It can be devastating to find out your spouse has been unfaithful during your marriage. For most couples, adultery is an irreparable breach of trust. As a result, most states recognize adultery as grounds for a married couple to seek a divorce. If you live in the Atlanta metro area, however, it is important to consult a knowledgeable and experienced Woodstock divorce lawyer before filing for divorce on grounds of adultery.
Georgia law establishes strict standards for proving adultery in a contested divorce proceeding. Allegations of adultery may also have an impact on the outcome of your divorce, including the division of property, alimony awards and even custody determinations. In some circumstances, it may make more sense to file for divorce on grounds other than adultery, even if you are divorcing because your spouse was unfaithful to you during the marriage.
This article will address the requirements in Georgia for proving adultery in a divorce proceeding and will assess some of the pros and cons of seeking a divorce on grounds of adultery versus other, less restrictive grounds.
Grounds for Divorce in Georgia
The State of Georgia formally recognizes thirteen grounds for divorce. Under one of these grounds, the marriage is deemed to be “irretrievably broken,” through no fault of either party. A divorce proceeding on this basis is called a “no-fault” divorce.
The remaining twelve grounds for divorce assign fault or liability to one spouse for the breakdown of the marriage (known as an “at-fault” divorce). Grounds for an at-fault divorce include adultery, as well as cruelty, desertion, imprisonment, habitual intoxication or drug addiction, or the use of force or fraud to coerce another person into marriage.
Anyone considering filing for an at-fault divorce on grounds of adultery should be aware that the State of Georgia will require you to name not only your spouse but also his or her alleged paramour in the divorce papers. Both of these parties must be formally served in order to initiate the divorce proceeding, and both will have an opportunity to present any available defenses in court.
Proving Adultery in a Georgia Divorce
Georgia law defines adultery as a married person voluntarily having sexual intercourse with a person who is not his or her spouse. Adultery is considered a misdemeanor criminal offense in the State of Georgia (O.C.G.A. § 16-6-19).
Proving adultery in a divorce case in Georgia can be tricky. Even if your spouse has confessed to infidelity, his or her testimony alone is not enough proof for the court to grant a divorce. In fact, Georgia law expressly states that confessions will be “received with great caution.” O.C.G.A. § 19-5-11. Therefore, if you plan to use your spouse’s confession as evidence of adultery, you must also be able to provide other corroborating evidence such as photos, text messages, recordings, bank or credit card statements, or witness statements.
It is important to note that you must be able to show that your spouse’s infidelity involved actual intercourse. Other forms of sexual contact are not considered adultery in the State of Georgia. A court will not grant your divorce based on adultery if your spouse frequented dating websites, answered personal ads, or sexted with another person, unless sexual intercourse also occurred.
How Can Adultery Affect Your Divorce?
Evidence of adultery impacts every aspect of your divorce proceedings, from distribution of assets to alimony or spousal support, and even custody determinations.
Most notably, if you can prove that your spouse engaged in adultery and that his or her actions caused the divorce, your spouse will not be eligible to receive alimony or other spousal support in the State of Georgia. However, you should be aware that this is only true if you can show that your spouse’s adultery was the main cause of your divorce. If the court finds that your divorce resulted primarily from other factors, your spouse could still be entitled to alimony payments.
With respect to the division of assets, Georgia is an “equitable division” state, which means that a divorcing couple’s assets must be divided fairly. “Fair” in this case does not necessarily mean “equal.” If you are able to show that your spouse used marital assets to conduct his or her affair, you may be awarded a larger share of the marital assets as compensation.
Although adultery generally does not affect a custody determination in the State of Georgia, the judge could potentially take your spouse’s infidelity into account at this phase of the divorce proceedings as well. This is particularly true if your spouse and his partner spent significant time together with your children while you were married. A judge could find this behavior to be against the best interests of your child. Adultery will not impact the amount of child support you may be entitled to receive from your spouse.
Pros and Cons of Filing for Divorce on Grounds of Adultery in Georgia
The primary advantages of filing for divorce on grounds of adultery include:
- No obligation to pay spousal support. Your spouse will be barred from receiving alimony or spousal support in Georgia if claims of adultery can be substantiated.
- Assets allocated in your favor. If you can show that your spouse spent marital assets to facilitate the affair, you may be entitled to receive a greater share of the marital assets.
- No waiting period. Whereas a no-fault divorce requires a waiting period of at least 30 days from service before a divorce can be granted, there is no waiting period for an at-fault divorce, assuming you meet all necessary requirements.
It is important to note, however, that there are also significant disadvantages to filing for divorce on grounds of adultery:
- Difficult to prove. Adultery can be difficult to prove under Georgia law. Before you decide whether to claim adultery as grounds for your divorce, you should consult knowledgeable Woodstock divorce lawyers who can determine whether you have enough evidence to support your case.
- More conflict and more expense. An at-fault divorce on grounds of adultery tends to require more time and money than a no-fault divorce. An at-fault divorce also creates more conflict among the parties, as it usually involves airing embarrassing details in a public forum.
- You could be found at fault. In an at-fault divorce, your spouse is entitled to present defenses and may be able to argue that you were also at fault. Georgia law requires a court to deny a divorce if any of the following defenses to adultery apply:
- the parties intentionally used adultery to end their marriage;
- the spouse filing for divorce consented to infidelity during the marriage;
- the spouse filing for divorce forgave or otherwise condoned the infidelity; or
- both spouses are guilty of adultery.
Consult Our Woodstock Divorce Lawyers Before Filing for Divorce on Grounds of Adultery
Choosing to file for divorce on grounds of adultery is a serious decision with significant financial and emotional consequences. It should not be undertaken lightly, particularly in the State of Georgia. At Hait & Kuhn, our Woodstock divorce lawyers can help you figure out whether this approach is the right one for you and your family, based on your unique circumstances. Contact us at 678-888-0198 or submit a contact form online for a free evaluation of your case.