So, your spouse is cheating on you, and you need a divorce. Adultery is a fault-based grounds for divorce in Virginia. The state of Virginia even considers adultery a crime.
But Virginia adultery law makes it very difficult to prove. Yet, if you can prove your spouse committed adultery, it can have serious financial implications for your divorce.
In this post, our experienced family attorneys at the Manassas Law Group will explain the salient points of Virginia adultery laws.
Adultery As a Crime
Virginia adultery laws define adultery as sexual intercourse by a married person with any person who is not their spouse. It is grounds for divorce under Virginia Code § 20-91.
To qualify as grounds for divorce, the affair must be physical. Mental and emotional affairs do not count.
Virginia Code § 18.2-365 also defines adultery as a Class 4 misdemeanor.
The state of Virginia rarely prosecutes adultery as a crime. But the fact that it is technically illegal has grave implications for a divorce.
Proving Adultery in Virginia
The state of Virginia requires proof of adultery by “clear and convincing” evidence to grant a divorce. Virginia adultery laws place the standard of proof for adultery much higher than for other divorce grounds. After all, your spouse’s friendship with a coworker does not qualify as proof of adultery. Proving adultery as grounds for divorce means proving sexual intercourse occurred.
There is another added layer of difficulty as well: because Virginia considers adultery a crime, your spouse can “plead the Fifth”. The Fifth Amendment protects US citizens from self-incrimination. A spouse can invoke their Fifth Amendment rights during the divorce proceedings and refuse to give any evidence regarding adultery. The court cannot use the invocation of the Fifth Amendment against an alleged adulterer.
So what type of evidence do Virginia adultery laws require to prove adultery? Though your spouse cannot incriminate themselves through testimony or deposition if they invoke their Fifth Amendment rights, texts or emails they sent can go a long way in proving adultery.
But the wording of the messages is key. Emails planning romantic dinners don’t necessarily prove adultery. You need something more solid as the core of your case.
For example, if your spouse admits to adultery to you in a text or an email, that can serve as the core of your case.
With that evidence, other texts and emails that prove nothing on their own become more valuable as corroborating evidence.
Corroboration of the Evidence in Virginia Divorce Court
Virginia adultery laws require corroboration of the evidence in a divorce proceeding. Corroboration means evidence or testimony from some outside source, not your word or even your spouse’s confession.
This is where all those other texts and emails come in handy. Corroborating evidence does not have to be eyewitness testimony. If you have a confession from your spouse, or if you have photo evidence of their affair, messages planning romantic dinners will become more incriminating.
Many citizens of Virginia choose to prove adultery by hiring a private investigator to follow their spouse. A good private investigator can provide the powerful evidence Virginia adultery laws require to prove adultery.
Defenses to an Adultery Charge
Apart from the Fifth Amendment, there are also other defenses for the alleged adulterer that Virginia adultery law recognizes. It is important to be aware of these defenses so you will know if any of them apply to your situation.
- Condonation. Condonation occurs if one spouse discovers the adultery, and resumes a relationship with their spouse. So if you discover your spouse is having an affair and you take them back, you can no longer use adultery as a grounds for divorce unless a new instance of adultery occurs.
- Connivance/Procurement. Connivance or procurement is when the “innocent” spouse encourages or facilitates the adultery.
- Recrimination. Recrimination is proof that the accusing spouse is also guilty of a fault-based grounds for divorce. For instance, if a wife is accusing her husband of adultery but the husband can prove his wife is also guilty of adultery, recrimination is a possible defense.
- Time-barred. Adultery has a five-year statute of limitations. If the instance of adultery occurs more than five years before divorce proceedings begin, the court will not grant the divorce based on adultery.
Impact of Adultery in a Virginia Divorce
Though adultery is technically a crime, Virginia adultery laws don’t exact any type of fine or punitive damages from the adulterer. Adultery also does not affect child custody in most cases. But adultery does have some impact on the outcome of the divorce.
Property Distribution
Virginia adultery laws require the courts to take one party’s adultery into account when dividing the marital estate. But this will only have a dramatic impact on your share of the estate if you have a particularly sympathetic judge. Most judges will choose to adhere to case precedent and award the usual 50% division.
The cases where adultery does have a significant impact on the division of property are when the adultery has “economic consequences”. This means that if your spouse, for instance, spent all your savings in pursuit of their affair, the court will factor that into the division of property.
This is to ensure the courts do not inadvertently punish you for your spouse’s romantic vacations that did not include you.
Spousal Support
This is an area where proving your spouse’s adultery is always to your advantage.
If your spouse has committed adultery, the court will not award them any spousal support. This means if you were the primary breadwinner and your spouse has an affair, you won’t be responsible for any monthly amount of alimony.
The Pros and Cons of Divorce Based on Adultery
There are advantages and disadvantages to filing for divorce on grounds of adultery in Virginia.
First of all, there is no waiting period for an adultery-based divorce. With other grounds for divorce like cruelty or desertion, there is a one-year waiting period. But it is important to remember that if your spouse contests the divorce, there could still be many months of court battles.
Successfully filing for divorce on the adultery ground also prevents your spouse from receiving spousal support.
There are also plenty of disadvantages to filing for divorce on adultery grounds. For one, it’s difficult to prove. The standard of proof is very high. Even if you have evidence or even if your spouse admits to an affair, the court may not grant you a divorce. There are a few defenses to adultery, after all. For instance, if your spouse asserts that you “condoned” their affair and the court believes them, it will not grant your divorce.
Contact the Manassas Law Group
Filing for divorce on grounds of adultery is fraught with complications and requires an experienced family attorney. For more information on Virginia adultery laws or to discuss your case, call the Manassas Law Group at 703.361.8246. You can also send us a message online to schedule your consultation.
