You just found out your husband cheated on you. What should you do next?
It’s a great question, and one we get asked all the time. No, really. All. The. Time. It’s pretty common, and you’re right to be asking questions. After all, you know that a lot of divorce is time sensitive, and you don’t want to risk losing anything you might be entitled to receive under the law.
Adultery cases are difficult. But, of course, you need to know more about how adultery works in the law before you make any kind of decisions about how you want to move forward. Of course, it’s pretty emotionally devastating, too, so you might want to take some time to think about it before you make any big decisions.
Take some time, read this article, and sleep on it. There are a couple things you need to know if you know or suspect that your husband is guilty of committing adultery. Without further ado…
1. Don’t sleep with him.
Sexual health reasons aside, you should not sleep with your husband after you learn that he has cheated. Why? Well, under the law, you technically forgive him of adultery if you sleep with him after you learn about it.
You can’t forgive something you didn’t know about, though. Merely suspecting adultery is not enough. You have to KNOW that the adultery occurred in order to legally forgive him. Likewise, if you sleep with him after he commits adultery, and then he continues to sleep around (with the same woman or another one, it doesn’t matter), you haven’t forgiven him for those subsequent acts.
It’s called condonation, if you want to get all technical about it. But, if you’re even thinking a little about using adultery as your grounds for divorce, you won’t want to ruin your case by sleeping with your husband.
2. Don’t commit adultery yourself.
If you commit adultery yourself, you’re just as guilty as he is! In the law, that’s called recrimination. Basically, two wrongs don’t make a right. If you’ve both committed adultery, the affairs cancel each other out, and neither of you can claim adultery as your grounds for divorce.
3. Get tested.
I know, I know. This isn’t legal advice. It’s practical advice. Whether you know or only suspect that your husband has committed adultery, get tested. And, really, it’s probably not a good idea to sleep with him (or anyone else) unless you’re sure the relationship is monogamous.
I’ve seen cases where wives get nasty STDs. For some, it’s embarrassing but ultimately a simple matter of some antibiotics. For others, though, the consequences are permanent, long lasting, and, ultimately, intimacy affecting. It’s awkward. It’s uncomfortable. It sucks. But for your own sexual health, just get tested.
4. Know the law.
Before we go any further, let’s talk about the law and adultery. Does it even matter? Is it a golden ticket? How much will it cost to pursue versus how much you might receive if a judge finds in your favor? All good questions—in fact, critical questions—when it comes to determining which way you want to go, strategy-wise.
Because divorce IS all about strategy. Spending as little as possible to get the maximum return. Right? And why spend more than you have to—especially if it doesn’t yield better results for you?
The best divorce is the one where you walk away with the most money possible. Part of walking away with the most money possible also comes from spending as little as possible. Makes sense, right?
Fault v. No Fault Divorce
Basically, in Virginia, if you want to get divorced, you have to have grounds. You grounds can be fault-based (and adultery is one of the fault based grounds), or it can be no fault based (meaning that your divorce is based on having been separated for the required amount of time).
A fault based divorce is always litigated, meaning that you have to go in front of a judge both to prove that your fault based grounds exist and also to determine how your property will be divided. A no fault divorce, on the other hand, can be handled either in or out of court. In court, it would look much the same as a fault based divorce, except that you wouldn’t have to waste time or money trying to prove whether your grounds exist. Out of court, it’s even easier, cheaper, and more effective; you work together to negotiate an agreement that discusses how your property and responsibilities will be divided.
So, essentially, to boil it all down to the barest essentials, fault based divorces are among the most difficult, because everything is litigated. They’re also fairly expensive and time consuming. But is the juice worth the squeeze, as they say? Read on.
What is adultery?
So, what’s adultery? It probably seems fairly easy, but I still have people all the time who aren’t sure what it really means. Adultery, first and foremost, is about sex. It happens when a married person knowingly has sex with a person who is not his or her spouse.
“Sex,” as you probably already suspect, can mean any number of things. Specifically, the statute includes oral or anal sex as well as traditional vaginal sex, and even bestiality.
It’s pretty clear what sex is NOT, though. It’s not kissing, dating, or hand holding. It’s not getting “engaged,” or exchanging presents or cards for holidays and special occasions. It’s not, “I love you,” or even “you’re so sexy.” It’s about proving that actual physical sexual intimacy has occurred.
How do you prove it?
Adultery is a crime in Virginia. It’s a misdemeanor, and it’s rarely prosecuted, but it’s still a crime. As such, it carries significant civil and criminal penalties. Because of the potential consequences associated with adultery, in order to get a divorce using adultery as your grounds, you have to prove it to the satisfaction of the judge.
Adultery must be proven by “clear and convincing” evidence. A corroborating witness is required. Usually, in an adultery case, we’ll use someone like a private investigator for our corroborating witness. We want to show that he had the opportunity to have sex; usually, we can do that by showing that he and she (or he) went into a house, apartment, or hotel room, and stayed there overnight. Usually, the private investigator has staked out all the exits. That’s pretty good evidence. But what we’re trying to prove, again, is that they’re having sex.
Other things, like graphic text messages and explicit emails, are helpful additional evidence, but they’re not enough on their own.
It’s difficult to prove, for sure. And, for that matter, it’s expensive. As you can imagine, hiring a private investigator to tail him and stake out his house (or her house or a hotel or whatever) its expensive. But it’s necessary if you expect to win in court.
Does it matter?
This is the best question. Obviously, you want to know whether it’s worth going to all the trouble (and expense) to find out whether it’ll actually benefit you in your divorce.
Technically speaking, the way the law is written, the judge CAN use a person’s negative nonmonetary contribution to the family (and adultery is clearly a negative nonmonetary contribution) when considering equitable distribution. Theoretically, at least, the judge can divide things in some other way than 50/50 if one party’s conduct has been egregious and ultimately led to the breakdown of the marriage.
Do I see this happening? No, not really. In most cases, the extra money spent on litigating the grounds is not worth the small (or potentially even nonexistent) benefit of pursuing fault based grounds. Of course, your case is unique, and if you’re questioning whether it might be worth it in your unique case, you’re best off talking to an attorney one-on-one. Still, in most cases, adultery is not the golden ticket that people seem to think it is.
The one thing that adultery DOES impact, though, is spousal support. The law doesn’t allow an adulterer to ask for spousal support. So, if he has committed adultery, he can’t later ask for spousal support from you; good news, of course, if you’re the higher earning spouse.
A word to the wise: you should remember this, too! Even if you commit adultery after he commits adultery, you would still be giving up your entitlement to spousal support, if any, by your behavior. Think carefully.
5. Decide whether you’ll move forward using adultery as your grounds—or not.
At this point, you should have enough information at your disposal to make a general decision about whether to pursue your divorce on adultery grounds. If you’re still wondering, you might want to make an appointment to talk to an attorney about your unique case.
What I want for you is for your divorce to be as productive as possible. Don’t get caught up in anger or hurt feelings; focus instead on what will yield you the best results later on down the road. How will you walk away with the most marital money possible, and avoid spending a fortune on attorneys and private investigators? Focus on the end result you want—not on your anger in the heat of the moment.
I know how you’re feeling. It’s difficult, but you have to take a step back and analyze carefully. Think before you make a decision. And, if you’re still wondering, get advice from an attorney based on your specific case. To schedule an appointment with one of our attorneys, give our office a call at (757) 425-5200.