If your spouse engages in an extramarital affair and you want to sue her for divorce because of it, you might be more successful if you don’t live in Georgia. The state’s laws regarding adultery are somewhat restrictive, and proving your spouse’s indiscretion might be difficult as well. If you’re successful, however, it can have a significant impact on the outcome of your divorce.
Georgia’s legal definition of adultery is very specific. Your spouse’s infidelity must have involved actual intercourse with someone other than you. Homosexual sex qualifies, according to the State Bar of Georgia, if it involves penetration. Other forms of sexual contact are not adultery.
If you file for divorce on grounds of adultery, Georgia requires that you name your spouse’s paramour in your complaint. This person is a “co-respondent.” He becomes part of your legal action and you must serve him with a copy of your complaint for divorce, just as you must serve your spouse. This may put you on delicate ground if you’re not absolutely positive your spouse had a qualifying affair with this person. He has the right to defend himself in court against your allegations.
For the court to accept your ground of adultery, Georgia law requires that you prove your spouse had both the opportunity to stray and had the intention of cheating on you. You must produce at least one witness who can confirm your allegations. If your spouse confesses to you, this might not hold water unless she does so in the presence of a third party. If you hire a private investigator to provide proof of your spouse’s affair, the investigator cannot be your corroborating witness. The investigator does not necessarily have to document your spouse “in the act.” Romantic touching and contact between her and her paramour provide a basis to assume that she would take it further if she had the opportunity, so you’ve proved her intent.
Effect on Your Divorce
If you can convince a judge that your spouse had both the opportunity and the desire to commit adultery, it can impact all areas of your divorce, including custody, equitable distribution of property and spousal support. If her infidelity causes your divorce, she is not eligible to receive alimony in Georgia. If she subjects your children to the presence of her paramour, this can affect a judge’s decisions regarding custody. If she drains marital funds or assets to shower gifts on her lover or to travel to meet up with him, you may receive a disproportionately high share of marital property to make up for the portion of that money that was rightfully yours.
Both your spouse and her paramour have the right to contest your ground of adultery in a Georgia court of law. The easiest way for either of them to do this is if you condone her affair. This means that you must immediately terminate your relationship with her when you learn of her infidelity. If you’re intimate with her afterward, or if you continue living with her, both she and her paramour may argue that you’ve forgiven her. A judge will take this into consideration, so if you suspect your spouse of straying, consult with an attorney to find out your best course of action.