Adultery and Divorce in Virginia

Adultery is a commonly used ground for divorce in the state of Virginia. When a spouse engages in extramarital affairs, it can have a profound impact on the marriage and may ultimately lead to its dissolution. This webpage provides an overview of adultery in Virginia divorce.

Understanding Adultery in Virginia Divorce

Definition of Adultery: Adultery refers to a married person engaging in sexual intercourse with someone other than their spouse.

Fault-Based Divorce:  Adultery by a spouse is a ground for divorce in Virginia.  In order for a divorce to be granted on the basis of adultery:

• The adultery must not have occurred more than 5 years before the divorce is filed
• The adultery is proved by “clear and convincing” evidence
• The evidence is corroborated by something other than the admission of the spouse who committed the adultery 
• The other spouse must not have “condoned” the adultery (see below under defenses
• There must not have been recrimination (see below under defenses)

What is Clear and Convincing Evidence and What is Corroborating Evidence?

Clear and convincing evidence is a standard of proof that is higher than “a preponderance” and lower than “beyond a reasonable doubt.”  Adultery can be proved by direct evidence, such as the admission of a paramour, photos, or videos.  Adultery can also be proved by indirect evidence such as proof that a spouse and another have been alone behind closed doors for an extended period of time.   

A spouse’s admission that he/she committed adultery is not sufficient, by itself, to prove adultery.  Even if a spouse has admitted to the adultery, additional evidence, such as the admission of the paramour, love notes, photographs, etc. must be offered to “corroborate” the adultery. 

Legal Implications of Adultery in Virginia Divorce

Effect on Property Division: Usually, adultery has little to no effect on property division. A spouse guilty of adultery will not “lose everything” in a divorce. A spouse’s adulterous behavior may be taken into consideration when determining how assets and debts should be divided. Typically, however, unless the adultery had a negative impact on the finances of the marriage, the adultery won’t have a meaningful impact on property division. 

Effect on Spousal Support/Alimony: Courts are generally prohibited from awarding spousal support to a spouse who is found guilty of adultery.  In some cases, however, if the court finds that a denial of spousal support would be a manifest injustice, the court will still award spousal support.  In order to determine if denial of support would be a manifest injustice, the court will examine the relative degrees of fault and the relative finances of the parties.   

Child Custody and Visitation: In child custody and visitation matters, the court’s primary concern is the best interests of the child. Adultery, by itself, is generally not a determining factor in custody decisions. However, if the adulterous relationship has a detrimental effect on the child or disrupts the child’s well-being, it could be considered by the court when making custody determinations.

The Process of Filing for Divorce Based on Adultery

Filing for Divorce: To file for divorce in Virginia based on adultery, one spouse (the petitioner) must file a Complaint for Divorce with the appropriate circuit court. The complaint should include details about the adultery.  Most notably, the complaint must state the name of the paramour and the date and place where the adultery occured. 

Defending Against Allegations: Virginia law provides sevderal defenses to a charge of adultery.  These include:

• A claim of adultery will fail if the adultery occured more than 5 years before the date of the divorce complaint.  Virginia law provides that
  “the divorce shall not be granted . . . [if] it occured more than five years before the institution” of the divorce action.
• Condonation.  A claim of adultery will fail if, after learning of the adultery, the other spouse continues to live with the spouse who committed adultery.
• Recrimination.  If both spouses are guilty of fault (adultery, desertion, cruelty) then the faults “cancel each other out.” 

Legal Counsel: Given the complexities of divorce cases involving adultery, it is highly advisable to consult with an experienced family law attorney. An attorney can help you navigate the legal process, protect your rights, and advocate for your interests in court.

Conclusion

Adultery can be a significant factor in divorce cases in Virginia. Understanding its legal implications and the process involved is crucial for individuals facing or contemplating divorce based on this ground. Consulting with a knowledgeable attorney can provide valuable guidance and assistance throughout the divorce proceedings.

Please note that laws and regulations may change over time, and it’s essential to consult with an attorney for the most up-to-date and accurate information regarding divorce and adultery in Virginia.