You can contest it. Whether contesting it works is a different question.
You Are Entitled to Be Heard
Dickson v. Dickson, 238 Ga. 672 (1977), confirms that the ground is genuinely triable. Where the pleadings leave a dispute about whether the marriage has ended, “[i]f there is an issue of fact, either party is entitled to a jury trial.”
The Court also indicated when a contest should survive an early ruling: where the record shows “the marriage is not irretrievably broken and that there are genuine prospects for reconciliation, then summary judgment should be denied.”
Hope Is Not a Prospect
The difficulty is what has to be shown. In McCoy v. McCoy, 236 Ga. 633 (1976), a husband sought a divorce on this ground and his wife denied the marriage was broken. The trial court denied the divorce, and the Georgia Supreme Court reversed.
The Court made the rule explicit: “where one of the parties to a marriage refuses to cohabit with the other and testifies that the marriage is irretrievably broken, the fact that the other party maintains hope for a reconciliation will not support a finding under Harwell that there are ‘prospects for a reconciliation.’”
Its reasoning was that reconciliation is not something one spouse can accomplish alone. “Just as it takes two consenting parties to make a contract, it takes two consenting parties to make a reconciliation.”
What That Leaves
The Court added a point that frames the whole ground. “If the General Assembly had intended that the thirteenth ground for divorce be consensual, it would have provided that ‘The parties agree that the marriage is irretrievably broken.’”
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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!