Marital Legal Separation and Property Settlement Agreement Minor Children no Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all-inclusive discussion of the law of separation agreements in Georgia, but
does include basic and other provisions.
General Summary: Separation agreements are encouraged
and binding when approved by the court. Agreements may be entered into
before a divorce is filed to be effective when aproved by the court. A
property settlement agreement incorporated into a final dissolution decree
and order that contains a clear and express statement that future modification
is expressly waived by the parties may not be modified unless the parties
subsequently consent.
Georgia Code
Title 19 Domestic Relations
Chapter 6 Alimony and Child Support Generally
Voluntary separation, abandonment, or driving off of spouse -
Agreement for support as bar to alimony: In cases of voluntary
separation or in cases where one spouse, against the will of that spouse,
is abandoned or driven off by the other spouse, a party voluntarily, by
contract or other written agreement made with his spouse, may make an adequate
provision for the support and maintenance of such spouse, consistent with
the means of the party and the former circumstances of the spouse. Such
an agreement shall be a bar to the right of the spouse to permanent alimony.
Section 19-6-8.
Voluntary separation, abandonment, or driving off of spouse -
Equity may compel support: Absent the making of a voluntary contract
or other agreement, as provided in Code Section 19-6-8, and on the application
of a party, the court, exercising its equitable powers, may compel the
spouse of the party to make provision for the support of the party and
such minor children as may be in the custody of the party. Section
19-6-9.
Revision of judgment for permanent alimony or child support generally
- When authorized; petition and hearing; cohabitation with third party
as ground for revision; attorney's fees; temporary modification pending
final trial:
(a) The judgment of a court providing permanent alimony
for the support of a spouse rendered on or after July 1, 1977, shall be
subject to revision upon petition filed by either former spouse showing
a change in the income and financial status of either former spouse. The
judgment of a court providing permanent alimony for the support of a child
or children rendered on or after July 1, 1977, shall be subject to revision
upon petition filed by either former spouse showing a change in the income
and financial status of either former spouse or in the needs of the child
or children. In either case a petition shall be filed and returnable under
the same rules of procedure applicable to divorce proceedings. No petition
may be filed by either former spouse under this subsection within a period
of two years from the date of the final order on a previous petition by
the same former spouse. After hearing both parties and the evidence, the
jury, or the judge where a jury is not demanded by either party, may modify
and revise the previous judgment, in accordance with the changed income
and financial status of either former spouse in the case of permanent alimony
for the support of a former spouse, or in accordance with the changed income
and financial status of either former spouse or in the needs of the child
or children in the case of permanent alimony for the support of a child
or children, if such a change in the income and financial status is satisfactorily
proved so as to warrant the modification and revision. In the hearing upon
a petition filed as provided in this subsection, testimony may be given
and evidence introduced relative to the income and financial status of
either former spouse.
(b) Subsequent to a final judgment of divorce awarding periodic
payment of alimony for the support of a spouse, the voluntary cohabitation
of such former spouse with a third party in a meretricious relationship
shall also be grounds to modify provisions made for periodic payments of
permanent alimony for the support of the former spouse. As used in this
subsection, the word "cohabitation" means dwelling together continuously
and openly in a meretricious relationship with another person, regardless
of the sex of the other person. In the event the petitioner does not prevail
in the petition for modification on the ground set forth in this subsection,
the petitioner shall be liable for reasonable attorney's fees incurred
by the respondent for the defense of the action.
(c) When an action for revision of a judgment for permanent
alimony under this Code section is pending, the court in its discretion
may allow, upon motion, the temporary modification of such a judgment,
pending the final trial on the petition. In considering an application
for temporary modification under this subsection, the court shall consider
evidence of any changed circumstances of the parties and the reasonable
probability of the petitioner obtaining revision upon final trial. The
order granting temporary modification shall be subject to revision by the
court at any time before final trial.
(d) In proceedings for the modification of alimony for the
support of a spouse or child pursuant to the provisions of this Code section,
the court may award attorneys' fees, costs, and expenses of litigation
to the prevailing party as the interests of justice may require.
Section 19-6-19.
Factors in determining amount of alimony; effect of remarriage on
obligations for alimony:
(a) The finder of fact may grant permanent alimony
to either party, either from the corpus of the estate or otherwise. The
following shall be considered in determining the amount of alimony, if
any, to be awarded:
(1) The standard of living established during the marriage;
(2) The duration of the marriage;
(3) The age and the physical and emotional condition of both parties;
(4) The financial resources of each party;
(5) Where applicable, the time necessary for either party to acquire
sufficient education or training to enable him to find appropriate employment;
(6) The contribution of each party to the marriage, including,
but not limited to, services rendered in homemaking, child care, education,
and career building of the other party;
(7) The condition of the parties, including the separate estate,
earning capacity, and fixed liabilities of the parties; and
(8) Such other relevant factors as the court deems equitable and
proper.
(b) All obligations for permanent alimony, however created, the
time for performance of which has not arrived, shall terminate upon remarriage
of the party to whom the obligations are owed unless otherwise provided.
Section 19-6-5.
Case Law:
Georgia Code § 20-702 provides: "The cardinal rule of construction
is to ascertain the intention of the parties. If that intention be clear,
and it contravenes no rule of law, and sufficient words be used to arrive
at the intention, it shall be enforced, irrespective of all technical or
arbitrary rules of construction." If the intention of the parties as of
the time of executing the agreement be clear, it should be enforced, even
though the parties disagree as to its meaning as of the time of the litigation.
Paul v. Paul, 235 Ga. 382 (1975), 219 S.E.2d 736.
"Where the parties in a divorce proceeding enter into a contract
settling between themselves the questions of alimony, custody, and support
of their minor children, the court may in its discretion approve the agreement
in whole or in part, or refuse to approve it as a whole. If any change
is made in the agreement as incorporated in the decree which makes the
decree conflict with the agreement of the parties, the words of the decree
will control. Amos v. Amos, 212 Ga. 670, 671 (2)(95 S.E.2d 5)."
Booker
v. Booker, 219 Ga. 358, 359 (133 S.E.2d 353); Barrett v. Manus,
219 Ga. 693, 694 (135 S.E.2d 430).
Alimony in a lump sum is in the nature of a property settlement,
whether designated as such or as alimony, because the amount owed by the
husband to the wife is a definite, ascertainable sum. Newell v. Newell,
237 Ga. 708 (229 S.E.2d 449) (1976).
In Georgia, it is the rule parties to an alimony agreement may obtain
modification unless the agreement expressly waives the right of modification
by referring specifically to that right; the right to modification will
be waived by agreement of the parties only in very clear waiver language
which refers to the right of modification. This ruling will be applied
to alimony agreements entered into after November 23, 1978, which is the
date on which this opinion is printed in the Georgia Law Reporter advance
sheet. Varn v. Varn, 242 Ga. 309 (248 S.E.2d 667)
(1978).
Where language is cast in the present tense there is no showing
of intent to waive future rights. Garcia v. Garcia, 232 Ga. 869
(209 S.E.2d 201) (1974). The term "full and final settlement" without reference
to the future is insufficient to express a waiver of modification rights.
Fech
v. Fech, 241 Ga. 613 (247 S.E.2d 79) (1978). In Kitfield v. Kitfield,
237 Ga. 184 (227 S.E.2d 9) (1976), the Court held the language "complete
and final settlement of any and all rights that either of the parties hereto
may have" did not foreclose an action for modification and that a waiver
of future rights must be clearly expressed.
