Before entering a final judgment granting or denying alimony, a Georgia trial court must hear evidence of the factual cause of the parties’ separation, and must consider evidence of the conduct of each party toward the other.(1) If it is established by a preponderance of the evidence that adultery of a spouse caused the separation of the parties, then the adulterer cannot obtain a final judgment awarding alimony.(2) Evidence of post-separation adultery which prevented reconciliation also is relevant and admissible in determining final alimony awards.(3) Those rules and preclusions governing final alimony awards do not necessarily apply to temporary awards of alimony during the pendency of a divorce action, however. This article explores the admissibility of evidence of adultery by either or both spouses at temporary hearings in divorce actions and the impact of that evidence on a spouse’s right to obtain temporary alimony.

At a temporary hearing on alimony, a trial court must hear “both parties and the evidence as to all circumstances of the parties and as to the fact of marriage,” before granting an order “allowing such alimony, including expenses of litigation, as the condition of the parties and the facts of the case may justify.”(4) Given that language and the law regarding adultery and alimony, one would think the relevant circumstances of the parties and facts of the case necessarily include evidence of adultery on the part of a spouse requesting alimony. Nonetheless, another statutory provision muddies the issue, stating that “[a]t a hearing on the application for temporary alimony, the merits of the case are not in issue; however, the judge, in fixing the amount of alimony, may inquire into the cause and circumstances of the separation rendering the alimony necessary and in his discretion may refuse it altogether.”(5) Proof of adultery seemingly goes to the merits of a divorce and alimony action, yet this provision at the same time expressly permits – but does not require – a judge to consider the cause and circumstances of the parties’ separation (which should include evidence of adultery causing the separation) in determining whether to award temporary alimony.

Fortunately, case law provides some guidance and clarification (albeit not perfectly clear) to the statutory muddle.

If incontrovertible or undisputed evidence at a temporary hearing demonstrates adultery by the party requesting alimony, which adultery caused the separation of the parties, then the trial court cannot award temporary alimony.(6) It seems implicit, therefore, that a court at a temporary hearing on alimony cannot properly refuse to allow presentation of undisputed or incontrovertible evidence of adultery causing the separation of the parties.

If the evidence of adultery or its contribution to the cause of separation is conflicting, then the court has discretion to entirely disallow temporary alimony to the allegedly adulterous spouse.(7) The merits of the case are not at issue though, so the judge hearing conflicting evidence need not render a judgment on temporary alimony in accordance with the preponderance of the evidence.(8) Based on the statutory language that a judge “may inquire into the cause and circumstances of the separation” (emphasis added), the court alternatively should be able to grant temporary alimony without hearing conflicting evidence of adultery and its contribution to the cause of separation.(9)

If a trial court permits introduction of conflicting evidence of adultery causing the separation of the parties at a temporary hearing, then it should accept evidence as to both parties’ conduct in relation to their separation, including adultery on the part of both spouses.(10) The court should follow three considerations in construing the parties’ conduct vis-à-vis alimony awards: 1) Is the party seeking alimony barred entirely by adultery? 2) If not, the court should base its decision on whether to grant alimony on its consideration of the factual cause of the separation and the conduct of the other spouse toward the spouse requesting alimony; and 3) the amount of alimony should be set considering the factual cause of the separation, the needs of the party requesting alimony, and the ability to pay of the other spouse.(11)

Although it seems clear that evidence of post-separation adultery – by either spouse – which prevents reconciliation is relevant to alimony considerations, no published appellate decision has yet to hold that such post-separation adultery by the spouse requesting alimony altogether bars an alimony award. Most likely, post-separation adultery cannot automatically preclude temporary or final alimony, since the statutory bar on its face applies only to adultery which caused the separation of the parties. In a similar vein, while no published appellate decision has yet to specifically address the admissibility and impact of evidence of post-separation adultery at a temporary hearing, it seems logical that the same rules, considerations, and conclusions described above regarding evidence of pre-separation adultery at temporary hearings should apply equally to evidence of post-separation adultery preventing reconciliation.

(1) O.C.G.A. § 19-6-1(b) and (c).

(2) O.C.G.A. § 19-6-1(b).

(3) McEachern v. McEachern, 260 Ga. 320, 322(3), 394 S.E.2d 92 (1990); Bryan v. Bryan, 242 Ga. 826, 827-830, 251 S.E.2d 566 (1979).

(4) O.C.G.A. § 19-6-3(a).

(5) O.C.G.A. § 19-6-3(c).

(6) Collier v. Collier, 228 Ga. 38(1), 183 S.E.2d 769 (1971); and Johnson v. Johnson, 218 Ga. 28, 126 S.E.2d 229 (1962).

(7) Gray v. Gray, 226 Ga. 767, 769(2), 177 S.E.2d 575 (1970). See also Bulloch v. Bulloch, 4 S.E.2d 630, 630-631 (Ga. 1939); and Grant v. Grant, 184 Ga. 339(2), 191 S.E. 98 (1937).

(8) Williams v. Williams, 114 Ga. 772, 40 S.E. 782, 783 (1902).

(9) O.C.G.A. § 19-6-3(c).

(10) Davidson v. Davidson, 243 Ga. 848, 849-850(1), 257 S.E.2d 269 (1979); Bryan, supra, 242 Ga. at 827-830.

(11) Davidson, supra, 243 Ga. at 849(1); Bryan, supra, 242 Ga. at 827.