When marriages end in divorce, couples experience profound pain and loss. But if adultery caused the breakup, it can be even more devastating. In addition to facing the loss of the relationship, you may have to cope with feelings of confusion, shame, guilt, betrayal, and anger. It will take time to work through your feelings, but a great way to stay grounded and move forward is to take charge of your situation by learning about your legal rights and responsibilities in the divorce process.
This article will explain the possible affects of adultery on divorce in Virginia and explain whether courts consider adultery when making decisions about alimony in your case. If you have any questions after reading this article, you should speak with an experienced family law attorney for advice.
At the outset, it's important to understand that there are two kinds of divorce in Virginia. The first is "divorce from bed and board," which is a partial or incomplete divorce that you can request when you and your spouse have separated.
You can resolve many of the traditional divorce issues with a divorce from bed or board, but you can't get remarried because the divorce is incomplete. You can only get a divorce from bed or board if one of the following occurred during the marriage:
There may be some strategic advantages to pursuing a divorce from bed and board, and if you think they might apply, you should talk about them with a family law attorney.
More common than a divorce from bed and board is a "divorce from the bond of matrimony," which is a complete divorce that finalizes all property, alimony, child custody, and child support issues. A divorce from the bond of matrimony completely severs the marital relationship so that the spouses can remarry once the court finalizes the divorce.
Virginia permits divorce from the bond of matrimony in "no-fault" circumstances—meaning that it doesn't matter who did what, and it's not necessary to sling mud in a courtroom.
All that matters is that the spouses have lived "separate and apart" without cohabitation (meaning, they haven't lived together or presented themselves to the world as spouses). To get a no-fault divorce, spouses with children must have lived separate and apart for at least one year; the court can grant a divorce to childless couples after six months.
Virginia also permits divorce from the bond of matrimony for fault-based reasons. "Fault" is marital misconduct committed by a "guilty spouse" against an "innocent spouse." A judge will grant a fault-based divorce if at least one of the following occurred during the marriage:
Note that you can get a divorce from the bonds of matrimony if there has been adultery in your marriage (unless you voluntarily cohabitate with the guilty spouse after finding out about the affair.) (Va. Code Ann. § 20-94.)
Today, adultery remains a criminal misdemeanor in Virginia. For a spouse to be found guilty of adultery in a divorce proceeding, the court must find that the married spouse voluntarily had sexual intercourse with anyone other than a spouse. (Va. Code Ann. § 18.2-365.) It's not enough to accuse your spouse of infidelity in the court documents. Instead, you'll need to prove that the affair happened by introducing witnesses, phone records, credit card or bank statements, or photos/video. (Va. Code Ann. § 20-106.)
If you divorce on the "grounds of" (meaning, because of) adultery, the final divorce order will say that there has been adultery in your marriage. This could have ramifications on other aspects of the divorce, like property division and alimony. Before you decide whether to pursue a divorce on the grounds of adultery, be sure to talk about your overall strategy with an experienced attorney.
Alimony (also called "spousal support" or "maintenance") is financial support paid from one spouse to another so that both spouses can maintain a relatively equal standard of living after the divorce. Judges in Virginia don't have a specific formula to calculate the amount and duration of support. Instead, courts evaluate each case individually using a series of factors outlined in state law. (Va. Code Ann. § 20-107.1 (E).)
In Virginia, marital fault may play a significant role in a judge's alimony decision. Before they even apply the factors, judges must consider the circumstances and factors contributing to the divorce, specifically including adultery. If your marriage ended because of an affair, then the court can't order the innocent spouse to pay permanent alimony to the guilty spouse.
However, if the judge considers the overall guilt and the economic circumstances of both spouses and decides that denying alimony to the guilty spouse would be a "manifest injustice" (meaning, grossly unfair), then the court can order the innocent spouse to pay alimony to the guilty spouse.
In general, court's don't consider whether one parent had an affair when it makes child custody or child support decisions. In Virginia, judges must determine what custody arrangement is in the child's best interest, including investigating each parent's abilities to care for the child, the child's history with each parent, and more. (Va. Code Ann. § 20-124.3.)
Although Virginia custody law doesn't specifically list adultery in the evaluation, adultery could indirectly affect custody if the parent exposes the child to a dangerous person or situation.
For self-help resources and more information on divorce, visit the Virginia Judicial System website.
If you need legal help but can't afford a private attorney, you may qualify for assistance through VALegalAid.org.