Adultery is grounds for a fault divorce in Virginia. This is the blunt and legal truth. It is only the first, and possibly least distasteful, of eight grounds for divorce. Cheating in a Virginia marriage is cause enough for the aggrieved party to seek (and usually get) a divorce. Adultery must be proved, and, like discounts and most things legal, certain exclusions apply.
Adultery Laws in Virginia
The Code of Virginia pulls no punches: in Title 20, Chapter 6, Section 20-91, the law clearly states, “A divorce from the bond of matrimony may be decreed: (1) For adultery; or for sodomy or buggery committed outside the marriage…”
Leaving aside the unsavory topics of sodomy and buggery, adultery is the first of those eight grounds for divorce. You can decide for yourself if it is a prioritized list:
- Conviction for a felony that results in one year (or longer) incarceration
- Concern of bodily harm
- After living apart a year (no kids) or six months (with kids)
Certainly the list is arranged by the emotional devastation the particular event can bring. Adultery is one of the most jarring disruptions of marriage, according to the American Association for Marriage and Family Therapy. To be clear, the “emotional affair” of exchanging texts or even pictures with someone outside your marriage does not legally count in Virginia. Only sexual intercourse is grounds for divorce.
Can You Prove She Cheated?
Suppose your wife commits adultery; you and your attorney have to prove it in open court. As with most legal proof, evidence (something beyond your accusation) is needed. This evidence can be circumstantial, eyewitness testimony, or some other outside source. Even if your wife admits to the adultery, that is not corroborative evidence. Remember, too, you cannot legally gain access to her password-protected devices to try to recover photographs, texts or emails. Any such evidence you gain from those electronic records is inadmissible.
Your Adultery Defense
If you are the one charged with adultery and your wife has filed for divorce on those grounds, you have a few defenses you can raise:
- Your lawyer will likely ask if, after your wife became aware of the adultery, she still shared a bed with you (for sleeping and more). If so, she is condoning the adultery and you can cite 20.94 (Effect of cohabitation after knowledge of adultery, sodomy or buggery; lapse of five years) in your defense. This is the same law that sets the clock at five years–she cannot file for divorce if your adultery is five or more years in the past.
- Did she set you up? Suppose your wife, knowing your eye wanders when you see bleached blonde Virginia Beach babes (we’ll call them BBVBBs to save space), drags you to a bar with wall-to-wall BBVBBs and says she has to leave you there for five or six hours with only a wad of $100 bills to keep you company. If you committed adultery through her “procurement or connivance” she has no grounds to file against you. So sayeth the Code of Virginia 20.94, even if she drags a particular BBVBB into court to testify against you.
- Both of you got a little somethin’-somethin’ going? That is recrimination, and you can use her adultery as the reason you stepped outside the bounds of matrimony. It is not a strong defense, since you have to prove “she started it,” but it may serve.
How Adultery Affects Your Divorce Case
Adultery in Virginia has a powerful impact on a divorce case, but for different reasons in different circumstances. Adultery can be the fault grounds for the divorce. Or adultery can occur after divorce proceedings have begun. According to the Virginia Bar Association, adultery can affect property distribution and spousal support.
If one of you is proved in court to have committed adultery, the court may (but usually will not) distribute property from the marriage so that the aggrieved spouse gets a teensy bit more—cash, goods, stocks, or real estate.
If your wife commits adultery and it cuts so deeply that you file for divorce, she can expect no spousal support. Unlike some of the other fault grounds, adultery carries with it the power of Code of Virginia 20-107.1(B):
- Any maintenance and support shall be subject to the provisions of § 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse’s favor a ground of divorce under the provisions of subdivision A (1) of § 20-91.
Reach Out to a Men’s Divorce Attorney
Whether you need to defend yourself against charges of adultery in a divorce case, or have the misfortune of filing against an adulterous wife, contact The Firm for Men today or telephone our offices at 757-383-9184. We have experience in dealing with fault grounds in Virginia divorce cases, including the emotionally charged issues with adultery. We’re proud to serve Virginia Beach, Chesapeake, Norfolk, Suffolk, Portsmouth, Newport News, and Hampton with experienced, passionate representation.