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How Does Adultery Affect The Divorce Process In Virginia?

How Does Adultery Affect the Divorce Process in Virginia?


When a marriage is ending, it triggers profound pain and loss. However, if one spouse was cheating, it can be even more emotionally devastating. This can lead to the wronged spouse making decisions out of a desire for revenge or punishment.

In the Commonwealth of Virginia, to be used as a ground for divorce, adultery must include a physical relationship that culminates in sexual intercourse. Although just as damaging, mental and emotional affairs are not considered adultery by the court. To use adultery as a ground, the spouse must prove that sexual intercourse occurred outside the marriage.

What Role Cheating Plays in Divorce

Adultery is a ground for a fault divorce in Virginia. Virginia Code  § 20-91 provides that divorce can be granted for adultery, sodomy, or buggery committed outside the marriage. Other grounds for divorce include conviction of a felony, cruelty, desertion, and concerns for bodily harm.

To successfully prove adultery as a fault ground, you must provide evidence to the court that your spouse committed adultery. This can be eyewitness testimony or circumstantial evidence. Surprisingly, even if the spouse admits to adultery, there also must be corroborating evidence.

In Virginia, adultery is also a Class 4 misdemeanor. This means it is also a criminal offense that is subject to a maximum punishment of $250. Unfortunately, this can make proving adultery more difficult since many spouses will not admit to adultery for fear of being charged with a criminal offense and many assert their Fifth Amendment right against self-incrimination in response to questions related to their adultery.

Although, recent changes to Virginia Code that took effect on July 1, 2020, undercut the ability of accused spouses to shield themselves with the  Fifth Amendment in divorce cases by permitting judges to make an “adverse inference” against the party invoking that right. This means judges are allowed to make negative conclusions or infer that they did cheat when they refuse to answer questions pertaining to their sexuality with partners aside from their spouse during the marriage.

Successfully proving adultery can bar the accused spouse from receiving  spousal support, unless there is convincing evidence that denying spousal support would be a manifest injustice.

Judges also consider adultery when the distribution of property and debts is decided. In Virginia, marriage is an economic partnership. When adultery leads to the dissolution of that partnership, it can affect the property. In this case, the guilty spouse may not be allowed equal distribution of the assets.

How Adultery Affects Spousal Support and Child Custody

In general, adultery or an affair is not considered when the court makes child custody decisions. In this case, the judge determines what is in the child’s best interest. They will investigate the parent’s ability to care for the child, as well as the child’s history with each parent and the parent’s ability to provide for the child.

While the custody law does not specifically list adultery, it can indirectly affect custody if the cheating spouse puts the child in a dangerous situation or exposes the child to their cheating.

Defenses to an Adultery Charge

If your spouse alleges that you committed adultery, there are several possible defenses allowed under the law. If one of these is successful, it will bar the divorce on the fault ground of adultery. One of these is that the accusation is time barred. Adultery has a 5-year statute of limitations in Virginia. This means that the suit alleging adultery must be filed within 5 years of the adultery taking place. If you are accused of committing adultery, the experienced attorneys at Taylor, Taylor & Taylor, Inc. can explain this and other potential defenses to you.

Contact Taylor, Taylor & Taylor, Inc. for an Experienced Family Law Attorney

If you are getting a divorce or considering a divorce, contact the experienced family law attorneys at Taylor, Taylor & Taylor, Inc. Our skilled and compassionate legal team will get to know the specifics of your case and customize a strategy to help protect your assets and your family. Call our office today at 804-266-9619 for your initial confidential consultation.

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