Does adultery matter?

For most women, finding out that their husbands have committed adultery is devastating. For him to throw away your life together, after however many years, is a terrible and overwhelming feeling. I get it, and yet, at the same time, my goal is always to make sure that my clients have up to date, reliable, specific information about how the law in Virginia actually works, so that they can make informed decisions about their future. In my experience, I’ve noticed that lots of people have misconceptions about how the law works and how adultery factors into the equation. To make a long story short, though, I’ll lead with the central theme of this article: adultery doesn’t matter.

What do you mean, adultery doesn’t matter?

Of course, in a lot of ways, adultery does matter. To you, personally, it certainly matters, on an emotional and psychological level. In terms of your own personal sexual health, adultery certainly matters. (I urge you, if you know or suspect that your husband has committed adultery, go get tested, sooner rather than later. Just in case.) So, yeah, in a way (or in a number of ways, depending on how you look at it), adultery does matter.
And, furthermore, the way the law is written is a little confusing. One of the fault based grounds for divorce is adultery, and the code says that the court may take the fault of one spouse into account when determining how the assets and liabilities will be divided.

So, isn’t that the law saying that adultery does in fact matter?

Well, yes and no. From a legal standpoint, adultery is grounds for divorce, and it could result in a disproportionate award of the assets. Does it always mean that? No, absolutely not. In my experience, it never means that.
To put it simply, judges view divorce as a business transaction. They really don’t care very much why the marriage is ending, they just want to make sure all the assets and liabilities are effectively divided between the two “partners” of the business.
Besides that, adultery is a crime in Virginia. It’s a class IV misdemeanor, so, in order to get a divorce granted on those grounds, you’d have to offer evidence and prove to the judge’s satisfaction that adultery did take place (Spoiler alert: that’s REALLY hard to do.) In Virginia, that requires a corroborating witness—someone to testify that the adultery did in fact take place. Usually, as a corroborating witness, we use someone like a private investigator, or the girlfriend herself, if the relationship has since gone south.

Proving adultery is not a matter of showing pictures, texts, emails, or other evidence; it takes a lot more than that, so it’s harder than most people realize.
Your husband can’t “agree” to get divorced using adultery as the grounds; in order to receive a divorce on adultery grounds, you’ll have to go to court and prove it to the judge. That takes time and costs money—more money than it would cost you to negotiate and reach an agreement on your own.
And, yes, you can get a divorce using adultery as your grounds—but you already know that. That’s not really the question, though, is it? The question is whether adultery matters. Since, in almost every case (and certainly in every case I’ve seen since I started here), adultery does NOT result in a disproportionate award of assets favoring the “wronged” spouse, I’m forced to conclude that it doesn’t actually matter.
Getting a divorce using adultery as your grounds is more expensive than negotiating a divorce. Though you may be able to prove adultery, if it doesn’t yield better results than negotiation, what is really the point? It’s possible you could get more of the assets (though incredibly unlikely), but what’s the point if you’re only getting a bigger piece (maybe!) of a much smaller pie?
In my experience, contested divorces cost far, far more than uncontested ones. And they don’t yield better results, mostly because the parties involved have spent so much to get to the final divorce decree that there are tens of thousands of dollars LESS to divide than there was to start with.
There’s no sense spending more to get less, right? Even though you’ve been wronged, and even though he’s a jerk for making the decisions that he did, really, at least as far as it relates to your divorce strategy, it doesn’t matter. Don’t let your anger and hurt feelings cause you to make decisions that will hurt you more in the long run; if possible, negotiate your divorce and move forward with the uncontested divorce process instead. It will take less time, cost less money, and yield better results. And, after all, isn’t that what divorce is about anyway? Making sure that you’re in the best possible position to get a brand new fresh start—that should be your goal.
I understand that it’s hurtful, and that you’re confused. I know that you feel like the court should offer some kind of recompense for women who find themselves in your position. I know it’s unfair that your standard of living will likely change in the divorce process. Trust me, I know all these things. But, as far as I’m concerned, that’s not the point. I don’t really have the luxury of thinking how things should be; I spend most of my days thinking about how things actually are, and how I can maximize the results for my clients. Most of the time, maximizing the results does not include filing for a divorce using adultery for my grounds—even if I have the grounds to use. It’s always my goal to make sure my clients get the fresh starts they imagined, and, sometimes, that means sharing unpleasant truths. I know this probably isn’t what you want to hear, but I really am telling you for your own good.
Don’t believe me? Feel free to get a second opinion—from another attorney in my office, or from someone else entirely. Though you CAN get a divorce using adultery as your grounds, it’s unlikely to yield the results you’re looking for. Even if you’re only hoping for a little validation, you’ll be disappointed. I’ve never yet seen a judge shake his finger at a cheating husband and call him a bad man. Your whole “day in court” thing is likely to be anticlimactic compared to what you hoped for, and, really, there’s no actual legal or financial justification for spending the money it would take to get to that point.
As far as moving your case forward from this point, the decision is certainly yours. I usually encourage my clients to attempt settlement first, and only use contested divorce as a last resort. Still, you’re in the driver’s seat as far as your case is concerned, and it’s up to you to make these decisions—I just want to make sure that you do so with all the information possible at your disposal.

Are there ways that adultery actually does matter?

Yes, there is! There’s at least one way that, in normal, every day divorce cases, adultery comes up and DOES cause a problem for the adulterer.
The biggest way I can think of is that a person who has committed adultery is barred from asking for spousal support. In some cases, it doesn’t matter, anyway, because the person who committed adultery was the higher wage earner and wouldn’t have received spousal support, anyway. If, though, your husband earns less than you, knowing of his adultery would disallow him to ask you for spousal support. (That can be a major saving grace, and also a “gotcha” moment.)
If you’ve cheated, on the other hand, and you were hoping to receive spousal support—you should definitely keep quiet. This isn’t the time to come clean and confess.
Of course, there’s a difference between the type of results you can get by agreement and what you can get in court. In an agreement, you can agree to anything—even if you or your husband has committed adultery. If that agreement is signed, you’re done, and that’s it. If you’ve committed adultery (or your husband has) and your husband knows or suspects it, though, you may have a harder time getting him to commit in writing to a spousal support obligation. In my cases, when I know or suspect a husband has committed adultery, I’ll often insist on a waiver in the separation agreement—or force him to take us to court over the issue. There’s less reason to compromise and be generous when adultery is a factor—especially when it could cost your client thousands or tens of thousands or even hundreds of thousands of dollars in support.
So, even though adultery doesn’t normally matter at all in terms of how property and assets are divided (after all, it’s just a general dissolution of business assets, as far as the court is concerned), it can matter in terms of support.
What about custody? Does adultery affect custody?
In a word, no.
Because adultery really only relates to problems between you and your husband, it doesn’t translate to child custody. A husband can be a cheater and still be a good dad; likewise, a mom can cheat and still be a good mom. As far as the court is concerned, adultery doesn’t affect the children. Or, at least, it doesn’t affect the children more than it would harm them to not allow a particular parent to be around.
The only exception to this is where the adultery that took place has to do with a minor child. If your child’s father has cheated on you with a minor child, it’s possible that your case would impact custody. When we’re talking about a sex offender, potential criminal charges, or a CPS investigation, things tend to change—and that can affect your custody case.
In a normal, run of the mill custody case, though, adultery doesn’t have an impact on custody.
I know, I know. This is probably mostly upsetting information. If he cheated, you want to feel like there’s some kind of way to hold him accountable. After all, he wrecked a marriage. Unfortunately, though, as far as the law is concerned, it’s much more cut and dry than that. It’s more about how to divide things quickly and equitably than it is about who was right and who was wrong.
For more information about adultery cases, or to schedule a consultation with one of our divorce and custody attorneys, give our office a call at (757) 425-5200.

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