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How does adultery in Georgia factor into a divorce?

Definition and implications of citing irreconcilable differences as grounds for divorce:

Also known as a NO FAULT divorce, this ground means that essentially you have grown apart or there is some personality conflict that cannot be resolved and simply do not feel it is best to be married anymore. By claiming that your marriage is irretrievably broken you are stating that there is no hope for your marriage and that you wish to terminate the legal relationship that you have with your Husband or Wife. The Court will specifically require that you state “there is no hope for reconciliation”.  It is not uncommon that even in an uncontested case where the formality of asking whether or not the marriage is irretrievably broken in front of the Judge, the client states “there may be hope of reconciliation”, the Judge refuses to sign off on the final order granting the divorce.  Also, if the parties continue to have sexual relations, most judges will interpret this to mean that the marriage is not in fact irretrievably broken and may dismiss the case.

Irretrievably broken or no fault divorce are the most used legal ground for divorce used when filing for a divorce. That doesn’t mean one of the other 12 reasons might not also apply.   Typically, when other grounds, such as adultery or cruel treatment, are cited in the initial pleadings it makes for a more litigious beginning and is not conducive to putting out the emotional fires that are already burning.   There can be strategic reasons for using the least derogatory or accusatory grounds that are provided by Georgia Law.

Adultery as grounds for divorce

A person commits adultery when he or she has sexual intercourse with a person other than his or her spouse and it is the cause of the divorce.   This two prong test makes it extremely difficult to prove a case of adultery.   There are a lot of cases where there are plenty of other facts that would substantiate the reason for the divorce has more to do with facts other than the fact that one of the parties have had sexual intercourse outside of the marriage. 

There is some dispute in the law as to whether or not sexual relations other than sexual intercourse would be sufficient to meet the first prong of the adultery test.  The medical definition for sexual intercourse generally means genital contact. However, other sexual contact may be just as damaging to the case for the alleged adulterer. 

There are several statutes which protects a spouse from having to admit these indiscretions.  It gets a little complicated from there because even if you do not have to admit to the indiscretion the fact that you are not denying it can be used to infer it did happen, thereby giving the evidence necessary to prove sexual intercourse did happen.

Also if your spouse had an affair months or years ago and you forgave them and welcomed them back into the marital bed then adultery is most likely not a proper ground. The other party can claim “condonation” which is a defense to adultery.

There also seems to be a high prevalence of allegations against another spouse for an emotional affair. That is not enough to bring in adultery claim against that spouse. However, if the complaining spells confronts the spouse having the emotional affair and requests all contact cease with the alleged Paramor and the spouse continues to have contact with the Paramor, typically an attorney will bring this up as a form of cruel treatment. 

Cruel Treatment—Definition of or proving cruel treatment as grounds for divorce

Is the infliction of bodily or mental pain upon the Husband or Wife such as reasonably justifies an apprehension of danger to life, limb or health? The most common use of cruel treatment as a ground for divorce will be when there is extensive domestic abuse that has occurred in a marriage. There is a litany of literature that can be used in domestic violence cases to help prove the cruel treatment, it can range from verbal abuse of insults, financial abuse in terms of preventing one party from having access to a means of support. The most difficult part of these cases is that it is a he said she said. Judges are extremely experienced in these matters however and will typically see through to the real problem areas. If they have any doubts, they typically will assign a guardian at Litem or another investigator to the case especially when children are involved.

Desertion grounds for divorce—Definition of or proving desertion as grounds for divorce

The voluntary separation of one of the Husband or Wife from the other spouse, or the voluntary refusal to renew a suspended cohabitation without justification either in the consent or the wrongful conduct of the other spouse. In Georgia the desertion must occur for at minimum one year before this is a valid claim to pursues as a grounds for divorce.

Clients usually don't term use the term desertion, typically you hear them saying "he moved out and abandoned me/family". 

This two may be hard to prove, and he said she said situation. The person who allegedly deserted, typically claims that they were kicked out of the house or home. If there is a desertion claim it usually happens in the event that the other spouse is unable to be located at all and has not been able to be found after a diligent effort. Service on that spouse may be difficult, but not impossible, and so you may still be able to obtain a divorce in Georgia. Service is made through publication which usually causes the divorce to take a little bit longer to accomplish, but not impossible.

The most common ground for divorce in Georgia is to file on the basis that your marriage is irretrievably broken, although adultery, cruel treatment and habitual intoxication or drug addiction come into play more often than not. The evidence you need to prove these typically come from pictures, statements to third parties such as hospitals or medical providers, or admissions by the guilty party. These days with Facebook and other social media as well as texts and emails there is usually an abundance of documentation.

Less common grounds for divorce in Georgia

It is rare to see claims for incurable mental illness, intermarriage between parties who are third cousins, incest, and in potency as the alleged ground for divorce.

Effect of fault in a divorce

The grounds listed above are not the only grounds allowable under Georgia Law. There are advantages to using a fault based divorce versus simply citing irretrievably broken. Filing on fault based grounds can have an effect on alimony as well as equitable division of assets. If you can prove the grounds cited then the Judge can consider the “bad act” of the other spouse in deciding how to fairly divide any marital assets or debts that are at issue in the divorce.

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