Adultery in Virginia – What it Means and How it Affects the Virginia Divorce Process

While everyone has some idea about what adultery means in a social setting, it can be pretty confusing in a legal setting. That’s why DiPietro Family Law Group attorneys are here to give you a quick overview of how adultery is defined in Virginia, and what it could mean for your divorce process.

Adultery is specifically when one spouse, while still married, engages in a sexual relationship with someone who is not their spouse. Adultery is still a crime (misdemeanor) in Virginia, so even though it is rarely prosecuted, the “burden of proof” is higher. This means that there needs to be an “intermediate standard of proof,” or clear circumstantial evidence that adultery occurred, before a fault divorce and all that implies can be awarded. Since a divorce is still not within the grounds of a criminal case, there does not need to be proof of sexual intercourse, merely clear circumstantial evidence that makes it pretty obvious that sexual intercourse did occur. This could be pictures of the spouse and the alleged lover meeting privately at a home or hotel with no reasonable reason to meet. While phone calls and emails can be used to prove a relationship, they do not prove adultery by themselves, merely strengthen the circumstantial evidence.

There are two types of Virginia divorce, a “fault divorce” and a “no-fault divorce,” the former of which implies that one spouse had more to do with the ending of the marriage than the other. The grounds for a fault divorce in Virginia are as follows: abandonment, abusive conduct, felony conviction with a jail term of a year or more, and adultery. Even if adultery is proven, a fault divorce will not be awarded if the spouse committing adultery was forgiven by their spouse. Forgiveness can be proven if there is evidence that the aggrieved spouse was aware of the situation and continued to live or sleep with the spouse committing adultery.

If a spouse can prove that a fault divorce is called for, they do not have to wait the six months to a year to file for divorce, but instead can file right away. In Virginia, a judge is instructed not to give spousal support (also called maintenance) to a cheating spouse, unless doing so would be detrimental to their lifestyle to the point of injustice. However, if the judge does decide that spousal support is necessary for the party at fault, the fact that adultery occurred will not affect the amount of support they receive or how long they receive it.

Adultery can, however, affect the amount that the wronged party receives. Fault is considered when distributing the assets and money acquired in a marriage if some connection between the adultery and the economic status of the spouses can be made. For instance, credit card statements showing that expensive trips were paid for, gifts, or financial support was given to the lover of an at-fault spouse, this is taken into account when distributing the wealth, as well as any emotional or mental trauma suffered by their family whilst the relationship was going on.

Most importantly, adultery can be brought into the divorce case even if it occurred during the process of divorce. It would be wise to hold off on any sexual relationships until the divorce is final.

For more information on adultery and what it means for your Virginia divorce case, please feel free to watch one of our many informational divorce videos.

If you need assistance with your case, contact our experienced DiPietro Family Law Group Attorneys today at (703) 370-5555 to schedule a consultation. We can provide compassionate, strategic help throughout the process and give you back peace of mind and the strength to rebound from your crisis.

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