When a family law attorney meets with a prospective client for the first time, that attorney often has to spend time dispelling some divorce myths in order to give the prospective client a better idea of what to expect throughout the divorce process. One widely believed divorce myth is that, if your spouse cheated on you, you will get everything you ask for in your divorce action. The reality is sometimes the cheating matters and, unfortunately, sometimes it makes no difference at all. While the adultery can weave itself into all issues in your divorce case, it is not determinative.
Alimony is the divorce issue that can be most impacted by adultery. In Georgia, quite simply, if you cheat on your spouse and that cheating was the cause of the divorce, you will not get alimony. O.C.G.A. § 19-6-1(b). This is pretty much the only “definite” in regards to adultery and divorce. On the flip side, if your spouse cheats on you, this does not necessarily mean you will receive alimony. Several factors go into determining whether alimony should be awarded and how much. O.C.G.A. § 19-6-5.While there is a catchall provision for the court to consider “such other relevant factors as the court deems equitable and proper,” the fact of the adultery on its own will not cause someone to be awarded alimony.
Equitable division may also be impacted by adultery. In Georgia, the marital estate is divided equitably in a divorce action. This means that it is not necessarily divided equally, but, rather, will be divided equitably according to the relevant facts in the case. If one spouse spends substantial marital funds on an extramarital relationship, the other spouse may be awarded a larger portion of the marital estate to balance out this inequity.
Child custody and child support are unlikely to be impacted by adultery. One exception may be if the parent behaved inappropriately with his/her paramour around the children. The court will look at the best interests of the children in determining custody. O.C.G.A. § 19-9-3. If a parent is making questionable decisions regarding an extramarital relationship and exposing the children to that situation, that factor will weigh on the court’s custody determination, and a parent could lose an otherwise close custody battle as a result.
Even though the fact that your spouse cheated on you may not be determinative on any issues in your divorce case, it is still important to bring it to the attention of your divorce attorney. It certainly cannot hurt you and your attorney will know how to use the information to your advantage in negotiations, or in front of a Judge who that attorney knows looks down upon extramarital affairs.