Open Relationships and Virginia Divorce

Posted on Feb 23, 2022 by Katie Carter


Not everyone approaches a relationship – or even a marriage – exactly the same, and it definitely takes all types in this world. In my decade plus of experience in family law, I find that we see all the types of people and relationships in our office at some point or another. I actually didn’t realize, before this, how prevalent different types of relationships and family structures are (probably because it’s still sort of taboo to talk about) – but it’s more common than most people realize.

Open relationships maybe aren’t the most common type of relationship structure that I see, but I still do see it with some frequency. In my experience, even people who are in open relationships aren’t necessarily open with everyone about that aspect of their relationship – but it’s super important to find an attorney that you’ll be able to be open and honest with from the beginning, if this is a factor.

I know that it can be difficult to share the most intimate details of your life, but family law kind of specializes in intimate details. It’s impossible for an attorney to do a good job on a case where she only knows a few of the relevant facts. For some people, the difficult thing to discuss is money; for others, it’s the weaknesses in their relationship. For still others, the actual structure of the relationship is one that, for whatever reason, isn’t exactly public knowledge. That’s all well and fine when husband and wife are happy, but when the marriage starts to break down, it becomes an issue. And it’s definitely an issue your divorce attorney needs to know about.

So, find an attorney you can be honest with, and be really transparent about your situation from the beginning. The more your attorney knows about what’s happening in your life, the better she can advise you about how to move forward and address all the potential issues. This is especially true in the case of an open marriage.

There isn’t anything inherently “wrong” with structuring your marriage however you want to structure it. I don’t mean to pass on judgment, or to come from a narrow or limited mindset, but only to let you in on some of the things that, legally, can pose problems later on down the line.

Keep in mind that, in many cases, there won’t be problems, anyway. Most of the time, divorces are resolved relatively amicably (though not 100% amicably every step of the way; don’t misunderstand me) through an agreement between the parties, regardless of ‘fault’.

When I talk about ‘fault’, I mean official, legal, Virginia-sanctioned fault based grounds of divorce: adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction. I do not mean that we assign blame for the breakdown of the marriage aside from having committed one of the specific fault-based grounds of divorce that exist by statute.

But that’s the problem, isn’t it? Adultery.

Adultery, in Virginia, is the most severe of the fault based grounds of divorce. Adultery happens when someone voluntarily has sex – oral, anal, or vaginal – with someone who is not their spouse. It’s a level IV misdemeanor in Virginia, and is technically something that a person who commits adultery could be criminally prosecuted for doing. (Does it happen? No – almost never.)

That’s the thing about an open marriage. It sort of requires adultery. And adultery is a fault based ground for divorce in Virginia. It’s also a criminal offense, even if it’s rarely (or never?) prosecuted.

So, what’s the problem? It probably doesn’t matter too much to you that it’s technically a criminal offense if it’s never or rarely prosecuted. (I’m not a criminal law attorney, so I definitely don’t have exact stats on that – if you’re concerned, maybe talk to one!)

The problem is that adultery has consequences in divorce. It’s a fault based ground for divorce, which means that you could end up having an entire trial about whether or not you have committed adultery, with evidence, witnesses, and exhibits. It’s time consuming and expensive to have a trial, but it happens.
Why would your soon to be ex husband go to all the trouble to prove in a trial that you’ve committed adultery – when chances are, if you have an open marriage, that he has, too? The answer is, unfortunately, pretty easy: spousal support.

Technically, in Virginia, if you’ve committed adultery, you’re barred from asking for spousal support. There’s an exception for cases where ‘manifest injustice’ would result, but it’s a very high bar to meet and often involves time consuming and very prohibitively expensive litigation. You see, that’s the problem with most contentious spousal support cases. You already have a much higher earning spouse, who has the ability to bury the lesser earning spouse in litigation that she can’t afford. It puts her at a distinct legal disadvantage.

Sure, he’s committed adultery, too. But can you prove it? Can he prove it against you? Does he have videos or photographs he’d use? Do you?

In these cases, there’s often evidence. And then you’re dealing with the prejudice of judges and others who won’t understand or appreciate your lifestyle choices, so it’s extra challenging.

I’m not saying that you can’t make whatever choices that work for you within your marriage, but it is a concern for me, divorce-wise, when it comes to spousal support especially.

For more information, or to schedule an appointment with a licensed and experienced Virginia divorce attorney, give our office a call at 757-425-5200.