I’m pregnant — and it’s not my husband’s baby

Posted on Feb 14, 2020 by Katie Carter

It happens, probably more frequently than you’d realize. And, though it sounds a little scandalous on its face, in my experience, that’s almost never the case. In most of the cases that I’ve seen where a wife gets pregnant with a baby that is not her husband’s, it’s after a period of long estrangement where both parties knew (even if they didn’t want to admit it) that the marriage was headed towards divorce.

If you’re pregnant and it’s not your husband’s baby, well, it’s probably time to act. In some ways, it forces your hand. And it may change some of the terms of your divorce. But you should never feel so embarrassed or uncomfortable that you either (1) don’t act if you’re ready to do so, or (2) avoid telling your attorney the truth.

What is adultery in the Virginia divorce context, and how will it impact my case?

What is adultery?

Adultery is when a person has sex with someone who is not his or her spouse. It’s also one of the grounds for a fault based divorce in Virginia – though that doesn’t necessarily mean that you’ll have to get a divorce in court.

Adultery as grounds for divorce

In order to get a divorce granted on the grounds of adultery, your husband would have to file for divorce on adultery, take it to court, and prove adultery to the judge’s satisfaction. Adultery is typically difficult to prove, but, in this case – well, let’s just say it may be easier than in other cases. It may be that you can keep your child from being forced to go through DNA testing, but once there’s a baby there’s much more physical evidence there – birth records from the hospital, etc. You may find that it’s much easier to prove than it would have been otherwise.

Still, will he take you to court over adultery? In my experience, probably not. It’ll still take longer and cost more money to do so, and it’s not likely to yield a better result in court. In most cases, people are able to reach an agreement about the terms of their divorce, even in cases of adultery. And they do it in order to save the time, money, frustration, and potential embarrassment that litigation could create. So, even though it’s a possibility, I don’t want you to worry unnecessarily. Chances are still good that your case will settle.

How does adultery impact a divorce case?

In Virginia, equitable distribution means that the court can take a person’s negative and positive monetary and non monetary contributions to the family as evidence in order to justify an award of assets and/or liabilities that is other than 50/50. Translation? Your fault could mean you get less of the marital assets.

It could also, potentially, mean you take on more of the marital debt – especially if you used marital money to conduct your affair. In fact, I think it’s pretty likely that you’d wind up taking on more of the debt if you used marital money to support your developing adulterous relationship.

But WILL a court use it to justify a disproportionate award of the assets?

That’s hard to say, and I think it depends on the facts. If you’ve used marital money to wine and dine your new boyfriend, or if you’ve spent excessively on hotel stays, or something similar, you’re probably likely to be responsible for those costs.

As far as awarding you less of the assets, though? I think its probably unlikely you’ll receive less, though, of course, it could happen. You should be aware, and talk to an attorney early on to prepare for any possible negative consequences, and also to discuss the unique circumstances at hand in your particular case.

What about spousal support?

You can probably kiss spousal support goodbye. In Virginia, adultery is a bar to spousal support. Sure, you could get it if your husband agreed to pay it, but he’s probably unlikely to do so, especially if he knows about the affair.

In order to overcome the presumption that you’ve waived support because of your adultery, you’d have to show manifest injustice – and that’s a really high bar to meet.  That’s probably especially true if you’re young enough and healthy enough to get pregnant; I think there’s probably a good argument that you’re capable of working and earning, at the very least.

You’ve probably foregone spousal support, but it’s a good idea to talk about your attorney about any options you may still have available to you.

For more information, or to schedule an appointment (remember: it’s important to BE HONEST with your attorney) give our office a call at 757-425-5200.