From a moral standpoint, there are few things more damaging to a marriage than adultery. A marriage is entered into with complete trust in one another, and adultery is, at its heart, a betrayal of that trust.
Legally, the situation surrounding adultery becomes a little more complicated. In the state of Georgia, there are criminal penalties that can stem from the act. And in cases of divorce, allegations of adultery can add immense complications to a legal case. What follows are answers to a few popular questions about infidelity, cheating, and adultery in the state of Georgia.
On paper, yes, it is against the law to cheat on your spouse in the state of Georgia, with Title 16, chapter 9, section 9 of Georgia’s Code of Criminal Conduct spelling it out pretty clearly. In that section of the law, it states, “ 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.”
Legally speaking, adultery must occur during the period in which two people are married. You cannot be charged with adultery for cheating on someone you are dating or engaged to.
So yes, adultery is considered a misdemeanor and thus is technically illegal. That said, there hasn’t been a single case where someone was charged and prosecuted for adultery in Georgia for the last 100 years.
By wording it specifically as “sexual intercourse,” the state of Georgia defines adultery pretty narrowly. Forms of intimacy other than that, such as sexting, kissing, or heavy flirtation are not legally considered adultery.
The law does not distinguish between hetero- or homosexual congress in defining adultery. If sexual intercourse occurs between two parties, and one is married, it is legally adultery regardless of their gender.
As a misdemeanor crime, adultery is punishable by law with up to a year in jail and a $1,000 fine. But certain circumstances can lead to harsher punishments and additional charges, including adultery with an individual under the age of 16, with those suffering from mental illness, or with those who are unable to provide consent due to drugs or alcohol. Because in these cases the other party cannot understand the consequences of their actions or simply doesn’t grasp what is happening, they are protected by greater criminal penalties.
Beyond the criminal implication of adultery, you can file for divorce on grounds of adultery if you feel you have enough evidence that your spouse has committed this crime.
As with all misdemeanor offenses, Georgia law provides a two-year statute of limitations to prosecute for adultery.
There are two types of ways in which adultery can be alleged and proven in court during a divorce case:
Circumstantial evidence is indirect evidence showing the possibility that an affair could have taken place. While these are not generally admissible as evidence, Georgia is one of a handful of states that allow such evidence to be submitted. Some examples include:
• Cell phone bills showing multiple phone calls and text messages between the accused spouse and the alleged extramarital partner.
• Tracking data from the accused’s cell phone or other devices, such as social media data, browser history, or saved texts from messaging apps such as Snapchat or WhatsApp.
• Witness testimony from anyone who saw alleged infidelity take place.
• Photographs that indicate a romantic relationship, but don’t necessarily prove adultery, such as images of the accused kissing or going on a date with one another.
Direct evidence is far more powerful and convincing than circumstantial evidence. Short of a full-blown admission of guilt, it is among the most valuable evidence you can bring to trial, as it shows tangible proof of an affair. Types of direct evidence include:
• Written communications, either on paper or electronic, clearly stating that adultery occurred.
• Photographic evidence showing the actual act of sexual relations between the accused and the third party.
• Other documentation or testimony that provides clear proof of an affair.
If you can prove adultery in court, the penalties for your soon-to-be-former spouse can be severe. As you would imagine, Georgia judges tend to not be lenient on spouses who have been shown to have committed adultery.
If adultery is proven in court, it will have impacts on several different aspects of the divorce and how it is judged by the court:
• Division of marital assets
• Child custody
Let’s start with how a charge of adultery can impact how alimony is determined. In the state of Georgia, alimony is financial support given by one spouse to the other during and for some time after the divorce. There are several different types of alimony in Georgia and can be ordered either permanently or temporarily. But the bottom line is, that if a spouse is proven to have committed adultery, they are barred from receiving any alimony. Regardless of your financial situation or your spouse, alimony is usually off the table for adulterers.
Adultery can have a huge impact on the way marital assets are divided, as well. In Georgia, marital assets are considered to be any material or immaterial possession acquired by either spouse at any point during the marriage. Regardless of which spouse acquired it, or how, it is all lumped together as marital assets and divided by the court.
This can include everything from houses, cars, and gifts, but it can also extend to less tangible assets such as retirement savings, investments, insurance policies, pensions, stocks, and even debts.
And most Georgia judges are far more inclined to grant a larger portion of these assets to the spouse who has been wronged. Especially if the adulterer shows a lack of remorse for their actions, or if they spent shared marital funds in pursuit of the affair through gifts, vacations, and hotel rooms.
It’s worth noting that the state of Georgia views “separate property” differently than marital property during divorce proceedings. Separate property includes property that one spouse or another acquired before the marriage began and can include the same range of tangible and intangible assets as marital property. Typically, these assets are retained by the original owner rather than being divided up by the principle of equitable distribution.
While the separate property is generally retained, marital property will be divided more or less evenly by the court. Generally, these assets are split equally based on several factors such as each spouse’s contributions to the marriage and other factors. But in cases of adultery, the courts almost always favor the wronged party, and will also be more inclined to favor that the adulterer pays for the other spouse’s court fees in many situations.
In any divorce case, the bottom line of what a judge is looking out for is the best interests of the children. A history of substance abuse, neglect, violence or threats of violence, and criminal activity can all weigh heavily in denying one parent or the other custody of the children.
In cases of adultery, the judge will only typically weigh the circumstances of the affair in this decision if the affair caused harm to the child. Exposing the child to inappropriate situations, behaviors, or actions as a result of the affair, or allowing the child to witness any of the adulterous actions themselves, are usually not in the best interests of the child and can impact a custody decision.
Because of the massive impact adultery can have on a divorce case, we encourage those facing these dire circumstances to reach out to us as soon as possible. The earlier we are brought in, the more we can do to collect evidence and influence the outcome in your favor.
One of the more common methods we use for collecting important evidence is through hiring a private investigator. As mentioned, direct evidence is some of the most powerful that you can bring to bear in these proceedings, and collecting that concrete evidence is what these private investigators do best.
By the very nature of being an adulterer, your soon-to-be ex is not inclined to be honest with you or with the court. They will tell you that there’s been a misunderstanding or that the nature of the alleged relationship has been blown out of proportion. But when you can confront them with photos, documents, or even video evidence of their misdeeds, gathered by a professional, they will have a much harder time denying the truth.
Sometimes new evidence may come to light after you’ve filed for divorce, and you discover the extramarital affair afterward. In this case, you can potentially amend the grounds for divorce to include adultery.
Not anymore. At one point, Georgia law allowed for legal action based on “alienation of affection,” otherwise known as homewrecker laws, which would have allowed you to sue. The state legislator appealed these laws in 1979, and today Georgia law specifically bars these types of lawsuits.
Having said that, proof of adultery can have a tremendous impact on a divorce settlement, providing financial compensation and greater custody of a child, essentially acting as a punitive measure for those caught cheating.
In most states, when a married couple does not want to divorce but wishes to live apart, this is called a “legal separation.” The state of Georgia, however, does not have any provisions for legal separation. Instead, it employs what is known as “separate maintenance.”
More than just semantics, a separate maintenance offers some of the benefits of legal separation but requires both parties come to an agreement on things like temporary child support and custody, temporary alimony, and temporary division of certain property. To file for separate maintenance, one spouse must have lived in Georgia for at least 30 days. An attorney can help you file an order for separate maintenance, but it will not end the marriage. In Georgia, only a divorce can do that.
It is worth considering before going through with divorce that, yes, divorce proceedings are generally a matter of public record in the state of Georgia. In the heat of the moment, you may be feeling anger and resentment toward your cheating spouse but take a moment to consider what comes after the divorce. Being known as an adulterer in the public record will follow your spouse along far after the divorce, but it is a scarlet letter that can follow your children as well. You need to decide whether you want them to know the full ugly details of their parent’s transgressions.
There are, of course, alternatives. One of them, required by Georgia law before any divorce case can proceed, is mediation. This entails both spouses and their attorneys sitting down with a third party to attempt some kind of agreement on assets, alimony, and custody outside of a courtroom. The agreements reached during mediation are not legally binding, but they do have the advantage of remaining out of the public eye. They also save both parties the time and financial hardship of a full-blown trial.
Another option is arbitration, which is similar to mediation but carries with it two distinct advantages. The first is that the decisions reached by the third-party arbiter are legally binding, letting both spouses avoid a trial at all. The second is that any particulars of your case and anything discussed during arbitration are never entered into the public record.
In the wild, there are a few different types of predators. There are ambush predators, who remain hidden until they are least expected, then strike with the element of surprise. These predators rely on confusion, chaos, and short bursts of energy to subdue their prey.
The wolf is a different type of predator. Rather than quick, intense action, they are relentless in their endurance. They will follow their prey, testing its defenses, until they have a full understanding of its strengths and weaknesses.
When you are dealing with adultery in a divorce case, you are in a good position to see a positive outcome. But only if you are patient and exercise practiced strategy. You need an attorney who will approach your case like a wolf – calculating, patient, and willing to do what it takes to win. If the other side is willing to compromise and help you get your needs met, we may make a consideration. But if they’re ready to fight, they had better be prepared to go the distance.
Ours is the targeted, strategic aggression of the wolf. Some attorneys pride themselves on acting like a bulldog, grabbing on for dear life, and never letting go no matter the cost. But the wolf approaches the pursuit with instincts and intellect that, ultimately, make it the predator you need in the fight for what you are entitled to.
The sooner you call for the wolf, the sooner you get The Claiborne Firm involved in your case, the sooner we can begin. You must act quickly in hiring a divorce attorney so that evidence can be properly scouted and preserved, motions can be filed, and the groundwork can be laid for a successful case.
This will be a trying tumultuous time for you. You need trusted legal counsel in your corner.
Whether through mediation, arbitration, or in a courtroom, we have a proven record of getting our clients what they want and what they deserve. Because we have the experience to anticipate what’s coming, and the practiced patience to wait for our moment to capitalize on it, we can resolve most adultery divorce cases swiftly and with the best results for you.
Despite the emotional damage of an affair and the sometimes-bitter contest of a divorce, we understand how important it is for divorced spouses to maintain some measure of a relationship when there are children involved. There are milestones that both will want to witness, from high school graduations to weddings, and we work to ensure they are both comfortable taking part. We’re not in it to tear families apart. We are in it to get you what you want, and what you deserve.
Your journey will begin with our initial confidential consultation to establish the facts and begin developing the attorney/client relationship. This simple $450 flat fee buys you a greater understanding of your case – the circumstances, the liabilities, and the strategy. Beyond giving you greater confidence in your attorney’s ability to deliver for you, this first step is crucial in protecting your rights under the law for your children and your assets.
This initial session will also answer the question we get asked most: “How much will this cost?” We will establish our retainer fee at this time based on the complexity of your case and the time we estimate it will take to see your needs met. That way, you only pay what you need, and not a penny more.
Because we place such a massive emphasis on getting to know the particulars of your case upfront, and because we build that relationship with you first, we walk into mediation or court better prepared than the other side. Preparation is the key to winning, and it’s a key we’ve used to unlock countless cases just like yours.
If you’ve had your trust betrayed and your life shattered by an adulterous spouse, protect your future and your children’s future now by scheduling a confidential consultation with the Claiborne Firm.