Adultery & Alimony
Does Adultery Affect Alimony?
Divorce is already a difficult and often highly emotional topic. Unfortunately adding infidelity to the mix can make things even more emotional. If you have cheated or been cheated on, it's important to know how this may affect your divorce or alimony case. In Georgia, Adultery can have an affect on whether or not alimony will be paid or reduced. A cheating spouse will not be entitled to alimony if it is established that the separation between the spouses was caused by that spouse's infidelity. The adultery committed by that spouse must be proven by a preponderance of the evidence. O.C.G.A. § 19-6-1.
M&T Practice Pointer
Adultery/Cheating can bar alimony if certain conditions are met.
When Does Adultery Prevent Alimony Payments?
Adultery is a bar to alimony only when it has been shown by a preponderance of the evidence that the infidelity of one spouse actually led to the separation of the spouses. 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.
What Counts As Adultery?
Cheating can take many forms, but when is it considered adultery for the purpose of barring alimony? Adultery is defined as having sexual intercourse with a person other than your 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).
Proven by a Preponderance of the Evidence
If it is proven at trial by a preponderance of the evidence (generally meaning that evidence showed it is more likely than not) 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.
Court Weighs Additional Circumstances
Not every case is the same and not every case requires a black and white application of the law. 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.
Forgiveness & Condonation
Forgiveness and condonation are sometimes used as a defense against adultery being a bar to alimony. If it can be shown that the offending spouse was forgiven or given permission to do the act, the adultery may not be a total bar to alimony. 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 while infidelity can result in 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.
Georgia Case Law on Alimony & Adultery
Georgia case law shows us how courts will deal with issues of adultery and alimony. The case law defines when adultery or cheating can be a bar to alimony. It also defines the word adultery for the purposes of alimony in Georgia.
"The statute does not provide a bar in every instance of adultery. It is a bar only when the adultery has been shown to be the cause of the separation between the parties."
Clements v. Clements, 255 Ga. 714 (1986)
"A person commits adultery when he or she has sexual intercourse with a 'person' other than his or her spouse. Therefore, both extramarital homosexual, as well as heterosexual, relations constitute adultery."