Marriages that are ending in divorce are complicated and emotional enough. When the marriage breaks down due to a cheating spouse, there are a lot of emotions and confusion to contend with. Once you’ve come to terms with the fact that your marriage is indeed over, filing for divorce is the next logical step in most cases.
Virginia is one of a handful of states that recognizes adultery when couples are filing for divorce. This can have devastating effects for the one spouse accused of having an affair.
Virginia Recognizes Adultery as Grounds for At Fault Divorce
Virginia Code §20-91 states that a divorce may be granted on the “fault ground” of adultery, sodomy, or “buggery” (other kinds of sexual acts) committed outside of the marriage. Adultery is deemed to be any sexual intercourse that occurs with someone other than your spouse. Fault grounds like adultery can impact the judge’s decision when it comes to dividing property, awarding alimony and in some limited instances, child custody.
Proving adultery can be a challenge however. The court must see clear and convincing evidence as required by law to grant a divorce based on the grounds of adultery.
The courts look at a variety of factors in determining whether to award spousal support, or alimony, during a divorce proceeding. However, if the adultery is the main contributing factor to the pending divorce, the judge can choose not to make the innocent spouse pay alimony to the spouse who cheated. In some instances, the judge may award some alimony but more limited than if the recipient spouse had not committed adultery. The only possible exception to this rule is when the judge looks at the guilt and overall financial situation of both spouses and determines granting no support would be grossly unfair.
Adultery is a Criminal Offense in Virginia
While the risk of prosecution is slim, adultery is classified as a Class 4 misdemeanor, which is the lowest level of criminal offenses in the state and subject to a maximum punishment of $250. This makes adultery harder to prove in some divorce proceedings as many spouses accused of adultery will invoke their Fifth Amendment Right against self-incrimination. Without an admission of guilt, proving adultery during the divorce proceedings is hard.
Adultery can Affect Equitable Distribution of Assets
One of the criteria judges use in determining the division of the couple’s assets is the circumstances that led to the divorce in the first place. Virginia Code §20-107.3(E) specifically includes adultery, felony conviction, cruelty, and desertion, as factors to consider. However, it doesn’t mean the judge will not award anything to the accused spouse.
Retaining a Virginia Family Law Attorney
If you are preparing to file for divorce, no matter whether it’s on the grounds of a cheating spouse, or not, retaining the right Virginia divorce attorney is important to protecting your rights and assets during this extremely emotional process. The attorneys at WhitbeckBennett have years of experience handling divorce matters. Contact our office today to schedule a confidential consultation and let us handle all the challenging legal aspects of an emotionally difficult situation like divorce.