Post Separation Adultery

1.       McEachern v. McEachern, 260 Ga. 320, 394 S.E.2d 92 (1990): A charge on Postseparation Adultery is not adjusted to the evidence unless evidence exists that such adultery prevented reconciliation;

2.       Justus v. Justus, 198 Ga.App. 533, 402 S.E.2d 126 (1991): Res judicata barred former husband's action for fraud and deceit for recovery of alimony and support on grounds of former wife's adultery and husband's nonpaternity, since issue of wife's fraud and deceit was raised and decided in previous litigation to set aside divorce decree.  O.C.G.A. §§ 9-12-40, 19-6- 1(b).

3.       Clements v. Clements, 255 Ga. 714, 342 S.E.2d 463 (1986): Adultery would have barred award of alimony and precluded presentation of issue of alimony to jury in divorce proceeding only if adultery had been shown, by preponderance of evidence, to be cause of separation between parties. O.C.G.A. § 19-6-1(b).

4.       Jackson v. Jackson, 253 Ga. 576, 322 S.E.2d 725 (1984): In divorce action, trial court did not err in award of attorney fees to wife, in light of lack of competent evidence of adulterous conduct of wife. O.C.G.A. § 19-6-1(b, c).

5.       Reno v. Reno, 249 Ga. 855, 295 S.E.2d 94 (1982): In light of removal of statutory basis for holding that, in proceedings instituted in consequence of adultery, a party is not competent to testify to his own or his spouse's adultery, husband, who had obtained favorable ruling in limine, pursuant to such holding, was not absolutely entitled to new trial in divorce action for wife's violation of the ruling, but where husband had abided by that ruling, he was entitled to make offer of proof as to allegations of wife's adultery and, therefore, cause would be remanded for determination of question whether husband's cause was prejudiced by exclusion of any evidence of wife's alleged adultery which he claimed might be offered upon new trial.  Code, § 38-1606.

With the recent amendment of Code Ann. § 38--1606 (see Ga. L. 1982, Vol. I, Book II, p. 1187), the statutory basis for our holding in Bryan v. Bryan, supra, has been removed. See Brown v. Hauser, 249 Ga. 513 (3) (292 SE2d 1) (1982). Thus, on a retrial of this case either party would be competent to testify to his own or his spouse's adultery, if any, and the testimony of the wife which is complained of in the instant appeal would be admissible.

6.       Dunham v. Belinky, 248 Ga. 479, 284 S.E.2d 397 (1981): A trial court may in exercise of discretion allow a spouse who incurs expenses in employing a private investigator to uncover evidence of adultery committed by the other spouse to recover those expenses as part of the alimony award. Code, §§ 26-3007, 30-201.

7.       Peters v. Peters, 248 Ga. 490, 283 S.E.2d 454 (1981):

a.     By statute, party is not entitled to alimony if it is established by a preponderance of the evidence that the separation between the parties was caused by that party's adultery or desertion.  Code, § 30-201.

b.     Although adulterous spouse cannot obtain alimony, equitable property division is still permissible.  Code, § 30-201.

c.      Where equitable division of the property is an issue, evidence of conduct of the parties, both during the marriage and with reference to the cause of the divorce, is relevant and admissible.

8.       Bodrey v. Bodrey, 269 S.E.2d 14 (1980): how to admit a “love-letter” which is hearsay (to explain other spouse’s conduct after finding)

a.     In awarding alimony, the jury may consider, as a factor in determining the spouse's need, the social standing and luxuries of life which the spouse had been enjoying and would have continued to enjoy had there been no separation.

b.     In divorce proceeding wherein wife counterclaimed for custody of the parties' child, child support and alimony, the wife had the burden of proof on the issue of alimony.  Code, § 38-103.