Our prior articles discussed the relevance and proof of adultery vis-à-vis asserting grounds for divorce and obtaining permanent and temporary alimony. Yet not every failed marriage suffering from adultery results in a divorce complaint asserting the ground of adultery or in a claim for alimony by the adulterous spouse. In the absence of an asserted ground for divorce or claim for alimony by an adulterer, the question arises whether evidence of adultery bears relevance to any other triable issue in a divorce action. The answer is yes, as this article will explain.

Well-established Georgia law holds that the conduct of the parties, both during the marriage and with reference to the cause of the divorce, is relevant and admissible where equitable division of marital property is at issue.(1) Decisions of the Georgia Supreme Court have made clear that the “conduct” which a trial court can consider when deciding how to equitably divide marital assets includes evidence of adultery.(2)

When considering evidence of adultery, a judge does not have to skew property allocation in favor of the victim of adultery. If the victim of adultery condoned it (i.e., conditionally forgave prior acts of adultery) and no further acts of adultery occurred afterwards, a court could refuse to consider evidence of the prior adultery in deciding how to apportion marital assets.(3) Similarly, if a court awards marital property to an adulterous spouse, rather than to the victim-spouse, because the court finds that adultery did not cause the dissolution of the marriage, the court will have properly considered the parties’ conduct in its equitable division of their assets.(4)

While a trial court does not have to skew property allocation in favor of the victim of adultery, it certainly can. The wide discretion granted to a trial court in a divorce action should allow even vast disparities in the division of assets if the judge deems the division fair having considering evidence of adultery.(5) For example, in a legal malpractice action against an attorney who had represented the husband in his divorce case, our Court of Appeals held that the divorce court committed no abuse of discretion in its equitable division of the marital assets, having awarded wife the bulk of the marital estate, including the home, various tools and tractors, and the entirety of her retirement accounts after considering evidence of husband’s adultery.(6)

(1) See Wood v. Wood, 283 Ga. 8, 11(5), 655 S.E.2d 611 (2008); and Peters v. Peters, 248 Ga. 490, 491-492(2), 283 S.E.2d 454 (1981). (2) Id; and Alejandro v. Alejandro, 282 Ga. 453, 455(4), 651 S.E.2d 62 (2007). (3) See Wood, supra, 283 Ga. at 11(5). (4) Alejandro, supra, 282 Ga. at 455(4). (5) See, e.g., Benson v. Ward, 343 Ga.App. 551, 554-555(1), 807 S.E.2d 471 (2017). (6) Id.

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