In Virginia, you are married until you are divorced. While Virginia requires a fairly lengthy period of separation before you are legally permitted to finalize your divorce, being legally separated is not the same as being actually divorced.
Separated is still married. In fact, the entire point of requiring a period of separation is so that you and your soon-to-be ex-husband will use it as a period of sober reflection – in the hopes that you will ultimately choose to save your marriage.
Adultery is defined in the Virginia statute as when a person who is married voluntarily has sex – meaning oral, anal, or vaginal sex – with someone who is not their spouse. Because you are married until you are divorced, it is technically legally classified as adultery whether the acts took place before or after you and your spouse separated.
Why does it matter whether it’s pre or post separation adultery?
Adultery matters in Virginia. It is a class IV misdemeanor – so it’s a crime – and it is technically punishable by law. Though adultery is rarely, if ever, prosecuted, it’s still a crime on the books. (This means that, when adultery is alleged in a divorce case, the alleged adulterer can plead the fifth!)
Adultery is also an absolute bar to spousal support, except in cases of manifest injustice. So – translation – if you are the guilty party, you can’t then turn around and ask that your innocent partner pay you spousal support (alimony – it’s the same thing, just an updated word). This is assuming, of course, that you’d have qualified to receive spousal support anyway. Basically, you have to be the lesser earning spouse by a substantial margin.
What’s manifest injustice? That’s … a good question. There’s not a lot of case law or other information on it, either, but I think it’s safe to assume that ‘manifest injustice’ would be a tough bar to meet, especially if (1) you have committed adultery, (2) you’re the lesser earning spouse, and (3) you lack the financial wherewithal to take the case through potentially multiple layers of a litigated process.
It can also matter in property distribution, too. The term we use to describe how property is divided in Virginia is “equitable distribution,” and it means that, basically, we can look at the positive and negative monetary and non monetary contributions of each party to the marriage when it comes to determining how assets, liabilities, and responsibilities will be divided between the parties.
Translation? Your bad acts – like adultery – can be used against you in determining how property is divided. You could, potentially, walk away with less because what you did led to the breakdown of the marriage.
Wait – the “breakdown of the marriage”? This happened AFTER we separated!
I hear you. I really do. I think it’s definitely an argument and one that, if push came to shove, I would be prepared to make.
The problem, though, is that the law doesn’t technically differentiate from adultery that took place before you separated (arguably, in that situation, the reason you separated in the first place) and adultery that takes place after separation (something that may or may not have had anything at all to do with the eventual end of the marriage).
I think the best (and really only) way to really insulate yourself from the potential impact of even post-separation adultery on the terms of your divorce is to only engage in it – meaning, only have sex with someone who is not your current legal husband – after you enter into a signed separation agreement.
If you don’t have a signed separation agreement or a final court order that formally establishes spousal support and equitable distribution, you run a risk that your post-separation adultery will be a factor that could work against you.
What if he’s the cheater?
Most often, in the cases I’ve handled, it has been the man who is the cheater – but the same logic applies. Adultery is adultery and spousal support is spousal support; it doesn’t matter whether we’re talking about the man or the woman.
In general, I would say family law is not designed to be punitive. Even though a person’s bad acts can contribute to, say, receiving less of the marital assets, we don’t generally see this happen unless their bad acts have a financial component. Say, for example, that someone with a narcotics addiction emptied a retirement account to purchase drugs. It would make sense, then, that the innocent spouse received some kind of recompense for this behavior. This is not so much because the addicted spouse needs to be punished, but because the innocent spouse shouldn’t share in the cost of the addiction.
Adultery can be much more difficult to quantify in terms of cost to the relationship. Sure, pre-separation adultery is incredibly harmful and can lead to the breakdown of marriages. Sure, I believe that – in its most self-important moments – lawmakers believe in the so-called “sanctity of marriage” and the public interest in supporting marriage as an institution.
Yeah, yeah – whatever.
I mean, yes, marriage has important cultural, socioeconomic, and sometimes even religious value. There are a million reasons like this that people get married. And, as a married person myself, I get it.
But I do draw the line between pre and post separation adultery – because, in many cases, that’s just realistic. For many women, in particular, after years and years of trying to save their marriages, they realize that they can’t do it. They separate and, after a period of grieving (some of which may have happened during the marriage), they’re ready to move on in every way.
At the point that most married couples separate, things have been over for *quite* some time. Acknowledging that is just reality.
While it may be safer to wait until your divorce is finalized before you engage in a new relationship, for some people it is a process – especially if there is post separation abuse taking place – that can take multiple years.
There is a big difference in adultery that is a betrayal, adultery that ends a marriage in progress, and “adultery” in name only, where the parties have already separated, where they’ve begun to work through the issues related to support, equitable distribution, custody and visitation, and more. Still, if you are dependent on receiving spousal support, in particular, it’s a good idea to hold off or talk to a Virginia-licensed family law attorney about your particular situation before you jump in.
For more information or to request a copy of our book for Virginia women facing divorce, give us a call at 757-425-5200 or visit our website at hoflaw.com.