In Virginia, adultery is all about what you can prove. If you’ve had an affair, you’ll want to keep it as quiet as possible, especially if you’re hoping to receive spousal support in your case.
Most divorces in Virginia are “no fault” divorces. That doesn’t mean that neither of you committed any fault that ultimately led to your divorce (like adultery, cruelty, apprehension of bodily hurt, conviction of a felony, abandonment, desertion, etc.), it just means that you’ve decided NOT to proceed on fault. Most divorces are no fault because it’s cheaper and easier to avoid all the difficulty that comes from proving that your fault grounds exist.
“I committed adultery, and he wants our agreement to say that we’re getting divorced because of my adultery. Is that normal?”
If you want to enter into a separation agreement (as most divorcing couples do), you’ll have to move forward on no fault, because there is no such thing as “agreeing” that your divorce is the result of his (or your) adultery. Adultery (and any other fault based ground) is something that has to be proven to the judge—and it costs money to go to court. To actually have a divorce granted based on adultery, your husband would have to go in front of the judge and prove that the adultery happened, and that’s a tricky thing to do.
If you’ve committed adultery and your husband doesn’t know about it, strategically it’s a bad time to confess. Although adultery rarely has a dramatic impact on the distribution of the assets and liabilities, you’ll add fuel to the fire if you tell him now. Also, spousal support is often a major issue in these cases. In Virginia, the rule is that if you’ve committed adultery, you can’t then ask for spousal support from your husband. There is a small exception to that rule, though: if to deny you spousal support would result in manifest injustice, the court could award support. It would be incredibly difficult to prove manifest injustice, though.
“But, if adultery is all about what you can prove, and he can’t PROVE that I’ve had an affair, can’t I still get spousal support? After all, he’d have to take me to court to prove it.”
Basically, that’s true. If we were litigating a divorce (meaning, if we were fighting it out in court), in order to prevent the court from awarding spousal support, your husband’s attorney would have to prove that the adultery occurred. To prevent you from receiving spousal support, the burden of proof isn’t quite as high as to get the divorce granted on grounds of adultery, but it would require your husband (and his attorney) to put on evidence in front of the judge.
Still, I don’t really want to spend your money going to court to fight it out on an issue that I think I’ll lose. Not because I don’t want to lose, but because I think it’s a waste of your resources. If you’ve admitted to me (or to your husband) that you’ve committed adultery, I don’t really want to go to court to try to convince the court that your husband doesn’t have enough evidence to actually prove it. When we’re negotiating a separation agreement, a lot of times we’ll agree to terms that would have to be proven if we were litigating the case in front of the judge, mostly because we feel that our agreement will preserve the most resources for you to start fresh after your divorce.