If you're facing the end of your marriage because you or your spouse had an extramarital affair, you might be wondering what difference that could make in your divorce. Adultery can play a more significant role in Georgia divorces than in most other states. But whether and how it will affect the outcome of your case depends on the particular circumstances and issues in your divorce.
In Georgia, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in Georgia include both fault and no-fault reasons for ending a marriage. Among the fault-based grounds, you may get a Georgia divorce if you can prove that either you or your spouse committed adultery. (Ga. Code § 19-5-3 (2022).)
Georgia law prohibits an award of alimony to a spouse who committed adultery, but only if that was the reason that the couple separated. (Ga. Code § 19-6-1(b) (2022).)
So if you're opposing a request for alimony in Georgia based on adultery, you'll need to present evidence not only proving that your spouse had an extramarital affair, but also proving that the infidelity was the reason you split up. And if you've been unfaithful, you might still get an alimony award in your divorce if you can provide other evidence showing that wasn't the reason for the breakup.
Unless it's been absolutely ruled out by adultery, the judge (or jury) will decide whether to award alimony based on the requesting spouse's need for support and the other spouse's ability to pay, after considering both spouses' conduct toward each other. (Ga. Code § 19-6-1(c) (2022).)
Once a judge or jury has decided to award alimony, Georgia law lists a number of factors that must be considering when deciding on the amount of support. Those factors focus on circumstances that affect one spouse's need for alimony and the other spouse's ability to pay. Although the law allows courts to consider other relevant factors if that would be fair, Georgia's courts have long held that either spouse's misconduct should not be a factor in deciding the amount of alimony. (Ga. Code § 19-6-5 (2022).)
Georgia law doesn't specifically address how a spouse's adultery might affect other issues in a divorce besides alimony. But that doesn't necessarily mean it could never play a role in decisions about property division or child custody.
In some states, the laws specifically allow judges to consider either spouse's misconduct when they're distributing a divorcing couple's assets and debts. But Georgia doesn't have any statutes that spell out the rules for dividing a couple's marital property and debts during divorce. Instead, state courts have developed the principle of equitable property division in Georgia. Basically, that means courts will decide what's fair under the circumstances of each case.
In theory, that could mean a spouse's adultery might play a role in the property division—especially when that spouse has used a lot of the couple's money on the extramarital affair (such as for expensive gifts, trips, and hotel stays). Under those circumstances, a jury or judge might decide that the other spouse should be compensated for the financial loss as part of the property division.
Decisions about child custody in Georgia, as in all states, must be based on what would be in the children's best interests. (Ga. Code § 19-9-3 (2022).) Judges may consider a parent's conduct and home environment, but only to the extent that it affects the child's health, safety, and general welfare.
Ordinarily, the focus on the child's best interests means that a parent's adultery won't affect a judge's decision about parenting time and where the child will live most of the time. Just because someone has had an extramarital affair, that doesn't mean that person can't be a good parent. However, a judge could conceivably consider the circumstances around a parent's adultery if it endangered the child's well-being—for instance, if the parent's extramarital relationship involved abusive behavior, or if a parent became completely uninvolved in the child's life because of that relationship.
Child support in Georgia is calculated under a formula spelled out in the state's child support guidelines. The formula is based primarily on both parent's incomes, with adjustments for certain expenses like child care and health insurance. Because the support payments are meant for the children's needs—not as a reward or punishment for the parents' behavior—either parent's adultery won't play any role in determining which of them will pay support or the amount of the payments.
Most states have repealed their olds laws making adultery a crime. Not Georgia. Under a law dating back to the 19th Century, it's still a misdemeanor in Georgia to commit adultery—voluntary sexual intercourse with someone other your spouse. (Ga. Code § 16-6-19 (2020).)
The crime of adultery is rarely (if ever) prosecuted these days. Still, legislators in Georgia have kept the law on the books.
Even if your spouse's extramarital affair was the reason for the end of your marriage, you should seriously consider the consequences of making adultery an issue in your divorce. That's because it will almost certainly lead to legal battles that will increase the cost of divorce (think attorney's fees), as well as add stress and time to the entire process.
If you can cooperate with your spouse enough to work out a divorce settlement agreement, you'll be able to get an uncontested divorce in Georgia—which is always quicker, easier, and cheaper than a traditional contested divorce. When you're negotiating an agreement, either on your own or during mediation, you could bring up Georgia's law on adultery and alimony in an effort to convince your spouse to drop any request for alimony.
But you should speak with a lawyer if you aren't able to reach an agreement. Your spouse will almost surely argue that the adultery never actually happened or that it wasn't the real reason the two of you separated. An experienced family lawyer can help you prepare and present the right kind of evidence to convince the court that your claims are more likely to be true than not.
Similarly, if you're the one being accused of adultery in a Georgia divorce, you'll almost certainly need a lawyer to protect your interests and get a fair result. (Here are some tips on questions to ask before you hire a divorce lawyer.)