Adultery is probably the most popular of the fault based grounds for divorce; at any rate, it’s certainly the one we see alleged most often. It’s also fairly complicated, because, if proven, there are possible criminal and civil ramifications. What do you need to know before admitting adultery–or after your husband admits he has committed adultery?
Adultery is a pretty serious allegation. In Virginia, it’s a misdemeanor, which means that it’s a crime, and technically you could face a fine or even imprisonment if you were convicted of committing adultery. Of course, a civil case (like a divorce) won’t carry with it a criminal punishment; you’d have to have a separate criminal trial in order to receive a conviction based on adultery. (And, really, that rarely, if ever, happens.)
The biggest thing to be concerned with is the potential for civil penalties. Technically, if a judge finds that you’ve committed adultery, your marital assets could be divided differently. It doesn’t always work out that way, but it could—and you’re taking a pretty big risk.
Of course, adultery would have to be proven in order for a disproportionate award of the assets to be considered; judges don’t just take things away from people willy nilly.
What is adultery?
I know, I know. You’re not stupid. But I do find that there are a lot of people who are confused about what, exactly, adultery is. So, even if you already know, bear with me.
Adultery is when a person who is married voluntarily has sexual intercourse (defined as oral, anal, or vaginal sex) with someone who is not his or her spouse. Anything else—dating, hand holding, kissing, and even “engagements”—does not constitute adultery. Adultery is really all about proving that the sexual act occurred.
There’s no such thing as “emotional adultery” in the law. As far as the law is concerned, there’s no adultery (and therefore no grounds for divorce, and no basis for civil or criminal liability) without the sexual act.
What do you need to allege adultery? (What does your husband need to allege adultery against you?)
To allege adultery isn’t very hard. Remember that there’s a difference between what you allege and what you can ultimately prove. If you’re going to get a divorce granted based on adultery grounds, you’ll have to prove it in a final hearing in front of a judge. But just to file for divorce using adultery as your grounds, you won’t need all that—but you will want to be able to allege (or your husband will need to allege, if he’s claiming you committed adultery) when, where, and with whom the suspected affair took place. We don’t need exact information; it’ll probably be enough to say “on or around” a certain date, in “Virginia Beach” generally or “in numerous locations throughout Virginia, including…”, and with a named person, or at least a person’s initials. If we have more information, we can include that, too, but it’ll be enough just to provide these details in order to file for divorce.
Admitting Adultery: Should I admit that I’ve committed adultery? Will HE admit it?
Probably not. Of course, your specific strategy should be something that you discuss in detail with your attorney; one size definitely doesn’t fit all when it comes to customizing a strategy for a divorce case. Still, in general, it’s usually safe to say that adultery is not something you want to admit.
Since adultery is a crime in Virginia, you can plead the fifth. (And, likewise, he can do the same.) Most of the time, when adultery is alleged, we see the party accused of adultery take the fifth.
In a complaint (the document that formally starts the divorce), you allege your grounds against your husband (or he alleges his grounds against you, if he files first). In the answer, the document that responds to the complaint, you (or he) will either admit the allegations, deny them, or plead the fifth.
Admitting Adultery? He already did!
Telling someone you’ve committed adultery isn’t the same thing as proving it to the judge. To get a divorce granted on adultery, you’ll have to prove it to the judge. Just because you may have told your husband (or he told you) about your affair doesn’t mean you can’t plead the fifth. Of course, if he has some kind of incriminating evidence against you (videos or pictures or even a private investigator), you may want to discuss your strategy in more detail with your attorney.
Most of the time, it’s safest not to say anything – that is, to plead the fifth. It protects your right to invoke whatever defenses you could possibly use and protects you from possible self incrimination.
What defenses are there to an allegation of adultery?
There are a couple of defenses you could use to an allegation of adultery (or that your husband could use, if you allege that he has committed adultery).
Adultery is “condoned” when one party sleeps with the other after learning about the adultery. So, if you did have an affair, confessed to your husband, and then the two of you engaged in consensual sex, he could be said to have legally forgiven the adultery.
Of course, this only applies if he KNOWS about the adultery (in this instance, it’s good enough if you’ve told him about it), and it doesn’t apply to any future acts of adultery, with the same person or with someone else. So, basically, if you have sex after you tell him about the adultery, you wipe the slate clean legally—but that doesn’t mean that you’re forgiven if you continue to carry on the affair, unless you and your husband keep sleeping together after each tryst.
Legally, two wrongs don’t make a right. It is a defense to an allegation of adultery if your spouse has also committed adultery. You can’t BOTH claim adultery against each other. In that case, if you both did it, the affairs essentially cancel each other out legally, and you’ll have to either use a different fault based ground for divorce or get a no fault divorce instead.
You can’t agree to get a divorce based on adultery, either. If the two of you are just looking for a way out, you’re not going to be able to agree to pursue a divorce based on adultery if your grounds don’t exist. (And, really, why would you? You could just get a no fault divorce; it’d be easier, cheaper, and quicker anyway.)
What should I do in my adultery case?
Your first step in a case like this where complicated legal issues are presented should be to talk to an attorney one on one about your case. Your attorney can help you determine whether pursuing adultery would be worthwhile or, alternatively, if adultery is alleged against you, can help you determine your best course of action moving forward.
The choices you make now are incredibly important. To talk to one of our licensed and experienced adultery attorneys, give our office a call at (757) 425-5200.