Clients that I represent in Phenix City, Opelika, or Auburn, Alabama often ask me what impact a spouse’s adultery has on an award of alimony when the couple is contemplating divorce.
This is particularly concerning for a client who has been married a significant amount of time to a spouse that is cheating. Obviously, it is difficult for an innocent spouse to stomach the thought of paying a disloyal, cheating spouse a significant amount of alimony following a divorce.
Oftentimes, my clients in these cases have substantial assets that they have accumulated over the years with the spouse who is has cheated. These clients generally have a significantly higher paying job than the cheating spouse, or the spouse may be a “stay at home” spouse.
In cases such as these, I will advise my clients to move to Georgia where adultery that causes the separation of the parties is a complete bar to the receipt of alimony.
Unlike Georgia, Alabama Does Not Bar an Adulterous Spouse from Seeking Alimony.
In Georgia, adultery is a complete bar to alimony so long as the adultery is the cause of the separation of the parties and the other party has not condoned the adultery. See generally, OCGA 19-6-1 (adultery a bar to alimony).
Condonation basically means you forgave the adulterous spouse and shacked back up with them (i.e., cohabitation). Cf. Stanley v. Stanley, 115 Ga. 990 (1902). Conclusive evidence of condonation would be resuming sexual intercourse with the adulterous spouse after the adultery. See Dixon v. Dixon, 211 Ga. 869 (1955).
Conversely, in Alabama, adultery is just one factor in considering alimony. See Ala Code 30-2-52. In Alabama, there is no statute that specifically bars alimony in the case of adultery as Georgia does. Rather, adultery is listed only as a factor in determining an alimony award in Alabama.
Adultery Does Not Bar Equitable Division of the Marital Estate in Alabama
Adultery also plays a major role in property division, however, in Alabama. See, e.g., Wright v. Wright, 19 So.3d 901 (Ala. Civ. App. 2009). The same is true for Georgia. Peters v. Peters, 248 Ga. 498 (1981). Even with adultery present, the adulterous spouse is still entitled to equitable division of the marital estate in both Georgia and Alabama. Id.
An example of a typical equitable division of property in family court is seen below. In this case, despite his adultery, the husband received his rightful 1/2 share of the parties’ washing machine.
Cohabitation with a Third Party and a Meritricious Relationship Will Warrant Modifying Alimony in Alabama
However, Alabama does still permit a former spouse to bring an action to eliminate alimony if the ex-spouse begins a meritricious (sexual) relationship and cohabits with a member of the opposite sex while receiving alimony payments. Ala. Code 30-2-55. This is identical with Georgia law on the issue of alimony modification after the ex-spouse cohabits with a third person. OCGA 19-6-19.