He cheated on me. Does it matter in Virginia divorce?

Posted on Aug 23, 2021 by Katie Carter

There are few things quite as emotionally devastating as an affair. Ending a marriage is a big deal in any case, for any reason, but ending it because he was unfaithful stings even more. That’s one of the funny things about trauma. You can go through your life, perfectly happy, not knowing, and then suddenly – wham – get knocked off your feet. The shock waves can resound for months or even years before it starts to wear off.

It’s normal to wonder what this means for your divorce, and to want to start by asking questions about what makes your case different. Most people want to use adultery as their grounds from the beginning, for a lot of reasons. For one thing, doesn’t it hold him accountable? Doesn’t it mean you’re standing up to him, and showing other people what he’s done? Doesn’t it justify the divorce – whether legally, or because of your religion? Doesn’t it create an argument for why you – the innocent spouse – should receive more of the assets? Doesn’t it, in short, matter?

It’s such a hard situation, but you’re right to be asking these questions. That’s actually at the heart of what we do, which is making sure that Virginia women have all the facts they need to make the decisions about their divorce and their future that they need to make. Unfortunately, in too many cases, adultery plays a huge role in that decision.

It’s never easy, but it is important to be as objective and as single minded as possible. The goal here is, in short, to put you – and your children, if you share children in common – in the best position possible after the divorce is over. The question is mostly how to get there from here.

In a word, does adultery matter in Virginia?

Yes – and no – and, also, probably not as much as you think.

Here’s why adultery matters:

1. Adultery is grounds for divorce in Virginia.

You have to have grounds to get a divorce, and adultery is grounds for a fault based divorce. As soon as you learn of the adultery, you can file for divorce using adultery as your grounds, which can get you into court quickly.

That way, you can have a pendente lite hearing. Pendente lite is a temporary support hearing, where you can get issues like temporary child custody and child support as well as spousal support determined.

It also means you can conduct discovery more quickly.

It’s actually grounds for an ‘immediate divorce’ but that almost never happens.

2. Adultery is a bar to spousal support for the guilty party.

If he committed adultery, it also means that he can’t ask for spousal support from you. So, if he’s the higher wage earning spouse, that’s a big benefit to you. If you are the lower earning spouse and you did not commit adultery, it will have no impact on your ability to request it.

3. Adultery is a crime in Virginia.

Technically, adultery is against the law. It’s not really ever prosecuted, but it’s still a crime, and one you could force him to come testify about in your divorce case. He could plead the fifth, of course, but doing so would be construed against him.

So, all of that to say that adultery does, in some small ways, matter.

But it also probably doesn’t matter as much as you think, or as much as it should matter. In most cases, it’s not a reason for a division of assets that favors the innocent spouse.

Technically, the law allows this. The law allows a spouse’s negative monetary or non monetary contribution to affect equitable distribution (the fancy legal word we use to describe how property is divided in divorce in Virginia). But, in most cases, the judge doesn’t award one spouse more and the other spouse less just because of their adultery.

Why not? Well, to a judge, this is all a business transaction. It’s a partnership, and it’s dissolving. The most important use of his time is in dividing the assets equitably between the former partners. The way a judge sees it, just cheating shouldn’t really affect his finances, like, forever. I wish there was another way to describe it, but that’s the way the court usually sees it. It’s possible that something else could happen, but not probable.

In an adultery case, as in every other case, it’s a good idea to talk to an attorney one on one and come up with a plan of action that takes into account your specific needs and goals.

It’s possible that your plan involves filing for divorce on adultery and using his fault to move the case forward. It’s possible that this is even advantageous for you. But in many cases there is more to be gained by negotiating an agreement than spending a ton of money litigating your divorce in court.

Talk to someone. Get specific advice unique to your case. But don’t get caught up in the adultery and let it carry you away. Focus on your goals and how to achieve them.

(Oh, and – there’s no lawsuit you can file against Jolene herself, at least, not in Virginia. Those suits – called ‘alienation of affections’ suits – don’t exist here.)
For more information, or to schedule a consultation, give our office a call at 757-425-5200.