There is a common misconception among individuals when it comes to adultery. Many people believe that if they can prove the other spouse had an affair or was a habitual cheater, they can take all the property, get custody of the children, get child support, and get alimony. While the court doesn’t investigate all of the reasons behind a divorce, adultery could affect the amount of alimony and the dispensation of assets awarded in Georgia.
Grounds for Divorce in Georgia
Georgia is both an at-fault and no-fault divorce state. Either spouse can avoid claiming fault by showing that he or she no longer wishes to be married because the marriage is irretrievably broken. However, a spouse may choose to file for divorce for a specific fault to receive favorable treatment in the division of assets and determination of alimony. Georgia recognizes 12 fault-based grounds for divorce.
- Cruel or abusive treatment
- Desertion (either physical separation or refusal of intimacy; continuous for at least one year)
- Illegal intermarriage with a close relative
- Mental incapacity at the wedding date
- Impotency at the wedding date
- “Force, menace, duress, or fraud” used to make the other spouse agree to marry
- Pregnancy of the wife by another man at the wedding date
- A conviction for a crime of “moral turpitude” with at least a two-year jail term
- Habitual alcohol intoxication
- Habitual drug addiction
- Incurable mental illness
What is adultery?
In Georgia, adultery is defined as heterosexual or homosexual intercourse with a person other than his or her spouse.
How Adultery affects alimony
Alimony is typically paid by the higher-earning spouse (the supporting spouse) to the lower-earning spouse (the supported spouse.). Alimony can be granted for a stated period (temporary) or until the spouse remarries or dies (permanent.) Additionally, the spouse seeking alimony must prove they have a financial need for the alimony.
To claim alimony based on adultery, the claiming spouse must prove that the supporting spouse’s infidelity was the reason for marital separation and has prevented reconciliation. Under O.C.G.A.19-6-1 (b), if you can prove with a doubt, that your spouse committed adultery and that adultery is the reason for marital separation and reconciliation, your spouse will not be entitled to alimony.
How Adultery affects the division of assets
Georgia is an equitable distribution state. The marital assets and debt are divided fairly, but not necessarily equally. Unlike alimony, under O.C.G.A section 9-11-26(b), adultery does not prevent a spouse from seeking equitable division of marital assets or debts. However, the court can take evidence of the adultery into account when deciding how the assets will be divided. A spouse that is being divorced because the other spouse decided to run off with their lover could conceivably be awarded the lion’s share of the assets.
Common myths regarding adultery in Georgia
Myth #1: Adultery only applies to the supporting spouse.
False. The court looks at both parties’ conduct during the marriage to determine whether alimony is necessary, including nature, amount, duration, and payment method.
Myth #2: Adultery only applies during the time you were married.
False. Courts still look at the conduct of the couple during the negotiation of the divorce settlement until the final divorce decree or judgment.
Myth #3: If your spouse committed adultery, you would automatically be awarded alimony.
False. Adultery is one of the seventeen factors the court considers in awarding alimony. Other factors the court considers include the earnings and earning capacity of both parties, the marriage duration, sources of income for both parties, and the relative needs of the parties.
Myth #4: A divorce can be granted for adultery even if both spouses committed adultery.
False. If both spouses committed adultery, the court will not grant the divorce based on adultery.
It can be challenging to prove adultery in a divorce, as the rules of evidence allowed by Georgia law can be complicated. A ruling supporting or denying adultery can have a significant effect on the outcome of your divorce and your financial situation. If you plan to file a divorce petition based on adultery, you need an experienced divorce lawyer to represent you.
Tyler Moffitt is a Family Law and Criminal Defense Attorney who practices Carrollton, LaGrange, and Columbus, GA. He graduated from John Marshall Law School, and has been practicing for several years now. Tyler Moffitt takes great honor in defending the accused. Learn more about his experience by clicking here.