Adultery not only ruins marriages, but it also has legal significance in divorce.

Adultery by either spouse during the marriage creates fault grounds for a total divorce under Georgia law.(1) Adultery in that context is defined as sexual intercourse with a person of either sex other than one’s spouse.(2) The need to plead adultery in order to “obtain” a divorce is unnecessary today since most divorces are now granted on the “no-fault” grounds that the marriage is “irretrievably broken with no chance of reconciliation.”(3)

Proving allegations of adultery in a divorce action presents challenges, since an adulterous spouse rarely will admit the affair, and eyewitness testimony seldom exists. Because adultery remains a crime under Georgia law (albeit a misdemeanor offense), a spouse in a divorce action can invoke rights granted under the Fifth Amendment of the United States Constitution and under the Georgia Constitution to refuse to answer incriminating questions regarding his/her alleged acts of adultery.(4)

To deal with those impediments, Georgia law permits parties to prove adultery by circumstantial evidence. Such evidence, however, must infer as a necessary conclusion that adultery was committed, and evidence fairly susceptible of two interpretations – one consistent with innocence and the other with guilt – will not suffice.(5) In addition, a jury or judge trying a divorce action or any other civil proceeding may draw an unfavorable inference against a party who claims a privileged refusal to testify. In other words, the finder of fact (whether judge or jury) may deem the privileged refusal to testify as an implied admission that a truthful answer would tend to prove that the witness had committed the incriminating act.(6)

Perhaps the greatest legal significance of adultery in divorce today rests in that conduct’s impact on alimony rights. Under Georgia law, “[a] party shall not be entitled to alimony if it is established by a preponderance of the evidence that the separation between the parties was caused by that party’s adultery or desertion.”(7) Thus, if adultery by the party seeking alimony caused the dissolution of a marriage, it bars that party from receiving alimony. Adultery is also relevant on the issue of equitable division of assets in divorce. Adultery may be a relevant factor in a child custody case if it impacts the child.

(1) O.C.G.A. § 19-5-3(6).

(2) Owens v. Owens, 247 Ga. 139(2), 274 S.E.2d 484 (1981).

(3) O.C.G.A. § 19-5-3(13).

(4) O.C.G.A. § 16-6-19; U.S. Const. am. 5; Ga. Const. art. I, § I, para. XVI. See also Temple v. Temple, 228 Ga. 73, 184 S.E.2d 183 (1971) (recognizing spouse’s right to invoke Fifth Amendment privilege in a divorce action, in response to deposition questions pertaining to his adultery).

(5) Johnson v. Johnson, 218 Ga. 28(1), 126 S.E.2d 229 (1962).

(6) Simpson v. Simpson, 233 Ga. 17, 21, 290 S.E.2d 611 (1974).

(7) O.C.G.A. § 19-6-1(b).