If adultery was a factor in the end of your marriage, it could also be a factor in your divorce. A judge can consider spousal misconduct when deciding child custody, property division, and alimony. Speak with an experienced divorce attorney to learn how cheating could impact the final orders in your divorce.
No-Fault Divorce and Raising Infidelity as a Defense to Alimony
Sometimes people believe that if they want to prevent a cheating spouse from receiving alimony, they must cite adultery as a ground for divorce. That is not the case.
Georgia divorce attorneys often advise couples to cite the irretrievable breakdown of the marriage as their grounds for divorce. Even when one of the parties committed adultery or provided grounds for a fault-based divorce, citing the no-fault ground allows the divorce process to proceed more smoothly.
If an innocent spouse cites an irretrievable breakdown of the marriage and the unfaithful spouse requests alimony, the innocent spouse can still use the adultery as a defense to the alimony request. They would then need to meet the legal requirements to prove the spouse committed adultery that caused the end of the marriage.
Requesting Alimony in Georgia
Alimony or spousal support is money someone receives from their former spouse for their living expenses after a divorce. In the past, a husband usually paid alimony to a wife, and almost every divorce involved alimony payments for the foreseeable future unless and until the former wife remarried.
The law is much different now. Either spouse can request alimony from the other. The award of alimony is at the court’s discretion. The person requesting the alimony must prove that they need it to support themselves and that the other spouse can afford to pay.
Alimony is no longer meant to be paid forever or until remarriage. In most cases, a judge will award the needy spouse alimony for enough time for them to become self-sufficient. Some judges base the duration of alimony on the length of the marriage, such as one year of alimony for every three years the couple was married. Many factors impact the determination of alimony, including whether adultery took place.
An Adulterer Cannot Receive Alimony
Whether to award alimony, how much, and for how long is largely within the judge’s discretion. However, the Official Code of Georgia §19-6-1(b) removes judicial discretion when the marriage ends because of abandonment or adultery.
The law says that a person who commits adultery cannot receive alimony if cheating is the reason the marriage failed. The other spouse must prove adultery and show that the adultery ended the marriage. An unfaithful spouse could present proof that the couple continued to live together, have sexual relations, engaged in couples therapy, or present other evidence indicating that cheating is not the reason the marriage ended.
When the judge accepts that adultery killed a marriage, the unfaithful spouse cannot receive alimony regardless of the spouse’s relative financial circumstances.
What Needs to Be Proven?
Denying a spouse alimony on the basis of adultery requires proof of actual physical sexual contact. An emotional affair or an affair involving only phone sex or sexting does not qualify as adultery under the law.
The proof must be clear and convincing, but it can be circumstantial. The evidence must be obtained legally to be admissible in court. Examples of evidence that could support an allegation of adultery include:
- Credit card statements showing payments for travel, meals, hotels, or gifts
- Phone records
- Witness testimony of observing the spouse and another party
- Text messages
A spouse who suspects adultery and wants to get proof should strategize with an experienced divorce attorney to learn the type of evidence that will be both compelling and admissible.
A family court judge does not require irrefutable proof like photographs of the couple having sex. It is enough to show with convincing evidence that the couple had the inclination and opportunity to have sexual intercourse and that it is more likely than not that they did.
When Is It Paid Anyway?
If a spouse committed adultery, it does not mean they are automatically barred from receiving alimony. The law also requires proof that the adultery ended the marriage.
If the couple was separated when the adultery occurred, it will not be considered to have ended the marriage. If the couple was still officially together but no longer intimate, a family court judge might find the marriage was essentially over before the adultery occurred. If the couple had an open marriage, both spouses cheated, or one spouse knowingly tolerated the extramarital relationship, a judge could find that the adultery was not the direct cause of the divorce.
When there is ambiguity about whether the marriage would have survived but for the adultery, a judge can use their discretion to decide about alimony. Because so many factors might influence the decision about what caused the breakup, it is critical for a spouse to be candid with their divorce attorney. If evidence that the adultery caused the breakup is weak, asking the judge to deny alimony may not be the best strategy.
Couples Can Decide for Themselves
All of the foregoing discussion is relevant when the couple cannot reach a settlement, and a judge must decide. Couples can keep control of the decisions by negotiating a divorce agreement.
Both spouses risk public embarrassment if the adultery is discussed in court documents. Disclosure of cheating can be hard on children and might damage the parent/child relationship. Keeping the matter private might be sufficient motivation for the wronged spouse to agree to alimony despite the receiving spouse’s adultery.
Family courts actively encourage divorcing spouses to settle rather than litigate. Negotiations can be challenging when one spouse feels wronged or bitter. Even so, a negotiated settlement is faster and less expensive and allows a spouse to put the adultery behind them and move forward.
The Impact of a Paying Spouse’s Adultery
When the spouse with more resources is the one who cheated, the impact on alimony is less predictable. The law leaves the decision in the hands of the judge, and they view the matter based on the circumstances of the case and their individual code.
Some judges might feel that adultery merits a penalty. They could award the innocent spouse more property or alimony than they would have if the more affluent spouse had not cheated. This scenario is more likely when the cheating spouse used marital assets to pay for the affair.
In many cases, the adultery will not impact the paying spouse. The judge would award alimony using the same criteria they use for other couples. Local divorce attorneys often have a good sense of how a judge sees these issues and could advise their client accordingly.
Work With a Skilled Attorney When Adultery Is a Factor in Your Divorce
In Georgia, courts can consider a spouse’s conduct when awarding alimony. The impact depends on whether the spouse requesting alimony is the innocent spouse or the adulterous spouse.
Proving adultery in divorce court can be messy and increase the hostility between the parties. However, when substantial alimony is at stake, sufficient motivation might exist.
Speak with a member of our legal team about how we can help you navigate adultery and alimony in your divorce. Schedule a consultation today.
