Adultery and its Effect on Alimony

By Bob Coleman

Coleman, Chambers & Rogers, LLP

What is considered adultery in Georgia, and what effects could it have on alimony payments in a divorce?

Adultery in Georgia courts is defined as sexual intercourse with someone other than one's spouse. There are many acts by a spouse that may fall under a definition of sexual misconduct, but they are not legally considered adultery unless they involve intercourse. However, many Judges equate these sexual acts as adultery in their consideration of the case.

If a spouse does commit adultery by having sexual intercourse with someone else, there could be serious consequences in terms of alimony. If it's proven at trial that the spouse committed adultery, and that this adulterous act caused the separation, the court could deny the guilty spouse's right to any alimony if divorce is granted. There are a lot of circumstances that could factor into this alimony decision, however, resulting in something other than a complete denial. For example, the court can consider the conduct of the parties toward each other at the time of the adulterous act, whether the spouse was forgiven by the other spouse, or evidence that the other spouse may have also been unfaithful.

For example, if a husband knew of a wife's adulterous act, but voluntarily forgave her for it, then there may not be grounds for divorce based on adultery. This is known as condonation. Condonation is an affirmative defense which a spouse can assert at trial, basically arguing that the other spouse forgave them. In many divorce proceedings there is a hearing before a judge to determine temporary alimony payments prior to trial. If the wife's adultery is asserted as cause for the divorce at this hearing, the judge could lower alimony payments or refuse them altogether. But if cause is unclear to the judge, or there is conflicting testimony at the hearing, he may order temporary alimony to the wife until the issue is settled at trial.

Keep in mind that just because a person commits adultery, they are still entitled to an equitable division of marital property (Link Equitable Division). Contact Coleman, Chambers & Rogers, LLP at 678-928-5757 .