There’s no good way to find out that your husband has cheated on you. Even if you don’t know – you only suspect – it’s a challenging time. You are trying to reconcile something horrible with the man that you thought you knew but, also, you’re trying to plan for what comes next.
Can you work through this? Can this marriage be saved? Or … is its end ultimately already determined?
I can’t answer those questions for you; only you can decide whether you’ll stay or whether you’ll go. But, in an ideal world, you’d be making these decisions not just based off of your feelings but off of a realistic idea of what might happen in either scenario. Chances are, you know pretty well what’ll happen if you stay. You’ll confront him, have a lot of heart-to-heart conversations about your relationship, and probably even go to marriage counseling. Maybe you can trust him again. Maybe you can’t. Maybe, even after reconciling, things will end later. Who knows?
None of us have a crystal ball. All we can do is make the best possible decisions with the information that we have on hand. The trick, of course, is to have all the information on hand you’ll need to make the decision credibly.
And, of course, some of the information that would be the most helpful to you is about the divorce process in Virginia. No, no – don’t get me wrong. That doesn’t mean you’ll definitely get divorced. It’s a common misconception, but this isn’t like opening Pandora’s Box. No, the more you know, the better it actually is for you, because you can make decisions based on facts, rather than fear.
I’m not trying to sway you either way. The decision to stay or go is yours and yours alone. I’m not trying to weigh in. I just want to make sure you know how divorce – especially where adultery is concerned – is handled.
Virginia is an unusual state in the sense that it allows for both fault-based and no fault-based divorce. You have to have grounds to get a divorce; that’s a legal requirement. So, you will choose one of the two. No fault grounds for divorce are based off of the period of your separation. It doesn’t mean that you do not have fault-based grounds for divorce, just that you have decided to move forward without regard to fault. There may be some strategic reasons for doing this – largely, that it is likely that your divorce will cost less, resolve more quickly, and give you more control over division of the assets and liabilities you’ve accumulated.
Most no fault divorces are resolved in a contract – usually called a separation agreement, though lawyers often refer to them differently – where the parties agree about how everything will be divided. There is no way to preserve your fault-based grounds for divorce (adultery or any other fault-based grounds) in a contract.
Because fault-based grounds allow for the possibility of civil consequences – and, in the case of adultery, which is a Level IV misdemeanor in Virginia, criminal consequences as well – you have to go in front of a judge and prove to her that your grounds for divorce are legit. Adultery requires proof to a clear and convincing standard; any other fault-based grounds for divorce only require proof by a preponderance of the evidence. (Both of these are less than the well-known criminal standard, “beyond a reasonable doubt,” which is not used in family law cases.)
There is no such thing as “agreeing” that these grounds exist; the only way to move forward with fault is to go in front of the judge, offer your evidence, and hope she sees it your way.
So, if it costs more, takes longer, and gives you less control over how assets and liabilities are divided, why would you file on his adultery?
There are a couple of reasons – and it often comes down to a question of necessary procedure.
For one thing, fault based divorces, including adultery, mean that you can file for divorce before your one year (or six months) of legal separation has lapsed, which is something you cannot do in a no fault divorce. It may be that you need to get into court – quickly – and using fault is one of the best ways to achieve that goal.
Why would you need to get into court? Often, it comes down to support. If he’s refusing to pay support – child and/or spousal support – you may need to file, because you will be able to have a pendente lite hearing. Pendente lite is Latin for ‘while the litigation is pending,’ and it’s often the first shot petitioners have in court in a divorce case. It’s an opportunity for the court to award many things on a temporary basis: child custody, child support, spousal support, certain restraining orders, advances on funds (for, say, retaining an attorney), exclusive possession of the home, and so on.
You might also choose to file on adultery if you don’t know the extent of the assets and liabilities or he’s refusing to negotiate the terms of an agreement with you. You can’t negotiate an agreement on your own, without his cooperation. If he’s refusing to participate, well, you don’t have much choice. Either you get divorced by negotiating an agreement or you go to court and petition the judge for your divorce – those are the only two options.
Adultery is a quick way in, if you need one, so that can help get the train (and keep the train) on the tracks when he would otherwise drag his feet.
Keep in mind, too, that Virginia is an equitable distribution state, which means that (unlike in a community property state), we don’t assume an automatic 50/50 split on the assets and liabilities. The court can use one party’s negative monetary or nonmonetary contributions to the marriage to justify something OTHER than 50/50. It’s possible that, because of his adultery, you could receive more.
Note that I said possible – rather than probable – because I don’t think it’s likely that adultery will mean that you receive more. At least, I don’t think you are likely to receive more just because you were wronged by him cheating. I think you are likely to get more if he has wasted money in pursuit of this affair or something has gone really badly wrong (like a decades long two family scenario, or something equally shocking – and financially devastating, because of the resources he would have funneled to the second family over the years). Most often, adultery – and any of the other fault-based grounds for divorce – are not a golden ticket, so it’s important to talk to an attorney about what strategy will make the most sense for you, depending on your goals.
You’ll have to prove adultery, too. Remember, we said ‘clear and convincing’ evidence, which means you will need third party corroboration. Likely, you will need his ‘girlfriend,’ affair partner, but you may also wish to use a private investigator to get the evidence that you need. This can be an expensive proposition, so, again, I would reiterate that it is important to talk to an attorney about your goals before you get too far down the road.
Technically, too, adultery is grounds for an immediate divorce and an absolute bar to spousal support. So, although I don’t think it is likely that your divorce will be anywhere close to immediate, I think it’s important to be aware – again, procedurally – of the opportunities available to you. If you had ironclad proof, it is possible (again, not probable) that you could file sooner than one year. Additionally, if you were the higher wage earner and he’s expecting spousal support, his adultery would nip that in the bud. (His adultery would not impede your ability to ask HIM for spousal support, though, if he is the higher wage earner.)
It’s important to know the impact that adultery can have on a divorce case. For more information, to schedule a consultation, or to request a copy of our divorce book for Virginia women, give our office a call at 757-425-5200 or visit our website at hoflaw.com.