QUESTION

can I get a divorce even if wife does not agree to it?

Asked on Feb 06th, 2012 on Divorce - Georgia
More details to this question:
she has committed adultery
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1 ANSWER

  The short answer is yes; you do not need your spouse's consent to obtain a divorce.  In Georgia, there are 13 grounds for divorce, and they are as follows: impotence; adultery; conviction/imprisonment of over 2 years for an offense involving moral turpitude; alcoholism and/or drug addiction; confinement for incurable insanity; separation caused by mental illness; willful desertion; cruel and inhuman treatment which endangers the life of the spouse; habitual drunkenness; consent to marriage was obtained by fraud, duress, or force; spouse lacked mental capacity to consent; wife was pregnant by another at the time of marriage unknown to the husband; and, incest. In legal terms, adultery is sexual intercourse between a married person and someone other than that person's spouse.  In Georgia, neither cunnilingus nor fellatio are considered adultery, and thus not grounds for divorce. Proving adultery is not always easy.  If your spouse no longer cares about what you know and is open about the affair, you may be able to catch your spouse in flagrante delicto (Latin: "in blazing offence"), meaning that your spouse is "caught in the act", or "caught red-handed."  However, there is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he/she witnessed. Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had both the disposition and the opportunity to commit adultery.  Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and their lover are usually sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering their lover's apartment at 11 P.M. and not coming out until 8 A.M. the following morning, and that they were alone.  If you can only prove disposition but not opportunity, the courts may not allow your divorce on the grounds of adultery, as the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition. (NOTE - your attorney may likely recommend pleading multiple grounds for adultery.) In a divorce case based on adultery, the adulterous spouse's lover is sometimes named as a co-respondent.  Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person. Generally, if you knew your spouse committed adultery, but resumed marital relations after you learned of the adulterous act, the courts feel that you have forgiven, or "condoned," the act, and adultery would not be allowed as grounds for divorce.    Its important to note that adultery may also hold certain implications for spousal support and custody determination. 
Answered on Feb 06th, 2012 at 10:06 AM

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