In the last several years, there have been some major changes to Virginia family law. Just last year, in 2025, guideline child support amounts were raised. This year, in 2026, the two major changes for family law are (1) that post-separation adultery is no longer recognized as a cause of action and (2) that, even in no fault cases, you can file for a “divorce from bed and board” immediately after separation.
Let’s talk about it.
Pre and Post Separation Adultery
Before July 1, 2026, the law didn’t differentiate between pre and post separation adultery. In Virginia, adultery is a level IV misdemeanor, though it is rarely prosecuted. It is also grounds for fault-based divorce and an absolute bar to spousal support.
Post-separation adultery is no longer a cause of action
The law change means that post-separation adultery – adultery that took place after the parties already decided to separate – is not going to be used as grounds for fault-based divorce.
What – exactly – does the new law say?
Virginia Code § 20-91 Grounds for divorce from bond of matrimony; contents of decree
- A divorce from the bond of matrimony may be decreed:
- For adultery that occurred prior to the final separation of the parties, or for sodomy or buggery committed outside the marriage.
ill post separation adultery act as a bar to spousal support?
We’ll have to see how it impacts spousal support; as of right now, that part just isn’t completely clear. In the past, in order to act as a bar to spousal support, adultery didn’t have to be specifically pled as grounds for divorce, so it may be that the bar to spousal support exists independently of the cause of action. The statutory language isn’t clear, so we’ll have to wait and see.
Either way, I imagine we’d still keep the presumption that the bar to spousal support, whether pre or post separation, could be overcome with a showing of manifest injustice.
Pre versus Post Separation Sodomy and Buggery
If you read the statute, you can pretty easily see that lawmakers specifically differentiated between adultery – which is still a cause of action pre-separation, but not post-separation – and sodomy and buggery, which both are still a cause of action, whether pre or post separation.
Sodomy and buggery are super antiquated, but sodomy refers to oral and anal sex while buggery refers to both anal sex and acts of bestiality. I’m sorry to get graphic with you but, in any case, this could include both same sex and opposite sex couples, but it is interesting. Will all of our cases suddenly start including allegations of sodomy and/or buggery? How would it really be proven? In any case, we’ll probably have to wait and see how these cases are litigated and what the courts have to say, both about the use of sodomy and/or buggery to either create a cause of action and/or to put additional bars in place for spousal support. It’s just not clear today.
Divorce from Bed and Board
The courts will also now allow even petitioners using no fault grounds to file for divorce from bed and board immediately after separation. It used to be that, when no fault grounds were alleged, you couldn’t file for divorce at all until you had satisfied the separation period – one year, or six months if (1) you had a signed separation agreement, and (2) you didn’t have any minor children born to or adopted by the parties.
What – exactly – does the new law say?
Virginia Code § 20-95
Grounds for divorces from bed and board
A divorce from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt, willful desertion, abandonment, or on the application of either party upon the parties living separate and apart with the intent of at least one of the parties to remain separate and apart permanently. No waiting period is required for the filing of a divorce from bed and board pursuant to this section, but such divorce may be decreed only in accordance with the provisions of § 20-91.
What does this mean?
While you shouldn’t think of a ‘divorce from bed and board’ as a proper divorce – it’s more like a fancy, court-enforced period of legal separation – it’s still important because it gives access to the court for petitioners BEFORE the one year (or six months) is up. It’ll still take the full year (or six months) to get a full and final divorce, known as a “divorce from the bond of matrimony,” but access to the courts is really important.
When you have access to the courts, you can have a pendente lite hearing, conduct discovery, and keep the “train on the tracks,” so to speak, instead of just waiting around until you’ve been separated long enough to ask the court for help.
That feels like a lot of change? Are more changes on the horizon?
Maybe so! The Virginia Family Law Coalition has been tasked with looking at current required periods of legal separation as well as our current fault-based divorce system. It’s possible that, in the coming years, we’ll have a lesser period of required legal separation and/or eliminated fault-based grounds for divorce.
The Coalition is supposed to review and submit findings by December 1, 2026 – so we’ll have to stay tuned, but it’s exciting to watch changes take shape in real time.
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