Infidelity can tear apart more than a relationship; it can complicate the legal and financial aspects of ending a marriage as well. For couples in Virginia, adultery isn’t just a devastating emotional betrayal; it is also a recognized legal ground for divorce. Virginia laws on adultery are quite specific and have significant implications for how issues like spousal support, property division, and custody are handled.
Whether you’re struggling with feelings of betrayal or facing allegations of infidelity, knowing how Virginia courts handle these situations can help you make more informed decisions about your next steps. This blog will explain how these issues are addressed in court and what you need to know moving forward.
What Is Considered Adultery Under Virginia Law?
Under Virginia Code § 20-91(A)(1), adultery is defined as voluntary sexual intercourse between a married person and someone who is not their spouse. While this definition might seem straightforward, proving adultery in a legal sense is often complex.
Proving Adultery in Virginia
Adultery must be demonstrated with “clear and convincing evidence,” which is a higher standard than in most civil cases. This means there needs to be substantial proof that the alleged affair occurred. Examples of evidence that might support adultery claims include:
- Emails, text messages, or social media exchanges
- Hotel receipts or travel records
- Witness testimony
- Photos or videos
Direct evidence, such as a confession, is rare. Instead, circumstantial evidence that establishes a pattern of behavior is often used. For instance, if a spouse is seen entering a hotel with someone and leaving hours later, it may be considered circumstantial evidence of adultery.
Misconceptions About What Counts as Adultery
It’s important to note that not all forms of infidelity qualify as adultery under Virginia law. For example:
- Emotional affairs or inappropriate messaging may feel just as damaging, but they do not meet the legal definition of adultery.
- Adultery must have occurred before the formal separation; relationships that begin after separation are not considered legal grounds for fault-based divorce.
How Adultery Affects Divorce in Virginia
Adultery has legal ripple effects that impact various aspects of divorce, from the timeline to financial decisions.
Grounds for Fault-Based Divorce
Adultery is recognized as a fault-based ground for divorce in Virginia. Unlike a no-fault divorce that requires at least a one-year separation period, adultery provides an immediate path to file for divorce. However, fault-based divorces tend to be more contentious and lengthy due to the additional burden of proving fault.
Adultery’s Impact on Spousal Support
Virginia’s Code § 20-107.1 states that a spouse who commits adultery may be barred from receiving alimony. The underlying idea is that a party at fault shouldn’t financially benefit from the marriage’s dissolution. However, there are exceptions:
- If denying spousal support would cause “manifest injustice,” a court could still award financial support to the cheating spouse.
- This clause is typically considered in cases where there is a significant imbalance of income or resources between spouses.
- If both parties committed adultery, their fault may cancel each other out, making spousal support decisions less clear-cut.
Property Division
Virginia follows an equitable distribution system for dividing marital assets. This does not mean assets are split 50/50, but rather divided in a way the court deems fair. While adultery alone typically doesn’t guarantee a spouse will receive less property, it may influence decisions if marital funds were used to support the affair.
For example, if one spouse spent significant amounts of money on trips or gifts related to the adulterous relationship, the court may adjust the division of assets accordingly.
Effect on Child Custody
Adultery rarely plays a direct role in child custody decisions unless it negatively affects the child’s welfare. Virginia courts prioritize the “best interests of the child” when awarding custody. For instance:
- If the adulterous relationship introduced the child to unsafe situations or destabilized their home environment, the court might factor it into custody rulings.
- However, without evidence of harm to the child, adultery is unlikely to influence custody determinations.
Strategic Reasons to Allege (or Not Allege) Adultery
Deciding whether to bring adultery into a divorce case requires careful consideration. While it might feel like an obvious choice, there are both legal tactics and emotional factors to weigh.
Pros of Alleging Adultery
- Quicker Process: Fault-based divorces bypass the one-year separation requirement.
- Leverage in Negotiations: Adultery can give you a stronger negotiating position during spousal support discussions.
- Validation: Bringing adultery into the proceedings can feel like a way to hold the offending party accountable.
Cons of Alleging Adultery
- Burden of Proof: You’ll need substantial evidence, which can be time-consuming and invasive to gather.
- Higher Costs: Fault-based divorces are often longer and more expensive than no-fault alternatives.
- Risk of Backfire: If both spouses engaged in infidelity, the court may dismiss adulterous claims or view them as equal “faults.”
When It’s Worth Mentioning
Bringing up adultery as a fault-based ground may be worth considering if you have strong evidence and believe it will positively impact your goals in the divorce proceedings. However, this decision should always come after consulting with an experienced Virginia divorce attorney who understands the complexities of Virginia adultery laws.
Common Myths About Adultery and Divorce in Virginia
“Cheating Guarantees I’ll Win Everything”
While adultery is serious, it doesn’t mean the cheating spouse will lose custody, property, or other rights. Courts try to focus on fairness and practical outcomes rather than morality.
“Adultery Automatically Bars Spousal Support”
Although Virginia law allows for spousal support to be denied on grounds of adultery, exceptions like manifest injustice ensure that financial needs are still considered.
“Texting or Sexting Counts as Adultery”
Flirty messages or explicit exchanges, while hurtful, do not meet the legal definition of adultery because they don’t involve physical sexual acts.
“I Can Start Dating Once We’re Separated”
Starting a romantic relationship before the divorce is finalized can still be seen as adultery in Virginia—even if you’re separated.
What to Do If You’re Facing a Divorce Involving Adultery
Understanding the legal aspects of adultery during a divorce can feel challenging. Here are a few steps to help protect your rights and build your case:
- Document Carefully: Save any potential evidence of infidelity, such as receipts, emails, or text exchanges.
- Avoid Confrontations: Publicly accusing your spouse can harm your case.
- Consult with an Attorney Early: An attorney can help you decide whether to pursue a fault-based divorce and how to present evidence effectively.
- Avoid New Relationships: Even if separated, starting a new relationship could complicate your case.
Empower Your Legal Strategy with Slovensky Law
At Slovensky Law, we have extensive experience with high-conflict, fault-based divorces in Virginia. We’re here to guide you through the complexities of Virginia adultery laws and fight for the best possible outcome. Take the first step toward reclaiming control of your life.
