Adultery, sodomy, and buggery are – at least for now – grounds for fault-based divorce in Virginia. There are a number of other, alternative fault-based grounds, including cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction, but adultery has always been sort of in its own category because it is also a crime (a level IV misdemeanor).
Because it is a crime, adultery also requires petitioners to meet a higher burden of proof. This isn’t a criminal proceeding, so it’s not the “beyond a reasonable doubt” standard that you have to meet, but, still, clear and convincing evidence is a very high standard to meet. (The highest standard, in fact, for civil cases.)
Even though more may change in the future, there are some big changes for the law with respect to adultery in 2026.
Post-Separation Adultery
Post-separation adultery – adultery that took place after the parties’ initial legal separation began – will no longer be considered a cause of action. This means that, in order to use adultery (but not sodomy or buggery) as grounds for divorce, it will have to have occurred BEFORE the parties’ separation. Sodomy and buggery are, for whatever incomprehensible reason, being treated differently; both pre and post separation sodomy and buggery are still recognized as causes of action.
What does it mean – post-separation adultery isn’t a cause of action?
Not being a formal cause of action means that divorce can’t be filed on adultery (but, again, not sodomy or buggery) if the act of adultery took place after the parties’ initial separation.
There ARE, though, other penalties associated with adultery.
Most specifically, adultery qualifies you for an “immediate” divorce, without a waiting period. Though divorce almost never happens more quickly in cases where adultery is alleged or even proven, there still remains that potential possibility.
It is also an absolute bar to spousal support, except in cases of manifest injustice. Though the statute isn’t perfectly clear – and the law is very new (taking effect on July 1, 2026) – I don’t believe that this will be impacted. In the past, we’ve had cases where the court has held that adultery doesn’t need to be pled (meaning, used as grounds for divorce) in order for the adultery to act as a bar to spousal support.
So, though I can’t be sure unless and until we’ve seen some real cases in action and the judges have had an opportunity to rule on these issues, I suspect that adultery will still be an absolute bar to spousal support.
Still, it is far more likely that pre-separation adultery would have an impact, as opposed to post-separation adultery, when it comes to spousal support. It’s entirely possible to have a separation agreement created that resolves all of the outstanding issues (including child support) before a new relationship even begins, which would negate the impact of post-separation adultery entirely.
Does that mean I can’t start dating?
I’m not the morality police and I’m not here to tell you what you should or should not do – but, in general, I think it’d be safest to wait until you have a signed separation agreement before you start dating.
Post-separation adultery isn’t a cause of action, so, technically, aside from the issue of spousal support, I think you’re probably okay. But keep in mind that sodomy and buggery still keep their post-separation status – they still remain a cause of action – so, unless you want to risk the potential that your specific sexual acts will become courtroom fodder (gosh, I shudder to think), you’re probably better off to wait until after your final divorce trial or until you have a signed separation agreement.
It isn’t about dating, of course; it’s about sex, and the specific type of sexual acts you may or may not have engaged it. Still, again, unless you want the court to be focused on what may or may not have happened behind closed doors, it might be better not to poke that particular bear.
But, again, this is all new – so who knows what’ll happen? For more information, to schedule an appointment, or to register to attend an upcoming divorce seminar (where we’ll talk more about these new changes to the law), visit our website at hoflaw.com or give us a call at 757-425-5200.