Sometimes, I feel really technical when I talk about adultery. I say when someone “commits” adultery, and I always feel weird about it, because that’s not how people talk. And I often get questions about exactly what it means, which is understandable – it’s a technical term, like cohabitation and equitable distribution. Lawyers use it in regular speech, but real people don’t.
When real people talk about adultery, it’s cheating. Right? So, why don’t lawyers talk like that? We should. We know we should. But we get used to thinking and talking about things in a certain way, and it can be difficult to turn that off. But using highly technical terms can mean that people are confused about exactly what we mean. We never want there to be confusion; after all, whether or not something has or has not taken place can have an impact on your rights, entitlements, liabilities, and the specific options available to you.
What is adultery?
In Virginia, to get divorced, you have to have grounds. We, like many (if not most, or even all, though I haven’t done a survey or any research on this point, because it’s irrelevant to my article) states, have fault and no fault grounds that you can use to get divorced.
Adultery comprises a category of fault based grounds for divorce. Adultery, sodomy, and buggery fall under that category.
If you or your husband has committed adultery, it is grounds for divorce. To file for divorce, you must have grounds – so, as soon as you “know” (or have a suspicion that you can substantiate with at least some evidence) you can file for divorce using these grounds.
Okay, so, what exactly is adultery? What does it mean, to commit adultery?
Adultery happens when a married person has sex with a person who is not his or her spouse. We’re talking about SEX, like, actual sexual intercourse.
Dating someone – without sex – is not adultery. Being ‘engaged’ to someone is not adultery (though, obviously, if you’re still married to someone else, the question of whether or not you can truly be engaged is a different one). Sharing pictures, exchanging cards, telling someone you love them, and kissing them, is not adultery. It may be good evidence that there’s an adulterous relationship taking place, but it’s not proof.
That’s why attorneys don’t use the word “cheating”. It’s a little ambiguous, because cheating can mean different things to different people. I’ve even heard of emotional cheating – which, under the law, is not adultery.
Adultery is a more precise term, and one we use to describe a relationship when there’s an actual sexual component. Not just a relationship, a commitment, or an emotional attachment, but an actual, physical relationship.
What is sodomy? What is buggery?
Sodomy and buggery also fall under the adultery heading, and we often allege them all together, since it can be difficult to know what goes on behind closed doors. (And, honestly, I don’t need to know exactly!)
Sodomy encompasses oral and anal sex, and buggery – I am sorry to say – involves bestiality. Still, what we’re talking about here is an actual, physical relationship, though the actual details of that relationship can vary from situation to situation.
How do I prove adultery?
There’s a difference between alleging adultery (which is what you do when you file a complaint for divorce, and which means that you have to have a reasonable belief that adultery occurred) and proving adultery (which you have to do in front of a judge in order to get divorced with adultery as your grounds).
Proving adultery is hard. It is also expensive, because you have to have a corroborating witness, and offer evidence regarding your grounds, in addition to arguing about how all the assets and liabilities of the marriage will be divided. You have to prove it in front of a judge, because adultery is a criminal offense in Virginia – so there are specific civil and criminal penalties that can be associated with it. You have to prove it to a clear and convincing standard, too, which is also pretty difficult to do – it’s more than a preponderance of the evidence (which just means 50.01% more likely than 49.99%) but less than the beyond a reasonable doubt standard used in criminal cases.
Why would I allege adultery, if my husband cheated?
Alleging adultery is a bar to spousal support, so if you’re the higher earning spouse, that can be helpful. Additionally, adultery can qualify you for an immediate divorce.
Regardless of whether you actually move forward with your divorce as quickly as possible, being able to file can give you the ability to use the court to your advantage. Specifically, if you don’t know the extent of the assets, need exclusive possession of the home, want to freeze the assets (so he can’t liquidate them), need attorney’s fees advanced, need temporary custody, child support, or spousal support established, or he swears up and down he just won’t sign any agreement, ever, no matter the circumstances, it’ll help you start to move things along more quickly.
Why would he allege adultery?
For the same reasons as you might, but also probably to bar you from spousal support – or to attempt to do so.
If I’ve cheated, what should I do?
If you’re the one who cheated, it’s probably best not to draw attention to it. I wouldn’t share that information with friends, family members, therapists, or literally anyone or anywhere it might get back to him.
Truthfulness with your attorney is a good thing, but, in other areas, discretion is probably better. If you have any questions, talk it over with your attorney BEFORE divulging anything.
For more information, to schedule a consultation, or to find out how adultery could impact your case, give our office a call at 757-425-5200.