The filing of a divorce action and the separation of the parties do not necessarily prevent consideration of end spousal misconduct which led to the dissolution of the marriage. Adultery, cruel treatment, and harassment that preceded a divorce action can continue throughout the proceedings. The issue is whether evidence of such continuing spousal misconduct is relevant in the divorce action.

Because a judge or jury deciding a claim for alimony should consider whether a spouse’s adultery caused the separation of the parties, that trier of fact also may consider evidence of a spouse’s post-separation acts of adultery if those acts prevented the reconciliation of the parties.(1)

It remains less clear whether a trier of fact can consider evidence of post-separation adultery when determining the equitable division of the parties’ marital assets. In divorce cases with equitable division of property, the conduct of the parties, both during the marriage and with reference to the cause of the divorce, is relevant and admissible.(2) Such relevant conduct includes acts of adultery.(3) Presumably, if post-separation acts of adultery prevented reconciliation of the parties, then evidence of that adultery should be admissible on issues of equitable division as well as alimony. No published Georgia appellate decision has yet spoken to this issue though. While a wife did assert the relevance of post-separation adultery to equitable division in one reported case, the Court there did not address her assertion in its opinion.(4)

As with adultery, evidence of post-separation cruelty or harassment can also be relevant in divorce proceedings. Such misconduct can support motions for contempt of standing orders which preclude harassment or intimidation. That misconduct likewise can underpin an application for issuance of a family violence protective order against the perpetrating spouse.(5) Additionally, if a spouse’s acts of harassment unnecessarily expand the divorce proceeding itself, evidence of those acts will support an award of attorney fees and litigation costs against the offending spouse under Georgia’s frivolous litigation statute.(6)

(1) McEachern v. McEachern, 260 Ga. 320, 322(3), 394 S.E.2d 92 (1990).

(2) Peters v. Peters, 248 Ga. 490, 491-492, 283 S.E.2d 454 (1981).

(3) Ewing v. Ewing, 333 Ga. App. 766, 768, 777 S.E.2d 56 (2015).

(4) McEachern, supra, 260 Ga. at 322(3).

(5) O.C.G.A. § 19-13-4.

(6) O.C.G.A. § 9-15-14(b).

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