Adultery and Divorce in Virginia

Adultery is defined as the act of sexual intercourse by a married person with any person who is not their spouse. Adultery is a fault-based ground for divorce under Virginia Code § 20-91. Unlike some other divorce grounds, there is no waiting period before filing on the ground of adultery. Adultery can be very difficult to prove, but if proven may have serious financial implications in the divorce, at least on the issue of spousal support.

How to Prove Adultery in Virginia

Adultery occurs when a married person voluntarily engages in sexual intercourse with a person that is not his or her spouse. To qualify as a divorce ground, your spouse’s affair must have become physical—culminating in sexual intercourse. Mental or emotional affairs do not count. Being overly familiar with a new friend at work is not enough. Proving adultery means proving sexual intercourse.

Virginia law requires “clear and convincing” evidence for a finding of adultery, a higher standard of proof than other grounds for divorce. Thus, to prove adultery, one must provide the court with clear and convincing evidence that one’s spouse in fact had sexual intercourse with another person.

Virginia law also requires “corroboration” of the adultery—i.e., evidence or testimony from some outside source (not just your own word or even your spouse’s own admission) that your spouse committed adultery. Eyewitness testimony, though, is not required. Adultery can be proven using circumstantial evidence.

What type of evidence might suffice to prove adultery? Your spouse’s own statements, in text messages or e-mails, would potentially be powerful evidence as to whether he or she had sex with the new person. But the exact wording of the messages is very important. An e-mail stating “I enjoyed having sex with you last night” (or words to that effect) would go a long way in proving adultery. An e-mail stating simply “let’s meet for dinner at that romantic restaurant tomorrow night,” by comparison, would not alone prove adultery.

Now, e-mails, text messages, or other evidence that the spouse’s relationship with the new person is a romantic one: those are all solid evidence. They help your case. But you need something a bit stronger at the core of your case, something very clearly pointing to an act of sexual intercourse.

That strong core of your case could be a very explicit admission by your spouse—either a direct admission to you upon being confronted with the affair, or perhaps a clearly worded admission in an e-mail or text message. Remember, though, even if your spouse admits to the adultery, you will need to provide the court some “corroborating” evidence (love letters, photographs, etc.).

Many adultery cases are built by hiring a private investigator to follow the spouse under suspicion, and gather the type of powerful evidence needed to prove a case for adultery. For example, the investigator may photograph the cheating couple holding hands through a romantic dinner, then checking into a motel room. The investigator may watch them go into their room, and come out the next morning—looking a bit, shall we say, disheveled. That investigator has now built a case for adultery.

Given the high standard of proof, and the corroboration requirement, proving adultery in Virginia can be very difficult. It will require a certain kind of evidence to overcome the “clear and convincing evidence” requirement, and prove not just that your spouse is having a romantic relationship with another, but that the relationship has culminated in sexual intercourse.

Defenses to an Adultery Charge. Virginia law provides several possible defenses to a charge of adultery. The successful establishment of any one of these defenses will bar the entry of divorce on the ground of adultery:

• Condonation. Condonation occurs when the parties voluntarily resume sexual relations and continue living together after the innocent spouse learns of the adultery.
• Connivance/Procurement. Connivance or procurement occurs when the “innocent” spouse actually encourages or facilitates the adultery.
• Recrimination. Recrimination is proof that the accusing spouse is guilty of one of the fault-based grounds for divorce (cruelty, adultery or desertion). For example, if the wife is accusing her husband of adultery, but the husband can prove that his wife also engaged in adultery, then the husband could use the defense of “recrimination.”
• Time-Barred. Adultery has a five-year statute of limitations as a divorce ground in Virginia, which means that if the divorce suit is filed more than five years after the adultery, the divorce will not be granted on the adultery ground.

The Fifth Amendment. Adultery is not only a ground for divorce in Virginia, but it is also a Class 4 misdemeanor under Virginia Code § 18.2-365. Because adultery is a crime in Virginia, a spouse accused of adultery in a divorce can assert their Fifth Amendment right against self-incrimination, and refuse to answer questions about the adulterous behavior. This has traditionally contributed to making adultery very difficult to prove as a ground for divorce in Virginia. However, a new law went into effect in Virginia on July 1, 2020, which promises to dramatically undercut the ability of defendants to use the Fifth Amendment as a shield in divorce cases. For more information, see New Law Makes Proving Adultery Easier in Virginia.

Impact of Adultery in a Virginia Divorce

When someone rear-ends you at a stoplight and you end up with a broken leg, they (or their auto insurance carrier) pay your medical bills, plus a little extra for your pain, suffering and inconvenience. If your doctor commits medical malpractice in the course of your healthcare, you are compensated in a similar fashion. If you slip on a wet floor at the supermarket, again, the supermarket may have a duty to make things right.

But what about a cheating spouse? Does the law compensate for a broken heart in the same way as a broken leg? Do Virginia courts require your wandering spouse to “make things right” in hard, monetary terms? Will a judge sway a divorce settlement in your favor since you are, after all, the wronged spouse?

Not exactly. Virginia law does not exact any type of “fine” or punitive damages from the spouse who committed adultery. Adultery may have an impact on the distribution of the parties’ marital assets and debts—although not as much as you might think. And in most cases adultery will not significantly impact the court’s rulings on child custody and visitation. It is only on the issue of spousal support that adultery usually has a tremendous impact.

Property Distribution. The court is allowed (and in fact directed) to take one party’s adultery into account when deciding how to divide the marital estate—however, in most cases the adultery won’t have much of an impact here.

In stark, unforgiving terms, your spouse’s infidelity does not require him or her to fork over more than 50% of the marital assets. So, for example, even though you may feel your cheating spouse wrecked the marriage with their indiscretion, you will not automatically receive more than 50% of the marital portion of their 401(k) as compensation. A sympathetic judge may award you a slightly larger share in select circumstances, but the emphasis here is on “may” and “slightly.” Most judges will adhere to the Virginia Code and case precedents, which dictate that adultery usually has no effect on the equitable distribution of assets.

In a seemingly cruel twist, Virginia law also guarantees your philandering spouse his or her share of your contributions to the marital estate. So, don’t presume that your pension is off the table simply because your spouse had an affair.

There is a caveat worth mentioning here. The court can factor one party’s adultery into the distribution of property and debts where the adultery is shown to have had certain “economic consequences.” Meaning, for example, if your spouse dissipated the marital assets in the pursuit of his or her secret tryst, the court will account for that in the division of assets. This is to ensure that you are not financially penalized for your spouse’s spontaneous weekends to the Poconos that did not include you.

In most cases, whatever gain (if any) that you might achieve in the division of marital assets, based on your spouse’s adultery, will probably be outweighed by the tremendous time and cost involved in proving the adultery. For example, even if you somehow win a 55/45 split of marital property, you may well have spent so much in legal and private investigator fees, that you would have been better off with a 50/50 split and a no-fault divorce.

Child Custody. Proving the adultery may not help that much in a custody and visitation battle. Virginia law directs the courts to look at several factors when determining custody, but one parent having an affair is not one of them. The court may prohibit exposure of the children to any new boyfriend or girlfriend prior to the finalization of the divorce, but is not likely to deny a cheating spouse primary custody and/or visitation based solely on the adultery.

Spousal Support. And then we come to the issue of alimony or “spousal support” as it is called in Virginia. This is the one area where proving a case of adultery may be extremely useful in your divorce. Proving adultery by your spouse will usually prevent him or her from receiving any spousal support whatsoever from you. Meaning, if you were the primary breadwinner during the marriage and would normally owe some monthly amount of alimony post-divorce, that is probably now off the table. The spouse who cheated will usually receive no spousal support in Virginia.

However, adultery is not necessarily a complete bar to the adulterous spouse receiving spousal support in Virginia. Rather, the court may still award the adulterous spouse support in some cases, based on (1) the relative finances of the parties and (2) the relative degrees of “fault” of the parties. For example, where a husband can prove his wife committed adultery, but the wife can show (a) that her husband earns much more money than she does, and (b) that her husband engaged in egregious behavior that was in fact (rather than her adultery) the central cause of their breakup, then the court could still award the wife alimony.

Leverage. Finally, adultery occasionally provides some helpful leverage in negotiating a favorable settlement. While some adulterous spouses seem completely impervious to the proverbial airing of “dirty laundry,” the majority would prefer to retain some dignity and move on with their lives. When the alternative is having their indiscretions showcased in open court, many such spouses agree to give their wronged ex a little more home equity, provide a tad higher support payment, or maybe take on slightly more credit card debt.

The Pros and Cons of Divorce Based On Adultery

If you believe your spouse is engaging in an affair, you are probably considering filing for divorce on the ground of adultery. While doing so may seem like the most straightforward and beneficial path in your case, you should be aware from the outset of certain obstacles, and be prepared to carefully weigh the pros and cons of filing on this ground.

Let’s start with the pros. Filing for divorce on the ground of adultery may be personally cathartic for you. In so filing, you are definitively stating that your spouse has behaved badly in your marriage. Furthermore, you are forcing your spouse to defend his or her behavior, and you may finally get answers to some of your questions.

Another positive aspect of filing on the ground of adultery is that there is no waiting period, unlike fault-based grounds like cruelty or desertion, which have a one-year waiting period. You can file for divorce on the adultery ground immediately. However, understand that a contested case filed on the ground of adultery may take many months, or even a year or more, to play itself out in court. So, you are not necessarily saving any time by filing on the adultery ground.

Also, successfully proving that your spouse committed adultery may well prevent him or her from receiving spousal support, as stated above.

But what are the cons to filing on adultery? As explained above, between the the corroboration requirement, the “clear and convincing” standard for evidence, and the application of the Fifth Amendment, proving adultery is not easy. Whether the court will find your evidence sufficient will depend on how credible the judge finds your evidence, including any witnesses, and how specifically you can prove the time, place, and circumstances of the alleged extramarital affair(s).

Finally, if you are debating whether or not to file for divorce based on the ground of adultery, remember that “condonation” is an affirmative defense for your spouse. In other words, if your spouse claims and the court believes that you “condoned” the adulterous behavior, the court will not grant you a divorce based on the adultery. Condonation essentially means “forgiveness,” which can be shown through your decision to resume sexual relations and continue living with your spouse. However, a new act of adultery by your spouse post-condonation may reactivate your adultery ground for divorce.

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