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Suit for Separate Maintenance

by merlin on June 8th, 2015
  • Sumo

Often, it seems that a divorcing couple views the marital relationship as operating under the same rules as a non-marital relationship, and thinks of their spouse in the same manner that they might think of their girlfriend or boyfriend before marriage.  This is a terrible mistake to make, because the martial relationship is one recognized by law, and it is fundamentally different from the relationship that precedes it.  As a consequence, formal “separation” with the necessary legal formalities of divorce is woefully insufficient

For example, there is such a thing as a suit for “separate maintenance”.  It is defined as “[m]oney paid by one married person to the other for support if they are no longer living as Husband and Wife. Commonly it is referred to as separate support and follows from a court order” by the Free Dictionary at  This kind of domestic relations lawsuit is provided for by Section 19-6-10 of the Official Code of Georgia, which specifically grants the right to a spouse to sue for alimony and child support against another spouse who has abandoned them (by legal definition), but there is no action for divorce pending.  The section provides as follows:

When spouses are living separately or in a bona fide state of separation and there is no action for divorce pending, either party, on the party’s own behalf or on the behalf of the minor children in the party’s custody, if any, may institute a proceeding by petition, setting forth fully the party’s case. Upon three days’ notice to the other party, the judge may hear the same and may grant such order as he might grant were it based on a pending petition for divorce, to be enforced in the same manner, together with any other remedy applicable in equity, such as appointing a receiver and the like. Should the petition proceed to a hearing before a jury, the jury may render a verdict which shall provide the factual basis for equitable relief as in Code Section 19-6-9. However, such proceeding shall be held in abeyance when a petition for divorce is filed bona fide by either party and the judge presiding has made his order on the motion for alimony. When so made, the order shall be a substitute for the aforesaid decree in equity as long as the petition is pending and is not finally disposed of on the merits.

The basis for awarding alimony even in the absence of an action for divorce has a long history in Georgia law.  The case that best exemplifies the current state of this law (ignoring the nuances) is Shepherd v. Shepherd, 236 Ga. 425, 223 S.E.2d 818 (Ga. 1976), which reaffirmed the right to do this.  On a separate note, this also speaks to the right to seek a temporary award at the inception of the case:

        Glenville Haldi, Atlanta, for appellant.

        John C. Tyler, Atlanta, James R. Venable, Margaret Hopkins, Decatur, for appellee.

        INGRAM, Justice.

        The parties to this appeal have returned after three prior appearances in this court growing out of their alimony and separate maintenance litigation in DeKalb Superior Court-231 Ga. 257, 200 S.E.2d 893 (1973); 232 Ga. 354, 206 S.E.2d 460 (1974); and 233 Ga. 228, 210 S.E.2d 731 (1974). A new dimension to the marital dispute was added when the husband filed a separate suit for divorce after the alimony judgment was affirmed in the last appeal to this court.

        The wife then sought alimony in the divorce case and the trial court conducted a hearing on the question of temporary alimony in the divorce case on April 24, 1975. An order was entered, after hearing evidence and argument of counsel, denying any temporary alimony to the wife. Subsequently, the wife filed proceedings to have the husband held in contempt of court for wilfully failing to pay money which was owed to her under the trial court’s order in the earlier alimony case.

        The trial court conducted a hearing in the alimony contempt case and held the husband in contempt for not paying the alimony payments which had accrued prior to the entry of the temporary alimony order in the divorce case. However, the trial court refused to hold the husband in contempt for sums due under the prior alimony award subsequent to its denial of temporary alimony to the wife in the divorce case. The wife contends this was error because the order denying her temporary alimony in the divorce case did not cut off her right to continue receiving alimony payments under the trial court’s earlier order in the alimony case.

        The only issue we decide in this appeal is whether the trial court erred in ruling in the alimony contempt case that the order denying alimony to the wife in the divorce case suspended the earlier alimony award to the wife.

        Under Code Ann. § 30-213, the trial court’s alimony order in the divorce case is ‘a substitute for (earlier alimony award) . . ., as long as said petition (for divorce) shall be pending and not finally disposed of on the merits.’ The present record before this court indicates there has been no final trial of the divorce case, and it remains to be seen whether a final decree in the divorce case will or will not adjudicate the wife’s claim to permanent alimony after the divorce.

        Consequently, at this point in the divorce litigation it cannot be determined whether the prior alimony judgment will become functus officio and without further legal efficacy. For the time being, the prior alimony award is merely ‘in abeyance’ pending final trial of the divorce case because the trial court has entered a temporary alimony order (denying temporary alimony) in the divorce case. See Code Ann. § 30-213. Should the trial court in the divorce action adjudicate the issue of permanent alimony, the prior award will be entirely superseded.

        Tobin v. Tobin, 93 Ga.App. 568, 569(5), 92 S.E.2d 304, 307 (1956), relying upon several decisions of this court, states the rule thusly: ‘By the terms of Code § 30-213, provision is made for the grant of alimony where the husband and wife shall be living separate, or shall be bona fide in a state of separation, and there shall be no action for divorce pending. Under the terms of this section, the alimony so granted shall be suspended ‘when a petition for divorce shall be filed bona fide by either party, and the judge presiding shall have made his order on the motion for alimony.’ Where, however, such alimony as provided for in this section has been granted the wife and subsequently a total divorce granted the husband but the divorce decree is silent as to alimony, the divorce decree does not have the effect of rendering the alimony decree functus officio. Cox v. Cox, 197 Ga. 260, 29 S.E.2d 83; Higgs v. Higgs, 144 Ga. 20, 85 S.E. 1041; Evans v. Evans, 190 Ga. 364, 9 S.E.2d 254; Evans v. Evans, 191 Ga. 752, 755, 14 S.E.2d 95; Moody v. Moody, 193 Ga. 699(5), 19 S.E.2d 504.’

        An application of the above principles to the facts of the present case requires that we affirm the contempt order of the trial court from which this appeal was taken. See also Shepherd v. Shepherd, 233 Ga. 228, 231 (210 S.E.2d 731) (1975).

        Judgment affirmed.

        All the Justices concur.

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