Adultery has been defined by the Georgia criminal code O.C.G.A §16-6-19 as a married person voluntarily having sexual intercourse with a person other than his or her spouse. When the statute was enacted by the legislature it was meant to impose criminal liability for this transgression. Although prosecutors don’t bring charges for adultery today infidelity by a spouse can still have a profound effect on a divorce proceeding.
Adultery is one of the grounds for divorce under O.C.G.A. §19-5-3. The ability to prove an allegation of adultery in a divorce case can impact (1) the ability of the cheating spouse to receive alimony and (2) how property is divided amongst the parties. It is for this reason that divorcing parties will allege adultery in a divorce petition. However, it is one thing to allege that a spouse is cheating. It is an entirely different thing to prove it in the court of law.
As with any hearing in a Georgia courtroom the rules of evidence apply. This means that only credible and relevant evidence will be considered. The standard of proof relied upon in civil cases is a preponderance of the evidence. This places the burden on the petitioning party to prove their allegation with evidence which shows that the fact to be proven is more probable than not. In other words, evidence that shows it more probable that infidelity occurred. O.C.G.A. §24-4-4 states that trier of fact may consider
- all the facts and circumstances of the case
- the witnesses’ manner of testifying
- their intelligence
- their means and opportunity for knowing the facts to which they testified
- the nature of the facts to which they testified
- the probability or improbability of their testimony
- their interest or want of interest
- their personal credibility so far as the same may legitimately appear from the trial.
Facts can be established in court through direct and circumstantial evidence. Direct evidence is that which directly links an individual to a crime or incident. For instance, a spouse coming home and catching the other party in the act of infidelity is an example of direct evidence. Unfortunately, acts of infidelity are a lot like criminal acts in that they are typically committed in seclusion. In fact, individuals involved in the act of cheating on a spouse go through great pains to keep it from the other party. This is where the use of circumstantial evidence become critical. Circumstantial evidence is direct evidence of a fact from which a person may reasonably infer the existence or non-existence of another fact. Most divorce and family law attorneys in Georgia make their living off of the inferences created from the presentation of relevant circumstantial evidence. For example, a husband or wife may vehemently deny an allegation of infidelity. Nonetheless, an experienced attorney’s investigation could reveal relevant evidence such as:
- hotel receipts
- surveillance showing meetings and suspicious behavior
- text messages
- phone records
- witness statements
- travel receipts
The idea is to present evidence that will create reasonable inferences of infidelity to the court. There is no formula or pre-determined amount of evidence that will predict success. Presenting a seductive or suggestive text message between the parties may not be enough, by itself, to convince the court that infidelity is present. On the other hand, presenting seductive text messages, surveillance evidence depicting a cheating spouse leaving a hotel room, witness statements describing inappropriate behavior and evidence that the cheating spouse has consistently lied about their whereabouts would be compelling evidence of infidelity when presented collectively.
Attorneys at the Faucette Law Firm, LLC have extensive experience investigating divorce and family law cases. We are here to advise our clients through every phase of the legal process. Our firm handles all aspects of divorce cases including: contested and uncontested divorces, child support, child custody, alimony, legitimation and modifications. Our Douglasville and Atlanta office locations serve Atlanta, Fulton, Douglasville, DeKalb, Gwinnett, Clayton, Henry, Fayette and Cobb. Contact our law office today for a consultation.