What Constitutes Adultery in Georgia
Adultery, as defined under Georgia state law, is an act of voluntary sexual intercourse between a married person and someone who is not their spouse. Under Georgia O.C.G.A. 16-6-19, this includes an attempt to engage in the same behavior. The key term here is "voluntarily," meaning the parties involved either consented to or intended the act.
Regarding bigamy, which is "entering into a marriage with someone while already married to another", the Georgia statute 16-6-20 goes on to provide that "A person commits the offense of bigamy when the person knowingly marries a person while legally married to another. Bigamy is a misdemeanor". It does not appear that Georgia law allows people to be prosecuted for "entering into a marriage" with more than one person at the same time. Rather, the offense of bigamy occurs where a person is already married when the second marriage is entered into, as set forth in O.C.G.A. 16-6-20(a) and (b), supra. This may differ somewhat from the definition of bigamy and adultery in other states . Adultery in particular will be discussed in more detail below.
Whether or not sexual intercourse occurs, the agreement alone is sufficient to violate Georgia public policy and make a contract void if it consists of two people agreeing to cohabit as husband and wife, and hold themselves out to be married to each other. Davis v. Hines, 246 Ga. 387 (1980). A prior edition of the 16-6-19 had defined the element of adultery as, "voluntary sexual intercourse at any time during the subsistence of marriage with a person other than the offender’s spouse during the continuance of the marriage." See Code 1933, § 26-501 (Ga. L. 1970, p. 815, § 1; Ga. L. 1973, p. 23, § 1). This language was apparently modified to its current form so as to prevent a narrow interpretation of the application of Georgia’s adultery law to same-sex couples who would not be able to legally marry, but who could be guilty of adultery under the prior code. The definition of adultery as defined above is now broader and does not depend upon whether two people are married or not.
Consequences for Adultery in Georgia
When it comes to divorces in Georgia, the legal fallout from adultery can be significant but often is not as severe as one might think. In Georgia, adultery can be a ground for divorce, which means it is one legal reason for a party to file for divorce that does not involve fault on the part of the person seeking the divorce. Adultery is one of the 13 "fault" grounds to grant divorce in the state of Georgia, meaning it is one of the reasons that the court could legally cite to grant your divorce. Under Georgia law, there are 12 "fault" based grounds and one "no-fault" based ground for divorce. People contemplating divorces in Georgia typically pursue a "no fault" based divorce. The "no fault" based divorce is called a divorce "based upon an irretrievable breakdown of the marriage." If a marriage is over and both you and your spouse agree on all things to peacefully end your marriage then a divorce based upon an irretrievable breakdown of the marriage is the way to go. It is simple and inexpensive. Couples do not need to allege or prove any bad behavior (adultery, abuse, abandonment, etc.) on the part of either party in order to obtain a divorce.
Unlike 49 other states, Georgia is in the minority when it comes to using adultery as a divorce ground. But the courts have made it clear that adultery will not affect – by itself – the final outcome of a divorce. A divorce grounded on adultery will not affect the division of property, assets, or child custody. However, adultery – and any resulting allegations of these issues – can just complicate matters significantly. In a few situations, adultery may impact the amount of money a spouse pays in alimony, such as: If a spouse committed adultery, most courts in Georgia will start from this presumption when it comes to alimony payments. However, if adultery can be conclusively proven and has indeed affected the marital residence, the spouse who committed the adultery may be ordered to provide an amount of alimony for the inferior residence.
Adultery as a Divorce Ground in Georgia
Adultery is one of the most serious marital transgressions recognized at law. Georgia permits the granting of a divorce on the ground of adultery under Official Code of Georgia Annotated ("O.C.G.A") 19-5-3(1). The adultery must be sexual intercourse with a person other than the spouse.
Georgia courts have identified "sexual intercourse" as "any intrusion, however slight, of any part of the male or female genitals, by a part of the body of another person." Bond v. Bond, 270 Ga. 872, 873 (1999); see also Roberts v. State, 161 Ga. 562, 564 (1930) and Nielsen v. State, 22 Ga. App. 232, 235 (1920). Courts have also noted that "the term can logically extend to oral-genital contact." Roberts. at 564; Nielsen, at 235. The only defenses to a claim of adultery are condonation and connivance. Benfield v. Benfield, 249 Ga. 628, 630 (1982). Condonation is defined as "the implied conditional forgiveness of a marital wrong from which a possible future harm has been waived." Benfield, at 630. Condonation must be shown by clear and convincing evidence.
If the offending party testifies, he or she may then admit the adultery and obtain a divorce on that ground. See Davis v. Davis, 225 Ga. 822, 823 (1979). There is authority that where adultery has been admitted by the offending party or established by his evidence, the divorce will not be denied on that ground, even though evidence of a wrongful attitude upon the part of the applicant may be introduced. Roberts v. Roberts, 228 Ga. 689, 691 (1972); see also Thomas v. Thomas, 218 Ga. 682, 683-84 (1963). If there is a dispute in the evidence and evidence of condonation, condonation is always a question for the jury. Griffith v. Griffith, 206 Ga. 226, 229 (1949).
If the court orders an absolute divorce on the ground of adultery it will most likely award the innocent spouse the entire marital estate absent some compelling evidence to the contrary. See OCGA §19-5-3. Georgia courts apply a "preponderance of evidence" standard of proof for adultery, which means that adultery is proven if the evidence is more probable than not. Ross v. Ross, 215 Ga. 319 (1959), see also Chesser v. Chesser, 246 Ga. 187, 188 (1980). An action to annul a marriage based on adultery may be brought at any time. Harvey v. Harvey, 223 Ga. 868, 869 (1967). While an action for divorce can be barred after a couple separates for a year, Davis v. Davis, 225 Ga. 822 (1979). parties may bring annulment actions at anytime.
Adultery Impact on Child Support and Custody
The impact of adultery on child custody and child support determination during court ordered divorce settlement is very different from annulment of a marriage. In a contested divorce matter in Georgia, an award of child custody is made after the final determination is made into the character of the parent who is seeking a final decree of divorce. Adultery of the parties or either one of the parties is a question of fact to be reviewed by the trial court and can serve as grounds for divorce.
Judges in Georgia have held that an act of adultery of either party may be shown and evidence of such adultery will be weighed in the final determination of the divorce. Adultery can also play a role in the determination of child support if a party is clearly showing a lavish lifestyle or condemning their children to a lifestyle of less than adequate support. A parent is obligated by law to support his or her minor children. Where and how much support depends often on the income of the parents. There are formulas in the law that dictate how much and in what form the support for the child or children is required.
If a parent is earning considerably more than the other spouse, the courts will weigh the disparate income in making decisions to final settlement. Child support is calculated according to statutory guidelines rather than on a consideration of fault. When enforcing child support, however, the court will take into account the available resources of the parties and it has the discretion to set a child support amount according to the individual situation. It cannot be emphasized enough that it is important that your Atlanta divorce attorney explain to you your obligations in regard to court ordered child support.
Proving Adultery in Georgia
Proving adultery in the courts is often accomplished during the process of discovery. Discovery is the means by which the court requires the parties to engage in a process with the assistance of the court to obtain information that is admissible.
A typical "adultery" case involves the defendant-spouse’s use of an online social media or dating service to develop a relationship to which the plaintiff-spouse objects. The plaintiff must maintain the confidentiality of supporting evidence during the course of discovery and trial. The issue becomes that both parties will at some point seek to obtain copies of any documents in the possession of the other party. Digital copies are typically produced on either a CD or a flash drive , both of which can be rendered unreadable.
Obtaining copies of text messages is typically accomplished through the assistance of the carrier. Georgia rules allow the parties to subpoena the carrier to produce the messages.
Your attorney will then compile all of this evidence into a clear record which may be presented to the court. It should be borne in mind that a layperson, both the accusing spouse and the one being accused of adultery, may have difficulty in presenting this evidence to the court. In virtually all cases, the defendant will obtain a lawyer who has probably presented similar cases in the past. You do not want oral evidence excluded from consideration under prejudicial evidentiary rules.
Adultery in Georgia’s History
Historically, adultery has been regarded as grounds for divorce and a sign of moral failing in many societies, and Georgia is no different. The Georgia Code Section 19-5-3 (2010) has long provided that adultery constitutes grounds for divorce. As early as 1799, Georgia case law was already addressing the topic of adultery in the context of divorce. In Hogg v. Fletcher, the Georgia Supreme Court declared, "[T]he husband’s adultery furnishes ground . . . for the wife to sue for a divorce without any previous divorce obtained by the husband on the ground of his adultery …" 1 Ga. 124 (Ga., 1846).
Georgia was one of the last western states to retain adultery as a criminal offense, recognizing the act as a felony until 1973 with its repeal, but it still remains a valid ground for divorce today.
Historically, adultery was grounds for divorce by either spouse. The 1833 Georgia divorce statute regulated divorce based on adultery by forbidding the innocent party to remarry unless the decree specifically authorized a new marriage. The grounds for divorce based on adultery were reciprocal, equally available to either spouse.
Under Georgia’s original common law rule, a couple who was married in Georgia could only obtain a divorce in Georgia and vice versa. When the Georgia divorce statute was first passed in 1851, an action could not be maintained for the breach of the marriage contract in favor of the wife because she, as a married woman, did not have rights at law. At that time, the courts could not adequately determine the ownership of property in such a case. The requirement that a decree of divorce must first be obtained before a wife could file suit for the tort of criminal conversation (adultery) was removed in 1990. Retaining the right of the wife to maintain the suit for criminal conversation of adultery maintains the right of recovery without the need of a prior divorce decree.
Law and Resources Regarding Adultery
A variety of resources are available to help individuals who have experienced adultery in their marriage find guidance and legal assistance. To begin with, it is important to contact a reputable and experienced family law attorney. Lawyers for families typically offer consultations to discuss the issues facing the prospective client and how the law may apply to him or her. Some non-profit organizations provide legal clinics and literature to help people who cannot afford to pay for legal representation. For example, the Atlanta Legal Aid Society provides a variety of free services to low income individuals who meet certain criteria for personal income and assets. When needed, they will refer eligible clients to the Atlanta Bar Association’s Pro Bono Project, which matches needy clients with volunteer legal professionals . The State Bar of Georgia recommends that people who cannot afford the fees for a private lawyer seek assistance from one of the legal aid programs in Georgia. People can find local bar association or legal aid society contacts by contacting the State Bar of Georgia or visiting their website. People may also find information about the laws relating to adultery, divorce, family law, domestic violence, and child support on websites of government agencies in Georgia, such as the official Georgia public website. Many private companies and private individuals also have created websites with information about these topics. Finally, public libraries and university libraries have books available, as do many bookstores. Many articles written by experts can be found on the Internet.