Where there is evidence of adultery, a Georgia divorce petition should plead cruel treatment as a second count.
Why the Second Count Matters
Proof of adultery frequently falls short, because it is usually circumstantial and Georgia sets a demanding standard for circumstantial proof. The second count matters because the same conduct that fails that test can still be evidence on a different ground, and the evidence is not discarded along with the count it was offered to prove.
The Evidence Comes In on the Other Count
Poythress v. Poythress, 213 Ga. 882 (1958), settles the pleading objection. A wife suing for cruel treatment amended to allege her husband’s improper conduct with a named woman. He objected that the amendment charged adultery by implication and that adultery is a separate ground which cannot be shown when the ground pleaded is cruel treatment. The Georgia Supreme Court found “no merit in this contention,” holding that “[u]pon a trial for divorce brought by the wife upon the ground of cruel treatment, it is proper to allege and prove the unconventional association of the husband with a named woman.”
Popham v. Popham, 278 Ga. 852 (2005), shows the same thing at trial. Evidence of an affair the husband had fourteen years before the divorce was granted came in, and the Court held it “was admissible to support appellee’s complaint of cruel treatment, and also served to impeach appellant’s deposition testimony, in which he denied having an extramarital affair.”
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