Written by attorney Merlinus Goodman Monroe

Georgia Temporary Alimony - a basic overview

Section 19-6-3(a) of the Official Code of Georgia deals with temporary alimony. It reads as follows:

(a) Whenever an action for divorce or for permanent alimony is pending, either party may apply at any time to the presiding judge of the court in which the same is pending, by petition, for an order granting the party temporary alimony pending the issuance of a final judgment in the case. After hearing both parties and the evidence as to all the circumstances of the parties and as to the fact of marriage, the court shall grant an order allowing such temporary alimony, including expenses of litigation, as the condition of the parties and the facts of the case may justify.

Notice that this Code subsection is concerned with concepts such as "circumstances". This provision appears to be designed not to make judgment in any way on the "fault" aspect of divorce, but instead on equal litigating power. This is borne out by subsection (b), which requires the following: "(b) In arriving at a decision, the judge shall consider the peculiar necessities created for each party by the pending litigation and any evidence of a separate estate owned by either party. If the separate estate of the party seeking alimony is ample as compared with that of the other party, temporary alimony may be refused."

Again, since this subsection states that an ample separate estate can act as the basis for denial of temporary alimony, the motivating force behind this statutory scheme is apparently need-based. This is called into question by the last sentence of subsection (c), since it reads as follows:

"(c) At a hearing on the application for temporary alimony, the merits of the case are not in issue; however, the judge, in fixing the amount of alimony, may inquire into the cause and circumstances of the separation rendering the alimony necessary and in his discretion may refuse it altogether."

If temporary alimony is granted by the Court from the other party's estate, the statutory scheme provides as follows: "(d) On application, an order allowing temporary alimony shall be subject to revision by the court at any time and may be enforced either by writ of fieri facias or by attachment for contempt."

The cases bear out this idea. In Langley v. Langley, 613 S.E.2d 614, 279 Ga. 374 (Ga. 2005), the Court stated that "[t]he very nature of temporary alimony militates against the offset of such amounts. A provision for temporary alimony is different in character and purpose from an award of permanent alimony because it is intended to meet the exigencies arising out of the domestic crisis of a pending proceeding for divorce; it takes into account the peculiar necessities of the spouse at that time and provides the means by which that spouse may contest the issues in the divorce action. Coleman v. Coleman, 240 Ga. 417, 420(2), 240 S.E.2d 870 (1977); see also Scott v. Scott, supra at 620(3), 308 S.E.2d 177. In fact, this Court has determined that a spouse is not entitled to credit against permanent alimony for payments made by that spouse pursuant to a temporary order while the final judgment of divorce is pending appeal. McDonald v. McDonald, 234 Ga. 37, 39(3), 214 S.E.2d 493 (1975)." The last subsection of the statute reinforces this idea of "power to litigate", in that it maintains that even a failure to abide by the rulings doesn't take the power from a party to prosecute its case. Of course, this ignores the fact that ignoring a conscious Order to even the playing field by the Court ought to bear a direct consequence on the party that ignores the Order. Subsection (e) states that "[a] failure to comply with the order allowing temporary alimony shall not deprive a party of the right either to prosecute or to defend the case".

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