Almost no one proves adultery with direct evidence, and Georgia does not require it.
The Standard
Johnson v. Johnson, 218 Ga. 28 (1962), sets out the rule. “Adultery may be proved by circumstantial evidence, but such evidence must infer as a necessary conclusion that adultery was committed. But if such evidence is fairly susceptible of two interpretations, one consistent with innocence and the other with guilt, it is not sufficient to prove adultery.”
The Georgia Supreme Court then added the two-part test: “there must be both (1) an opportunity and (2) an adulterous disposition in order for adultery to be inferred from circumstantial evidence.” Opportunity alone is not enough, and neither is an inclination without the chance to act on it.
What That Looks Like in a Real Case
In Johnson, the wife left home to visit friends near Atlanta but instead met a man at a motel in Kentucky, where they took adjoining rooms for several days, were seen together at restaurants and at the motel, went in and out of each other’s rooms, and spent the nights together in her room with the lights off. The Court held that was definite proof of adultery, excluding every reasonable hypothesis but adultery.
The Same Rule Applies to Other Sexual Misconduct
Courts apply the same approach to sexual misconduct generally. In Popham v. Popham, 278 Ga. 852 (2005), the Georgia Supreme Court held that “[i]n domestic relations cases, a party may seek to prove sexual misconduct through the introduction of circumstantial evidence,” and upheld questioning a husband about why he had obtained a prescription for Viagra.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!