Adultery, Spousal Support, and Custody

Adultery, Spousal Support, and Custody

We talked Monday about adultery, and the difference between filing a divorce (which is a civil case) using adultery as your grounds and an actual criminal prosecution on adultery (which is a level IV misdemeanor in Virginia).

The purpose of that article was to alleviate concerns I see around adultery cases. I received a call just the other day from a woman who was worrying about the potential impact to her career stemming from a divorce action that cited her adultery as grounds.
Generally speaking, adultery is rarely (if ever) prosecuted on a criminal level. In civil cases (like a divorce), there are not criminal consequences. There would only be criminal consequences if a criminal case were brought separately, and another trial held on the allegations.

Not only that, but most people don’t have deep enough pockets to pursue adultery allegations all the way through to the bitter end. Either that, or they make a practical determination that, though they could, it’s really not worth their time. I like to say, “is the juice worth the squeeze?” What I mean by that is this: Is it likely that you, if you prove adultery, will walk away with MORE of the assets? Generally speaking, that answer is a pretty resounding no. So, then, what’s the point?

In some cases, people do decide to file on adultery for any number of reasons: he has withdrawn support, he refuses to sign an agreement, you don’t know the full extent of the assets and liabilities, he has already filed for divorce against you, and so on and so forth. There are lots of reasons – many not enumerated here — that might spur you to file using those grounds. There’s a difference, though, between FILING using those grounds and FINALIZING on those grounds. It’s easy as pie to file. It’s not easy at all to finalize on the grounds. You’ll have to prove them, as we discussed Monday, by clear and convincing evidence, and using a corroborating witness.

So, what you’re hearing me say about adultery is that you probably DON’T have to worry about things going all the way through to a messy divorce trial where evidence of your adultery is displayed for all the world to see. (And, of course, vice versa, if he’s the one who committed adultery.) It’s possible, but not that likely. (And it’d probably take tens of thousands of dollars to get to that point.) It’s even less likely that there’ll be a criminal prosecution for adultery. It’s also fairly unlikely that you’ll receive a lesser award of the assets because of your adultery.

So, adultery has no impact on your divorce?

No. Absolutely not. In fact, adultery can have a BIG impact on your divorce – but not in the way that you’re probably thinking!

Adultery is a big deal. I always advise clients who come into my office asking about it (or even hinting around it) that it’s a general best practice to NOT date anyone before you’re divorced. Of course, adultery isn’t really about dating – it’s about sex. Oral, anal, or vaginal sex, and, basically, proving that you’ve had it with someone who is not your spouse. (Sorry to get graphic with you there.)

If you commit adultery, it’s a bar to spousal support. That’s the biggest thing. It doesn’t matter if he’s committed adultery, too. And, really, this is an especially dangerous issue, because it doesn’t require the same level of proof that a judge would need to grant your divorce on adultery.

Imagine this. Your husband believes you’ve committed adultery, whether you’ve done so or not. He tells his attorney. His attorney refuses to agree to anything that gives you spousal support. You need spousal support, which tells me that you are a lesser wage earner than your husband. It tells me you have less ability to fight the issue, if he refuses to pay. If he refuses to agree to anything giving you spousal support, your only other option is to go to court. He has more money than you, so he can drag things out and spend more money over time to deny you support. Whether you’ve committed adultery or not really isn’t the question here – it’s your diminished ability to fight it, which means that you may give up, even if your case is a good one, simply because you can’t afford the attorney’s fees to fight it.

It’s not a good position to be in. It’s better to avoid any breath of scandal, any possibility of this kind of outcome. It’s best not to date at all, or engage in any behavior that would lead your husband, whether he can actually prove it or not, to believe that you have committed adultery.

Are there other consequences to adultery?

What, you mean making your divorce (1) take longer, (2) cost more, (3) be less likely to yield a good result, and (4) a waiver of spousal support isn’t enough bad for you?
Well, let’s heap on a little bit more.

Adultery could also have potential complications for your custody case. Well, it depends, of course, on the facts, but it’s entirely possible.

If your affair has impacted the children, it can impact custody. If you have people around, even while the children are sleeping, or if the person with whom you’ve involved is questionable in any way (like he’s got a criminal record, a history of drug abuse, etc), it’s a problem for your custody case.

It’s a vicious double standard, too, because the judge won’t look at a man who has a girlfriend as sternly as a woman who has a boyfriend. If you then add on something else that is hard for an older, likely conservative, judge to find palatable, you create even more potential for problems.

If you have minor children, you should be especially careful. To be safe, it’s a very, very good idea not to have any relationships with anyone new until your divorce is finalized. And, if you’ve got minor children, you should carefully screen any candidates – because custody is modifiable based on a material change in circumstances. Even after your divorce, a boyfriend with a criminal or drug history is going to be frowned upon by the courts.

For more information, or to discuss your case one on one with an attorney, give our office a call at 757-425-5200.

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