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Cheating Spouse? How It Affects Divorce Finances

Georgia has one of the highest divorce rates in the country, coming in at 11th place in the United States for per capita divorce among married couples. In metro Atlanta counties, the frequency of divorce can be even higher than the state average. Divorce statistics from 2010 reveal that some Metro Atlanta counties see thousands of divorce cases filed each year. Based on the data, the total number of divorce cases filed annually included:
  • Gwinnett County (4,519 divorces filed)
  • Fulton County (3,924 divorces filed)
  • Cobb County (3,024 divorces filed)
  • DeKalb County (2,850 divorces filed)
  • Cherokee County (1,042 cases filed)
  • Paulding County (861 divorces filed)
  • Forsyth County (763 divorces filed)
  With the high incidence of divorce cases in and around Metro Atlanta, it is likely that you or someone you know has recently experienced divorce. Infidelity is one of the most common reasons that couples seek divorce. As much as 21.6% of married couples deal with extramarital affairs during the course of their marriage. According to a recent review of Georgia domestic relations law, adultery is the third most common reason for divorce petitions filed in the State of Georgia. See Edward E. Bates, Georgia Domestic Relations Forms 3.1 (2020). Cheating and extramarital affairs, unfortunately, are not uncommon—and many marriages cite infidelity as the “last straw” in their marital relationship. If you have been the victim of infidelity or cheating in your marriage, it might be time to seek legal advice. The team at Fennell, Briasco and Associates™ is here to help. Our team of attorneys and divorce experts can help you regain confidence and independence after suffering through cheating or an extramarital affair.

The Big Question: Does Cheating Affect Divorce Finances?

As divorce attorneys, one of the most common questions we face is the extent to which cheating and adultery can affect divorce finances. For instance, does cheating affect alimony payments, child support payments, or marital property division?

Before we answer these questions, let’s start with the following set of facts: (1) you are currently married and you share marital property, like a home, with your spouse, (2) you find out that your spouse is cheating, i.e., having an extramarital sexual relationship, and (3) you seek divorce on that grounds of adultery.

Once you file for divorce, it is time to start thinking about the financial aspects of your case. In this article, our team will explain the important aspects of Georgia law that could affect your financial situation after divorce.

  1. What is alimony?
    Under O.C.G.A. § 19-6-1, alimony is defined as a monetary “allowance out of one party’s estate, made for the support of the other party when living separately.” In other words, alimony refers to periodic payments made by one ex-spouse to the other for the purpose of supporting the ex-spouse’s necessities of life. There are two types of alimony: (a) temporary and (b) permanent. Alimony is not the same as child support. Temporary alimony refers to payments made to support a spouse while the divorce is ongoing. See O.C.G.A. § 19-6-3. Until the divorce has been finalized, temporary alimony requires payments while the action is pending, while the action is being appealed, and at any time prior to the conclusion of the case. See George v. George, Supreme Ct. of GA (1975) (“A judgment for temporary alimony continues in full force and effect until a final judgment in the case [and] until the termination of the litigation in all courts…”). In many cases, temporary alimony also includes attorney fees and litigation expenses.Permanent alimony refers to payments made to support an ex-spouse after the divorce has been finalized. See O.C.G.A. § 19-6-4. Permanent alimony may be paid in a lump sum award or by ongoing periodic payments. Permanent alimony may continue indefinitely or it may last for a specified duration of time. However, it is highly uncommon for alimony to be granted indefinitely by the Court. Usually, it is for an outlined period of time, but may also end earlier if certain circumstances occur as set out further below.For example, in Solomon v. Solomon (Supreme Ct. of Georgia, 1978), the court upheld the validity of a permanent alimony plan to be paid in monthly installments over the course of five years. Permanent alimony may be terminated in the following methods: (1) the recipient of the alimony payments remarries, (2) the recipient of the alimony payments cohabits with a third party, as authorized by Georgia’s “live-in-lover” statute, O.C.G.A. § 19-6-19, (3) the payor of the alimony dies, or (4) the recipient of the alimony dies.

  2. How is alimony calculated?
    The calculation of alimony payments is more art than science. There is no set formula for calculating alimony payments. Instead, the courts base their alimony awards on a number of non-determinative factors. According to O.C.G.A. § 19-6-5, there are eight factors that courts consider when evaluating alimony payments: (1) the couple’s standard of living during the marriage, (2) the duration of the marriage, (3) the age and physical wellbeing of the parties, (4) the existing financial resources of each party, (5) the time and resources needed by either party to re-enter the workforce, if necessary, (6) contributions made by either party to the marriage, including childcare and homemaking, (7) the long-term earning capacity of each party, and (8) any other relevant factors deemed important by the court.

  3. Can a cheating spouse receive alimony payments?
    In general, no. Under O.C.G.A. § 19-6-1, a party is not entitled to alimony, either temporary or permanent, “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.”As the Georgia Supreme Court held in Anderson v. Anderson (1976), if “the jury finds the wife has caused the divorce by her adultery…, any alimony award to her is barred.”Here’s the rule in plain English: if you divorce your spouse because of cheating, the cheating spouse may not receive alimony payments. This legal principle has been upheld repeatedly by the Supreme Court of Georgia. See also Collier v. Collier, Supreme Ct. of Georgia (1972) (“Evidence presented at the hearing proved the wife’s adultery. The trial court properly denied the wife an award of temporary alimony. To have awarded temporary alimony to the wife in light of her proven adultery would have been reversible error.”).It is important to note that the divorce must be “caused by” adultery. To bar a claim of alimony, the jury must make a specific finding that the divorce was a direct result of adultery, rather than other marital problems. See Owens v. Owens, Supreme Ct. of Georgia (1981).

    For instance, if the divorce was caused by other marital issues (like habitual intoxication or cruel treatment), then the court may still award alimony payments, even in light of adultery.

  4. What if the cheating spouse is excused or forgiven?
    To illustrate this question, we will start with a hypothetical. Assume that Alex and Taylor are married. Taylor engages in an extramarital sexual affair. Alex learns about the affair, but eventually forgives Taylor for the cheating. Alex and Taylor go through therapy and counseling in an attempt to salvage their marriage.

    Several years later, Alex and Taylor decide to seek a divorce. Taylor petitions the court for alimony payments from Alex. Can Alex argue against paying alimony, citing Taylor’s previous adultery?

    In most cases, no. Here, it is unlikely that the divorce was “caused by” Taylor’s adultery. Because Alex forgave Taylor for cheating and then resumed the marriage for several years, alimony payments may still be awarded. In many cases, forgiveness of a spouse’s cheating (for example, by knowingly resuming the marriage) may allow the cheater to seek alimony payments from the non-cheating spouse.

    This issue has been examined by the Georgia Supreme Court in cases like Lowry v. Lowry (1930). In Lowry, the court upheld the principle that a “[t]he condoning party cannot forgive the acts and cohabit with the forgiven one, and at the same time reserve the right to assert them” as a means for later obtaining divorce or alimony. In other words, if a non-cheating spouse wants to withhold alimony payments on the basis of adultery, the non-cheating spouse cannot forgive the cheating spouse and resume the marriage as usual.

    Please note that there are significant legal issues associated with the payment, or non-payment, of alimony. You should always consult an attorney to discuss the particular facts of your case.

  5. What if you learn about cheating after the divorce is filed?
    In general, divorce petitions and alimony awards may be modified after filing. For instance, it is possible that a married couple files for divorce and then, several months into the proceedings, one spouse finds out that the other was cheating during the marriage. In Hargrett v. Hargrett (Supreme Ct. of Georgia, 1978), the husband filed for divorce on the grounds that the marriage was irretrievably broken. In response, the wife filed for permanent alimony payments.

    After filing the case, the husband learned that the wife was cheating outside of the marriage; the husband amended his divorce petition and argued that he did not owe the wife alimony payments on the grounds of her adulterous relationship.

    The court ruled in favor of the husband and allowed the husband to amend his divorce petition based on later-obtained information. See also Newton v. Newton, Supreme Ct. of Georgia (1943) (“The fact that plaintiff did not know of the adultery until after the separation did not prevent plaintiff from seeking a divorce based on adultery after learning of it.”).

    Georgia courts have ongoing jurisdiction to modify an award of permanent alimony. In cases like Jennison v. Jennison (Supreme Ct. of Georgia, 1911), the husband began making alimony payments to his ex-wife. After the court granted a divorce, the husband learned that his wife engaged in adultery during the marriage. The husband then petitioned the court to modify the alimony award.

    The Georgia Supreme Court held that the alimony award was modifiable and that the trial court had the power to revoke alimony in light of newly discovered information.

  6. What is child support? Does cheating affect child support payments?
    Child support payments are not the same as alimony. Child support refers to monthly payments to the custodial parent “to maintain minimally adequate housing, food, and clothing for the child [or children] being supported…and to provide other basic necessities, as determined by the court or the jury.” O.C.G.A. § 19-6-15.

    Child support payments only include such children that the parent has a legal obligation to support (i.e., those with legitimate parentage interests), and does not extend to stepchildren or other minors that are not the children of the payor. Unless modified, child support payments continue “until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs.” O.C.G.A. § 19-6-15(e).

    Adultery does not affect child support obligations. Child support obligations are made to support the best interests of the child. Even when a spouse engages in cheating, extramarital sexual relationships, or other similar behavior, the spouse is still eligible to receive child support payments from the non-cheating spouse for the purpose of supporting and caring for the child. When courts determine an ex-spouse’s child support obligations, the primary consideration is the amount necessary for “the best interest of the child.” O.C.G.A. § 19-6-15(b)(8).

  7. Does cheating affect marital property division?
    During marriage, any property jointly acquired by the couple is considered “marital property.” Marital property includes property like savings accounts, checking accounts, real estate holdings, home furnishings, and vehicles. Marital property also extends to other intangible property like pensions, retirement benefits, stocks, and insurance policies.

    Upon divorce, the courts apply the doctrine of “equitable division of marital property” to fairly divide property between the spouses. The purpose of equitable division of marital property is “to assure that property accumulated during the marriage [is] fairly distributed between the parties.” Campbell v. Campbell, Supreme Ct. of Georgia (1986). Georgia courts apply the principles of equitable division for any property “acquired as a direct result of the labor and investments of the parties during the marriage.” Payson v. Payson, Supreme Ct. of Georgia (2001).

    Adultery does not prohibit a spouse from receiving an equitable division of marital property. In other words, a cheating spouse can still receive a share of marital assets. According to the Georgia Supreme Court, “even though an adulterous spouse cannot obtain alimony, an equitable property division is still permissible.” Peters v. Peters, Supreme Ct. of Georgia (1981). Nonetheless, adultery may be a factor that the court considers when deciding how much marital property can be equitably awarded to the cheating spouse.

Find A Divorce Attorney Near You

Divorce is complicated, especially when it comes to finances. You need a team that understands how Georgia law affects your financial situation throughout the divorce process.

At Fennell, Briasco and Associates™, our family attorneys can help you achieve the best resolution under the law. From high-income divorcees to stay-at-home parents, we represent spouses across the financial spectrum to make sure they have strong legal representation every step of the way. Contact us today for a FREE divorce consultation.