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Adultery & Equitable Division

In a Georgia divorce, if misconduct on the part of one of the spouses is proven, that spouse may face consequences regarding the award of alimony and the equitable division of marital property. Although an adulterous spouse may not be entitled to an award of alimony under Georgia law, an adulterous spouse will not be totally barred from receiving an award of the marital property as a result of his or her misconduct. Mack v. Mack, 234 Ga. 692 (1975). However, the amount of marital property awarded to the guilty spouse may be decreased as a result of his or her misconduct.

Georgia is an equitable distribution state. Upon divorce, spouses are not guaranteed an equal split of their marital property. Equitable means fair; and, according to Georgia law, fair does not always mean equal. Goldstein v. Goldstein, 262 Ga. 136 (1992). Fuller v. Fuller, 621 S.E.2d 419 (Ga. 2005). Generally, equitable distribution does result in the division of the estate 50/50 unless there is a reason to give one spouse a greater portion of the marital property. One reason to give one spouse a larger share of the marital property is the bad conduct of the other spouse. See Peters v. Peters, 248 Ga. 490 (1981); Waters v. Waters, 280 Ga. 477 (2006); Bloomfield v. Bloomfield, 282 Ga. 108 (2007). This bad conduct, of course, includes adultery. Id. When making a decision concerning the award of marital property between the spouses, the court presiding over the case may consider evidence of adultery committed by one spouse. If it is proven that one spouse committed adultery, especially if the adultery was egregious, this conduct may result in an unequal split of the marital property favoring the innocent spouse. Additionally, if the adulterous spouse spent marital funds on his or her lover, the other spouse could receive a disproportionate award of marital assets to make up this improper use of marital funds.

In a Georgia divorce, there may be consequences associated with adultery for the guilty spouse. However, proving the adulterous behavior of your spouse in court may be difficult. If you are considering divorce as the result of your spouse’s adultery, speak with a qualified Atlanta divorce attorney who will counsel you on what is necessary to prove your spouse’s adultery and how this misconduct may affect your divorce. 

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