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When a person suspects his/her spouse has committed adultery, the question arises of how to prove it in a divorce action. In Georgia, adultery is defined as when one spouse has sexual intercourse with a person other than his/her spouse. Because those who commit adultery are often discreet, there is usually never direct evidence of the act itself. Fortunately, Georgia law provides that adultery can also be proven by circumstantial evidence. Circumstantial evidence requires reasoning or an inference to prove a fact, unlike direct evidence, which is the testimony of an eyewitness or a participant in the act. To prove adultery with circumstantial evidence, it must be shown that there was both an opportunity to commit adultery and an adulterous disposition. An example of sufficient circumstantial evidence to prove adultery is a spouse and his/her paramour checking into a romantic resort as husband and wife. The stay at the romantic resort would corroborate the opportunity for adultery and the registration as husband and wife would prove the adulterous disposition. Furthermore, to be sufficient, the circumstantial evidence must lead only to the conclusion that adultery was committed. If the circumstantial evidence can be interpreted any other way, it will not suffice as proof of adultery. Therefore, if a spouse and co-worker stay at the same hotel for a work conference with no additional evidence, this will not suffice as proof of adultery since there exists a possible innocent explanation for their stay at the hotel.

In the process of gathering proof of adultery, one should review the documents from accounts shared with his/her spouse, such as emails, social media posts, phone records, bank records, and credit card statements. It is important to note that spouses should not illegally access their spouse’s email, social media, or other accounts. If there is no joint access to these type accounts, the information can be obtained from the other spouse through the discovery process once the divorce action is filed. Through discovery, parties can be required to provide documents such as their bank records, phone records, credit card statements, and other documentation which may provide proof of adultery.

Proving adultery in a divorce action can be very complex as parties are required to know the rules of evidence and the relevant Georgia case law. Potential clients would be well advised to speak with experienced legal counsel if they intend to file divorce on the basis of adultery. If you have questions about divorce and how to prove adultery in a divorce action, contact FLFattorneys at (770) 485-6633.