The spouse who alleges adultery in a Georgia divorce has to prove it, and since 2013 both spouses are competent to testify about it.
Both Spouses Can Testify About It Now
Georgia’s old Evidence Code made neither spouse a competent witness to adultery in a divorce case, even when the same facts also tended to show cruel treatment. That rule was not carried into the Evidence Code that took effect on January 1, 2013. OCGA 24-6-601 now provides that “[e]xcept as otherwise provided in this chapter, every person is competent to be a witness.”
So you may testify to what you saw, and your spouse may take the stand and deny it. Georgia opinions written before 2013 that say a spouse cannot testify to adultery were applying a statute the state no longer has.
You Can Take Discovery on It
Georgia’s discovery rules reach material about an alleged affair even when that material may never be admitted at trial. In Ewing v. Ewing, 333 Ga. App. 766 (2015), a wife found photographs and sexually explicit videos of another woman in her husband’s email on his iPhone and forwarded them to herself. She then counterclaimed for divorce on the ground of adultery, subpoenaed the husband’s phone records, and noticed the other woman’s deposition.
The husband moved for a protective order. The Court of Appeals affirmed the denial of that motion, holding that “the wife is entitled to engage in discovery which might lead to admissible evidence of the husband’s alleged adultery.”
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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!