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.
Today, 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!
Would I qualify for spousal support?
Spousal support is pretty complicated, and there are a lot of different factors that affect whether or not you will qualify to receive it. Basically, there’s a three part test: (1) need versus ability to pay, (2) the statutory factors, and (3) length of marriage. To start with, we have to look at whether the receiving party has a need, and whether the paying party has an ability to pay. Without being able to answer “yes” to both of those questions, spousal support won’t be awarded. It’s usually pretty easy to demonstrate that the receiving party has a need. We can give the judge information about the receiving party’s budget and show that there isn’t enough money to pay all the bills—that demonstrates a need pretty clearly. But need alone isn’t enough; we still have to show that the paying party has the ability to pay. If the paying party shows the judge a budget that demonstrates that his or her income is larger than the receiving party’s income, but that the bills are still barely being paid (or, worse, if there’s a deficit each month), it may be difficult to get spousal support. Of course, if the paying spouse is spending $600 a month on “groceries” for one person, the judge would notice and suggest reallocating parts of the budget to different places.
After you look at need and ability to pay, you have to look at the statutory factors. If you’ve hired an attorney to represent you in your case, your attorney will work with you to come up with an argument regarding why you deserve to receive spousal support (or, alternatively, why the factors do not support your spouse’s claim for spousal support). The factors come from Virginia Code Section 20-107.1. You can view the statute in its entirety by clicking here, or just read the factors here:
1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and any special circumstances of the family;
5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under § 20-107.3;
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
It’s fairly easy to use the factors to create an argument for why you should receive support. Likewise, you can probably use them just as easily to come up with an argument designed to defeat your spouse’s request for spousal support.
Most of the time, if you’ve satisfied these two prongs, you can go on to the third prong. The third prong, the length of the marriage, has two main goals: (1) to determine whether you qualify to receive support at all, and (2) to determine the length of an appropriate spousal support award, if one is appropriate.
Next, you have to look at the length of the marriage. Now, before I go too far into the details, I want to say something to you very clearly: this is not law. A couple years ago, the Virginia legislature considered a potential law that would make the length of marriage a determinant affecting how long a person could receive spousal support, but that law did not pass. Still, most judges and lawyers that have been practicing for awhile use the essence of that proposed law as a guideline for determining the length of an appropriate spousal support award, so it matters. That’s why we discuss it. Even so, though, you should keep in mind that these guidelines are just that—guidelines. They’re not law, so that means that there’s a lot more flexibility there. If you don’t make one of the classifications by a couple of years, you can use an argument augmented by one (or more) of the statutory factors to help push yourself up into the next category. Be creative, and talk with you attorney about a creative solution that addresses your unique situation.
The presumption is that if you’ve been married between 1 and 5 years that you do not qualify to receive spousal support. If you’ve been married between 6 and 18 years, you qualify to receive spousal support for half the length of the marriage (of course, assuming that you meet the other criteria, too). If you’ve been married 19 or more years, you qualify to receive permanent spousal support.
I’ve seen things that deviate from these guidelines, so don’t panic if you don’t qualify to receive spousal support based on these numbers, or don’t qualify to receive spousal support for as long as you’d like. On the other hand, don’t assume that you’re going to get half the length of the marriage or permanent support just because these guidelines say so; these guidelines are just a starting point that attorneys and judges use to inform their decision making. Lots of things can happen!
This should give you at least a rough idea of what you might expect to receive. If you’ve committed adultery, though, your spousal support award is up in the air.
Unless you can demonstrate that manifest injustice would result if you were denied spousal support, you will lose your right to receive spousal support if your spouse can prove that you’ve committed adultery. Manifest injustice is pretty difficult to prove, but it’s really your only shot.
Basically, in order to prove that manifest justice exists, there are three things you have to show 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.
We’ve already talked a little bit about what constitutes clear and convincing evidence. If you have questions about your unique case and whether you can provide clear and convincing evidence, you should talk to an attorney.
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 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.
It’s pretty likely, based on case law, that pre separation adultery would be regarded as way more important than post separation adultery if you’re considering relative degrees of fault. You’d 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) 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 yo and your actions.
What do I have to show to demonstrate that there’s an economic disparity?
Well, first of all, 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 equitable distribution award 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.
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.
Defenses aren’t really used all that often anymore; after all, if you can’t prove your fault based grounds, you’ll just move forward with a no fault divorce. In the olden days, it used to be that you had to have a fault based ground to move forward with your divorce. Since it doesn’t matter now, defenses just don’t really come into play as often.
Still, condonation is a defense to fault based grounds that you should be aware of, especially in the case of adultery. 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.)
The clincher here is that you have to know that he has committed adultery in order for condonation to come into play. If you don’t know anything about it at all, or merely suspect that he has committed adultery (although, I have to suggest that, if you suspect your husband is sleeping with someone else, you abstain from sex for health related reasons), that’s not enough to legally forgive him for the adultery. Likewise, 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.
Levels of Proof
Just like in criminal cases you have to prove guilt “beyond a reasonable doubt,” in civil cases there are also different levels, or burdens, of proof that you are required to meet. If you allege that your spouse has committed adultery for the purpose of getting a divorce using those grounds, you’ll have to provide the court with clear and convincing evidence that the adultery occurred. In most cases, this means that you’ll have to have pretty solid proof of the adultery. We sometimes use private investigators, because they can provide the type of proof that we need—specifically, that there was opportunity to commit adultery (like, that your husband stayed overnight in a hotel room or house with another woman, and was photographed coming and going).
We need a lot of proof in order for the judge to be able to grant divorce based on the adultery; less proof is needed for the judge to consider alternate property distribution, or to refuse to grant spousal support. You should be aware of this: even though it’s generally pretty difficult to prove adultery so that your divorce will be granted on those grounds, it’s less difficult to prove adultery when it’s used for a different purpose (like, to keep someone from being able to ask for spousal support).
If I can’t prove adultery, what are my alternatives?
Adultery is pretty hard to prove, so chances are that you’ll have a pretty difficult time when you go to court. Still, not being able to prove adultery isn’t the end of the world. Like we discussed at the beginning, it usually takes a lot of time and costs a lot of money to go to court and litigate your grounds. That may be something you’re willing to undertake, but it’s best to talk to an attorney about your case before you take any action.
You want to make sure you go over your case in detail, including making a point to discuss the assets and liabilities in your marriage, and whether you are likely to get a larger share of them as a result of your husband’s infidelity. If you want to take protective steps as a result of your own infidelity, it’s also a great idea to talk to a lawyer and come up with a plan of action before things get too sticky. These situations can get complicated really fast, and it’s important that you have an idea of what your next steps should be before you get too far ahead of yourself.
Please feel free to give our office a call at (757) 699-5997 to discuss your options. Adultery cases are complicated, and you’ll want an experienced attorney on your side.