My clients often want to know the legal implications of their situation; however, the ramifications always go far beyond the law. An understanding of the law is a good place to start, but it should not be the end of the analysis.
Legalities. A party’s infidelity during the marriage will most likely impact several aspects of their divorce. Let’s start with alimony or spousal support. In Georgia, a “party shall not be entitled to alimony if it is established by a preponderance of the evidence that the separation between the parties was caused by that party's adultery or desertion.” Official Code of Georgia, § 19-6-1 (b) (2015 Edition). In other words, if you cheat, and your partner proves that your cheating caused the separation, then you will not be entitled to alimony at all.
Regarding division of property, Georgia judges are required to divide property equitably, which is different from equally; it means by deciding what would be fair. To help that determination, “the conduct of the parties, both during the marriage and with reference to the cause of the divorce, is relevant and admissible” (Wood v Wood, 283 Ga. 8 (2008)). Bottom line: proven adultery will most likely be factored into the equation when things are being divided.
Often, a person is unwilling to admit that they have committed adultery. Short of lying under oath (which is never a good decision), they have the option of invoking protections provided by the U.S. Constitution and Georgia statutory law. As you know, the 5thAmendment of the U.S. Constitution provides protection from self-incrimination. If it’s used in a criminal case, no inference can be drawn, good or bad. But in a civil case such as a divorce, the court or jury can draw the inference that the answer to the specific question is adverse to the person’s interest (eg, they committed adultery). Georgia law offers the same protection from self-incrimination, and then goes a little further. It says that “[n]o party or witness shall be required to testify as to any matter which … shall tend to bring infamy, disgrace, or public contempt upon such party or witness or any member of such party or witness's family.” Official Code of Georgia, § 24-5-505 (a) (2015 Edition).
In litigation, the accused cheater has three basic options: 1) admit the affair, 2) plead some constitutional or statutory protection, or 3) deny it. The person who has been cheated has many options for gathering evidence of an affair. They may conduct depositions (of the alleged adulterer, the boyfriend(s) or girlfriend(s), employers, co-workers, best friends), hire a private investigator, or send subpoenas for records to dating sites (think Ashley Madison or Tinder), banks, credit cards, hotels, cell phone providers and the like. These days, a lot of evidence can be found on publicly posted social media.
Practicalities. Adultery is a hot-button issue for a lot of divorcing couples. If your divorce is driven by emotion and a need for revenge, it will cost you both a lot of time and money. Rather than keeping your money to help you recover, your lawyers will be spending it. To me, that’s not the best outcome.
If you’ve cheated but your partner doesn’t know, you’ve got some exposure. Consider accepting the fact that it’s going to cost you and start working to minimize the damage. That would include things like trying to stay out of court, avoiding the discovery process (where you will automatically be asked the question, whether your partner knows about it or not), and factoring it into your settlement offers. Notice I didn’t say that you have to come clean. But if litigation is involved, it’s just a matter of time until everyone knows (unless you lie – again, not recommended -- and the risk multiplies exponentially).
If you suspect (or know) that your partner has cheated, consider how much it might cost you to gather the evidence you’ll need to find out or prove it in court. Be realistic about how much leverage it gives you. Depending on the amount of alimony and property to be divided, and the inclination of the judge assigned to your case, it’s possible that you might spend more than you would gain. The adjustment a judge will make for adultery varies greatly. Remember, while you feel the sting of betrayal and have to live with the results, the judge is impartial. Explore settlement to see whether you can achieve a result that factors the adultery into the equation. If not, you can always head into the courtroom.
Finally, the law is not the only factor you should take into consideration. Better decisions can be made after incorporating family dynamics, personal morals/ethics, spiritual and long-range goals along with the legalities. I suggest that the courtroom is not the best place to work through the fallout of an affair. I can guarantee that it will cost a lot of extra time and money in that forum.
Authored by Cynthia L. Patton, Esq. This blog post is for informational purposes only and does not constitute legal advice. You should consult an attorney for specific legal advice.