How much does adultery matter?

Posted on Jan 21, 2013 by Katie Carter

When adultery causes the breakdown of a marriage, there are a lot of competing emotions. Adultery is such a major violation of trust that it seems like the consequences should be severe. In fact, in Virginia, adultery is still a crime and, even though it is rarely ever prosecuted, it is still true that the adulterer could face some criminal penalties for his behavior.

If you can prove that your husband committed adultery, you qualify for an immediate divorce. So, how do you prove it? You must provide evidence to the court, and the court must find that the evidence is strict, satisfactory, and conclusive. You also have to have a corroborating witness.

Is a photograph enough proof? What about an email? A card? What if your husband TOLD you he was having an affair?

These things are probably not enough proof by themselves. Adultery is not about proving that a relationship exists between your husband and some other woman (or man), it’s about proving that there is a sexual relationship. For the record, sex isn’t hugging, kissing, hand holding, or dating—sex means oral, anal, or vaginal intercourse. Period.

And what’s a corroborating witness?

The most common corroborating witness we see is a private investigator. If he sees your husband go into the other woman’s house and he stays all night, we’ve got good evidence. If he comes out to get the newspaper in his boxer briefs, we’ve got more. If he catches him going at it up against a window and videotapes it, we’ve got pretty foolproof evidence (trust me, it happens). But, of course, a PI can be expensive.

Should I hire a PI?

That’s an important question. Certainly, if your husband is hooking up with someone else, probably the BEST way to catch him (and to have the right evidence to prove it) is to hire a private investigator. But you have to weigh what you think you’ll gain against what it will cost you to retain a PI. In most cases, it costs thousands of dollars to hire one and have him follow your husband around. Think about it. A private investigator has a ton of top of the line electronic equipment. He also has to hang around for hours and hours at a time, waiting for just the right moment to catch your husband doing something he shouldn’t be doing. It’s time-consuming, expensive, and requires specialized equipment, and that translates into cash.

Theoretically, the judge can use fault to determine how property will be divided. The judge looks at the contributions of each party, both monetary and nonmonetary, and those contributions affect how property will be distributed. An affair is a definite negative nonmonetary contribution to the family, but in general an affair won’t have a significant impact on the way property is ultimately divided.

Sometimes, though, adultery does have an impact. This happens most often where the affair is a long-term one. In those cases, property distribution may be affected.

It’s a good idea, if you suspect your husband is having an affair, to talk to your attorney about whether or not to proceed with filing for divorce on fault grounds and to discuss hiring a private investigator.

Sometimes, clients want to proceed with a divorce on adultery grounds, even though they know it won’t significantly affect property distribution, for religious reasons. There is a strong contingent of women who believe that divorce is wrong unless there is a biblical basis for it. For them, having that biblical support is the most important thing, and the divorce would be wrong without it.

Another reason to file for divorce on adultery is just to get into court quickly. Even if you ultimately intend to have a no fault divorce entered but you suspect your husband is committing adultery, you can file for divorce immediately. If you were filing for a no fault divorce, you couldn’t file until you had been separated for the whole statutory period—one year if you have minor children, and six months if you don’t.

So, why file earlier?

Once you and your husband separate, he will probably stop contributing financially to the family in the same manner as he did prior to the separation. Many women find that, while the divorce is pending, they need a little extra support. If you file your case with the court, you can schedule a pendente lite (temporary support) hearing. At a PL hearing, the judge can order child and spousal support, custody, exclusive possession of the home, and that there be no unrelated overnight guests while the children are in his care. It can be critical for many women to have this support while the divorce is pending. If he’s having an affair, you probably also want him out of the house—and you don’t want him to bring the other woman around the children. These things can all be handled at your PL hearing. You can always change your divorce to an uncontested divorce and enter a separation agreement later, but file on fault-based grounds.

A third reason to pursue a fault based divorce is spousal support. If your husband has committed adultery, he is barred from seeking spousal support from you (unless denying him spousal support would somehow be manifestly unjust, and this would be hard for him to prove). Most husbands don’t seek spousal support from their wives because (1) most of the time, the wife is not the bigger wage earner in a marriage and, (2) because they feel embarrassed or emasculated to receive support from their wives. In their sexist minds, they feel they should be the breadwinners. Still, if you are in a place where you might be expected to pay some support to your husband, it can be very helpful to hold this trump card.

If you suspect your husband has committed adultery and you’re considering filing for divorce with adultery as your grounds, it’s important to think about why. What’s your ultimate goal? Is it for revenge? To get your day in court? To hear the judge tell him he’s a bad, bad man? Because you think you’ll get more in the settlement? Because you need to have a Biblical reason for seeking a divorce?

If your goal is to get revenge, you may want to reconsider. It’s expensive to pursue a fault-based divorce, and you probably won’t feel any better once you’ve fought to the bitter end. In fact, you may feel worse. Your “day in court” will probably feel anticlimactic. Judges hear this stuff every day, and they aren’t typically inclined to scold husbands in their courtrooms. You also probably won’t get dramatically more in the settlement as a result of his infidelity, so that’s something you should keep in mind, too.

If your husband has had a long term affair, you may want to talk to an attorney about your options. In cases like these, sometimes there is a significantly different property award to the non-adulterous spouse, and that may be a strategy worth considering. It may also be important to you to file for personal religious reasons, or because you need support while the case is pending. For these reasons, filing for divorce on the adultery may be the right strategic choice.

Typically, the best way to get a divorce is to negotiate a separation agreement, leaving adultery out of the equation. I find that my clients who pursue a divorce based on adultery end up more wrapped up in the situation than ever, which makes it harder for them to let go and move on. It also costs a lot of money, which means that BOTH of you will end up with less in your financial settlement than you would have if you had split it in an agreement.

It’s hard to turn the other cheek. But ultimately, you have to weigh the pros and cons and make a determination about what will generate the best result for YOU—not what will hurt or upset or embarrass him the most. Concentrate on what you want out of your divorce—to move on, be stronger, protect your children, safeguard your assets—and then come up with a plan that accomplishes that goal.