Adultery And Divorce: How Is It Viewed By The Court?

MLF Team

Adultery And Divorce: How Is It Viewed By The Court?


When people enter into a marriage, they hope their love will last a lifetime. However, not all marriages stand the test of time. As what seemed to be infinite love diminishes and spouses begin to drift apart, they are more likely to engage in extramarital affairs. What many people do not understand about adultery and divorce is that infidelity could complicate the process of dissolving your marriage, not to mention its potential impact on several aspects of the divorce. Adultery can sometimes cause irreparable damage to relationships. Families seeking divorce as a result of marital infidelity are more likely to go through complex, hostile, and expensive divorce proceedings. An experienced family law and divorce attorney can help you through these emotionally fraught legal challenges to ensure that the legal process goes as smoothly and efficiently as possible. Call the Alpharetta family law attorneys with The Millard Law Firm at (678) 319-9500 today to discuss your legal options and determine your best course of action if you or your spouse has been unfaithful.


Defining Adultery


Statistically speaking, 20% of men and 13% of women admit to engaging in extramarital affairs during their marriage, according to a survey cited by the Institute for Family Studies. In order to understand how marital infidelity may impact divorce in Georgia, it is first important to understand how Georgia law defines “adultery,” which is classified as a criminal offense in the state. Under Georgia Code § 16-6-19, voluntarily having sexual intercourse with anyone other than your spouse is considered adultery. This applies to both heterosexual and homosexual relationships outside of marriage.


At-Fault vs. No-Fault Divorce


The state of Georgia recognizes 13 grounds for divorce listed in Georgia Code § 19-5-3. Most divorces in the state are filed as a no-fault divorce by citing “irretrievable breakdown of the marriage” which does not require proving that either spouse was at fault. However, adultery is considered the most common ground for divorce among the fault-based grounds.


Adultery May Not Be Grounds for Divorce


Marital infidelity, if proven, could significantly impact some aspects of the divorce, though there are limits as to what constitutes “adultery” under the law. Typically, divorce will not be granted on the grounds of adultery if any of the following is true:


  • Both spouses are guilty of the same conduct (in other words, both spouses have engaged in an extramarital affair)
  • Both spouses had an open marriage and consented to having romantic or sexual relationships with other people
  • The spouses reconciled and lived together after finding out that one of the spouses was unfaithful


If you have been cheated on or you have been unfaithful, you may face many difficult choices ahead of you, especially if you do not understand how adultery and divorce may play out. The team at The Millard Law Firm is here to look out for you legally and provide you with the emotional support you need during this challenging time in your life.


The Impact of Adultery on Georgia Divorce


Not only can adultery destroy a relationship, but it can also make the process of divorce more hostile and emotionally charged. If proven, adultery can affect divorce in Georgia in the following ways:


  1. Alimony. Infidelity can have a major impact on the award of spousal support in a divorce. If the dependent spouse (the spouse who would be entitled to alimony under Georgia law) has been unfaithful, they might be barred from receiving alimony. Georgia Code § 19-6-5 authorizes courts to consider “other relevant factors” when determining the amount of spousal support, if any, to be awarded.
  2. Property division. Another aspect of divorce that may be affected by adultery is the division of property. Georgia is an equitable division state when it comes to dividing marital property. A judge may think it would be more equitable to award fewer marital assets to the spouse who engaged in an extramarital affair, especially if there is evidence to suggest that the unfaithful spouse spent marital funds on their affair.
  3. Child custody. Adultery almost never directly affects the determination of child custody and visitation, primarily because the standard applied by the courts in making custody decisions is typically to make whatever arrangement the court deems to be in the child’s best interests. However, if the cheating parent committed adultery in front of their children or otherwise exposed their kids to inappropriate behaviors because of the affair, the judge may be more likely to favor the non-cheating parent over the unfaithful one.


Each case is unique, which is why the impact of adultery on divorce proceedings may differ from one case to another. However, an experienced lawyer can evaluate your specific situation and explain how adultery may play a factor in the legal issues surrounding the dissolution of your marriage.


Proof of Adultery in Divorce


As mentioned earlier, infidelity could play a crucial role in the outcome of your divorce. However, the court may not accept adultery as the grounds for divorce if a spouse cannot demonstrate convincing evidence proving that their spouse had an extramarital affair. The requirement to provide proof of adultery can complicate matters, as many unfaithful partners are highly secretive and tangible evidence of the affair may not always be readily available.


Types of Evidence


Courts tend to frown upon “he said, she said” arguments when there is no substantial proof. However, you do not necessarily need to catch your spouse in the act to get proof of adultery. Rather, it would be enough to provide evidence that demonstrates that your spouse had the opportunity to cheat and had the intent to engage in an extramarital affair. This can be shown by demonstrating the following types of evidence:


  • Photographs or videos showing romantic touching or contact between your spouse and their alleged lover
  • Phone records between the spouse and their alleged lover
  • The unfaithful spouse’s confession in a text message, letter, audio recording, or another form
  • Financial records, including hotel reservations


Ensuring Admissibility


Keep in mind that any evidence you collect must be legitimate. Otherwise, the court is likely to dismiss it as inadmissible evidence. In practical terms, this consideration means you should not access your spouse’s phone, laptop, or another device without their permission, attempt to entrap your spouse into making a confession, or use threats or duress to obtain proof of adultery.


Once you have the evidence to support your claim of adultery, the evidence will have to be submitted to the court to ensure its admissibility before it can be used in arguments. If you are working with an attorney, they may be able to advise you of the appropriate procedures for submitting evidence.


Get the Support You Need


A divorce can often be an emotionally draining experience, especially when the breakdown of the marriage is due to a partner’s infidelity. You might have an array of questions surrounding adultery and divorce, but very few answers. The experienced family law team at The Millard Law Firm can help you navigate the waters of divorce and provide you with the guidance and support you need, no matter how difficult the situation surrounding the divorce may be. Call (678) 319-9500 today to schedule a case evaluation and discuss your situation.