311, 1971 U.S. Dist. LEXIS 10459 (N.D. Ga. 1971), aff’d in part and rev’d in part, 462 F.2d 577, 1972 U.S. App. LEXIS 8380 (5th Cir. 1972). Failure of divorce action will not bar action for alimony. - Failure of the wife’s divorce action will not bar subsequent action for permanent alimony based upon the allegation that the parties are living in a state of voluntary separation. Davenport v. Davenport, 210 Ga. 687, 82 S.E.2d 654, 1954 Ga. LEXIS 423 (1954). Effect of foreign state decree for alimony upon Georgia action. - Fact that decree of another state was for alimony will not make Georgia action on such decree alimony case, since it is simply an action on a debt of record, and accordingly, such a suit in a Georgia court does not come within the statutes and more liberal rules as to extraordinary relief in favor of a wife, who has already filed or is about to file in this state an action for divorce and alimony or alimony alone, and who needs such additional equitable protection against threatened conveyances by the husband until the termination of the question of alimony. Lawrence v. Lawrence, 196 Ga. 204, 26 S.E.2d 283, 1943 Ga. LEXIS 320 (1943). Full force and effect given to contracts for payment of alimony. - Contracts for payment of alimony should be given full force and effect and continue for the period provided by the contract which may be beyond the death of the husband.

Sherman v. United States, 334 F. Supp. 1311, 1971 U.S. Dist. LEXIS 10459 (N.D. Ga. 1971), aff’d in part and rev’d in part, 462 F.2d 577, 1972 U.S. App. LEXIS 8380 (5th Cir. 1972). Agreement to pay alimony is enforceable when obligation is part of overall settlement. Sherman v. United States, 334 F. Supp. 1311, 1971 U.S. Dist. LEXIS 10459 (N.D. Ga. 1971), aff’d in part and rev’d in part, 462 F.2d 577, 1972 U.S. App. LEXIS 8380 (5th Cir. 1972). Alimony improper if no legal marriage existed between parties. - In this state a judge of the superior court has no power to grant a judgment awarding alimony, if at the time of the institution of suit therefor the relationship of husband and wife does not exist between the parties, by reason of the marriage being void ab initio or by reason of a total divorce theretofore granted between the parties. Allen v. Baker, 188 Ga. 696, 4 S.E.2d 642, 1939 Ga. LEXIS 606 (1939). Alimony improper when evidence shows common-law marriage did not exist. - When the evidence demanded a finding that the plaintiff did not enter into a common-law marriage de praesenti with the defendant, which is a valid married status in this state, and there being in this state no common-law marriage de futuro cum copula, the court erred in allowing alimony and attorney’s fees on either theory of alleged common-law marriage between the parties. Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608, 1943 Ga. LEXIS 347 (1943). Wife properly denied permanent alimony when guilty of willful desertion. - If willful desertion by the wife demands a denial of temporary alimony in such a judgment, to allow her permanent alimony in the same case after a jury has determined that the facts show she is guilty of the identical wrong for which she was denied temporary alimony would be an inconsistency that could not be justified. Hudson v. Hudson, 189 Ga. 410, 5 S.E.2d 912, 1939 Ga. LEXIS 716 (1939). Alimony denied to wife. - Alimony should not be awarded to wife who abandons husband without just cause. Mullikin v. Mullikin, 200 Ga. 638, 38 S.E.2d 281, 1946 Ga. LEXIS 312 (1946).

Abandonment as ground for alimony is not required to continue for specific period of time. Shivers v. Shivers, 215 Ga. 536, 111 S.E.2d 376, 1959 Ga. LEXIS 533 (1959). When husband obtains divorce for cruel treatment, jury determines whether they will allow wife permanent alimony, and a charge restricting the right of the wife to alimony to a verdict solely in her favor is error. Shivers v. Shivers, 215 Ga. 536, 111 S.E.2d 376, 1959 Ga. LEXIS 533 (1959). When prior maintenance award is entirely superseded. - When trial court adjudicates issue of permanent alimony, prior maintenance award is entirely superseded. Browne v. Browne, 242 Ga. 107, 249 S.E.2d 594, 1978 Ga. LEXIS 1117 (1978). Court hearing a divorce case has the authority, if alimony is sought and the court sees fit to do so, to enter a permanent alimony award which will supersede a prior separate maintenance judgment. Browne v. Browne, 242 Ga. 107, 249 S.E.2d 594, 1978 Ga. LEXIS 1117 (1978). When no valid divorce granted, decree awarding alimony will be set aside without prejudice to plaintiff wife and the minor children. Harmon v. Harmon, 209 Ga. 474, 74 S.E.2d 75, 1953 Ga. LEXIS 293 (1953). Distinction between civil and criminal contempt for nonpayment of alimony. - Purpose of civil contempt is to coerce compliance with court order; if alimony payments are current when alleged contemnor appears in court, a coercive sentence would be inappropriate; full payment at time of hearing is not necessarily a defense to criminal contempt, however, because criminal contempt is imposed as punishment for past willful failure to obey the court’s order (i.e., make timely payments). Hopkins v. Jarvis, 648 F.2d 981, 1981 U.S. App. LEXIS 12061 (5th Cir. 1981). Defenses to contempt for failure to pay alimony. - One defense to either civil or criminal contempt for failure to pay alimony and child support would be that payments were in fact timely made and another defense common to both civil and criminal contempt would be that al-

leged contemnor is financially unable to make payments; an additional defense to civil contempt would be that payments, although not timely made, are current at time of hearing. Hopkins v. Jarvis, 648 F.2d 981, 1981 U.S. App. LEXIS 12061 (5th Cir. 1981). Lump-sum alimony award was not dischargeable. - Lump-sum alimony award determined under federal law to be “actually in the nature of alimony, maintenance, or support” is not dischargeable pursuant to 11 U.S.C. § 523(a) (5), even though the award does not terminate upon the death or remarriage of the recipient. Myers v. Myers, 61 B.R. 891, 1986 Bankr. LEXIS 5900 (Bankr. N.D. Ga. 1986). Order to maintain life insurance for payment of alimony. - Trial court

did not err in requiring the husband to maintain a $240,000 life insurance policy for the benefit of the wife and a $250,000 policy for the benefit of the children, and the court allowed the husband to maintain the policy in decreasing amounts so long as the death benefit provided to the wife equaled the total remaining benefit the wife would receive in alimony, and the amounts and policies were within the trial court’s discretion. Johnson v. Johnson, 358 Ga. App. 638, 856 S.E.2d 17, 2021 Ga. App. LEXIS 107 (2021).

RESEARCH REFERENCES Am. Jur. 2d. 24A Am. Jur. 2d, Divorce and Separation, §§ 233, 577, 664. Am. Jur. Pleading and Practice Forms. 8C Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 344 et seq. 8C Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 228. C.J.S. 27B C.J.S., Divorce, § 592 et seq. ALR. Right to impose fine for failure to pay alimony, 14 A.L.R. 717. Specific performance, or other equitable enforcement, of agreement for wife’s support or alimony, 154 A.L.R. 323. Inherent power of court to secure future payment of alimony and support money, 165 A.L.R. 1243.

Allowance of permanent alimony to wife against whom divorce is granted, 34 A.L.R.2d 313. Right to allowance of permanent alimony in connection with decree of annulment, 54 A.L.R.2d 1410; 81 A.L.R.3d 281. Enforcement of claim for alimony against exemptions, 54 A.L.R.2d 1422. Allowance of alimony in lump sum in action for separate maintenance without divorce, 61 A.L.R.2d 946. Power to modify spousal support award for a limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent, 62 A.L.R.4th 180. Withholding visitation rights for failure to make alimony or support payments, 65 A.L.R.4th 1155. Divorce: propriety of using contempt proceeding to enforce property settlement award or order, 72 A.L.R.4th 298.