All About Adultery in Virginia

Let’s speak very, very plainly. When things don’t work out between you and your spouse, all sorts of different things happen. It’s different for everyone. For some women, love (or whatever you want to call it) finds them again very quickly, leaving them wondering, “Is it okay to start a new relationship yet?” (Of course, for some women, love is the last thing on their minds, and that’s fine, too.)

Statistically, though, love WILL find you again. Still, it’s important to keep in mind that before your final divorce decree is officially entered by the court, undertaking a romantic relationship may have more risks than you realize.

When are we divorced?

In Virginia (and everywhere else, as far as I know), you’re married until you’re divorced. Additionally, as I’m sure you can imagine, being legally separated is not the same thing as divorced. In Virginia, as we’ve discussed before, you are legally separated when two things happen, pretty darn close to simultaneously (1) you decide to end the marital relationship, and (2) you stop cohabitating.

What does it mean to be “legally separated” in Virginia?

Deciding the end the relationship is easy. It’s a decision you make, in your mind, about the status of your marriage. Either you want to be in it and you’re still working on it, or you’re done. When you reach that “I’m so done” point, you’ve satisfied one part of the requirement for being legally separated in Virginia. It doesn’t matter whether your husband has also formed this intent in his own mind, too. It can be a completely one sided decision—at least at this point.

When it comes to the second prong of the test (no more cohabitation), you’ll have to clue him in, if he’s not already on the same page. Cohabitation refers to living together as husband and wife, and everything that involves—from cooking, cleaning, shopping, and laundry, to how you behave in public, like whether you celebrate anniversary dinners at your favorite restaurant together, sit at the kid’s soccer game together, or attend church together. Basically, anything that you were doing that gave the impression to each other or to others that you are happily married has to stop.

Still, even though you no longer want to give the impression that you’re a happily married couple, when you’re separated, you’re still married—whether you’re living under the same roof or have started maintaining separate residences.

What is adultery?

Adultery is when a married person willingly has sex with a person who is not his or her spouse. Sex includes oral, anal, or vaginal intercourse. It’s not dating, hand holding, kissing, or telling someone else you love them. It’s entirely about sex.

In Virginia, adultery is a crime. (A misdemeanor, but nonetheless still a crime.)

Pre and Post Separation Adultery

Most people feel like there is (or should be) a difference between adultery that occurs before and adultery that occurs after separation. Legally, though, there really isn’t. Whether you’ve committed adultery (or your husband has committed adultery) before or after separation, if you’re still married, then you’ve committed adultery.

There is a bit of a difference in how pre and post separation adultery is handled in a divorce, though. Because pre-separation adultery is thought (by judges especially) to be one of the primary reasons for the breakdown of the marriage, it is possible that the adulterer would be “punished” a little more severely.

Notice that I said “possible.” It’s not required, or even common, for a person to be punished by the judge for committing adultery. The way the statute is worded, though, the judge is allowed to look at the negative and positive monetary and nonmonetary contributions each party made to the marriage. Adultery is a pretty serious negative nonmonetary contribution, so it’s possible that the judge could use this act as a basis to make a disproportionate award of the assets.

Will it happen that way? It’s probably unlikely.

As far as division of the assets go, post separation adultery is considered less seriously than pre separation adultery because, at least as far as the judge is concerned, the adultery is not the reason for the breakdown of the marriage.

How does adultery affect divorce?

The most important thing to know about adultery is that, if the court finds you have committed it, you will be barred from asking for spousal support later on. Of course, that’s assuming that you would have qualified to receive spousal support anyway. If you wouldn’t have qualified to receive spousal support, adultery is, as far as it relates to your divorce, probably relatively unimportant.

The ban on asking for spousal support also applies to your husband, if he was the one who committed adultery, so that’s good news (again, assuming that he would have been able to ask for spousal support.)

What happens if you’re barred from asking for spousal support, but you really need it? It’s possible to get spousal support anyway, but it’s really, really difficult.

Manifest Injustice

If you have committed adultery, you will be barred from asking for spousal support unless you can demonstrate that you being denied spousal support would result in manifest injustice. As you can probably imagine, manifest injustice is pretty difficult to prove, but it’s really your only shot.

In order to prove that manifest injustice exists, you have to prove three things to the court: (1) that the evidence is clear and convincing, (2) the exception only applies in cases of manifest injustice, and (3) the factfinder’s discretion is limited to two variables: (i) the relative degrees of fault, and (ii) the economic disparities between the parties.

So, basically, after you consider whether clear and convincing evidence of the adultery exists, you’re going to have to look at whether there’s manifest injustice. According to the criteria set forth by the court, there are two basic prongs to that test: the relative degrees of fault, and economic disparity.

What does “relative degrees of fault” mean?

We already talked at length about pre and post separation adultery, and how, typically, pre separation adultery is thought of more seriously by the courts, because it is “The Reason” for the breakdown of the marriage. On the other hand, post separation adultery is (although still criminal!) just something that happens sometimes when a marriage is already irretrievably broken. According to the court, pre separation adultery garners more blame for the offending spouse than post separation adultery. Does that make sense?

“Relative degrees of fault” relates specifically to how responsible for the divorce each of you are. If you were trying to show the court that you deserved to receive spousal support despite your adultery, you would want to be able to show the court that your marriage broke down, not because of your fault, but because there were other things (like poor communication skills or his mismanagement of family finances) to blame. You want the court to feel like both you and your husband were equally responsible for the breakdown of the marriage, and not like the fault lay more with you and your actions.

What do I have to show to demonstrate that there’s an economic disparity?

Secondly, you’d have to show that you and your husband don’t have access to the same amount of money. In fact, you’d have to show that your income (if any) and his income are pretty seriously different. In fact, in case law I’ve seen, the court uses the word “serious” before economic disparity, so it’s not just a question of proving that he earns more. He must earn substantially more. If the way your property is divided ultimately does very little to alleviate some of the disparity, you have a better argument for manifest injustice. Additionally, you should look at your future earning potential, and your long term ability to support yourself, especially as compared with your husband’s earning potential and his ability to support himself over the long term.

The more difference you can show between the two of you, the better your argument will be.

Manifest injustice is the only way to overcome a denial of a spousal support award as a result of adultery.

Condonation

Just like if you’re accused of a crime, there are certain defenses you can use to reduce your culpability for committing that crime (probably the most well known defense is insanity), there are defenses that you can invoke when a fault based ground for divorce is alleged against you.

Condonation is a defense to fault based grounds that you should be aware of, especially in the case of adultery. So, what does it mean? Listen carefully: legally, if you find out that your spouse has committed adultery, and then you sleep with him, you’ve forgiven him of the adultery, and you can no longer get divorced using adultery as your grounds. (You can, of course, still use no fault grounds.)

In order for you to have “condoned” his adultery (or for him to have condoned yours), you have to KNOW about the adultery. If you don’t know about the adultery, or just suspect that he is sleeping with someone else, you haven’t condoned his behavior. (However, for sexual health reasons, if you suspect that your husband is having an affair, it’s probably not a good idea to sleep with him.) Similarly, if you’ve committed adultery (and your husband is aware of that adultery), and he sleeps with you, he has legally forgiven you—which would mean that he could not pursue a divorce using adultery as grounds.

You don’t forgive acts of adultery that you don’t know anything about, and if your spouse goes on to have more adulterous relationships after the ones you’ve forgiven, you don’t forgive those unless you continue to sleep with him.

“Free to live as though single and unmarried”

A lot of separated couples negotiate separation agreements fairly quickly, and 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.

These provisions are pretty common, 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.)

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 not exactly 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! 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 mostly designed to make people feel better about things and make them believe that they are free to start their new 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?

When CAN I start a new relationship?

Remember, too, that adultery relates specifically to sex. As one of our attorneys often says, “It’s okay to take him out for drinks, just don’t bring him home for dessert!” It’s fine to start dating, provided that you feel like you’re in a healthy and productive place, but it’s best to wait to resume any kind of physically intimate relationship until after your divorce is finalized.

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