You don’t have to end your marriage because of infidelity, but many women ultimately choose to end it. I’m not here to judge you for your choice, either way, but instead to help give you guidance on the Virginia divorce process so that you have an idea of what to expect if divorce is the choice that you make.
In Virginia, adultery – intentionally having oral, anal, or vaginal sex with someone other than your spouse during your marriage – is both a crime (it’s a misdemeanor) and grounds for a fault-based divorce. Let’s dig into that a little bit.
Can I prosecute him criminally for adultery?
The truth is, you probably can’t get charges brought against him for adultery, even though its against the law. In any case, bringing criminal charges against a person is never just the choice of the victim(s) involved. You can press charges, but ultimately the prosecutor will make the decision whether to pursue a criminal conviction – or not.
In the case of adultery, I think it’s probably more likely than not that the prosecutor will decline to prosecute.
In Virginia, we also don’t have an option for an ‘alienation of affections’ kind of lawsuit, either, which means that you are also unlikely to be able to bring criminal charges against the woman (or man – hey, it happens) that he cheated on you with. Some states allow this and others don’t; Virginia just so happens to be one of the ones that does not recognize this type of action. So, as far as criminal convictions are concerned, she is likely to get off without even a swat on the hand.
Okay, well, then – I want a divorce on his adultery.
You can do that! In Virginia, adultery – as well as sodomy and buggery – as grounds for fault-based divorce. As soon as you know, or suspect, that he has cheated on you, you can file for divorce. You just need a reasonable belief to file; you’ll have to prove it at trial, later, but don’t have to prove it in order to file.
You can file immediately once you know or believe that adultery has taken place. You have to have grounds to file, but since adultery is grounds for divorce, you can file immediately. This is true of all of the fault-based grounds; you can file as soon as the triggering event – the adultery, the cruelty, the desertion, the felony conviction – has taken place.
In a no fault divorce, on the other hand, you can’t file until you meet the required period of separation – six months or one year – so it can take longer to get into court and be heard.
Once you’ve filed, you’ll have him served, and then you’ll have the opportunity to set a pendente lite (temporary support) hearing and conduct formal discovery.
You may also have to participate in a settlement conference before your case can be set for trial, and, of course, your husband will have the opportunity to refute your allegations and make his own against you. In general, fault-based divorces are higher conflict already – these allegations definitely don’t help matters – but that doesn’t necessarily mean that there’s no possibility that you’ll settle out of court or that you’ll have to go all the way through with a divorce trial.
Why wouldn’t I want to go through with a divorce trial?
If you settle – basically, negotiate a separation agreement – you’ll get an uncontested, no fault divorce, and not a divorce based on his adultery. You have to go to trial to prove adultery, based on clear and convincing evidence, and then the judge has to grant it. That’s it – there is no other way.
These are among the most expensive and time consuming divorce cases, and don’t necessarily yield better results. You’ll definitely want to talk to an attorney if getting a divorce based off of adultery is super important to you, and what you may sacrifice in terms of total overall costs and results, to achieve it.
Not to mention, you’ll need evidence! Because adultery is also a crime, he can plead the fifth – which means we’ll need to get creative. You may need to hire a private investigator, question or depose his mistress/girlfriend, or dig deep into the financial records to uncover the extent of his betrayal.
I’m not saying you don’t want to do it, but you do want to make sure that – before you jump in headfirst – you carefully weigh the advantages and disadvantages, as well as look at any possible strategic alternatives that might cost less and yield you better results.
Adultery is not a golden ticket. Virginia is an equitable distribution state, so we don’t mandate a 50/50 division of assets and liabilities, but the end result often is still very close to 50/50. You shouldn’t make the mistake of thinking that you will automatically get more of the assets because of his adultery. In all likelihood, you’ll still end up with a 50/50 division!
Well, does it make any difference when you file on adultery?
Yes. Adultery means that you are technically entitled to an immediate divorce – though these divorces are never actually immediate, or anywhere close to it. It also means that, if you are the higher earner, your spouse has waived spousal support. It’s an absolute bar to spousal support, except in cases of manifest injustice, so it would be very difficult for him to overcome that bar and receive support. (The same would go for you, if you had been the one who committed adultery.)
It’s important to remember, too, that just because he has done something wrong does not mean that you are free to do the same. It’s still adultery if you do it, and in no way is legally forgiven because of his prior conduct. In fact, if you want to go to court and ask for divorce because of his adultery, you’re going to need to go in with ‘clean hands,’ meaning that you have not committed the same offenses.
It’s definitely a good idea to talk to an attorney so that you can determine the best way to move your case forward. For more information, to request a copy of our divorce book for Virginia women, or to schedule a consultation, give us a call at 757-425-5200.