What to do about adultery in Virginia

Posted on Jul 9, 2018 by Katie Carter

The most common questions I get in initial consultations (and at cocktail parties when people find out what I do for a living – don’t you just love that?) are about adultery. What does it mean? What does it affect? Can’t I just get a boyfriend already? The questions are varied, and usually full of complex layers of legal issues. It’s not just a quick answer in most cases. I wish it were as simple as a yes or no answer, but, when it comes to adultery in Virginia, that’s not the way it is.

Today, I’m going to try to unpack the issues related to adultery cases in Virginia.

What is the definition of adultery?

Let’s start with the definition. No one comes right out and asks me what the definition of adultery is; they usually assume they already know. Sometimes they’re right, and sometimes they’re way off base, so it’s a good place to start.

Adultery is when a person has sex (oral, anal, or vaginal – sorry, not trying to get graphic or gross with you) with a person who is not his or her spouse. I’m not talking about whether they’re engaged or dating, whatever either of those things actually even mean. I’m not talking about whether they’ve kissed, or they’ve exchanged “I love you”s, or even whether they sext each other. I’m talking about actual sex.

Why does it matter?

In Virginia, you have to have grounds to get divorced, and adultery is grounds for divorce. When you have grounds for divorce, you can file. Adultery also qualifies you for an “immediate” divorce. If you want to know why I used quotes around the word “immediate” read this article. (LINK) Suffice it to say, divorces where adultery is alleged are never immediate and, on the contrary, typically drag out longer and cost more money than no fault cases.

Also, it’s a crime.

Yup, that’s right. Sleeping with someone other than your spouse is a crime. It’s a level 4 misdemeanor. It’s rarely (if ever) prosecuted, but it’s still a crime. So, yeah, I think that’s a relevant consideration.
It’s also a bar to spousal support, if you would have qualified to receive spousal support in the first place.
The biggest thing that makes adultery matter is that it’s a bar to spousal support. Of course, that’s assuming that you would have gotten spousal support anyway – which may or may not be the case. Spoiler alert, though: if your incomes are similar, or if you earn more, yours is not a spousal support case. If he earns more than you and he has committed adultery, he can’t ask for spousal support either – but he wouldn’t have received it anyway.

It’s a sexist society and there’s a glass ceiling and yadda yadda yadda, so, in many cases, the husband is the greater wager earner. So, it may seem like he can have sex outside of marriage with impunity, whereas you’d be punished for doing so. It probably doesn’t seem fair (well, really, I’m not here to discuss what’s fair, but just to explain what is), but…. C’est la vie, right?

Is it hard to prove adultery?

Yes. Adultery has to be proven by “clear and convincing” evidence, and you have to have a corroborating witness. It’s not enough for him to admit it, or for you to have evidence in the form of text messages, emails, or pictures.

You’ll need a thirty party to testify, and you’ll probably have to hire a private investigator to do so. We have to prove that he’s had the opportunity to have sex with her, and enough; we need to show that they’ve spent the night, probably. Usually, a private investigator will stake out a location overnight, catching pictures from the night before and the morning after, to prove adultery.

Private investigators are expensive. Like attorneys, they often require up front retainers of a couple thousand dollars, and, if your husband is hard to catch, it may cost more. Should you hire a private investigator? Whoa, nelly. Keep on reading, and talk to an attorney one on one about your case, before you make any investments in a particular case strategy.

It doesn’t HAVE to be a private investigator; if things have gone south with his new “friend”, we may be able to call her (or him) to a deposition or even as a witness in court. Why can’t we call her if things haven’t gone south? It’s never a good idea to call a witness when you don’t know what they’ll say. She (or he) could sink your case as well as win it, depending on her (or his) testimony. It’s kind of risky business. I prefer safer bets.

Does adultery even matter?

Honestly? Probably not. Unless yours is a big spousal support case (in which case, do NOT commit adultery!), it’s probably not a big deal. It’s certainly not a guaranteed golden ticket.

Though the judge CAN take a person’s negative nonmonetary contributions into consideration when making an award in equitable distribution (that’s the fancy legal word we use to describe dividing the assets and liabilities), it rarely has a negative impact on the cheater – at least, financially. It doesn’t necessarily follow (from the judge’s perspective) that a person should get less of their retirement account because they cheated. Sure, it can impact spousal support, but…in general, it doesn’t often impact property distribution.

The question in adultery cases is, I think, this one: “Is the juice worth the squeeze?” Is it worth all the time, money, and effort involved to allege and prove adultery in order to (in all likelihood) NOT get more of the marital assets? Well, that’s a decision you should make, preferably with the advice and consent of a licensed and experienced Virginia divorce attorney on your side to help make sure you’ve considered all the possible angles.

So you’re saying I can’t get a boyfriend?

Yeah, it’s probably not a great idea. After all, you’re married until you’re divorced, and separated is not the same thing as divorced. So, even if you’re separated, having sex with someone other than your spouse is still adultery.

If you’re counting on spousal support, definitely don’t have sex with him! If you already have, keep it hush hush and hope that no one finds out about it. If I were you, I wouldn’t even admit it to my best friend in the entire world, because sometimes even well meaning friends can accidentally let things slip. That could be an expensive mistake.

My advice? The safest course of action is to get divorced first. That’s not fun, sexy, exciting advice, but it’s advice that will protect you in the event adultery becomes a big issue in your divorce case. Hopefully it won’t, but if it does, you’ll want to know that there are no ugly skeletons in your closet to be uncovered.
For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.