You cheated on your husband. The marriage has been breaking down for a long time and, in a moment of weakness, you gave in. It wasn’t your proudest moment. And now you’re a little scared. You know that, in Virginia, adultery is one of the fault based grounds for divorce. What should you do next? What steps can you take to protect yourself?
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 have committed adultery. Without further ado…
1. If he sleeps with you, he has legally forgiven you for the adultery.
Okay, so I know things are bad and, for a multitude of reasons, your affair aside, you’re thinking of ending your marriage. I’m not entirely comfortable saying, point blank, “Have sex with your husband.” I do, however, want to let you know that, according to the legal principle of condonation, if he sleeps with you after finding out about your affair, he has legally forgiven you.
He can’t forgive something he didn’t know about, though. If he has his suspicions, that’s not enough. Seeing text messages, reading emails, or finding cards isn’t enough. Knowing that you went out on a date isn’t enough. In order for him to legally forgive you of your adultery, he has to know that you’ve committed adultery. (What is adultery? In a word: sex. Oral, anal, or vaginal sex.) Likewise, if you sleep with him after he finds out about your adultery, and then you continue to sleep around (with the same person or another one, it doesn’t matter), he hasn’t forgiven you for those subsequent acts.
Of course, there are sexual health issues to consider. I’m not telling you that you should sleep with him; I’m just giving you information. What you choose to do with it is your decision.
What does it mean if he legally forgives you for the adultery? It doesn’t mean you can’t get divorced, it just means that, if you do decide to move forward with your divorce, you’ll have to use no fault grounds instead. Once the adultery has been legally forgiven, it can’t be used as grounds for divorce.
2. Watch him for signs of adultery, too.
If both of you have committed adultery, you’re equally guilty in the eyes of the law. We call that “recrimination.” Basically, it stands for the principle you learned in elementary school that two wrongs don’t make a right. If you’ve both committed adultery, the affairs cancel each other out, and neither of you can use adultery as your grounds for divorce.
It doesn’t matter who committed adultery first and who second; it doesn’t matter whether the second act was in retaliation for the first. If you’ve both committed adultery, you’ve both given up your legal right to use adultery as your grounds.
3. Get tested.
I know, I know. This isn’t legal advice. It’s practical advice. If you’ve had an affair, it’s a good idea to get tested. Likewise, if you suspect that your husband has had an affair, too, you should also get tested. .
I’ve seen cases where women 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 his favor? All good questions—in fact, critical questions—when it comes to determining which way you want to go, strategy-wise.
If your husband plans on moving forward using adultery as his grounds, your divorce could be a doozy. Strategically speaking, it’s probably not the best choice; fault based divorces are typically the longest and most expensive divorce cases, especially when adultery grounds are used. And, in most cases, it doesn’t mean that he’ll get more of the marital property. He probably won’t!
If I were you, I would keep my affair a secret. I wouldn’t tell a soul—not even my sister, my mom, or my closest friend. Sometimes, even the most well-meaning friends and family members can let secrets slip. And you know what they say—loose lips sink ships.
If I were you, I’d strike early and offer a separation agreement. I’d talk about keeping things amicable, saving your money, and making sure that you both have what you need to get the best fresh start possible, post-divorce.
Remind him: 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. Part of spending as little as possible comes from avoiding making allegations that you’ll have to prove later. 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. For you, this works in your favor. It’s less likely that he’ll pursue a fault based divorce just because of the time and costs involved. Is it possible? Sure. But probably not likely. And remember, too, that just because he initially may file using adultery as his grounds, very few people move forward with fault based grounds all the way to the conclusion of their divorce action.
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, your husband will 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, him hiring a private investigator to tail you and stake out your house (or your paramour’s house or a hotel or whatever) its expensive. But it’s necessary if he expects to win in court.
Does it matter?
This is the best question. Obviously, you want to know whether, if he’s successful, he’s going to be able to walk away with more from the marriage than you are.
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 your husband might find that it would 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 you have committed adultery, you will be barred from asking for spousal support from him.
Are there exceptions? Yes, it’s possible, but probably unlikely. If you committed adultery and still plan to ask for spousal support, you’ll have to show that “manifest injustice” would result from him not paying you spousal support. That’s a pretty high bar to meet. If you’re planning on making a manifest justice argument, you’ll definitely want to talk to an attorney as soon as possible.
I know how you’re feeling. It’s difficult, but you have to take a step back and analyze carefully. Think before you make any decisions or try to move your case forward. 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.