In your memorandum of May 13, 1982, you asked our office to review the Georgia law
on divorce and remarriage and the Programs Operations Manual System (POMS) GN 00305.435 to determine whether the Georgia entry accurately reflects the Georgia law. Additionally,
you wanted our office to provide your office with appropriate language to be included
in the claims manual, including the effective date for the change, if we found that
a modification was necessary.
The information which you are seeking was supplied in earlier memoranda. In the opinion
captioned Spouse's Benefits - Divorce Law - Georgia - RAIV [K~], to BRSI, 8/26/76
(copy attached hereto), our office advised your office to revise the then current
Georgia entry. It appears that the introduction to the entry was changed but the suggested
language was never incorporated as recommended.
In order to make the Georgia entry accurately reflect the Georgia law, it is necessary
to make the following revisions. First, two new sections must be added. One section
must be added to cover divorces which were granted before 1946. The second addition
must be added to cover divorces which were granted between 1960 and 1979. It is necessary
to make these two new entries because divorces granted during the various periods
must comply with the law as it existed during the time the divorces were granted.
In conjunction with these new entries another addition must be made. This addition
must be added so as to inform a party who has been placed under a disability that
such disability can be removed, thereby, giving the party the right to remarry. Finally,
the introductory sentence to the existing section must be revised so as to accurately
reflect the law during that time which it purports to represent.
The first new entry which represents the period before January 28, 1946, should read
"A total divorce granted plaintiff in a divorce action would not free defendant to
remarry unless final jury verdict authorizing divorce specifically removed defendant's
disability to remarry." See opinion Re C~ Charles J ~, G.C. [P~], to BHA, 2/11/1965.
The second new entry which represents the period from March 17, 1960 through April
5, 1979 should read as follows:
"Where the divorce was decreed after March 17, 1960, both parties have the right to
remarry unless there is in the pleadings a special prayer that the other party be
placed under a disability, and that party is placed under a disability by the jury
or the judge." See Spouse's Benefits - Divorce Law - Georgia, supra.
With regard to removing the disability, Georgia Code Ann. § 30-123 provides for the
subsequent filing of an application for removal of the disability by subsequent action
in the same court wherein the divorce was granted, and § 30-125 specifies when and
how the action is to be tried.
Finally, the introductory sentence to the current Georgia entry which reads "prior
to April 4, 1979" should be revised to read as follows: "From January 28, 1946 to
March 17, 1960."
In response to your second request, we have reviewed the Georgia entry and made necessary
revisions. Accordingly, we developed the summary containing appropriate language to
be inserted for the current entry. The suggested revisions should read as follows:
Prior to 1946, a total divorce granted plaintiff in a divorce action would not free
defendant to remarry unless final jury verdict authorizing divorce specifically removed
defendant's disability to remarry.
From January 28, 1946, to March 17, 1960, a party to a Georgia divorce could not remarry
during the lifetime of the former spouse unless (1) the divorce was granted to such
party, or (2) the divorce decree expressly authorizes such person to remarry or such
party's disability was removed by a jury in a court action brought for that purpose
subsequent to the divorce. Remarriage in Georgia in violation of a prohibition is
void; however, the prohibition has not extraterritorial effect. A remarriage in another
jurisdiction in violation of the prohibition, valid under the law of that jurisdiction,
will be recognized as valid by the courts of Georgia in the absence of evidence of
lack of good faith revealing that the parties went to the other State for the purpose
of evading the Georgia prohibition. If the parties, being residents of Georgia, contract
remarriage in another State for the purpose of evading the Georgia prohibition and
with the intent of continuing to reside in Georgia, such remarriage would be held
void by the courts of Georgia even though valid in the State were contracted.
From January 27, 1946, to March 6, 1956, in addition to the foregoing, divorces granted
during this period did not terminate the marriage until 30 days after the decree;
consequently, remarriages during the 30-day period were bigamous regardless of where
contracted. After March 5, 1956, divorces became effective upon rendition of the decree.
From March 17, 1960, through April 3, 1979, both parties have the right to remarry
unless there is in the pleading a special prayer that the other party be placed under
a disability, and that party is placed under a disability by the jury or the judge.
Prior to April 4, 1979, by statute, a defendant left under a disability may subsequently
file an action requesting removal of the disability in the same court wherein the
divorce was granted. The party has the right to remarry if the disability is removed.
From April 4, 1979, by statute, a divorce decree cannot be rendered that would place
either party under a disability to remarry.