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Adultery & Equitable Division

If My Spouse Committed Adultery, Does This Affect Property Division?

Yes. If it is proven that your spouse cheated, then the adultery/misconduct will affect how marital property and assets are distributed between the parties during a divorce. 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.

Adultery's Affect on Property Division 

Adultery and cheating

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.

Splitting property in a divorce.

Equitable Division Generally 

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. 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. This bad conduct, of course, includes adultery.

Proving Adultery For Property Division 

1

What Does The Court Consider?

2

Adultery and Separation

3

Marital Funds Used During Affair

4

Proving Adultery is Difficult

Judge considering adultery when dividing marital property
What Does The Court Consider?

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.

Separation during divorce
Adultery and Separation

What if the adultery took place while you and your spouse were separated? This would show that the adultery was not the cause of the separation and the court may decline to consider the adultery/bad conduct when dividing marital property. Mack v. Mack, 234 Ga. 692 (1975).

Cheating while on a date
Marital Funds Used During Affair

What if there is evidence that the cheating spouse spent or used marital funds during the affair? If the adulterous spouse spent marital funds on his or her lover for dates, dinners, vacations, jewelry & gifts etc., the other spouse could receive a disproportionate award of marital assets to make up this improper use of marital funds.

Thinking about proving adultery in a divorce
Proving Adultery is Difficult

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 is often difficult. Gathering the evidence required to prove adultery can be very difficult without a lawyer or private investigator. 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. While a lawyer can't guarantee how the court will react, speaking with a lawyer can give you a better idea of the likely outcome.

Compare Adultery's Affect on Alimony Vs. Equitable Division 

Adultery & Alimony

  • Adultery can be a total bar to alimony 
  • Adultery must be proven by preponderance of the evidence
  • Adultery may not bar alimony if there is condonation
Vs. 

Adultery & Property Division 

  • Adultery can result in a reduced martial property award
  • Adultery must be the cause of the separation
  • Take into account if martial funds were used during affair

Additional Adultery & Division Topics 

Please feel free to explore more topics on equitable division and adultery in general. Note that adultery affects other aspects of divorce differently.
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