Adultery, alimony and absolution may sound like salacious topics for discussion but the reality is somewhat less than imagined in the post-Girls Gone Wild era.
Today, adultery almost seems like a prudish and antiquated remnant leftover from Victorian England.
In 2014, the significance of adultery in Georgia divorce law is far less than one may think.
Under Georgia law, adultery is defined as sexual intercourse with a person other than your spouse. Both homosexual and heterosexual extra-marital intercourse can constitute adultery. While there are a number of other ways that a spouse can be unfaithful, such as sexting, kissing and oral sex, they do not constitute adultery in the absence of sexual intercourse.
Adultery still exists as one of the thirteen grounds for divorce in Georgia that are enumerated in O.C.G.A. § 19-5-3. However, there is no doubt that the significance of adultery is fading as Judges are increasingly becoming immune to claims of adultery, which are no longer viewed with the disdain they were viewed with when Hawthorne penned The Scarlett Letter in 1850.
Although not quite as inflammatory as it once was, adultery can still negate a claim for alimony in Georgia. Adultery will be a bar to alimony if it can be shown to be the cause of the separation between the parties. Where a spouse commits adultery but it does not lead to the dissolution of the marriage, it will not operate as a bar to alimony.
Another way that adultery can be rendered insignificant is when there is absolution or condonation. Absolution is borrowed from religious teachings and won't be found in the law. Instead, the legal term for forgiveness or absolution under Georgia law is condonation.
Simply stated, where one spouse forgives or condones an adulterous relationship by the resumption of cohabitation and marital relations (i.e. sexual intercourse), he or she has condoned the prior adulterous conduct and it can no longer be used as grounds for divorce. Condonation is an affirmative defense that your lawyer must raise in the pleadings or at trial. Sexual intercourse with the adulterous spouse, with full knowledge of his or her adulterous conduct, is conclusive evidence of condonation.
What this means in the real world is that adultery will operate as a bar to alimony unless is it absolved. So while we've all been taught that “to err is human and to forgive is divine,” we need to be careful about forgiving adultery because once forgiven, the slate is wiped clean as to prior adulterous conduct.
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