Adultery: A Big Word with Limited Impact in Divorce Cases

In many of the divorce cases that our team handles, unfortunately, adultery plays a role. Sometimes it follows struggles within a marriage, such as when a married couple hadn’t been intimate in years. Sometimes it’s shattering, as one spouse cheats while the other thought they were in a happy marriage. While the emotional and psychological significance of adultery cannot be overstated between spouses, its importance in the legal process of divorce is usually much smaller than one might expect.

When adultery becomes part of the court record, it can help fuel a settlement or help to paint the faithful spouse in a sympathetic light; however, when the divorce case is before a judge, the faithful spouse may only marginally benefit from having a sympathetic story.

Overall, my experience has shown that adultery’s impact is usually limited in Georgia divorce.

Here are some things to know about adultery in Georgia divorce proceedings:

Proof and Fault

Even when adultery is suspected, we often file divorce suits as no-fault actions in an effort to keep the temperature of a dispute low while reserving the right to claim additional grounds for divorce at a later date. In a no-fault divorce, neither party must prove a particular reason why they are seeking divorce other than the marriage is irretrievably broken. While a fault-based divorce, such as adultery, requires the filing party to prove specific elements or reasons why they should be granted a divorce.

In cases where adultery is alleged as the reason for the end of a marriage, the filing party must prove the adultery occurred and, more importantly, that the adultery led to the end of the marriage. Proving the adultery occurred does not require a secret camera; reasonable inferences can provide the necessary evidence, such as text messages arranging a tryst or photos of a spouse and another person arriving at a hotel and leaving sometime later. Proving that adultery led to the end of the marriage is more complicated and requires the factfinder to look at each party’s behavior since the discovery of the adultery. For example, a judge may consider, among other things, whether the parties went to marriage counseling, whether they continued to engage in sexual activity or the timing between when the discovery occurred and when the divorce was filed.

Money

Clients sometimes have trouble understanding or accepting how Georgia law treats adultery in divorce cases, but unless lawmakers make some changes, we have to work in the system as it stands.

Proof of adultery rarely affects the division of marital assets, in which the judge or jury is to split the marital estate “fairly,” which is commonly around 50% each. While rare, there are some scenarios where adultery could change that calculation, such as if the faithful spouse can prove the other spouse’s cheating depleted marital assets like trips, gifts, apartments or other provable expenditures directly related to the adultery.

Regarding alimony, Georgia law will impact a cheating party differently based on their financial role within the marriage. If the cheating spouse is the primary breadwinner, the transgression will have little impact on how much alimony is ordered. Conversely, if the spouse seeking alimony commits adultery, and the other spouse proves it occurred and led to the end of the marriage, the cheating spouse is precluded from receiving alimony.

Clients and Adultery

If a client tells us that they are in a relationship outside of their marriage, our team will ask them if their spouse knows. We’ll suggest they stop spending any money on the affair and, possibly, stop communicating with that person altogether. However, sometimes a client chooses to stay with other person, and we work through the issues as best we can.

If a client tells us they suspect their spouse is having an affair, we will ask a lot of questions. Generally, we will suggest they not reveal that they know about the affair. Instead, we gather information about the affair, the affair partner, and the affair’s impact on the potential client’s case.

Our team knows and understands that adultery can be shocking and emotional. And even if adultery may not be as serious to experienced judges and juries, we do our best to work with our clients to discuss all options on how adultery could impact their case.