Adultery and Spousal Support in Virginia Divorce

Posted on Mar 6, 2017 by Katie Carter

As you’re likely already aware, adultery is grounds for divorce in Virginia. Adultery includes consensual sex of any kind (oral, anal, or vaginal – sorry to get graphic!) with a person who is not your spouse, and it’s particularly interesting of the fault based grounds for divorce. Though technically it qualifies you for an immediate divorce, it actually almost always ends up taking more time (and certainly costing a great deal more money) than no fault divorce or even fault based divorces with different grounds. Besides that, adultery is unique in the sense that it is also a crime in Virginia; it’s a level four misdemeanor, so it carries with it potential criminal as well as civil penalties. Adultery is also relevant in another way, too.

Adultery and spousal support

In Virginia, if you’ve committed adultery, you can’t also ask for spousal support. Likewise, if your husband committed adultery, he is barred from asking you for spousal support.

How do adultery cases work in Virginia?

In order to allege adultery, you simply need to have a reasonable belief that the adultery occurred. Usually, it’s enough for us to allege an approximate date and place of the adultery, and we like to also provide the name or initials of a suspected paramour. If we have other evidence, like pictures, text messages, emails, or whatever, we can also include that evidence as well.
You don’t have to prove adultery until you get to court for your trial. Any fault based divorce is going to be more complicated than a no fault divorce, because you have to provide evidence, witnesses, and testimony on TWO different things—first of all, whether or not your fault based grounds for divorce exist, and, second, how your assets and liabilities should ultimately be divided.

Proving Adultery in Virginia

Adultery is the hardest of the fault based grounds to prove, mostly because it’s also the only one of the fault based grounds that is also a crime. When you prove something that is also a crime (and therefore carries with it the possibility, though unlikely, of criminal prosecution), the standards are much higher. To prove adultery, you have to do so with clear and convincing evidence, which is a pretty high standard. It’s higher than a preponderance, which just means more likely than not (like, if you had a scale that was balanced equally on either side, a single feather to the other side would result in a preponderance), but it’s slightly less than beyond a reasonable doubt, which is the standard used in criminal cases (with which we’re probably all pretty familiar).
In an adultery case, we have a pretty high evidentiary standard, and we need a corroborating witness to help us prove our case. A corroborating witness needs to be someone beyond you (and your husband’s own admission) – so, potentially, the girlfriend, or even a private investigator. (Before you go out and hire a private investigator, though, I definitely recommend that you talk to a divorce and family law attorney one on one about your case and your strategy moving forward. Private investigators are often very, very expensive, and we’d want to do a complete analysis to determine whether pursuing adultery would be the absolute best course of action for you in your case.)

What does all of this mean for me?

If your husband has alleged that you’ve committed adultery, this is good news. It’s pretty difficult to prove adultery, and, besides that, it’s time consuming and cost prohibitive. Very, very few divorces are actually granted on grounds of adultery, not, of course, because people don’t have grounds, but because the proof is so time consuming and expensive to provide. Besides that, adultery rarely yields a dramatically different outcome, so it’s often not all that important for the sake of the divorce itself. After all, you know that all your marital assets and liabilities are going to be divided and they’ll be divided whether or not you’ve proven adultery – so, in many cases, it’s better to just move forward on no fault grounds, whether on a contested or uncontested basis, in order to preserve as much of the marital property as possible for division between the two of you (rather than having it disappear in a puff of smoke between the two of you paying high legal bills).
So, the good news is that, even if you’ve committed adultery (though you should definitely NOT admit it, if he doesn’t already know), is that your husband will have a very difficult time actually proving it to the court.
The bad news is that, even if you’ve committed adultery, your husband will have an easier time “proving” enough to bar you from receiving spousal support than he would proving it in order to get a divorce granted on the grounds of adultery in front of the court. So, long story short, though he might find himself unable to get a divorce granted on grounds of adultery, that doesn’t mean that he will be unable to bar you from asking for spousal support. (Which, frankly, is probably the more important part of his objective in introducing the evidence of adultery anyway.)

Does it work this way if he’s the one who committed adultery?

Yes, the law applies equally on both sides. If he committed adultery, he would likewise likely be barred from asking you for spousal support, too. If he earns more than you, though, he wouldn’t receive spousal support anyway—so it’s possible that barring him from asking for spousal support is less of a punishment, since he would likely not qualify to receive spousal support anyway. If he’s the higher earning spouse, he wouldn’t be entitled to spousal support anyway. If he’s the lower earning spouse, then you may have something there.

I didn’t commit adultery, but he thinks I did. Is he going to have an easy time convincing the judge of something that isn’t even true?

That’s pretty common. A lot of husbands latch on to something (like adultery), and make a big fuss over it—regardless of whether or not it’s true.
If you haven’t committed adultery, he won’t be able to offer any real evidence. He won’t have text messages, pictures, or other information (even if he had hired a private investigator to follow you) to offer the court. Without any evidence at all, he’s going to have a virtually impossible time proving adultery—either as grounds for divorce or simply to bar you from receiving spousal support.
Of course, you shouldn’t be starting any new relationships at this point in your divorce, either. Technically, adultery only relates to the actual physical act of sex. You haven’t committed adultery if you’ve kissed, gone out with, or become emotionally invested in someone else. Still, as you can probably imagine, that kind of evidence won’t impress a judge—and could, potentially, be damaging to your case. “But I didn’t sleep with him!” isn’t testimony I’d like to have to rely on in a courtroom. One of my mottoes is definitely better safe than sorry, so I can tell you that I’d much, much, much prefer if you’d wait to start a new relationship until AFTER your divorce is finalized (or, if you absolutely just can’t wait, at LEAST until your separation agreement is signed). Tread carefully. Even though adultery refers specifically to sex, you don’t want to take any chances—especially if you’re dependent on receiving spousal support.

I have to get spousal support, otherwise I won’t be able to make it financially!

…But I did commit adultery. What can I do?

Lots of people are dependent on an award of spousal support after divorce and, if you’re one of them and you’ve committed adultery, you’re not alone. Still, you’re in a pretty difficult position, and there’s no two ways about it. Again—you’ll have to tread carefully, and hope that he doesn’t find out.
In plenty of cases I’ve worked on, parties agree to an award of spousal support, even where there’s adultery. In fact, I just finished working on one a couple of weeks ago. My client had committed adultery, and her husband was still willing to pay some support, even though he knew about it. Of course, she didn’t get anywhere near what she might have been able to receive had she not committed adultery, but it was a great result for her.
Lots of times, husbands will agree to something just to avoid the trouble and expense of going to trial. Not all the time, though, and, obviously, settlement isn’t something we can force, even if we are willing to take a lesser award of spousal support.
The court can award spousal support in extreme cases where it might otherwise be barred if not ordering it would result in what they call “manifest injustice.” As you can imagine, manifest injustice is difficult to prove, but it’s not impossible—and it may be your only shot, if it looks like your case is going to go to court. If you’ve been a stay at home mom for a long period of time or if you’re disabled or handicapped in some way, that would be good evidence for manifest injustice. But, of course, in court (as in life) nothing is guaranteed.
If you’ve committed adultery and you’re expecting spousal support, you’re going to want to make sure to plan carefully. If you haven’t already admitted it to your husband, it’s a good idea to keep it hush hush, at least until you’ve gotten an agreement in place. If you need any more information or want to schedule an appointment with one of our family law attorneys, give our office a call at (757) 425-5200.