You can refuse to answer questions about adultery in a Georgia divorce, but the refusal itself can be used against you.
Why the Privilege Applies at All
Adultery is a misdemeanor in Georgia under OCGA 16-6-19, so answering truthfully can expose you to criminal liability. Georgia also has its own privilege at OCGA 24-5-505(a): “No party or witness shall be required to testify as to any matter which may incriminate or tend to incriminate such party or witness or which shall tend to bring infamy, disgrace, or public contempt upon such party or witness or any member of such party’s or witness’s family.”
The Refusal Can Be Held Against You
In Simpson v. Simpson, 233 Ga. 17 (1974), a mother and a third-party witness both declined to answer questions about their relationship. The Georgia Supreme Court held that while “no inference of guilt can be drawn from a privileged refusal to testify in a criminal case,” Georgia law does not make “it impermissible to draw an unfavorable inference in a civil case from the privileged refusal to testify in that case.” The trial court’s change of custody was affirmed.
Likewise, in Brewer v. Brewer, 249 Ga. 517 (1982), the alleged paramour had taken the Fifth at his deposition and the trial judge then refused to let him be called at trial. That was error under Simpson, and the judgment was reversed.
One Limit
The inference is a civil rule only. In Miller v. Miller, 288 Ga. 274 (2010), a criminal contempt finding built on a husband’s assertions of the privilege was reversed.
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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!