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Georgia Adultery Laws: How Does Cheating Affect Divorce in Georgia?

by Sharon Jackson  on February 8, 2021 under ,

In Georgia, adultery takes place when a person participates in either heterosexual or homosexual intercourse with someone who isn’t their spouse. While the term may seem like a remnant of an antiquated legal system, adultery can significantly affect several aspects of a divorce case in Georgia.

Adultery is one of the grounds for divorce in Georgia. If you’re filing or facing a divorce that involves adultery, find a legal counsel who can help you understand your rights and obligations and come up with an effective case strategy.

Is It Illegal to Cheat on Your Spouse in Georgia?

Technically, Title 16, chapter 9, section 9 of Georgia’s Code of Criminal Conduct states that “ A married person commits the offense of adultery when he voluntarily has sexual intercourse with a person other than his spouse and, upon conviction thereof, shall be punished as for a misdemeanor.” Essentially, in Georgia, adultery is considered a criminal offense and categorized as a misdemeanor. However, no one has been criminally prosecuted for adultery in the state in the last 100 years.

Is Adultery Illegal in Georgia?

As mentioned above, adultery is technically illegal in Georgia. The court uses a two-prong test to establish whether or not adultery has been committed. First, the occurrence of extra-marital sexual intercourse must be established. Second, the affair should be the cause of the couple’s separation.

Can You Go to Jail for Adultery in Georgia?

Although Georgia is still one of the few states with a criminal statute on adultery, no one has been criminally indicted for it in the past century. Law enforcement officials will also typically refuse to get involved in cases that involve adultery.

How Does Cheating Affect Divorce in Georgia?

On top of being a criminal offense, adultery is also one of the 13 grounds for divorce in Title 19 of the Georgia Code. If proven in court, cheating on a spouse can affect the divorce in the following ways:

  • Alimony: One of the most significant issues in divorce cases involving adultery is alimony. If a dependent spouse (or the spouse who has comparatively less income than their partner) has committed infidelity, they may be barred from obtaining alimony.
  • Property Division: Adultery may also have an impact on the equitable division of property. In Georgia, marital property is divided equitably, and not equally. A judge may find it more equitable to award a bigger portion of the marital assets to the spouse who didn’t cheat. This is almost always true when the guilty spouse is found to have spent marital funds for their lover during the course of the affair. This can include the costs of hotel rooms, gifts, etc.

Does Cheating Affect Alimony in Georgia?

Alimony refers to the financial support given by a higher-earning spouse to the other low-earning spouse during and after divorce proceedings. Alimony can be temporary or permanent. It may also last until the supported spouse dies or remarries. Before granting alimony to one spouse, Georgia courts take into account several factors such as the couple’s standard of living, each spouse’s earning capacity and current financial resources, the length of the marriage, etc.

Statutory law provides that a spouse may be denied alimony if their adulterous actions have been established to be the cause of the couple’s separation. What this means is that if the accusation of adultery is proven in court, the cheating spouse won’t be entitled to alimony. This holds true no matter the financial circumstances of either spouse.

There are two ways in which adultery won’t affect or negate the claim for alimony:

  • Absolution or Condonation: This happens when one spouse forgives or condones the other’s adulterous relationship. This forgiveness can be manifested in several ways, including sexual intercourse or continued cohabitation. Condonation serves as an affirmative defense for the cheating spouse, and once established, adultery can no longer be used by the other party as grounds for divorce.
  • Adultery did not lead to dissolution of marriage: Adultery must be proven to be the primary cause of the couple’s separation. Even if one spouse has committed adultery, if it’s later established that the real cause of the divorce is the other spouse’s alcohol addiction or physical abuse, the court may still decide to grant the cheating spouse alimony.

Does Cheating Affect Child Custody in Georgia?

In general, adultery doesn’t have any bearing on Georgia child custody cases. It also won’t affect child support. The only exception is when the cheating spouse exposes the children to inappropriate actions or behavior because of their affair. 

If the spouse committed adultery in front of their children, the court may determine that they did not act in their children’s best interests. As a result, this will most likely weigh against the offending party if there’s a custody battle.

Consequences of Adultery in Georgia Divorce

Adultery is every married person’s worst nightmare. It can make the process of divorce more emotionally charged and the offended party more litigious. 

Under Georgia law, divorce will not be granted if adultery happened in the following situations:

  • The cheating spouse engaged in adultery primarily to end the marriage and get a divorce.
  • Both spouses have committed adultery.
  • The spouses have an open marriage. This means that the spouse who filed the divorce was aware and consenting of the other party’s actions.

Husband Committed Adultery - What Are My Rights?

It can be devastating to learn that your husband has committed adultery. Cheating is a break in your marital bond and a betrayal of your trust. However, it’s important to remain calm and learn your rights, especially when you’re considering divorce.

Remember, the law is on your side. Your husband’s infidelity will be considered by the court when deciding on issues involving property division, child custody, and alimony. To protect your rights and make sure you’re not making any mistakes during the process, always consult an experienced and capable family law attorney.

Statute of Limitations on Adultery in Georgia

In general, the statute of limitations on misdemeanor offenses, like adultery, is 2 years. However, if you’re filing for a divorce, you don’t have to prove a fault ground like adultery in the state. Georgia is a no-fault divorce state, which means that you don’t have to allege and prove adultery before you can get a divorce.

If you do plan to get a fault-based divorce on the grounds of adultery, it’s best to consult a lawyer because of the complex issues involved in your case.

Is Sexting Considered Adultery in Georgia?

Although there are many ways that a married person can be considered unfaithful, under Georgia law, adultery can only be established if there’s actual extra-marital sexual intercourse. Thus, sexting, kissing, and even oral sex, will not be considered as adultery by the court.

Text messages, however, may be used as evidence to establish adultery. The court may subpoena the spouse’s cell phone provider and require them to reveal private messages related to the cheating allegations. If you’ve also received any incriminating messages from your cheating spouse, you can use this to help strengthen your case.

Find a Good Lawyer

If adultery is an issue in your divorce case, schedule a consultation with an experienced divorce lawyer who can represent and aggressively defend your best interests.

Attorney Sharon Jackson has years of experience helping clients navigate complicated and emotional divorces. Call us today at (438) 909-4100  to schedule a consultation. 

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