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How Does a Cheating Spouse Affect a Divorce?

cheating spouse

Cheating is common in monogamous relationships, whether it’s physical, emotional, or both. Around 54% of people say they’ve been cheated on in some capacity during their relationships. While some couples might try to recover after someone cheats, divorces often take place.

If you’re going through a divorce and have a cheating spouse, you might wonder how their infidelity will affect the process. Adultery can play a part in how the divorce process proceeds. It’s important to know the rules surrounding divorce with a cheating spouse in Georgia.

This guide will discuss everything you need to know about going through a divorce after an affair in Georgia. Partner with an experienced divorce lawyer so you can ensure the best possible outcome for yourself and your children.

Do I Need a Reason to Get Divorced in Georgia?

Most states require couples to have a legally accepted reason or grounds for their divorce. You don’t have to have fault-based grounds in Georgia. Examples of fault-based reasons can include drug addiction or adultery.

You might not want to assign fault to your partner if you want to proceed with an amicable divorce. You can state that you and your partner are divorcing because you grew apart or have irreconcilable differences.

There are instances where claiming grounds for a divorce can help you. Adultery is technically against the law in Georgia and is considered to be a criminal offense. While no one has gone to prison for adultery in the past century, using your partner’s affair as your grounds for divorce can help you.

How Can Adultery Affect My Divorce in Georgia?

Georgia law defines adultery as a person having sexual intercourse with someone who’s not their spouse. While there are other ways a partner can cheat on their spouse, only sexual intercourse is considered adultery by law.

Cheating isn’t considered as inflammatory as it once was. However, if the cheating spouse is seeking an alimony payment, their infidelity can prohibit that from happening.

For example, say your partner makes less money than you. You’re seeking a fault divorce because they had an affair. Your partner might be barred from getting alimony payments from you after your divorce.

Property Division

Cheating can have an impact on the division of property during your divorce. Martial property in Georgia is divided equitably. Judges will take certain factors into account when determining this, including:

  • Each party’s financial needs
  • Who’s the primary caregiver
  • How long the marriage was
  • The cause of divorce
  • Each person’s income before and during the marriage

The judge will assign an amount or percentage to each person based on the above items. Your judge might give the person who didn’t cheat a larger portion, especially if the cheating partner spent marital funds on their affair.


You’ll need to prove that the fact your spouse cheated was the cause of your divorce to bar them from receiving alimony. They might be able to receive alimony payments if they can show there were other reasons you decided to get a divorce in addition to their cheating.

Their attorney might show that the cheating spouse’s abuse or alcoholism contributed to the divorce. If they can do that, adultery is taken off the table.

Another reason a cheating spouse might receive alimony is if their partner forgave or condoned their affair. Forgiveness can include:

  • Continuing to live with the cheating spouse
  • Having sexual intercourse with them

Condonation can be a strong defense for the cheating partner. If their attorney can establish that, adultery can’t be used as grounds for their divorce.

How Can I Prove They Were Cheating?

The thing you need to keep in mind is that their cheating needs to be proved in court. You can do this in a few ways:

  • Eyewitness accounts
  • Admissions by the cheating spouse
  • Circumstantial evidence
  • Text messages or emails

Circumstantial evidence is the most common way people prove adultery. If this is the route you’re taking, you have to show both opportunity and disposition.

You can prove their disposition by showing pictures of your spouse kissing the other person. This can also include text messages from them showing affection for one another.

Proving opportunity means showing that your spouse and the other person had the chance to meet and act on their feelings. This can include:

  • Credit card statement showing they stayed at a hotel
  • GPS evidence illustrating their location

Another thing you’ll have to keep on top of your mind is privacy laws. You cannot access any of the above evidence illegally. Some illegal ways to gather evidence include:

  • Guessing your spouse’s password to get into their phone
  • Making a fake social media account to check your partner’s accounts

That’s why partnering with a divorce lawyer is key. They will help you lawfully gather evidence that you can use during your case.

Will Adultery Affect Child Custody?

Adultery typically doesn’t affect your pending child custody case. It also won’t alter how much child support the custodial parent receives. The exception is if the cheating spouse exposed their children to inappropriate behaviors or actions due to their affair.

For example, if the partner cheats in front of their kids, the court can decide that they didn’t act in their children’s best interests. It could hurt them during custody hearings.

Is a Fault-Based Divorce Right for Me?

Getting cheated on by your spouse can ruin your marriage. You might be wondering if you should pursue a no-fault divorce or one that’s based on adultery.

Unfortunately, there’s no one-size-fits-all approach when it comes to getting a divorce. The option you pursue depends on how well you’re working with your former partner and if they want alimony payments.

Get Help Divorcing From Your Cheating Spouse

It can be challenging to navigate getting a divorce from a cheating spouse. Emotions are high and sometimes they can cloud your judgment. An experienced divorce attorney in Georgia will provide you with expert legal advice.

Cook & Tolley is here to guide you through your divorce in Georgia. Our team of expert attorneys will ensure your divorce is as smooth as possible. Contact us to schedule a consultation to learn more.

We’re here for you.

Please reach out to us today.