Friday, September 22, 2006
Here's an interesting case for exploring some of the practical aspects of timing in divorce actions. Students sometimes ask: "what difference does it make who files the divorce action?" This case from the Georgia Supreme Court, affirming the trial court's realignment of the parties, provides one fine answer to that question: The husband filed a divorce action against the wife. The wife filed an answer and counterclaim for divorce. Later, the wife moved to add the corporation and paramour and to file an amended answer and counterclaim setting forth claims of fraudulent conveyance and conversion against them. After granting that motion, the trial court realigned the parties, making wife plaintiff and all others defendants. The Georgia Supreme Court affirmed, holding that becuase wife had the greater burden of proof regarding alimony, adultery, attorney's fees, and fraudulent transfers and had brought the additional claims, the procedural rights that a plaintiff typically exercised at trial, including the important right to make opening and closing arguments, belonged to the party bearing the greater burden of proof.
Moore v. Moore, 2006 Ga. LEXIS 579 (September 18, 2006)
Opinion on the web (last visited September 21, 2006 bgf)