Adultery is one of Georgia’s thirteen grounds for divorce, and it is a fault ground, which means you have to prove it.
What the Statute Says
OCGA 19-5-3(6) authorizes a total divorce for “[a]dultery in either of the parties after marriage.” Two phrases there do real work. “Either of the parties” means the ground belongs to whichever spouse was wronged, and it cuts both ways. “After marriage” is the only timing limit the statute imposes, so conduct before the wedding is not a ground, and the marriage does not end until a judge signs the decree.
What Counts as Adultery
Georgia defines adultery as sexual intercourse with someone other than your spouse. In Owens v. Owens, 247 Ga. 139 (1981), the Georgia Supreme Court held that because the definition reaches intercourse with “a person” other than the spouse, both extramarital heterosexual relations and extramarital same-sex relations qualify.
Adultery is also a crime. Under OCGA 16-6-19, a married person who voluntarily has sexual intercourse with a person other than his spouse commits a misdemeanor. Prosecutions are rare, but the conduct you are alleging in the divorce is a criminal offense.
Adultery Is Rarely the Only Ground Pleaded
Most petitions alleging adultery also allege that the marriage is irretrievably broken, and a Georgia court can grant the divorce on both. In Walls v. Walls, 291 Ga. 757 (2012), the husband amended his complaint to add adultery, and after a bench trial the court granted the divorce on the grounds of both the wife’s uncondoned adultery and irretrievable breakdown.
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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!