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My Spouse Had An Affair. Can They Get Half My 401k?

Upon divorce in Georgia, marital property is divided equitably between the spouses according to Georgia’s principle of equitable division. Marital property may consist of real property like a marital home or income property or personal property like cars or jewelry. Additionally, marital property may include retirement accounts held by either spouse. Although according to the principle of equitable division, marital property doesn’t have to be divided equally, in many circumstances it is divided equally or near equally unless certain circumstances apply. See Fuller v. Fuller, 621 S.E.2d 419 (2005).

One of those special circumstances that may impact how marital property is divided upon divorce is marital misconduct, specifically adultery. While an adulterous spouse will not be totally barred from receiving an award of the marital property as a result of his or her adultery, the amount of marital property awarded to the guilty spouse may be decreased as a result of his or her affair. See Mack v. Mack, 234 Ga. 692 (1975); Peters v. Peters, 248 Ga. 490 (1981); Waters v. Waters, 280 Ga. 477 (2006); Bloomfield v. Bloomfield, 282 Ga. 108 (2007). Specifically, if it is proven that one spouse committed adultery, especially if the adultery was egregious, this conduct may result in an unequal split of marital property, including retirement accounts, favoring the innocent spouse. Additionally, if the adulterous spouse liquidated retirement to facilitate his or her adultery, the innocent spouse could receive a disproportionate award of marital assets to make up this improper use of marital funds.


Adultery Divorce
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