At Fault Divorce After Signing Virginia Separation Agreement

Posted on Sep 5, 2016 by Katie Carter

Today, we’re going to discuss an email exchange that I had the other day with a prospective client. Here’s the question she sent me:
Question: I have consulted with another attorney a few times, and she reviewed a property settlement agreement that my husband presented me with before I moved out (on his urging) in April. We have implemented most everything in it.

Can I at this time move ahead with an at-fault divorce? I have proof that my husband had an affair and did not end it as he said he did in December 2015, and that he just stayed at a hotel this week with the woman he cheated on me with over a long period of time. I also found that she has picked her wedding dress and called him his fiancé as early as last summer.

We were going to have the 6 month separation and then potentially he would file at the end. At this time, I feel like I agreed to a no-fault solution on false premises (he lied to me about the affair) and I would like to explore the option of an at-fault divorce to expedite the process to severe the ties quickly.

Here’s my response:

I hope I can help.

To be clear… Did you SIGN a separation agreement already, or did he just present you with it and you’ve started to do some of the things in it? If you’ve signed it, there’s really no turning back now.

That being said, though, an at fault divorce wouldn’t sever ties any quicker. The no fault divorce with a six month separation (without kids and with a signed agreement) is really the quickest way. It’s probably also the cheapest, if that’s a relevant concern to you.

Is there something that you want that you think the separation agreement doesn’t address, or addresses incompletely? Is there something that you plan to ask the court for that your agreement isn’t doing for you?

If you’re expecting the court to punish him for committing adultery, I think that is very unlikely to happen. I know this isn’t the news you wanted or expected to hear necessarily, but it’s important to say nevertheless. At the end of the day, any attorney’s goal is to make sure that you have what you need to get the best new start possible. In most cases, it’s not going to be worth it to pursue an at fault divorce–especially since the adultery we’re talking about here occurred post-separation.

Remember, too, that even if he committed adultery before, if you slept with him afterwards and knew about the adultery, you condoned it–and therefore you’ve legally forgiven him.  (In that type of case, because you’ve legally forgiven him, you can’t then pursue an at fault divorce.)

Not only that, but adultery requires testimony from a corroborating witness to prove, which you wouldn’t be able to go back in time and get as it relates to any pre-separation adultery that may have occurred. Unless you’ve got concrete evidence of the adultery (and calling her his fiancée isn’t enough; this is about proving that they had sex), you won’t be able to prove it anyway–and then you’ll be left with a no fault divorce anyway.

I know this isn’t what you want to hear, but I don’t want you to spend more money than necessary for a result that may very well be the same–only less, because then you would have spent thousands of extra dollars on the divorce itself (and, presumably, so would he, because he’d have his attorney represent him in the divorce as well). Probably not ideal.

If you haven’t signed the agreement, filing on fault is still a possibility. Of course, it’ll change the retainer fee–you’re probably looking at a $7,500 retainer rather than a $2,500 retainer. Still, I’d encourage you to think about what you expect to get–and whether this is the most appropriate means to get you there. As far as a quick divorce (which is really the only goal you identified in your email), you’re on the right track with a separation agreement.

We went back and forth a number of times, so it made me pretty convinced that something I said just wasn’t sticking. I told her, ultimately, that if she didn’t trust what I was telling her that she should talk to another attorney and get a second opinion.

Still, I keep thinking about it. I keep beating myself up, thinking that I could have said things more clearly to prevent this woman from spending any more money (and blood pressure points) trying to force something to happen that simply won’t happen.

Do you understand? I hope so. But just in case you, like this lady, are wondering, I’ll recap the most important points here.

1. When you sign a separation agreement you are agreeing to move forward with an uncontested, no fault divorce.  (And, conversely, agreeing NOT to move forward with an at fault divorce.)

After you sign an agreement, you can’t move forward with an at fault divorce. (Later, this woman told me that she had, in fact, signed.) If you have a proposed but unsigned agreement, you can still move forward—but that wasn’t the case in this particular situation.

2. Adultery may qualify you for an “immediate divorce” but it may take longer than even a divorce where you separate for a full year.

Lots of people think that adultery will get them divorced faster—because, technically at least, the law allows it. That’s not how it works in practice, though. In every single case where I’ve seen adultery alleged, the parties ended up being separated for the full statutory period (six months if they have no children under 18 AND a signed agreement, and, otherwise, a full year). For more information on an “immediate” divorce, click here.

3. A wedding dress does not make an adultery case.

Adultery must be proven. Adultery is about sex. A wedding dress (or an engagement ring) does not prove that actual intercourse (oral, anal, or vaginal—sorry to get graphic here) has taken place.

You need a corroborating witness to prove adultery. You “knowing” isn’t enough. You having copies of emails, text messages, or greeting cards isn’t enough. You will need a third party there to testify that the adultery took place. Usually, it’s someone like a private investigator.

Pre-separation adultery is different from post separation adultery. Technically, either is legally adultery (and therefore a misdemeanor, and criminally punishable by law)—because you’re married until you are divorced. Still, as far as practical application is concerned, a judge will look less critically at post separation adultery. Why? Because pre separation adultery can be looked at as something that led to the breakdown of the marriage, whereas post separation adultery (though still adultery) is not as serious.

In this example, we can’t go back in time to get the private investigator to prove that pre separation adultery happened. (And, even if we could, adultery is rarely, if ever, any kind of golden ticket that means you might receive more.) Can you prove that it’s happening NOW? Maybe. Especially since, in this case, husband and girlfriend are living together. But does it matter? No, certainly not—especially since a separation agreement has already been signed. She would not get more of the marital assets because of his adultery, even assuming we can prove it.

4. An at fault divorce is oppressively expensive.

Why go to the time and expense to prove it if it doesn’t yield better results? In this case, an agreement has already been signed—so property division is done. (In fact, in this case, she told me that she had pretty much already divided everything according to the agreement.)

A fault based divorce requires you to go to court, which amps up the total costs. I’ve seen contested adultery cases cost $15,000 or more—sometimes, much, much more. Is it worth it? Certainly not, if you’ve already decided how things will be divided. What can you be hoping to get to justify the expense?

5. What’s the point? If you’ve already divided everything, what are you trying to prove?

What are you hoping to accomplish? Do you want to see him scolded in court? Does it make you feel better about the divorce? I don’t think you’ll find the emotional catharsis you’re looking for in court. Consider talking to a therapist. Your feelings are justified, completely human, and totally understandable—but I want you to consider dealing with them in a way that is productive and won’t leave you in a worse financial position later.

6. The judge won’t overturn your agreement later, even if you feel like you’ve been defrauded.

Agreements are not overturned. For more information, click here.

I understand how this woman was feeling, and I wish I had an answer that would have made her happier. Still, my goal is always to make sure my clients have everything they need to get the type of fresh new start they’re after. Part of that goal means that I try to discourage them from frivolous spending, especially when, as in this case, it won’t yield better results (and will almost certainly lead to worse results) in the long run.

You’ll need every penny to get your fresh new start. Save your money and spend it on that instead.

For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.