In Georgia, there are thirteen grounds for divorce, including Georgia's no fault ground for divorce, irretrievable broken. Although there are thirteen grounds for divorce, by far, the most inquired about is adultery. Generally, adultery occurs with one spouse has sex with a person other than his or her spouse. If proven, the injured spouse may seek a divorce from the philandering spouse due to that spouse's adultery.
Although cases involving adultery are generally straightforward - one spouse cheats on the other spouse and the wounded spouse seeks divorce - questions arise in situations where the spouses have an open marriage or are swingers. Can a spouse seek a divorce from another spouse based on adultery if the couple had an open marriage? What about if the couple are swingers, can one party claim adultery for the purpose of divorce?
As with any question concerning divorce in Georgia, the answer to the above questions depend primarily on the facts and circumstances of the particular case. However, spouses in open marriages should be aware that there are three potential defense that may be used by philandering spouses to defend against divorce actions based on adultery: Recrimination, Collusion, and Condonation.
Recrimination - In Georgia, a party is not entitled to a divorce if they are guilty of the same conduct alleged in the complaint. O.C.G.A. § 19-5-4. What this means practically is that if both parties of a marriage are both guilty of adultery, neither party will be able to obtain a divorce on the basis of adultery.
Connivance - Connivance occurs when one spouse consents to the other spouse's marital misconduct, such as adultery. If one spouse consents to the other party's adultery, a court will not grant a divorce on the grounds of adultery. O.C.G.A. § 19-5-4. This principle of Georgia law may pose significant problems for spouses in open marriages seeking divorce based on adultery.
Condonation - Condonation occurs when one spouse voluntarily forgives the other spouse of marital misconduct, such as adultery. O.C.G.A. § 19-5-4. If condonation or forgiveness is proven, the spouse seeking a divorce based on adultery will not be granted a divorce based on that grounds for divorce.
If you are in an open marriage, and considering divorce due to your partner's adultery or impermissible romantic relationship with another, contact your Atlanta Divorce Team to discuss your options and the most appropriate strategy take during your divorce.