Adultery and Alimony in a Virginia Divorce
If your husband earned more than you during your marriage, you may qualify to receive spousal support from your husband. The court’s analysis is a little more complicated than this, but you should know that the possibility of receiving support is there, so long as your incomes support an award of support.
However, if you have committed adultery, you may be barred from receiving spousal support.
Of course, it’s a little more complicated than that. In order for the court to deny you spousal support, adultery would have to be proven, and that’s pretty difficult. Virginia courts require solid proof of adultery, such as testimony from a private investigator and other evidence, like pictures, text messages, and voice recordings, of the extra-martial relationship. In order to prove adultery, you’ll need a corroborating witness (someone else to testify that the adultery occurred), which is why private investigators are often involved. Hiring a private investigator often costs money that the opposing party doesn’t have.
If your husband can’t prove that you’ve committed adultery, the court probably won’t deny your award of spousal support (unless the other facts don’t support the award, either). Proof is necessary; allegations alone aren’t enough.
Regardless of whether your husband can prove that you’ve committed adultery, you may have temporary spousal support awarded at your preliminary hearing. Preliminary hearings where temporary or "pendente lite" (pending litigation) spousal support is decided don’t allow evidence to be introduced on fault. As a result, you could likely receive temporary support even if you wouldn’t qualify for permanent support after the divorce trial (where your husband would try to prove the adultery).
If you and your husband are negotiating a separation agreement, it’s not a question of whether the judge would find that your husband “proved” that the adultery took place. In these cases, it’s entirely a matter of what the parties are able to agree on, and that may or may not include an award of spousal support, depending on the circumstances. If your husband has strong evidence of your adultery, you may agree to waive support anyway, rather than paying the extra money to have a full-scale, drawn-out divorce trial where the judge denies it to you anyway. If, on the other hand, he doesn’t have enough proof, you may be able to get him to agree to pay spousal support anyway, because the alternative is expensive litigation for him, too. It’s a cost/benefit analysis, and you’ve got to look at what gives you the best chance of success after your divorce.