Does Adultery Matter in a Divorce?

When one spouse commits adultery, it can certainly be a factor in the decision to end the marriage. It can also make the divorce process that follows adversarial and contentious. While there is little doubt that adultery can impact the decision to divorce, does adultery directly affect the legal process of divorce? At the Platt Law Firm in Roswell, Georgia, the attorneys can help you evaluate how adultery may impact your divorce.

Understanding the Georgia Grounds for Divorce

When you file for divorce, you must allege grounds on which the court may grant the divorce. The State of Georgia allows both fault and no-fault divorces. The no-fault option in Georgia only requires you to allege that the marriage is “irretrievably broken.” However, if you allege one or more of the allowable fault grounds, you may need to prove the allegations during the divorce process. Ga. Code Ann. §19-5-3 lists the fault grounds recognized by the state, including:

  • Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
  • Mental incapacity at the time of the marriage;
  • Impotency at the time of the marriage;
  • Force, menace, duress, or fraud in obtaining the marriage;
  • The pregnancy of the wife by a man other than the husband, at the time of the marriage was unknown to the husband;
  • Adultery in either of the parties after marriage;
  • Willful and continued desertion by either of the parties for the term of one year;
  • A conviction for an offense involving moral turpitude resulting in a prison sentence of two years or longer;
  • Habitual intoxication;
  • Cruel treatment;
  • Incurable mental illness;
  • Habitual drug addiction.

Adultery and Divorce: Alleging Adultery as Grounds for Your Divorce

Adultery is one of the fault grounds that can be alleged when petitioning for a divorce in Georgia. Further, adultery is also still a misdemeanor criminal offense in Georgia; however, the judicial system no longer actively prosecutes people for adultery.

In a no-fault divorce, neither party is required to prove anything, and the parties must only be in a bona-fide state of separation prior to the filing of the divorce. One party simply needs to state to the Court that the marriage is irretrievably broken with no hope of reconciliation, and the court can grant the divorce.

If you decide to use adultery as the grounds for your divorce, however, you will need to prove that your spouse committed adultery as part of the divorce process, if you want the divorce granted based on fault grounds. This will typically make the divorce process more time-consuming and costly unless your spouse admits to committing adultery. It can also make the entire process more stressful for everyone involved because adultery is not only proving that your spouse has a romantic relationship with another person but that they have committed sexual acts outside of the marriage. Nevertheless, there can be important advantages to alleging and proving adultery in your Georgia divorce.

Adultery and Divorce: How It Affects Alimony in a Georgia Divorce

One reason you might want to allege adultery in your Georgia divorce is that, if proven, adultery prevents the adulterous spouse from being entitled to alimony in the divorce. Ga. Code Ann. §19-6-1(b) states, “A party shall not be entitled to alimony if it is established by a preponderance of the evidence that the separation between the parties was caused by that party’s adultery or desertion.” A key distinction is that adultery must be the reason for the dissolution of the marriage. If the adultery occurred five years before filing for divorce, the fault grounds would likely not be met as the non-adulterous spouse remained in the marriage. If you are the spouse who earns considerably more and alimony is likely to be requested in a divorce, proving that your spouse committed adultery is one way to avoid ending up with an order to pay alimony. Conversely, suppose you are the spouse who will need alimony for rehabilitation after a divorce. In that case, it is important to know that you will effectively be giving up your right to alimony if your spouse can prove that you committed adultery during the marriage.

Adultery and Divorce: The Division of Assets in a Georgia Divorce

The division of assets and debts is part of every divorce proceeding. Georgia is an “equitable distribution” state, meaning that marital assets are divided fairly between the parties. “Fairly” does not always mean “equally.” Several factors may be considered when fashioning an “equitable” distribution. The earning power of both spouses, the length of the marriage, and the parties’ conduct are common factors considered when dividing assets in a divorce. If one party commits adultery during the marriage, that conduct may directly impact the division of assets during the divorce. Adultery can have an even bigger impact on the division of assets if the adulterous spouse “squanders” marital assets during the extra-marital affair. For example, if the adulterous spouse spent thousands of dollars on vacations, gifts, or entertainment while committing adultery, the distribution of marital assets in a subsequent divorce might be heavily weighted in favor of the non-adulterous spouse

Contact a Roswell Georgia Divorce Attorney

If you have additional questions or concerns about how adultery impacts a Georgia divorce, contact an experienced Roswell divorce attorney at The Platt Law Firm by calling 404-255-3434 or filling out our online contact form.

Rachel Platt

Rachel Platt

Founding attorney, Rachel Platt, is a highly respected attorney among her peers and clients. Since 2014, Ms. Platt has been selected as a Georgia Super Lawyers in the field of family law. Additionally since 2018, Georgia Super Lawyers named her to the Top 100 Attorneys and to the Top 50 Women Attorneys for the State of Georgia. Previously, Ms. Platt was an honoree on the Georgia Rising Star list in the field of family law from 2010-2013, voted by her peers as one of the best young lawyers in the state. She has also been recognized as one of Georgia’s Legal Elite in 2009, 2012, 2016, 2018 and 2019 in the area of family law by Georgia Trend magazine. Ms. Platt also currently holds a “Superb” rating on Platt has been practicing law for the last 18 years and is currently concentrates her legal practice in the areas of family law and special education law, and as outlined below, she frequently lectures on both topics.

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