In Georgia, adultery, defined as a person voluntarily having "sexual intercourse with a person other than his or her spouse," is actually still a codified crime, although it is rarely ever prosecuted. Johnson v. Johnson, 218 Ga. 28(2) (1962). . In addition, adultery is a ground for divorce in Georgia and impacts a divorce proceeding in a couple of ways.
First, if it is proven by a preponderance of evidence that the separation between the parties was caused by a party's adultery, that party is not entitled to alimony. O.C.G.A. ยง19-6-1(b). Adultery may be "proven" by circumstantial evidence, but such evidence must infer as a necessary conclusion that adultery was committed. Popham v. Popham, 278 Ga. 852(1) (2005). In order for adultery to beinferred from circumstantial evidence, there must be shown both (1) an opportunity to commit adultery and (2) an adulterous disposition. Rowell v. Rowell, 209 Ga. 572(3) (1953). .
Further, adultery is still a ground for divorce even if committed AFTER the parties separate and even if the suit for divorce has already been filed. Rowell v. Rowell, 209 Ga. 572(3) (1953).
Another way adultery impacts a divorce is the realm of "conduct of the parties," which is one of many factors the Court weighs when deciding upon other issues in the divorce such as equitable division of property. While adultery certainly would not bar a party from receiving an equitable division of property, it could certainly could cause the "equity scale" (i.e. what is fair) to tip in favor of the non-offending party.
By Robin K. Love, Associate Attorney, Meriwether & Tharp, LLC