Georgia’s Rules Concerning Adultery
Georgia is no different from the vast majority of states in holding adultery as a ground for divorce. In some jurisdictions, adultery is referred to as "extramarital sexual intercourse" or engaging in a "marital affair." But to the courts of Georgia, adultery is strictly defined. In Georgia, adultery is when a married person willingly has sexual relations with someone (other than their spouse) to whom they are not married.
What is and what is not adultery under the law can sometimes be a gray area, particularly in a country where more people use apps like Tinder and Bumble to match with others. Despite the newer, more modern view on romantic or sexual relationships, Georgia law still carries a long-held opinion towards adultery , though proving it has become more difficult as the honorable institution of marriage morphs into something new and different.
Currently in Georgia, adultery remains the only fault-based ground available for no-fault divorce. In Georgia, a fault-based divorce means that one spouse (the petitioner) proves that the other spouse (the respondent) acted in a way that goes against the marriage or otherwise failed to uphold the obligations of marriage. Using adultery as grounds for divorce is uncommon unless the person who has committed adultery is contesting the divorce.
Although adultery is legal (and not usually a factor in a contested divorce), it can impact spousal support.
Effect of Adultery on Divorce
Adultery can be a potentially destructive element when it comes to divorce proceedings in Georgia. Yet the connection between adultery and the outcome of a divorce is not as direct as many people might believe, as Georgia courts apply specific rules based on the nature of the adultery established.
In some cases, adultery plays a role as a cause of divorce. In these instances, adultery relates directly to the grounds for divorce and could be a reason to grant a divorce even if one spouse has committed no wrongdoing. In instances where adultery is the reason for divorce, Georgia courts may be more likely to award the innocent spouse the marital home that served as the scene of the adultery, but are less likely to award child visitation or custody rights to the spouse that engaged in adultery.
In most cases, however, adultery plays another role in divorce proceedings. Rather than being the sole cause of the divorce, adultery usually comes up when one spouse alleges the other engaged in the act outside of marriage, which lights a fire under the requirements of alimony.
An allegation of adultery will not automatically bar a spouse from obtaining alimony following a divorce. However, the adultery can be used by the court as a means to reduce or eliminate the amount of alimony provided to one spouse as punishment for the action.
If one spouse committed adultery with the other’s sibling, parent or child, the court can consider this fact when making determinations related to the divorce, including division of property and award of alimony.
When determining child custody arrangements, Georgia’s courts will take into account whether either spouse acted inappropriately within the presence of their child. While adultery can be considered "inappropriate action," any other element that has the potential to harm the child can also play a role.
If evidence of an affair starts to emerge, speaking to a qualified divorce attorney about your legal options right away is vital.
Proving Adultery to the Court
In Georgia, adultery is defined as an act of sexual intercourse, either natural or unnatural, which takes place either within or without the marriage relation, and during the existence thereof. The issue of adultery is common in divorce cases, particularly when one spouse is seeking an alimony preclusion or has alleged infidelity as the other party’s fault ground for divorce; further, adultery cases can also become highly emotional, and are often difficult to prove using nothing more than circumstantial evidence. The requirement that adultery be proven with "clear and convincing" evidence means that while direct proof, such as eyewitness testimony, is not required, far more evidence needs to be presented than the mere allegation of adultery. As such, the burden of proof for cases of adultery in Georgia divorces falls squarely on the shoulders of the accuser, and not the accused. Since evidence of adultery is not required to be direct in nature, any combination of physical evidence and witness testimony may be used to prove adultery, including but not limited to: Victims of adultery who are seeking a divorce have a right to emotional distance from the events of the affair, and spouses who are accused of adultery may seek to save their marriage by avoiding the emotional devastation of an adultery divorce, regardless of how well they have prepared or defended themselves against the charge itself. While Georgia law allows for either direct or circumstantial evidence to demonstrate the occurrence of infidelity through an affair, there are many factors that may come into play during the presentation of such evidence, and there are many reasons that the husband or wife of the person accused of adultery may wish to maintain a relationship with them despite the alleged infidelity. Indeed, the victim of adultery may feel that the couple’s social network would be disrupted by a divorce, that the children of the couple are emotionally attached to both parents and would suffer a serious impasse if parental rights were terminated, or that the couple’s other assets would be shared in a way that is deemed unfair and unjust by one or both parties in the divorce. Whatever the incentive for the accused to evade a divorce, the issue still lives in the fact that it is possible for the couple’s connection to present itself in such a truly damaging manner that judges, lawyers, and anyone else involved in the proceeding will object to the attempt to save the couple’s marriage, based on the fact that one party has committed adultery in an indisputable manner. Because the burden of proof lies upon the spouse who accuses the other spouse of adultery, as described above, the spouse who is being accused will have an opportunity for rebuttal by offering their own evidence that they are stating the truth when it comes to having been unfaithful to the claimant. In addition, the spouse who is being accused may implement their own proof that the spouse who accuses is committing adultery. For example, there may be communication records, video recordings, testimony from friends and family members, and other evidence that can demonstrate that the accusing spouse is guilty of adultery as well, which may work to both parties’ favor in the divorce case insofar as the burden of proof for the accusation may be terminated altogether.
Legal Ramifications of Adultery
The legal implications of adultery may go beyond the emotional pain and humiliation for those involved. Adultery in Georgia can have an impact both legally and emotionally, and may be the subject of litigation as grounds for divorce or division of marital property.
Though it is rarely done, one spouse may file a complaint alleging adultery against the other spouse. This raises two issues: first – does a legal claim exist; and second – even if one goes forward with a legal claim, what are the remedies or consequences? To succeed on an adultery claim, the complaining spouse must prove that the other spouse had the opportunity and inclination to commit adultery (amour per omnia), or that there was an actual act of adultery (res ipsa loquitur). Most claims are brought on the second standard. Even if there is an actual act of adultery, the complaining spouse must also prove that some resulting damage occurred. At most, these damages include litigation expenses and attorneys’ fees; punitive damages are never available. It is very rare that a person actually brings a claim of adultery. If the adultery involved non-physical contact (e.g., telephone calls, letters between a husband and an alleged mistress) then even if the complaining party alleges a claim of adultery in a pleading, the courts will take the issue away from the jury. Despite such pleading, however, this issue should be avoided for all of the reasons set out above. While allegations of an affair may find their way into every family law case, Georgia law limits the circumstances under which non-physical adultery can result in an award of alimony (support from one spouse to another) or division of marital property . Georgia law allows a court to award alimony only; it does not allow an award of damages for alienation of affection. If there is actual physical adultery, the court has the discretion to deny alimony entirely or to reduce the amount of alimony to be awarded. For example, if the separation agreement awards alimony of $1.00 per month to the wife, and the court finds that the husband made himself the "hony" or "safe haven" of illicit sexual relations with his mistress, then alimony could be denied altogether. Likewise, if the separation agreement awards alimony of $1.00 per month to the wife, and the court reduces his monthly alimony payment to 20 cents per month, the 80 percent reduction has the same effect as denying alimony entirely. If there is actual physical adultery, the court can award property by setting over or abandoning to the innocent spouse, all of the offending spouse’s estate, or if there is no estate, all of the offending spouse’s separate estate. So, what does this mean? First, to be entitled to an award of marital property, the legal claim of adultery must be made; a mere fact that adultery occurred is not sufficient. Second, the court has to make a finding that the legal claim of adultery is valid. Third, the offending spouse has to have a "legal right, title, or interest" in the property, or if there is no estate, a separate estate by inheritance or otherwise. Fourth, the court can award all, some, or none of the offending spouse’s legal interest in the property. Finally, the court can award all, some, or no part of the separate estate of the offending spouse.
Social Consequences of Adultery
Adultery is often viewed as a simple infringement of the law or the moral code between two people in a relationship. However, in Georgia, we treat a spouse’s adultery differently from other acts of infidelity. Adultery leads to immediate, automatic consequences for the offending spouse. Many might view this as an archaic relic of bygone days when people were more concerned about the judgment of their peers. And perhaps that is how it should be viewed—but it is not.
Both adultery and "alienation of affection" (when one spouse’s actions interfere with the attachment the other has for their spouse) can have surprisingly broad legal and personal ramifications.
Today, there are fewer trials for divorces involving adultery. The media’s coverage encourages us to believe that more people are getting away with cheating and not receiving the consequences they so rightly deserve—or that it’s become so commonplace no one cares anymore.
Nevertheless, the cultural significance is still profound: adultery is what struck most of our grandparents’ marriages apart.
No blog discussing the social implications of adultery in the U.S. would be complete without a mention of the Vatican’s "turbulent history" of extramarital affairs among clergy.
But in Georgia, we have our own current example—a remarried former governor of Georgia whose ill-suited choices have become fodder for gossip and shame. A little more than a decade ago, the governor in question chose to engage in an extramarital affair with his former secretary, though he and his wife were still married at the time.
The ethical fallout was as swift as the physical travel required: Within weeks, the governor resigned, his wife filed for divorce, and he began seeing his former secretary, later marrying her.
It’s important to remember that in each of these examples, the person whom the law punished—or whom public opinion or ridicule cast aspersions upon—was the actor who engaged in the adulterous affair. The cheating spouse is almost always given short shrift.
Whether in an ancient code or in today’s modern world, being exposed as the offending party in an extramarital affair garners an automatic judgment of disapproval.
The social implications of adultery can be severe, and have far-reaching effects, even for someone who is not seeking a divorce. Adultery touches people far beyond just the ex-spouses involved. The reaction of co-workers, supervisors, and even casual friends can be devastating. Physical violence from a disgruntled husband or wife may even result in more severe consequences.
But while the legal and social ramifications surrounding adultery can be harsh, the law won’t award a divorce to someone who didn’t commit adultery. All cheating accusations—accurate or not—have to be proven in court.
Fortunately, Georgia makes proving your spouse’s infidelity easy.
Georgia considers the spouse’s infidelity a "civil matter." This means that a spouse’s adultery can be fairly easy to prove and thus easier to use as leverage for securing a divorce.
Adultery is an absolute bar to spousal support, including alimony. Obviously, this is a powerful weapon that can allow one spouse to gain necessary financial freedom, but it is also a double-edged sword. For example, if one spouse cheated, the judge may also be less willing to see the offending spouse receive financial assistance once the divorce is finalized.
The parties do not have to agree on a final division of property before a motion to separate can be filed. While some states require the filing of property division first, in Georgia, the motion to separate must be made first, and the judges will not ground their decisions on adultery itself, but on the overall nature of the divorce.
While there are many cultural implications surrounding adultery—some that can end up in court and affect finances or child custody or modify agreements previously reached—there are also still many people who believe that their spouse’s infidelity results in automatic karma rebounding back into their lives.
And perhaps both notions are accurate, in their own ways.
Common Questions Regarding Adultery
Question: Do I have to prove the other spouse cheated to get a divorce in Georgia?
Answer: No. "Adultery" is just one ground for divorce in Georgia. You can also get a divorce on a "no fault" basis, which means you don’t have to prove anything happened.
Question: What if my spouse and I had a sexual relationship before we got married, can I still use adultery against them?
Answer: The law requires that, to prove adultery, you must be able to show affairs during your marriage, not before .
Question: What if my spouse and I were separated when he or she had sex with another person, is that grounds for adultery?
Answer: No. The law says a divorce must be obtained or a reconciliation of both parties must be made before someone else can commit adultery with your spouse.
Question: Can a person be punished for adultery in Georgia?
Answer: Adultery is not a crime in Georgia like it used to be – adultery is now merely a "civil" matter and can only be used by one spouse as a reason to want a divorce. Adultery will not be prosecuted in criminal courts.