Not over your objection, if the counterclaim you filed can be decided without your spouse’s complaint.
The Statute
Under OCGA 9-11-41(a)(2), where the defendant pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the case is not dismissed over the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.
That gives you three things to get right: you need a counterclaim capable of standing on its own, you need to object to the dismissal, and your objection has to tell your spouse you intend to pursue the counterclaim.
Filing the Counterclaim Is Not Enough
The step people miss is the objection. In Reed v. Reed, 295 Ga. 574 (2014), the Georgia Supreme Court explained that merely filing a counterclaim will not prevent the dismissal of both the complaint and the counterclaim. A defendant who says nothing when the plaintiff dismisses loses the counterclaim along with the complaint.
The Objection Does Not Have to Be Formal
The wife in Reed filed no formal objection at all. What she did was notice a hearing on her counterclaim for divorce and respond to her husband’s motions by saying the counterclaim was pending. The Court held that clearly put him on notice that she intended to pursue it.
Likewise, in Moore v. Moore, 253 Ga. 211 (1984), a wife had asked for affirmative relief in her answer without filing a counterclaim at first, and the parties spent a year in discovery over it. That was enough to stop her husband from dismissing. The Georgia Supreme Court described this limitation on voluntary dismissals as one that has been “liberally construed so as to do substantial justice.”
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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!