Adultery in Virginia from A-Z: Part One

In a lot of ways, adultery really isn’t all that important anymore.  Since no fault divorce became a possibility and the pressure to prove a fault based ground has lessened, people have been more content with moving forward with their divorces without regard to fault (even if fault based grounds exist) for a lot of reasons.  For one thing, it’s certainly a lot cheaper!  Because fault based grounds carry certain penalties (or, at least, the possibility of penalties, because the judge is allowed to consider one party’s fault as a negative non monetary contribution to the marriage and, as a result, make an award of property division that is different than 50/50), the spouse alleging fault against the other has to provide proof that the fault based grounds exist.  Because adultery is also a crime (in Virginia, it’s a misdemeanor), the burden of proof is pretty high—and it takes time and costs money to go to court.  Frankly, in most cases, the juice just isn’t worth the squeeze.

Although the judge can take one party’s fault into account when divvying up the assets (like I said earlier, because they can consider the fault as a negative non monetary contribution to the family—essentially giving the fault the importance of being “The Thing” that broke up an otherwise good marriage), the reality is that in most cases they don’t.  Being able to prove adultery, or any of the other fault based grounds, does not really give you a golden ticket that means you’ll suddenly get more and he’ll get less.  So, like I say, in so many cases, even in cases where adultery exists, you don’t get out of an adultery case what you put into it in terms of the time and money and emotional investment.

Still, in other ways, adultery DOES matter, and you should be aware ahead of time, just in case.

Over the next two days, we’re going to talk about adultery cases in Virginia.  What qualifies as adultery, what can get you out of a claim of adultery if one is made against you, the difference between pre and post separation adultery, what possible legal consequences come from adultery, and how to get around those consequences if you’re backed into a corner.  Adultery has been around, you know, since the dawn of humanity, so there are lots of cases and lots of laws regarding it.

Whether you’ve committed adultery and are trying to figure out how to protect yourself, or suspect (or even know) that your husband has committed adultery, you’ll find tons of useful information here. Read on to find out more about how adultery works in Virginia divorce law.

    So, what exactly IS adultery?

Let’s be clear here.  Adultery happens when a person who is married has sex with a person who is not his or her spouse.  “Sex” can mean a whole lot of things—it can be vaginal, oral, or anal sex—and it all counts as adultery.

    So, what exactly IS NOT adultery?

Adultery is all about sex, so anything that is not oral, anal, or vaginal sex is not adultery.  Adultery is not hand holding, going out on dates, kissing, or sending graphic text messages.  It’s not exchanging gifts or cards.  It’s not saying, “I love you,” planning to get married at some point in the future, or spending hours and hours talking, FaceTiming, or Skyping.  Unless there is actual, physical sex, there is not adultery.

    Pre and Post Separation Adultery

There’s a difference between adultery that occurs before separation, and adultery that occurs after separation.  Of course, you should always remember that, at least in Virginia and at least for now, adultery is still a crime (a misdemeanor, like we said), and it doesn’t matter whether you’re married or separated, if you commit adultery, you’ve committed a crime.  As far as the criminality of your behavior (or your husband’s behavior) goes, it doesn’t matter at all whether your adultery was committed before or after you separated.

It sounds obvious, but you’re married until you’re divorced.  Separated is not the same as divorced.

Still, there’s a difference between pre and post separation adultery.  Typically, pre separation adultery is thought of by the judge as “The Reason” for the breakdown of the marriage, while post separation adultery is just something that happens in a marriage that is already irretrievably broken.  The statutory factors allow the judge to consider a party’s negative non monetary contribution to the breakdown of the marriage, which means that the judge could (theoretically, at least) award a split of the marital assets that gave one party more than the other.  It rarely happens, but it could.  Because post separation adultery happened after the breakdown of the marriage, it’s not a factor that the judge usually considers in determining equitable distribution.

    “Free to live as though single and unmarried”

A lot of separation agreements contain a provision that says that, from the date of signing this agreement, both parties are free to live as though they are single and unmarried.

It’s pretty common because, by that point, both people just want a way out.  They don’t want to be tied down to their spouse anymore, and, really, everything has pretty much been handled anyway.  The separation agreement has been drafted, everything has been divided, and levels of support have been determined.  What’s left, except to wait until the date of separation is up?  (In Virginia, you have to be separated for one full year to get divorced, unless you don’t have any minor children AND have a signed agreement in place.  In that case, you only have to be separated for six months before you can file for divorce.)

If you’ve hired an attorney, he or she has probably gone to great lengths to tell you how serious signing a separation agreement is, and how all of its provisions are super duper binding, and you’ll never, ever get out of them in a million years.  It’s true—separation agreements, once signed, are nearly impossible to undo.

Still, there are some provisions that are more or less effective than others and this one is one of those ones that sounds better than it actually is.  Remember how I already said you’re married until you’re divorced?  Well, it’s true.  Even if you’ve signed an agreement including a provision like this one, you’re still married, so you’re really not free to live as though you were single and unmarried.  If you commit adultery, it’s still a crime.  (It probably won’t bar you from receiving spousal support, because you’ve already signed an agreement that either gives you support or doesn’t, whatever the case may be.)  You also can’t get remarried—obviously, because you’re still married!  So, even though this provision sounds really good and makes you feel better to include, it’s really not entirely true.  You’re not single and unmarried, and you would be wise to behave like you’re not single and unmarried, no matter what the agreement says (and no matter how your soon to be ex hubby chooses to behave).
These provisions are typically “feel good” provisions; not actual suggestions about how you should live your life.  Before you make any decisions, keep in mind that, until you’re divorced, you are still married, and certain penalties for your behavior do still apply, regardless of what you see in your agreement.  After all, better safe than sorry, right?

    What difference does adultery make?

I said before that adultery is not usually a golden ticket, but there is still at least one big way it matters.  In Virginia, if you’ve committed adultery, you can’t ask for spousal support.  It works in reverse, too, of course.  If your husband has committed adultery, he can’t ask for spousal support, either.

Of course, you’d also have to qualify for spousal support to be able to ask for it.  If you earn more than your husband, you couldn’t ask for spousal support anyway.  If you earn less than your husband, though, you may be able to ask for spousal support—and your adultery (whether pre or post separation) could prevent you from doing that.

Likewise, if your husband earns more than you, there’s no chance that he could get spousal support, anyway, regardless of whether he committed adultery.  Still, it’s something to be aware of.

On Wednesday, we’ll talk more about adultery and how it works in Virginia divorce.  If you’re ready to move forward with your divorce now, or just need to talk to an attorney about your specific situation, feel free to give our office a call at (757) 785-9761.  We’re here to help!

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