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Adultery & Alimony
The Effect of Adultery on Alimony
In Georgia, adultery plays a role in alimony cases. A spouse will not be entitled to alimony if it is established that the separation between the spouses was caused by that spouse’s adultery. The adultery committed by that spouse must be proven by a preponderance of the evidence. O.C.G.A. § 19-6-1.
Adultery is not a bar to alimony in every case.
Adultery is a bar to alimony only when it has been shown that the adultery of one spouse actually led to the separation of the spouses will the adulterous party be denied alimony as a result. Clements v. Clements, 255 Ga. 714 (1986). Thus, if your spouse does commit adultery and you can prove the cause of your marital break-up is your spouse's adulterous affair, there could be serious consequences in terms of alimony.
For the purposes of the rule of law barring adulterous spouses from receiving alimony, adultery is defined as when a spouse has sexual intercourse with a person other than his or her spouse. Although other forms of intimacies may be considered adultery between the parties, for the purposes of this law, sexual intercourse must occur before the act is considered adultery. Additionally, this law is applicable regardless of whether the extramarital affair is a heterosexual or homosexual relationship. Owens v. Owens, 247 Ga. 139 (1981).
If it is proven at trial that your spouse committed adultery and his or her adultery led to the separation, the court presiding over your divorce could deny the guilty spouse any alimony at all. Although an adulterous spouse is not entitled to any award of alimony at all, there are other circumstances that a court may consider which may lead to a reduction in the amount of alimony, in lieu of a complete denial. The court can consider the conduct of the parties toward each other at the time of the adulterous act, whether the spouse was forgiven by the other spouse or evidence that the other spouse may have also been unfaithful.
For example, if a husband knew of a wife's adulterous act and voluntarily forgave her then later asserted the wife's adultery as being the cause for the divorce, the judge could lower alimony payments or refuse them altogether. Keep in mind though that adultery is only a bar to alimony. It does not necessarily prevent the guilty spouse from receiving his or her share of the equitable division of marital property.