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While attempting to reconcile, after learning of my husband's affair, we had sex. Can I still sue for adultery?

Atlanta, GA |

A month after I found out about my husband's affair, I agreed to give our relationship a second try, . He even promised to go to marriage counseling, but eventually backed out. After a few tries at reconciliation, including having sex, he suddenly wasn't interested anymore and soon began dating someone else (to all this, we are still married). He denies having sex with her. Can I still sue for adultery?

Attorney Answers 5


  1. Condoned adultery is not a grounds for divorce, although his new relationship may be if you prove it. Since Georgia has a no fault divorce law , once you get a lawyer, you can seek a divorce regardless of proving anything.

    If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. Note that I am only licensed in Georgia and thus cannot practice in other states. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.


  2. If the adultery was the ultimate basis for the divorce, you can use that as the basis to file. The reconciliation tempers that argument somewhat, but you could still use it. However, unless there is a good basis to start a war, you may not need to use that as a basis, as it sound like you could file on the basis that the marriage is irretrievably broken. Seek some legal advice about whether or not you need to go this route and start protecting your own interests.

    The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP EMAIL: hmgrmg@yahoo.com, OFFICES: 53 W. Candler St., Winder, Ga. 30680, 106 Washington Street, Jefferson, Ga. 30549, Or 718 Oak St. Gainesville, Georgia. PHONE: (770) 307-4899 or (770) 538-0555 gadebtlaw.com hicksmasseyandgardner.com serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation


  3. Condonation makes the adultery irrelevant.


  4. The general rule is that having marital relations post adultery is a "condonation" and therefore nullifies adultery being the grounds for divorce. But, reality dictates that it is just a matter of time before he's unfaithful again and you can use those particular grounds for divorce later. On a practical note, you can still file on no-fault grounds (irretrievably broken marriage) and seek the relief you desire. It sounds to me like he is interested in things other than working on your marriage and I would suggest saving yourself any further grief and consulting an attorney to help you through this.


  5. It depends. If you had sex after discovering the adultery, then you "condoned" his relationship which means you could not sue for adultery. However, condonation implies a promise that he would not cheat again. If you can prove that he is cheating again, then there is no condonation, and your adultery claim would still be good. One reason why you would want to prove adultery is to prevent your husband from seeking alimony, because adultery is a bar to alimony. However, if that is not an issue, then consider just filing for a no-fault divorce.

    My answer is for general purposes only and does not establish an attorney-client relationship. If you wish to have establish an attorney-client relationship and/or want a complete answer to your question, please call (770)408-1025 to schedule an initial consultation. Go to www.tfamilylaw.com for more information.

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