Recrimination is answering a divorce petition by charging your spouse with misconduct of their own.
Two Ways to Recriminate
Georgia gives a spouse who has been sued two different ways to use the other spouse’s conduct, and they lead to different places.
Under OCGA 19-5-6, “the respondent may recriminate in his answer and ask a divorce in his favor. If, at the trial, the court or jury believes that the respondent rather than the petitioner is entitled to a divorce, they may so find upon legal proof.”
Under OCGA 19-5-4(b), “the respondent may plead in defense the conduct of the party bringing the action and the jury may, on examination of the whole case, refuse a divorce.”
The first asks for something. The second only resists.
Recrimination as a Claim of Your Own
In Cohen v. Cohen, 209 Ga. 459 (1953), a husband sued his wife for divorce on the ground of desertion. She denied it, recriminated by charging him with cruel treatment and abandonment, and asked for permanent alimony.
The Georgia Supreme Court held that a spouse sued for divorce “may set up in her answer any matter which, under the English practice, should be the subject of a cross-bill,” and that when she does, “her cross-action is the legal equivalent of an independent suit for alimony.”
The Risk in Recriminating
Recrimination has a consequence in Georgia that surprises people. Under OCGA 19-5-4(a)(3), no divorce shall be granted where “[b]oth parties are guilty of like conduct.”
So answering a cruel treatment petition by alleging cruel treatment of your own can end with the judge refusing a divorce to either of you. Whether that is a good outcome depends entirely on whether you want out of the marriage.
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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!