All Georgia divorce actions must be filed in the State’s superior court, which is a court of equity.(1) Because courts of equity apply equities to their decisions, they also ordinarily consider equitable defenses in their rulings.(2) One such defense is “laches.” This article explores the applicability and use of that particular defense vis-à-vis divorce actions and decrees.

The equitable defense of laches seeks to bar equitable relief on grounds of the complainant’s delay in seeking those remedies. Laches is based on the principle that “[e]quity gives no relief to one whose long delay renders the ascertainment of the truth difficult, even when no legal limitation bars the right.”(3) The defense in essence asserts a plaintiff’s “neglect for an unreasonable and unexplained length of time to do that which, by the exercise of due diligence, could and should have been done earlier, if at all.” Laches can apply even when a complaint seeking equitable relief is filed within the applicable statute of limitations or other explicit deadlines.(4)

“Whether laches should apply in a particular case depends on a consideration of the circumstances of each case, including such factors as the length of the delay, the sufficiency of the excuse for the delay, the resulting loss of evidence, and the prejudice suffered.”(5) A mere lapse of time does not constitute laches. To succeed on a laches defense, a party also must prove some harm or prejudice caused by the delay.(6) “To have equity relieve from a judgment whether void or valid, the complaining party must take prompt action upon discovery of the pertinent facts, to avoid the defense of laches which may apply if the delay has prejudiced third parties.(7)

To this author’s knowledge, no published appellate decision references the assertion of laches as a defense to a complaint for divorce and ancillary relief. Such omission makes sense though, since an assertion that a plaintiff spouse should have filed for divorce sooner flies in the face of state public policy favoring the institution of marriage.(8)

Instead of using laches as an affirmative defense to a divorce action, parties have employed it as a defense to an action attacking the validity of a judgment for divorce.(9) When used to defend attempts to set aside previously-entered divorce decrees, laches has the advantage of potentially surmounting otherwise un-waivable jurisdictional issues.

Parties ordinarily cannot confer subject-matter jurisdiction on a court by agreement or waive a lack-of-jurisdiction defense by failing to raise it in the trial court; and lack of subject-matter jurisdiction can be raised at any time either in the trial court, in a collateral attack on a judgment, or in an appeal.(10) Nonetheless, a party under limited circumstances can employ a laches defense to prevent the opposing party from complaining of a court’s lack of subject-matter jurisdiction.(11) In one such instance, laches was used to bar an ex-husband’s motion (asserting a lack of subject-matter jurisdiction) to set aside a divorce decree terminating his parental rights, where he had affirmatively invoked the jurisdiction of the superior court for the purpose of obtaining a divorce, had consented to that court’s incorporation of a settlement agreement terminating his parental rights, and then had waited four years to file a motion to set aside the judgment.(12)

(1) O.C.G.A. § 15-6-8(2); O.C.G.A. § 19-5-1(a); and O.C.G.A. § 23-1-1. (2) See, e.g., O.C.G.A. § 23-1-10. (3) O.C.G.A. § 23-1-25. (4) See Prudential Ins. Co v. Sailors, 69 Ga.App. 628, 26 S.E.2d 557, 561(2) (1943). (5) Howington v. Howington, 281 Ga. 242, 243(1), 637 S.E.2d 389 (2006). (6) Id., at 243-244(1). (7) Watson v. Watson, 235 Ga. 136, 138, 218 S.E.2d 863 (1975). (8) Ghrist v. Fricks, 219 Ga.App. 415, 418(1), 465 S.E.2d 501 (1995), overruled on other grounds, Brine v. Shipp, 291 Ga. 376, 380(3), 729 S.E.2d 393 (2012). (9) Amerson v. Vandiver, 285 Ga. 49, 673 S.E.2d 850, 851 (2009); Abushmais v. Erby, 282 Ga. 619, 622(3), 652 S.E.2d 549 (2007); and Howington, supra, 281 Ga. at 243(1). (10) Abushmais, supra, 282 Ga. at 622(3). (11) Amerson, supra, 673 S.E.2d at 851; and Abushmais, supra, 282 Ga. at 622(3). (12) Amerson, supra, 673 S.E.2d at 851.

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