Georgia divorce law recognizes 13 reasons for divorce, including "irretrievably broken," a no-fault ground, and 12 at-fault grounds for divorce, including adultery. Using adultery as a grounds for divorce may have implications for both parties regarding child custody, alimony and division of marital assets. Proving adultery is difficult and significantly increases divorce expenses.
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Historically, adultery in marriage was treated as a crime punishable by death. In Georgia, adultery is still considered a misdemeanor, punishable by a $1,000 fine and up to a year in jail. Georgia also recognizes adultery as grounds for granting a divorce. Most states have moved toward no-fault divorces, in which a couple can dissolve their marriage without having to prove that the other partner is at fault for failure of the marriage. Georgia is one of only 12 states that has retained 12 fault grounds for granting a divorce, in addition to the no-fault divorce option.
Definition of Adultery
Georgia state law defines adultery as heterosexual or homosexual intercourse between a married person and someone other than the spouse. Oral sex practices, including fellatio and cunnilingus, are not included in this definition and so cannot be used as grounds for divorce. The sexual act must include penetration but does not need to reach completion.
Proving adultery can be difficult unless the adulterer is open about the affair. Otherwise, adultery cases are usually proved by circumstantial evidence if it can be shown that the spouse had the disposition and opportunity to commit adultery. Proving adultery increases divorce expenses because private investigators are typically hired to perform surveillance on the spouse.
A common misconception is that alimony is automatically awarded to the non-cheating spouse, according to the law firm of Meriwether and Tharp, LLP, specializing in Georgia divorce law. Although the non-cheating spouse is not automatically awarded alimony, adultery can be factored into the decision by the judge not to award alimony to a cheating spouse. If a spouse is aware of the adultery and continues to have sexual intercourse with the adulterer, that is called codonation, or condoning the adultery, which can work against the non-cheating spouse in proving fault.
Using adultery as the grounds for divorce may not be emotionally vindicating or financially rewarding to the non-cheating spouse, according to Edwards and Associates, Family Law Attorneys in Georgia. Because proving adultery is difficult and time consuming, attorney and private investigator expenses quickly add up. The judge may decide to make both parties equally liable for court fees, which would further reduce the amount of the financial settlement the non-cheating spouse may receive. In the end, proving adultery may not benefit the non-cheating spouse.