If the spouse you are divorcing is in prison, you file in the county where they lived before they went in, not the county holding the prison.
Prison Is Not a Move
Venue in a divorce follows the defendant’s domicile, and under OCGA 19-2-1(b) domicile “may be changed by an actual change of residence with the avowed intention of remaining at the new residence.” Nobody chooses where a sentence is served.
Georgia courts settled this long ago. In Scott v. Scott, 192 Ga. 370 (1941), a wife filed for divorce in Crisp County, where both spouses lived, while her husband was serving a penitentiary sentence in Worth County. The Georgia Supreme Court, quoting its earlier decision in Barton v. Barton, said that where a resident of one county is confined in another under a penitentiary sentence, “this was not a voluntary change of domicile,” and the “proper venue of the case” is the county where he resided before the confinement.
Being Locked Up Does Not Pause the Case
Scott also disposes of a common assumption. “The fact that the defendant was serving a penitentiary sentence did not render him civilly dead, and prevent him from suing or being sued.” An incarcerated spouse can be divorced, and can file for divorce.
The Papers Still Have to Reach Them Properly
Venue being right does not make service right. The service in Scott failed anyway, because the clerk of the county where the case was filed had no authority to issue a second original for service in the prison’s county on a defendant who did not reside there but was only temporarily confined there.
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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!