The Ashley Madison Hack: A Divorce Lawyer’s Perspective

With all of the recent hullabaloo surrounding the Ashley Madison website hack, people have been asking me a lot of questions about what it means for divorce in Virginia.
It’s interesting. What would be regarded as a (first world) problem of epic proportions if the hack had released people’s credit card information (like the Target card hack awhile back) or confidential health care information or other social media account information, has been regarded by most people with a smirk and a snide, “well, obviously, affairs have consequences” kind of attitude. It’s like they don’t see that, because of this leak, people are hurting and families are falling apart. It’s like they aren’t concerned about what the possible internet security ramifications are. (Not that I’m truly particularly qualified to talk about security online.) But it surprises me that it’s truly like very, very few people (if any) are actually talking about this in any kind of real way.
I’ve seen lots of cynical posts, from friends and celebrities, about how divorce attorneys are the ones benefitting from all of this—one, even, that suggested that a divorce attorney might even be behind it. (Just to exculpate my fellow divorce attorneys, I do feel compelled to say that the company released information saying that they suspected it was an inside job by someone who worked with the company as some kind of independent contractor.) I don’t think we’re gaining anything by this. In fact, I don’t think there is anything to be gained at all, though there’s no question that plenty of women out there will be questioning their marriages as a result of the hack.
From what I can tell, it’s not like there’s a searchable online list of men who had accounts on the site. It’s still something that is not accessible to the average person, even a fairly tech savvy person. It’s not just a searchable document that people can access and read. From that standpoint, I’m wondering how many people would even know if their husband’s name was on the list anywhere. I HAVE seen a couple of sites where you could search for an email address to find out whether it was compromised, but don’t know anything about the accuracy or validity of one of those sites.
So, all of that to say, very simply, that I’m feeling really sorry for all the victims of this hack. Many of whom, it seems, didn’t even ever have affairs. And, of course, the husbands aren’t the only victims—there are tons of wives and children whose family lives and security are now called into question. I’m sorry for the marriages that are on rocky ground, and the people who lives were so callously thrown into limbo. I’m sorry for the pain and suffering, and I don’t want anything to minimize that. I’m here to have an open and honest discussion about divorce law in Virginia, and how the Ashley Madison hack affects it.

If my husband cheated, can I get a divorce?

Yes. Going back to biblical times, there is a legal precedent for divorce in cases of adultery. In my practice, many women ask questions about adultery. Though Virginia does include adultery as a potential fault based ground for divorce, it’s often much more difficult than you’d think to get divorced on fault based grounds.
Let’s start with discussing what adultery actually is. In Virginia, adultery is when someone voluntarily has sex with a person who is not his or her spouse. Adultery is about sex—oral, anal, or vaginal. It’s not about dating, kissing, hand holding, dirty texts, or, even, membership on websites that help you have extramarital affairs.
To get divorced using adultery as your grounds, you’d have to use a corroborating witness to help PROVE to the satisfaction of the judge by clear and convincing evidence (which means, essentially, that there’s more than a 50/50 chance but less than the standard required in criminal cases of “beyond a reasonable doubt) that adultery exists. We can do this all sorts of ways, but usually it involves a private investigator. It’s not enough to show that he’s in a relationship, or that he was a member on a site. It’s not even enough to show that he texted or emailed or met a person. We have to show, clearly and convincingly (which is pretty hard to do) that he actually had sex. It’s difficult. It’s not impossible, but it’s difficult.
If all you’ve got is that he was a member on Ashley Madison, you won’t be able to prove adultery. You may very well be able to file for divorce using adultery as your grounds, but I think you’ll find, once your case gets to trial, that your evidence is woefully insufficient. You’ll need a whole lot more information to successfully prove adultery.
Not only that, but fault based divorces are time consuming and expensive to pursue. Most people these days get uncontested, no fault divorces, regardless of whether fault based grounds exist in their cases. Why? Because it’s cheaper, easier, and faster.
One of the biggest dangers I foresee with the Ashley Madison hack, especially if there are tons of furious wives out there, is that then there’s extra anger, hurt feelings, fear, and embarrassment. It’s usually those people who come into my office and tell me they want to move forward on fault (“on principle,” they often say). It’s easy to say these things when you’re hurt and upset and you feel like your life is caving in around you, but that doesn’t mean it’s productive.
I’m being reasonably cautious when I say that a fault based divorce can easily cost you $40,000 in attorney’s fees…each. It can also cost far, far more than that, depending on the number of issues you’re facing. Compare that to an uncontested divorce where an “expensive” one would run you more like $5,000-7,500.
So, all in all, there are a lot of problems I see here. Although you can get a divorce using adultery as your grounds in Virginia, I think that your husband’s membership on the Ashley Madison site alone isn’t enough to prove adultery by Virginia standards. You could look for more, by hiring a private investigator, but you could wind up spending more money (and this cost is in addition to your attorney’s fees) to find something that isn’t there. Since 90-95% of the subscribers were men, I don’t know how they could have met women to have sex with—even if they had wanted to. Maybe they did, maybe they didn’t—but you’ll still need more to prove it. And you, in your hurt and your anger, could spend a lot of money trying to dig up information. Is it helpful? Is it productive? Probably not.
At the end of the day, I think you need to ask yourself whether the juice is worth the squeeze. What kind of anguish will it provide? Will it make anything different? And, most of all, will it result in a better outcome for you? Read on for the answer to that question.

If I probably can’t prove adultery… What difference would finding your husband on Ashley Madison make to your divorce case?

Although the Virginia statute allows for a person’s fault to result in a disproportionate award of the assets (meaning that one party could, theoretically, walk away with more of the marital stuff), it rarely happens. Like, really rarely.
And it’s also unlikely that his affair would affect custody. Unless he’s like Subway’s Jared, it’s unlikely that custody will change. Frankly, judges don’t really think extramarital affairs generally affect a person’s ability to be a good parent. Good parents do bad things to their spouses all the time, but that doesn’t mean he’s a bad dad, too.
Another risk I see, especially since so many of the hacked emails were .gov and .mil email accounts, is that your husband could lose his job. Now, before you say, “serves him right,” remember… You need him to work in order to pay you support. Right? Whether we’re talking about child support or spousal support, he may have a difficult time paying it if he’s earning nothing. Him losing his job, though we could argue that he deserves it or he doesn’t, may have a dramatic (and undesirable) impact on your life, too.
So, is the juice really worth the squeeze? If we (1) can’t prove adultery, and (2) can’t get more out of the divorce, then, no, it’s really not. I can’t, in good conscience, recommend that you move forward with adultery as your grounds if all you have is that he may or may not have been a member on Ashley Madison. I can’t encourage you to spend tens of thousands of dollars (that, honestly, you’ll need a whole lot later on) to fight something that might not be winnable anyway, and, even if it is, wouldn’t result in you getting a better share.
The worst thing about this Ashley Madison hack, from a divorce attorney’s perspective, is that there are a bunch of women who are all riled up and have very little legal recourse. A divorce attorney can spend their money, but, in all likelihood, the end result won’t put them in any better position—and, if he loses his job or something terrible, she may find herself in a substantially worse situation. That’s never a good divorce attorney’s goal.
I see a lot in this hack that concerns me, but nothing more so than the unhappiness and suspicion it is bringing to real life families.
If you or someone you know has been affected by the Ashley Madison hack, you should seek help now. Talk to a marriage counselor. Meet with a divorce attorney, if you want, but try to stay calm and think in terms of what’s best for you (and your children, if you have any) in the long run. Ultimately, you want to make decisions that either put you in the best position for the freshest new start after divorce or that allow you to begin to rebuild your family. If we can help in any way, let us know. We’d love to talk to you more about Virginia divorce and answer your questions at one of our divorce seminars, or welcome you to one of our Girl’s Night Out events. In fact, if you’d like to join us for Girl’s Night Out, we have an event coming up on Thursday from 6-8pm at FireBrew in the Redmill Commons shopping center in Virginia Beach. Come, meet us and other local women going through divorce and custody cases, and relax. You can register online by clicking here, or just show up.  Bring a friend, or come alone.  Take a deep breath. It’s going to be okay, and there are resources out there to help you make the best decisions possible for yourself and your family’s future. Good luck to you.