Dealing With Adultery

Under Georgia law, a person commits adultery when he or she has sexual intercourse with a person other than his or her spouse (both extramarital heterosexual and homosexual relationships constitute adultery). See, Owens. v. Owens, 247 Ga. 139 (1981). It is an absolute bar to any alimony claim if it is the cause of the separation and has prevented reconciliation. O.C.G.A. 19-6-1(b). Anderson v. Anderson, 273 GA. 886, 230 S.E.2nd 272 (1976). See also, Vereen v. Vereen, 284 Ga. 755, 756, 670 S.E.2d 402, 404 (2008) (to show lack of entitlement to alimony, spouse must establish by a preponderance of the evidence that the separation between the parties was caused by the other party’s adultery or desertion).

How Will It Impact My Divorce?Adultery is most significant when a cheating spouse is seeking to obtain alimony or attorney’s fees. For example, if a stay at home wife, or a wife who has comparatively less income than her husband, has cheated, then she may be barred from receiving alimony or attorney’s fees in the divorce. In the classic situation where the husband has cheated, this will be a “conduct” factor in the division of property and an evidentiary issue in the award of alimony.

If you have cheated, your spouse can argue the affair justifies a denial of alimony and an award of more than 50% of the marital estate in his or her favor. However, the cheating spouse is still entitled to argue for “equitable division”. Unlike in the context of alimony, adultery is not a bar to property division. In the context of awarding permanent alimony, O.C.G.A. section 19-6-5(a)(8) authorizes the consideration of “other relevant factors”, but marital misconduct may not be used to set the amount of periodic alimony.

Will It Come Up in Discovery?Yes. If either party is seeking to bar the other from alimony, or if your divorce involves the division of marital assets or debts, then adultery is certainly relevant to the case. Under Georgia law, either party may seek to discover any evidence that is relevant or that is reasonably calculated to lead to the discovery of admissible evidence. See, O.C.G.A. section 9-11-26(b).

As noted, conduct is relevant in considering the division of assets. However, it is not relevant in determining the amount of alimony. This should be based strictly on the relative financial condition of the parties. See, Anderson v. Anderson, 237 Ga. 886 (1976) (misconduct of the parties is relevant only to whether adultery is a bar to alimony, not to the amount of alimony to be awarded); McCurry v. McCurry, 223 Ga. 334, 155 S.E.2nd 387 (1967) (conduct is not relevant in determining the amount of alimony – alimony should never be awarded to punish for misconduct).

Can I “Date” After Separation or After My Divorce is Filed?“Dating” before your divorce is final is not advisable. Intercourse is still technically adultery up until the divorce is final. Although there is authority for the argument that evidence of post-separation dating is irrelevant – see, McEachern v. McEachern, 260 Ga. 320, 394 S.E.2nd 92 (1990) – this evidence is still relevant if it can be shown that the affair caused the separation or prevented reconciliation. See, Hand v. Hand, 244 Ga. 41, 257 S.E.2nd 507 (1979) (evidence of conduct after separation may be relevant to show the conduct prevented reconciliation).

As noted, questions concerning “dating” or affairs, both pre and post-separation, are usually fair game in discovery subject to the witnesses’ right to assert privilege. However, as a practical matter, most judges and jurors will not care too much about post-separation dating if there is no evidence the affair was going on prior to separation.

Can I Refuse to Answer Questions About an Affair?Yes. If you have committed adultery before separation, and are confronted with discovery questions, then you will need to evaluate whether you wish to assert privilege under O.C.G.A. section 24-5-505(a). Per this code section, “No party or witness shall be required to testify as to any matter which may criminate or tend to criminate himself or which shall tend to bring infamy, disgrace, or public contempt upon himself or any member of his family.”

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