Some defenses in a Georgia divorce are lost forever if you do not raise them in your first response, and others are not.
The Defenses You Have to Raise Immediately
Under OCGA 9-11-12(h)(1), the defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process are waived unless raised by motion or in your responsive pleading. Filing an answer that argues the merits without mentioning them gives them up.
For example, in Bonner v. Bonner, 272 Ga. 545 (2000), the wife filed for divorce in Clarke County and the husband was never served with a summons. He filed an answer raising improper venue and insufficient service and moved to dismiss. The trial court found he had waived venue by signing a separation agreement saying it was the “complete and final settlement of any and all rights either of them may have against the other.”
The Georgia Supreme Court reversed. That general language was not enough, because “nowhere in the document is there any mention of venue.” Having raised both defenses in his first pleading, he had preserved them.
The Defense That Survives
Failure to state a claim is different. In Gould v. Gould, 240 Ga. App. 481 (1999), a father raised it for the first time months into a custody case, by amended answer and a motion to dismiss. The Court of Appeals held it was not waived: “Unlike the defenses identified in OCGA 9-11-12(b)(2)-(5), which are waived unless they are raised in an initial motion or responsive pleading, the defense of failure to state a claim does not have to be raised in the initial responsive pleading.”
Under OCGA 9-11-12(h)(2) it can be raised in a pleading, by motion for judgment on the pleadings, or at trial on the merits – but it must be raised before judgment.
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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!