Guide to Adultery in a Virginia Divorce

Adultery is defined as a married person engaging in sexual intercourse with someone who is not their spouse. Under Virginia Code § 20-91, adultery is a fault-based ground for divorce, and unlike other grounds, there is no waiting period before filing. Although proving adultery in a divorce in Virginia can be challenging, if established, it can significantly impact the financial aspects of the divorce, particularly concerning spousal support. Here at ShounBach, we have experienced divorce lawyers in Virginia to help you navigate your divorce.

How to Prove Adultery in Virginia

To qualify as a ground for divorce, the affair must be physical; mental or emotional affairs do not count. Mere familiarity with a new friend at work is insufficient. Proving adultery requires clear and convincing evidence that sexual intercourse took place.

Virginia law mandates “clear and convincing” evidence to establish adultery, a higher standard than other grounds for divorce. This means providing the court with strong evidence that the spouse indeed had sexual intercourse, or oral or anal sex with another person.

Additionally, Virginia law requires corroboration of adultery through evidence or testimony from an outside source. Eyewitness testimony is not necessary; circumstantial evidence can suffice.

Evidence of Adultery in Virginia

Examples of evidence that might prove adultery include explicit statements from the spouse in text messages or emails. For instance, an email stating “I enjoyed having sex with you last night” would be compelling, whereas an email arranging a romantic dinner would not be sufficient on its own. Emails, texts, or other evidence indicating a romantic relationship can support the case, but clear evidence of sexual intercourse is essential.

A direct admission from the spouse, either in person or via email or text, can be powerful evidence. However, even with an admission, corroborating evidence such as love letters or photographs is required.

Many adultery cases involve hiring a private investigator to gather evidence. For example, the investigator might photograph the couple at a romantic dinner, then check into a motel room and leave together the next morning.

Defenses to an Adultery Charge in Virginia

• Condonation: This occurs when the spouses resume sexual relations and continue living together after the innocent spouse learns of the adultery.
• Connivance/Procurement: This occurs when the innocent spouse encourages or facilitates the adultery.
• Recrimination: This is when the accusing spouse is also guilty of a fault-based ground for divorce (e.g., cruelty, adultery, or desertion). For instance, if a wife accuses her husband of adultery, but the husband proves the wife also committed adultery, he could use recrimination as a defense.
• Time-Barred: Adultery has a five-year statute of limitations in Virginia, meaning a divorce suit filed more than five years after the adultery cannot be granted on this ground.
• The Fifth Amendment: Adultery is a Class 4 misdemeanor in Virginia. A spouse accused of adultery can invoke the Fifth Amendment right against self-incrimination, refusing to answer questions about the behavior. However, a law effective July 1, 2020, reduces the ability to use the Fifth Amendment as a shield in divorce cases, making proving adultery somewhat easier.

For more information, refer to the new law that impacts proving adultery in Virginia.

Impact of Adultery in a Virginia Divorce

When someone rear-ends you at a stoplight, causing a broken leg, they (or their auto insurance) cover your medical bills plus compensation for pain and suffering. If your doctor commits medical malpractice, you are compensated similarly. If you slip on a wet floor at a supermarket, the store may have a duty to make things right. But what about a cheating spouse? Does the law compensate for a broken heart like it does for a broken leg? Do Virginia courts require your unfaithful spouse to “make things right” financially? Will a judge favor you in a divorce settlement because you are the wronged spouse?

Not exactly. Virginia law does not impose any fines or punitive damages on the spouse who committed adultery. While adultery can affect the distribution of marital assets and debts, it typically does not have as much impact as you might think. In most cases, adultery does not significantly influence the court’s decisions on child custody and visitation. Adultery primarily affects spousal support. ShounBach Family Lawyers are experienced divorce lawyers in Virginia and can provide more insight into the impact of adultery in a divorce case.

Adultery and Property Distribution

The court can consider one party’s adultery when dividing the marital estate. However, in most cases, adultery won’t significantly impact this decision. Your spouse’s infidelity does not automatically entitle you to more than 50% of the marital assets. Even if you believe your spouse’s cheating ruined the marriage, your spouse will probably not be financially “punished” for the behavior; generally adultery does not affect equitable distribution.

Moreover, Virginia law permits that your unfaithful spouse still receive their share of your contributions to the marital estate. For example, your pension is not off the table simply because your spouse had an affair.

There is an exception: the court can factor adultery into property and debt distribution if the adultery had economic consequences. If your spouse dissipated marital assets to pursue their affair, the court may account for that to ensure you are not financially penalized for their misconduct.

However, the potential gain from a favorable division of marital assets due to adultery may be outweighed by the time and cost of proving adultery. For example, even if you win a 55/45 split, the legal and private investigator fees might make a 50/50 split with a no-fault divorce more financially beneficial to you.

How Adultery Affects Child Custody

Proving adultery typically does not affect custody and visitation decisions. Virginia courts consider various factors when determining custody, but a parent having an affair is not one of them. While the court may restrict exposing children to a new partner before the divorce is final, it is unlikely to deny custody or visitation based solely on adultery.

Adultery and Spousal Support

Proving adultery in a divorce in Virginia is highly significant when it comes to alimony or “spousal support.” If you prove your spouse committed adultery, they can be barred from receiving any spousal support from you. If you were the primary breadwinner, this means you likely will not owe alimony post-divorce.

However, adultery is not always an absolute bar to spousal support. The court may still award support based on the relative finances of the parties and their degrees of fault. For instance, if a husband proves his wife committed adultery, but the wife shows that the husband earns much more and engaged in egregious behavior that primarily caused the breakup, the court could still award her alimony.

Using Adultery as Leverage in Negotiations

Adultery can also provide leverage in negotiating a favorable settlement. While some adulterous spouses may not care about the public exposure of their indiscretions, most prefer to maintain some dignity and avoid a court battle. This preference can lead to agreements where the wronged spouse receives more home equity, higher support payments, or a larger share of debt.

Get Advice on Adultery in a Virginia Divorce

If you have questions about adultery in a divorce in Virginia, the Virginia family law attorneys at ShounBach are here to help. We handle a wide range of family law and divorce matters. We can assist people throughout Northern Virginia from our office in Fairfax. Contact us today at 703-222-3333 or through our online contact form to find out what we can do for you.