Legally Forgiving Adultery in Virginia Divorce

Posted on Oct 18, 2013 by Katie Carter

Adultery doesn’t always end a marriage. I’ve seen many, many couples reconcile after an affair, so if you’re interested in trying to revive your marriage, you’re not alone.

Still, as a divorce attorney, it’s my job to make sure you consider all the possibilities. I believe in marriage, and I hope you can save yours, but, if you can’t, I also want to make sure that you’re as protected as possible.

In Virginia law, there is something called condonation that you should know about. Basically, what it means is that if your husband commits adultery, you find out about it, and then you sleep with him, you have legally forgiven him for the adultery.

I’ll say it again, just to let it sink in: if you have sex with your husband after you find out that he has committed adultery, you have legally forgiven him.

Some other key points here: you must KNOW he has committed adultery in order to condone his adultery. If he tells you he has committed adultery, even though that wouldn’t be enough to prove to a court that adultery occurred, it would be enough for you to condone it. If you don’t know he has committed adultery and you sleep with him, you haven’t condoned anything. (Though, of course, if you suspect he has committed adultery, you should be careful for sexual health reasons.)

If he admits to one affair but not another, and you sleep with him, you’ve only actually forgiven what you know about. Also, if you sleep with him, and then he continues his affair, you’ve only forgiven the adultery that occurred BEFORE you slept with him.

So, what does it mean that you’ve “legally” forgiven him for his adultery? Well, mostly, it means that you give up your right to file for divorce using adultery as your grounds. This is important because, in Virginia, the judge can use fault to help determine how to divide the marital assets and liabilities, particularly if the fault led to the breakdown of the marriage. (Translation: The judge could give you more and him less because of his adultery.) Adultery doesn’t ALWAYS affect how property is distributed, but it could—and if you condone this behavior, you lose this possibility.

Adultery is also particularly important in Virginia law because it affects whether or not you can receive spousal support. If you’ve committed adultery, you can’t ask for spousal support. If you’ve committed adultery, you should know this. If you’re hoping to receive spousal support after your divorce, and you’ve committed adultery (and your husband hasn’t legally forgiven you for that adultery), you’re in a really tough place.

Condonation is definitely an important thing to know about in Virginia law, because it can really help or hurt your case, depending on which side of the case you’re on. If you’ve committed the adultery and you’re hoping to receive spousal support, the best case scenario is that you can get your husband to legally forgive you for that adultery (or that he will just never find out about it). If he committed adultery, on the other hand, be sure that you aren’t giving up any legal rights by condoning his behavior!

Good luck.