The spouse who asks a Georgia court to dismiss a divorce case carries the burden, not the spouse who filed it.
The Burden Stays With the Moving Party
In Walters v. Walters, 277 Ga. 221 (2003), a husband living in Denmark moved to dismiss his wife’s Georgia divorce action for lack of personal jurisdiction. The Georgia Supreme Court held that “a defendant who asserts the lack of personal jurisdiction has the burden of proving it.” To carry that burden the defendant may go outside the pleadings, but “when the outcome of the motion depends on unstipulated facts, the motion must be accompanied by supporting affidavits or citations to evidentiary material in the record.”
So a motion that simply asserts the court has no business hearing the case, without evidence behind it, has not met the standard.
Not Responding Does Not Lose It
In Dallow v. Dallow, 299 Ga. 762 (2016), a father argued that the trial court should have granted his motion to dismiss because the mother “did not timely oppose” it. The Georgia Supreme Court disagreed: “there is no requirement that a motion to dismiss be granted, without regard to its merits, simply because no response was filed.” Silence is not a concession, and a judge still has to decide whether the motion is right.
What Happens Once Evidence Comes In
Where the moving party does put up evidence, the other side cannot rest on the allegations in the complaint. Beasley v. Beasley, 260 Ga. 419 (1990), a separate maintenance case, held that a party opposing such a motion “must also submit supporting affidavits or documentary evidence.” Even then, when the judge decides the motion on paper alone, disputes of fact in the affidavits are resolved in favor of the party who filed the case.
Contact Us
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!