How Adultery Affects Divorce

In Virginia, adultery is grounds for an immediate divorce. The courts take adultery seriously, and have always taken adultery seriously. In fact, in the olden days, proving adultery was really the only way to qualify for divorce. Lucky for those of us who were born in this day and age, though, there are many other reasons you can cite to qualify for a divorce in Virginia and in pretty much every other state in the country. So, even though you may not be able to get a divorce using adultery as your grounds, that doesn’t mean you’re stuck.

What is adultery?

Adultery is all about sex. I’m sorry to be crass, but that’s the truth. It’s not about hand holding, or kissing, sending cards or texts that say “I love you,” or talking about getting married. In Virginia, adultery is defined as when any married person has sex with a person who is not his or her spouse. The sex involved can be oral, anal, or vaginal, but there has to be sex involved in order to qualify for a divorce on these grounds.

In Virginia, adultery is also a misdemeanor offense. Because of that, when you allege adultery against someone, they can plead the fifth. When someone pleads the fifth, they are invoking their Constitutional right to not be forced to say something that might incriminate them.

How do you prove adultery?

Because adultery is fault-based, you’ll have to prove that the fault you claim actually occurred in order to get a judge to grant your divorce on these grounds. (If yours is a no fault divorce, on the other hand, you don’t have anything to prove to the judge.)

Since adultery also carries with it possible criminal consequences (though it is rarely, if ever, actually prosecuted), the burden of proof is higher than with other fault-based grounds. The court requires that you present “clear and convincing” evidence of the adultery, and your evidence must be corroborated by a third party. So, what does that mean? Well, in practical terms, it means you’ll probably have to hire a private investigator to be your corroborating witness. Ideally, your private investigator (or PI) would have a stake out—he would watch your husband and his paramour go into a hotel room, watch all the exits overnight, and observe them re-emerging together in the morning.

Pictures, text messages, Facebook statuses, and other things can be good evidence of adultery, but they aren’t enough on their own to prove that it actually occurred. You’ll want to show those things, and combine it with, for example, the testimony of the private investigator your hired.

Before you run out and hire a private investigator to look into what your husband is up to, you should talk to an attorney to find out whether this is really the best course of action for you. Every case is different, and you need an opportunity to talk bout your unique situation, weigh the advantages and disadvantages, and come up with a plan that takes into account your goals for the future.

Can’t he just admit that he committed adultery?

No. Even if your husband admits to you that he has committed adultery, you’ll still need to prove it in court, and you’ll still need “clear and convincing” evidence as well as a corroborating witness. Adultery must be formally proven in court in order for the divorce to be granted on those grounds, and that is the only way to do it. With a no fault divorce, you have the option of negotiating and signing a separation agreement (and avoiding appearing in court), but your husband can’t just sign an agreement that says that he committed adultery. You have to go to court to prove it, or you’ll have to settle for a no fault divorce instead.

Beware, though. If your husband admitted to you that he committed adultery, and you sleep with him, you’ve legally forgiven him of the adultery. If you plan on moving forward with your divorce using adultery as your grounds, you will have to stop sleeping with him. That’s called condonation.

On the other hand, if you suspect (but don’t actually know) that your husband has committed adultery, you don’t forgive the adultery by sleeping with him. (However, if you do suspect that your husband may have committed adultery, you probably won’t want to sleep with him for sexual health reasons.)

What if I committed the adultery?

It works the same, but in reverse. If you committed adultery and your husband has sex with you, he has legally forgiven you for adultery, and he can’t pursue a divorce on grounds of adultery. Still, same as with you, he has to actually know you’ve committed adultery, not merely suspect it.

In most cases, though, it’s not a good idea to confess. It may clear your conscience and make you feel better, but you also don’t want to hand him ammunition that he can use against you. If you’re feeling guilty or wondering whether it might be best to come clean with your husband, you should probably talk to an attorney first. Make sure you’ve covered your bases and done everything possible to protect yourself before you make any decisions that could have a negative impact on your case.

Adultery is a very emotionally charged thing, so the danger is that if you admit your adultery to your husband, you may cause the tensions to escalate dramatically. What may have otherwise been an amicable divorce could turn into a knock down drag out, all day in the courtroom epic level fight. You definitely don’t want that to happen, because it can make your divorce take longer, cost more, and cause more damage to both you and your children. Again, before you confess, if you’re feeling tempted to confess, make sure you talk it over with your attorney first.

How does adultery affect spousal support?

Another important fact about adultery is that it bars you from asking for spousal support. If you committed adultery, you won’t be able to ask your husband for spousal support (unless you can demonstrate that it would create what’s called a “manifest injustice,” and, trust me, that would be very, very hard to do). On the other hand, if your husband has committed adultery, he can’t ask for spousal support from you, either.

Of course, just because someone committed adultery doesn’t mean that there will automatically be an award of spousal support. Spousal support is based on a complex weighing of a number of different factors, and, without the support of those factors, spousal support won’t be awarded. For example, whether or not a person receives spousal support is based first and foremost on need and ability to pay. The recipient spouse must show that he or she has a need, and the paying spouse must have an ability to pay. Without meeting that criteria, spousal support wouldn’t be awarded anyway, regardless of whether there was adultery. Beyond that, the parties would have to make an argument showing why the statute supports their claim for spousal support. The statute provides thirteen different factors that the court must consider, including:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under § 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;

12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and

13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Beyond that, the court would also look into the length of the marriage. Obviously, for a marriage of just a few years, permanent spousal support wouldn’t be awarded. The duration of the marriage definitely affects the duration of the spousal support award.

So, whether or not you will actually receive spousal support is very complicated, and is affected by those three main things: (1) need versus ability to pay, (2) the thirteen statutory factors, and (3) the duration of the marriage. Adultery changes this analysis so that the person who committed the adultery can’t ask for support.

Does it make a difference whether the adultery occurred before or after separation?

Yes and no. As far as criminality goes, it doesn’t matter whether you committed adultery before or after your separation. You’re guilty of a misdemeanor if you had sex with someone who wasn’t your spouse while you were married.

It should go without saying, but, in Virginia, you are married until you are divorced. Even when you’re separated, you’re still married. So, if you have sex with someone outside of your marriage, it is adultery, and you could theoretically be prosecuted. I doubt that you would be, but it’s certainly something to keep in mind.

However, as far as the court is concerned, pre and post separation adultery are slightly different. The way the court looks at it, pre-separation adultery is the reason for the breakdown of the marriage, whereas post separation adultery is not responsible for the marriage breaking down. It is very likely that the judge would give more consideration to pre separation adultery than post separation adultery.

No matter what, though, it’s risky behavior. You definitely don’t want to commit adultery at all if you can help it, because there can be so many negative consequences. It’s definitely better, legally and emotionally, if you wait until your divorce is finalized before you start seeing anyone new.

You can’t control what your husband does, though. In my experience, most husbands get girlfriends pretty soon after separation. Is it adultery? Yes, of course. Can we do anything about it? Well, it all depends.

We can’t ask that he not have sex with her, or not see her. But we CAN ask that, at least while the children are present, the girlfriend not be there overnight. Most judges will readily grant that if we ask for it. We can’t stop the adultery from occurring or keep him from seeing his new lady friend, but we can stop some of what might be going on when the children can see it, which is very helpful.

Is it beneficial to use adultery as my grounds? What about that immediate divorce thing?

As with everything, it’s always a cost versus benefit analysis, and I won’t beat around the bush. Adultery is rarely a golden ticket. Just because you or your husband committed adultery doesn’t mean that one or the other of you will get more of the marital assets as a result.

The way the statute is written, the judge can consider the positive and negative monetary and nonmonetary contributions to the marriage when making an award of equitable distribution. That means that the judge can look at both the good things and the bad things you did to help or hurt your marriage, and can consider them when he’s deciding how to divide up the property between the two of you. In most cases, though, the fault of either party doesn’t really make a huge difference in how the property is ultimately divided. Even though the judge CAN consider it, adultery doesn’t often have a huge effect.

At the end of the day, the most important thing is what you have left over at the end of your divorce to start your new life. You want to have as much as possible left so that you can give yourself the best, freshest new start possible, and the way to do that is to carefully plan and prioritize during your divorce. Talk to your attorney and come up with a plan before you do anything crazy, like confessing to your husband or hiring a private investigator. Ask yourself, objectively, what your goals are and how you plan on achieving them. Your attorney should be able to give you some good insight, too, and help you craft a divorce that keeps your concerns and goals in mind.

If adultery is an issue in your divorce, give us a call at (757) 425-5200 to schedule a confidential, one hour consultation. We’ll help talk to you about your rights and how to protect yourself as you move forward.

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