Taboo Topics: Adultery

This might be one of the more infuriating topics for my clients, and of course! You either wronged someone and are in my office spilling the tea, or your loved one is in my office asking how you can be raked over hot coals and fed to wild dogs. So…I’m going to give you the skinny on adultery.

Legally what is adultery? 

Pure and simple: adultery is a sexual act with another person or enough evidence that a sexual act most likely occurred. Here’s the law school example: Sally and John are seen pulling up to a house, they walk in holding hands, kissing, the curtains close, and the next morning someone leaves. To accuse someone of adultery you have to be able to specifically lay out the circumstances of the adultery like time, place, and with whom. This is often a hurdle for anyone wanting to file a divorce based on adultery. 

In Virginia what can I do if my spouse commits adultery?  

Well, if you have those details, you can file for a fault-based divorce in Virginia before you have reached one year of separation, which is the normal separation time for filing if there are no-fault grounds for divorce. Proving adultery can in some cases bar your spouse from being able to receive spousal support. But there is one big hurdle to that, which is the court can still order support if not doing so would create a manifest injustice to the spouse who would be barred from receiving it.

What is a manifest injustice?

That is a call for a judge to make, but often a judge does not want to make a person dependent on state benefits if their spouse can support them. So, as an example, if your spouse has no employment from being a stay-at-home parent, that is very likely a manifest injustice.

What other things are affected by adultery? 

While it may be a factor the court looks at in dividing the marital property, I wouldn’t get your hopes up that the court strays off their general trend of dividing most marital property about 50/50 despite Virginia being an equitable, not equal distribution state. Courts hear about adultery a lot, and it just doesn’t play a very big factor in how they apportion marital property, if at all. And this is something that almost every client who is crying in my office when their spouse has committed adultery gets a little miffed about. 

Now if your spouse has wasted significant marital assets in support of their adultery, that might factor into a calculation, but often there has to be a large financial tie-in and not just adultery for it to have any real impact on property division. Why? Because there is an uncomfortable truth to adultery, which is: it normally isn’t the cause of your marriage ending. Adultery is a nasty symptom of someone’s needs not being met and them not being able to adequately express to their partner, or their partner not being able to meet that need. The underlying issues are about communication, and emotional and physical intimacy needs not being met, and the court often makes this conclusion, as well. 

Fun fact, adultery is still a crime in Virginia. But no one is going to arrest your spouse for committing adultery. Why is adultery being a crime important then? Because it means that the person who commits adultery, and the person they commit it with, if that person is also married, both can claim their 5th Amendment right against self-incrimination and refuse to answer questions or provide documents that may tend to prove the adultery. But, the court can draw a negative inference when someone refuses to answer a question relating to adultery based on the 5th Amendment. Complicated, but important stuff here, people, I promise.

Are their reasons that adultery won’t stick as a ground for divorce?

Certainly, there are affirmative defenses for adultery: 

• Condonation: If a spouse forgives the adultery, such as by saying they forgive the adultery or by having an intimate relationship and resuming the marital relationship with the partner that committed adultery after the adultery happened;

• Connivance: When a party okays the actions of the spouse committing adultery such as by giving approval, or signaling they are okay with, consented to, or encouraged the behavior;

• Collusion: when the other spouse is in on it – they want a party to have an affair so that both parties can file for divorce sooner, or they help invent the adultery;

• Recrimination: is when both parties are found to have fault grounds that lead to the divorce, including both parties having committed adultery. 

What should I do or not do if I suspect my spouse of cheating?

The Dos: 

✅ If you want to remain a couple, you need to immediately begin to address the root causes – the communication issues, and the needs that are not being met. If the intimacy in your relationship is dying, then do the hard work to rekindle it. Intimacy is incredibly important to a healthy marriage. 

✅ Do, gather financial information, pay attention to expenses and purchases, pay attention to social media, and pay attention to times, dates, and people your spouse is spending a lot of time with. (I hate to say it, but normal culprits are people frequently around the cheating spouse such as co-workers, persons that live in your home, or past partners that they still have a relationship with.)

The Don’ts:

❌ Do not do something that devalues your marital property: no bashing the car in, burning all of someone’s items in your fire pit, pouring their vintage bourbon collection down the drain (just to think of a few, not that I have ever heard these stories in my office, only movies y’all, only movies). 

❌ Don’t give your spouse an affirmative defense – don’t say you forgive the behavior, resume the relationship, commit adultery yourself, or other such behavior.

❌ Don’t log onto devices or accounts with their password, that is often grounds to get the information that you found barred from evidence and your attorney trying to pass off evidence they know was ill-gotten is ethically problematic and has large consequences for them and you.

❌ Don’t put a tracker on their car, wiretap, or record them. 

All of these actions are not only illegal, but this type of behavior also makes the spouse taking these actions look really bad in court, as well. The benefit of making the other spouse turn out to be a cheater is outweighed by how much of a jerk the spouse doing all these things to the other looks to a judge. 

How do I prove a case in court? 

This is difficult, costly, and time-consuming. The vast majority of people who file on fault grounds, end up actually divorcing on no-fault grounds. That’s a good thing. Most of the time, by the time it takes to get into court, people have calmed down. They have processed the anger, and just want out. In most cases, they even have settlement agreements by then.  

In court, you have to have evidence, and not just an admittance from the other side – videos, pictures, private investigator testimony, etc. It’s costly to prepare for court, because of the number of deadlines, providing exhibits to the other side, and going through the discovery process. And going to court isn’t quite how it looks in tv and movies. Even if you do…you might not get anything more in court than you would have with traditional no-fault grounds. It really all depends. If you want more answers or need advice on a family law matter, contact us and we are happy to educate you and discuss the issues going on in your life to best help you figure out the best next steps for you.