Cheating Spouse

If you suspect your spouse is cheating on you, what do you do?

Under Georgia law, adultery is a misdemeanor offense, and the state is quite specific with its definition of what constitutes adultery. Georgia defines adultery as when a married person “voluntarily has sexual intercourse with a person other than his [or her] spouse.”

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.

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).

How do you prove adultery?

While the court does not require proof of sexual intimacy, it does require proof that there was the opportunity and inclination to commit adultery. This could include:

Phone records
Text messages
Emails
Love letters
Bookings for vacations or hotels
Credit card statements or receipts
In short, the spouse filing for divorce on the grounds of adultery is trying to prove that his or her ex-partner was alone with another individual and was likely to be sexually intimate.

If you have specific questions about the impact of adultery in your case, contact a Georgia divorce lawyer to discuss the fact of your case.