Dealing with Adultery while Trying to Resolve Your Divorce Uncontested

If you suspect you spouse is cheating, you can either confront your spouse (which will ordinary just provoke a denial and start a fight), hire a private investigator (which will be expensive), or utilize certain methods that can be discussed in confidence.  Certainly, the truth will come out in discovery if you proceed with a contested action.  Unfortunately, adultery generates such a crushing emotional impact, it is often very hard to resolve a divorce in an uncontested or efficient fashion once this is known.     

After consulting with the client regarding the legal consequence of adultery, in certain situations, Mr. Hippe may encourage counseling to try to get to the truth and the underlying marital problems (compatibility, stress, financials, etc.) to see if the marriage can be saved.  Some marriages can.  However, in certain situations, like where a cheating spouse may try to claim alimony, it may be best to go ahead and separate and file and try to work out the settlement early in the case.    

The legal consequence of adultery can be profound.  A person commits adultery when he or she has sexual intercourse with a person other than his or her spouse (both extramarital heterosexual and homosexual relationships constitute adultery).  Owens. v. Owens, 247 Ga. 139 (1981).  It is an absolute bar to any alimony claim if it is the cause of the separation and has prevented reconciliation.  O.C.G.A. 19-6-1(b).  Anderson v. Anderson, 273 GA. 886, 230 S.E.2nd 272 (1976).  See also, Vereen v. Vereen, 284 Ga. 755, 756, 670 S.E.2d 402, 404 (2008) (to show lack of entitlement to alimony, spouse must establish by a preponderance of the evidence that the separation between the parties was caused by the other party's adultery or desertion).

This is obviously problematic for a stay at home spouse who is caring for children or a spouse who has comparatively less income and is caring for children, yet has had an affair.  Also, adultery can be justification to "swing the pendulum" on property division (adultery is not a bar to equitable division of property).  Regarding alimony, although O.C.G.A. section 19-6-5(a)(8), the statute authorizing the award of permanent alimony, mentions the consideration of  "relevant factors", adultery is not a relevant factor in determining the amount of alimony to be awarded.  See, McCurry v. McCurry, 223 Ga. 334, 155 S.E.2nd 387 (1967) (conduct is not relevant in determining the amount of alimony - alimony should never be awarded as punishment).   

When assessing an alimony claim, the relevant inquiry is:  (1) is wife barred entirely by adultery or desertion; (2) if not, the decision whether to grant her alimony should be made considering the factual cause of the separation and considering husband's conduct toward her; and (3) the amount of alimony should be set considering the factual cause of the separation, the wife's need and the husband's ability to pay.  Bryan v. Bryan, 242 Ga. 826, 251 S.E.2d 566 (1979).

And, even if you and your spouse are estranged and arguably separated but still living in same household or actually separated and living apart, prior to the final order of divorce being signed by the judge, it is best not to be "dating" as intercourse is still technically adultery up until the divorce is final.  Although there is authority for the argument that evidence of dating post separation is irrelevant - see, McEachern v. McEachern, 260 Ga. 320, 394 S.E.2nd 92 (1990) - this evidence is relevant if it can be shown that the affair caused the divorce or prevented reconciliation.  See, Hand v. Hand, 244 Ga. 41, 257 S.E.2nd 507 (1979) (evidence of conduct after separation may be relevant to show the conduct prevented reconciliation). 

As a legal matter, questions concerning "dating" or affairs, both pre and post separation, are usually fair game in discovery (subject to the witnesses' right to assert privilege).  However, as a practical matter, most judges and jurors will not care too much about post separation dating if there is no evidence the affair was going on prior to the date the parties separated (which can be hard to pin down sometimes).