Bivek, Brubaker & Prescott - Marietta family law and divorce attorneys

Adultery & Alimony

In Georgia, adultery can be a bar to alimony, but only in certain circumstances. Under Georgia alimony law O.C.G.A. 19-6-1:

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. In all cases in which alimony is sought, the court shall receive evidence of the factual cause of the separation even though one or both of the parties may also seek a divorce, regardless of the grounds upon which a divorce is sought or granted by the court.

Does adultery always mean the denial of alimony?

Separating spouses most typically seek alimony when one partner out-earns the other. Alimony can be temporary or last until the supported partner remarries or dies. Courts consider many things when deciding whether to grant alimony and how much, such as the length of the marriage, the imbalance in pay, and whether one spouse may have supported the other’s career with unpaid, domestic work.

Adultery can be a complete or partial bar to alimony for the unfaithful spouse. It’s not always a given, however. To affect alimony, adultery has to be the primary reason why the couple is divorcing. If, for example, one spouse committed adultery but then reconciled with his or her partner before deciding on divorce, it would be hard to argue that the adultery directly led to the split.

If it can be proven that a spouse committed adultery and that the adultery led to the breakdown of the marriage, courts may choose to completely deny alimony. They may also choose to reduce alimony, considering the circumstances of the marriage before the affair or liaison took place or whether both spouses were possibly unfaithful.

Proving adultery in court

What, exactly, is adultery? Affairs can take many forms, but under Georgia law, adultery is voluntary sexual intercourse by a married person with someone who is not his or her spouse. It’s actually even a misdemeanor (O.C.G.A. 16-6-19).

In Georgia, adultery is among the most common grounds for divorce. Unsurprisingly, with so much riding on proving or disproving adultery, it can be a tough position to take in court. Testimony from one spouse is not enough. Instead, the court requires evidence—phone records, recordings, photos, bank statements, witnesses, or the testimony of a private investigator—to determine that adultery took place.

But while adultery as related to alimony is assumed to be sexual in nature, Georgia doesn’t require proof of intimacy. Instead, one party must show that the other had the opportunity and inclination to commit adultery.

Still, it’s often difficult to prove, and before filing, it’s best to contact a Georgia divorce attorney to discuss the best grounds under which to file. If you’re planning to contest alimony because of infidelity, you’ll have to file under adultery, but you’ll also have to possess the evidence to back up your claim. Often, it’s smart to instead assert a marriage is irretrievably broken, holding on to the right to assert additional grounds if the divorce proceedings head in a different direction.

If you’re considering divorce, contact our Marietta divorce attorneys or call 404-793-6530.

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