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Temporary Alimony Rules (In Brief)

by merlin on September 11th, 2015
  • Sumo

Two earlier posts dealt with the ongoing validity of the Uniform Superior Court Rules governing Temporary Alimony hearings in Georgia (a party should leave that with two rules in mind – there are two witnesses total permitted – the party themselves, plus one additional witness to discuss need; also that the ONLY issue is parity in litigation for the parties, so the financially-disadvantaged party is not economically punished into unfair submission).  This post, however, concerns the issue of when temporary alimony/child support (which are two different issues, by the way) dates from (the date of the separation).

Section 19-9-3 of the Official Code of Georgia governs the hearing:

(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.

(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.

(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.

(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.

(e) 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.

HISTORY: Orig. Code 1863, §§ 1689-1692; Code 1868, §§ 1732-1735; Code 1873, §§ 1737-1740; Code 1882, §§ 1737-1740; Civil Code 1895, §§ 2457-2460; Civil Code 1910, §§ 2976-2979; Code 1933, §§ 30-202, 30-203, 30-204, 30-205; Ga. L. 1979, p. 466, §§ 7, 9, 10.

The case that follows pertains specifically to when that temporary alimony judgment should date from.  Of course, notions of fair play should factor into any finding of temporary alimony (such as when one party has thrown the other out of the marital residence, thus forcing them to spend their disposable income on rent and domestic expenses that unfairly deplete their resources, making them less able to participate in the divorce process).  This case is Killingsworth v. Killingsworth, 148 Ga. 590 (Ga. 1918).  The best copy I could find online for such an old case came from the Lexis Advance service, which I use for research purposes.  The copy I am posting is heavily redacted and edited, but the substance of the opinion itself remains intact, and establishes the fact of when alimony payments should be dated from to level the playing field in a divorce situation:

FISH, C. J. A husband brought an action for divorce upon the ground of cruel treatment. At the appearance term the wife filed an application for temporary alimony, including expenses of litigation, and attorney’s fees. Upon the hearing at that term much evidence was submitted by both parties upon the merits of the action for divorce. The court granted an order allowing temporary alimony in a given sum from the date of the separation of the parties to the date of the hearing, and a monthly allowance at a stated rate from the date of the hearing “until the further order of this court,” and a stated amount for attorney’s fees, and for the costs of the hearing. Under this order temporary alimony was allowed from the date of the separation, and prior to the institution of the suit for divorce. The order was excepted [591]  to on the ground that the amounts allowed were excessive, and that the judge was not authorized to allow alimony for any time prior to the filing of the action for divorce, nor “until the further order of the court.” Held:

  1. In view of all the evidence submitted, it can not be held that the amounts allowed were excessive.
  2. In view of the decision in Wrightv. Wright, 117 Ga.867 (45 S.E. 250), HN1 the judge was empowered to allow temporary alimony from the date of separation to the filing of the action for divorce. In that case, as appears from the bill of exceptions on file in this court, one of the assignments of error was that “the court had no authority to grant alimony for any period preceding the date of the filing of the petition for alimony.” Another assignment was that “even if alimony in gross, or alimony for a period preceding the date of filing the petition therefor, can be legally allowed in this State, there appears in the plaintiff’s petition no prayer therefor.” No opinion was prepared in the case, but it was decided upon the following headnote: “It appearing that the husband and wife had separated in December, 1902, that the petition for alimony was filed in March, 1903, and that the hearing thereon was had in April, 1903, it was not error for the court, upon proper showing made, to order that the defendant pay to the plaintiff five dollars per month as alimony, ‘said payments to be made as follows: twenty-five dollars within thirty days from this date, and thence after, five dollars on the first day of each and every month.’ The provision for the payment of twenty-five dollars within thirty days from the date of the order was not an allowance of alimony in gross, but an order for the payment of alimony at a uniform rate from the date of the separation.” That decision was rendered by six Justices, and is binding authority upon this court. A request to review and overrule it has been made in the present case; but upon consideration thereof, six Justices of the court as now constituted not being in favor of overruling that decision, it must be adhered to.
  3. HN2The judge could not legally order the payment of temporary alimony beyond the termination of the action for divorce, and therefore should not have ordered its payment “until the further order of the court.” Doubtless the judge did not intend, in any event, to provide for the payment of alimony beyond the termination of the divorce suit, but had in mind the possible modification of his order pending the action. But, in order that the point may be clear, direction is given that the order be changed, so that it can not be construed as providing for the paymentof alimony beyond the termination of the action for divorce.

Judgment affirmed, with direction. All the Justices concur.

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