There are very few things as difficult to overcome as adultery, especially as you then have to turn around and navigate your divorce. Though not every marriage ends after a partner commits adultery, I’m assuming yours is – or else you wouldn’t be here.
I saw a question on social media about adultery the other day and wanted to really thoroughly answer the questions posed. I copied her questions here:
I am a SAHM. He is financially abusive, withholding money for rent until I beg for it. We never “separated” and were still having sex up until I found out about the affair. …According to the lawyer bc he committed infidelity he would have to pay me spousal support. I also read that you can press charges for infidelity bc it’s a “felony” in Virginia and the other woman fully knew he was married the entire time and continued on.
There are a lot of different questions – and a lot of different answers. Though this woman says she consulted a lawyer, the information she said the attorney gave her was incorrect so it’s hard for me to say with certainty. It’s possible she misunderstood the advice she was given; after all, that happens all the time. It’s also possible she met with someone like a military JAG attorney, who doesn’t practice Virginia family law, or she met with an attorney who is trying to help someone outside of their practice area. Maybe there’s no attorney at all. In any case, I am here to provide the correct information – at least, as of the date of this writing. (Keep in mind: the law can always change!)
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Adultery is a crime in Virginia, but it is not a felony.
Virginia is one of the few states that still criminalizes adultery. It’s not a felony, though; it’s a level IV misdemeanor.
It’s also rarely – if ever – prosecuted. It can be difficult to “press charges,” against someone, even if their conduct is against the law. You can speak with the police, but ultimately the decision to prosecute is left up to the prosecutor. Many, many crimes are not ever prosecuted and I suspect that would happen here.
It’s technically illegal but it’s not taken that seriously in a criminal context.
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There are no criminal charges against his affair partner; we do not have ‘alienation of affections’ in Virginia.
The fact that his partner knew or should have known that your husband was married (or separated but not yet divorced) is not relevant. We don’t criminalize this behavior in Virginia. (Though in nearby North Carolina, it is a criminal offense, and it is called ‘alienation of affections.’) This is one to definitely let go – at least, if the conduct took place in Virginia.
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He may have to pay spousal support, but not because he committed adultery.
Though Virginia allows for fault-based divorce, and adultery is among the allowable grounds for fault based divorce in Virginia, the point is not to use the divorce process to “punish” the guilty party. Though it is possible that the court would do something other than divide assets and liabilities 50/50, it is not probable – and, in any case, division of the assets and liabilities is different from an order granting spousal support to one party.
If you were the one who committed adultery, you couldn’t ask for spousal support. Adultery is an absolute bar to spousal support except in cases of manifest injustice. So, rest easy – he can’t ask for spousal support from you.
His adultery, though, does not mean that he will have to pay spousal support. In order to determine whether spousal support would be paid, we’d have to look at three factors: (1) need and ability to pay, (2) the statutory factors, and (3) the length of the marriage. It’s kind of complicated – and it can vary a lot depending on the specific situation involved – but it’s not at all related to whether he committed adultery.
I’m assuming there’s a big disparity in income here, just because she’s a stay at home mom – but even that isn’t necessarily a guarantee.
Your best bet would be to talk to a family law attorney licensed to practice in Virginia to run a guideline calculation and figure out how to move forward from this point.
For more information or to schedule a consultation, give our office a call at 757-425-5200.
