A contract that obligates a married couple to live apart or to obtain a divorce is void in Georgia, but the timing matters a great deal.
What the Statute Says
OCGA 19-3-6 provides that “Marriage is encouraged by the law” and that “[e]very effort to restrain or discourage marriage by contract, condition, limitation, or otherwise shall be invalid and void.”
Before Separation Versus After
In Craig v. Craig, 53 Ga. App. 632 (1936), the Court of Appeals drew the line this way: “any agreement between husband and wife, before a separation, that they will live separate and apart, or that either or both will obtain a divorce, and any agreement otherwise to promote a dissolution of the marriage relation, is against public policy and void.”
The result in Craig itself is the useful part. The couple had already separated when they signed a maintenance agreement, and the agreement recited that the wife “contemplates” filing for divorce on the ground of desertion. The court enforced it, because she had not bound herself “by any positive undertaking to file a new bill for divorce,” and the filing was not part of what the husband was paying for.
So a contract that merely acknowledges a divorce may be coming is very different from one that requires somebody to bring it.
The Effect on the Divorce Itself
Contract validity is one question and the divorce is another. Under OCGA 19-5-4(a)(1), a court may refuse the divorce where “[t]he adultery, desertion, cruel treatment, or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing a divorce.” A contract that manufactures the separation is exactly the kind of proof that raises it.
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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!