You do not have to prove your spouse is cheating to divorce in Georgia, and alimony is where an affair matters most.
You Can Divorce Without Proving It
A court can grant a divorce because “[t]he marriage is irretrievably broken.” OCGA 19-5-3(13). Our post on fault and no-fault divorce explains why most cases proceed on that ground.
What It Means for Alimony
Under OCGA 19-6-1(b), a spouse whose adultery caused the separation is not entitled to alimony if the other spouse proves it “by a preponderance of the evidence.” Vereen v. Vereen, 284 Ga. 755 (2008). So proof matters most when the spouse you suspect would receive alimony. Otherwise, the court must consider “the conduct of each party toward the other” in deciding whether to grant alimony. OCGA 19-6-1(c). Our posts on the adultery bar and on conduct during the marriage explain both.
Proving It Without Breaking the Law
Our posts on proving adultery and on circumstantial evidence explain how it is proved.
Secretly recording your spouse’s private conversations with someone else in a private place is a felony, OCGA 16-11-62(1) and 16-11-69, and the recording cannot be used in your divorce, OCGA 16-11-67. Going through your spouse’s phone or accounts without permission can be a crime too, OCGA 16-9-93(c). Read our posts on recording, secret cameras, computer crimes, and electronic evidence first.
If You Forgive the Affair
Under OCGA 19-5-4(a)(4), forgiving an affair you know about and living together again can bar adultery as a ground for divorce. Our post on which grounds condonation applies to explains the defense.
Property and Custody
An affair does not bar a spouse from an equitable division of property, though both spouses’ conduct is “relevant and admissible” in dividing it. Peters v. Peters, 248 Ga. 490 (1981). In custody and visitation, the primary consideration is not a parent’s sexual conduct but “whether the child will somehow be harmed by the conduct of the parent.” In the Interest of R. E. W., 220 Ga. App. 861 (1996).
Contact Us
This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!