As a practicing lawyer, specializing in family law, it should come as no surprise that in a very high proportion of my cases there is marital infidelity.  Clients invariably think this is the most important aspect of their cases, and I have found men and women feel pretty much the same.  It is an unfortunate fact of life that marital partners stray and the incidence of infidelity is higher than we like to think.  As a lawyer I consider it my job to assess the facts and to decide whether those facts will matter to a court or jury.

If you will permit me, a quick digression.  Georgia is the only state of which I am aware that gives parties to a divorce the constitutional right to a jury trial in divorce cases.  Texas allows juries to decide custody if requested, but in all the other states judges decide all issues in divorce litigation.  As a practical matter the overwhelming majority of cases in Georgia are either settled by mediation or negotiation or, if litigated, are tried before judges without a jury.  A jury trial is vastly more expensive than a judge trial and takes longer to get on a trial calendar and actually heard.  I mention this because my comments on the importance of adultery in resolving a divorce relate to juries as well as judges.  It is also my opinion that judges take careful note of what juries do in the cases they hear.

Taking what I have said into consideration, does adultery or infidelity matter either to courts or juries in modern times (for the sake of this article the last fifteen years or so).  The short answer is not very much, with some exceptions I will explain.  As I stated before, adultery or marital infidelity, the more polite term, has become so common that judges tend to feel that dwelling on that is a waste of the court's time.  In my experience, the courts do not consider themselves morality guardians. They are there to make decisions on custody, division of property, and support.  And if that is true of judges, the juries in Georgia seem to care less about adultery than the judges if the comments of other attorneys and judges that I have heard are accurate.  Statistical support for this proposition would be devilishly hard to come by.  Bear in mind, also, that Georgia is not some liberal hotbed!  It is a very conservative state with powerful religious groups and organizations.  Church membership is very high.  However, thunder as the preachers may against sin, adultery and fornication, the judges and juries seem to feel this is the province of the churches and not the courts.

So the question is whether adultery ever matters?  Yes it does.  I wouldn't be a lawyer if I didn't give you examples of exceptions to the basic premise that it does not amount to much.  Those examples are as follows:

• The adulterer shortchanges the family financially because of money he or she spends on a girlfriend or boyfriend;
• Children are neglected because of an affair;
• Assets are secreted or transferred to the benefit of a boyfriend or girlfriend;
• Children are present when a parent is with a boyfriend or girlfriend.  In extreme cases, the children actually see overt affection or even sex between a parent and another person (yes, it happens).
• A husband has an affair with a lady thirty years younger than he is and whines that he cannot pay support (alimony) because of his expenses.  One case I know of revealed, after the judge pushed hard, that the husband was paying over $300.00 a month for Viagra.  After a long marriage in which the parties are over fifty years old an adulterous relationship might way heavily in determining alimony and property division.

In an article like this I cannot be exhaustive.  I have not dealt with what happens when an affair is a homosexual one and a wife goes off with another woman or a man with another man.  I have also not gone into a Georgia statute that says adultery is a bar to alimony, which would include attorney's fees, considered alimony.

Posted By:

Stephen A. Land

Alpharetta, Georgia

[email protected]