How does Adultery Affect My Divorce?

Posted on Jun 21, 2013 by Katie Carter

This isn’t Saudi Arabia, and neither you nor your husband will be publicly stoned to death because you’ve committed adultery. Still, you should remember that adultery is still a crime in Virginia, even if it is rarely (if ever) actually prosecuted, and adultery can also have an impact on your divorce.

The Affect of Adultery on Property Distribution

In Virginia, property is divided based on a statute. The way it is divided is called “equitable distribution,” and it basically means that property will be divided fairly between the parties based on their negative and positive monetary and nonmonetary contributions to the family during the marriage. It also means that a disproportionate award is possible, particularly if one party had significant negative nonmonetary contributions to the marriage. Adultery is a negative nonmonetary contribution.

Still, you’re unlikely to see a disproportionate award of assets, except in particularly outrageous cases. If, for example, your husband borrows against a marital asset to help support his mistress, that is certainly a fact that a judge would take into consideration in awarding shares of the marital assets.

The Affect of Adultery on Custody

Adultery isn’t likely to have a profound or dramatic effect on custody arrangements, primarily because custody is designed to favor the best interests of the child. In most circumstances, it is still in the child’s best interest for dad to at least exercise visitation regardless of whether his adultery ultimately ended his marriage. He won’t lose custody or visitation with the child as a punishment for his adultery.

In the cases where we do see adultery affecting custody determinations, it is usually because dad has exercised poor judgment in bringing around his new girlfriend. If dad exposed the child to inappropriate people or situations as a result of his relationship, there may be consequences.

The Affect of Adultery on Spousal Support

Adultery is a bar to spousal support for the person who had the affair. If your husband had an affair, he will be barred from asking for spousal support from you. If, on the other hand, it was you who had the affair, then you will be barred from asking for support from him.

In many cases, adultery changes the tenor of negotiations, too. If your husband committed an affair and you catch him when he’s feeling penitent, you can sometimes negotiate a more advantageous separation agreement than you would otherwise be able to negotiate. If you were the one who committed adultery, you should tread carefully. Try to separate your feelings of guilt from making a decision about what is best for you and your family as you move forward with the rest of your life. Enter negotiations with a clear head, and stay focused on advocating for your own best interests. If you have an attorney, he or she will help do that for you, but you definitely need to do your part by remembering that you’re making important decisions about your future.