Some Virginia adultery stories are sad and sordid, like the case against Christina Wang. Ms. Wang resides in jail as she stares down murder charges in the 2023 death of her estranged husband Calvin. Before your divorce reaches the extremes of the Wang v. Wang divorce, consider how adultery can affect your family law case.

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Adultery Definition

A few Virginia laws have murky meanings. You might have to parse the law books very finely to discover what constitutes “buggery” versus “sodomy” for example. But the law gets down to brass tacks on adultery. Virginia law spells it out:

“Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery…”

The legislators do not care about the gender of either spouse or the person with whom that spouse commits adultery. Married people having sex outside marriage are committing adultery.

While they do not define “sexual intercourse” anywhere in the Code of Virginia, elsewhere in the law books they get very specific in separating sexual intercourse from other activities like nudity, masturbation, and assisted conception.

So by process of elimination (with Virginia Code § 18.2-346 having – er — laid out cunnilingus, fellatio, and anilingus), whatever remains for two folks to do to and with each other can be considered sexual intercourse.

Adultery and Marriage Status

The next bit of that criminal law to unravel is “any person not his or her spouse.” In Virginia you are either married or unmarried:

  • Incel or volcel or nun or monk — you are not married
  • Still madly in love for 50+ years with your wife — you are married
  • While you are separated awaiting divorce — you are married

Virginia has no “legally separated” status. You only get two choices: married or not married. And separated Virginia residents are married up until the final divorce decree.

Is Adultery a Crime in Virginia?

Virginia has reduced adultery to a misdemeanor offense under Virginia Code § 18.2-365. The law reads that an adulterer is guilty of a crime that is “punishable as a Class 4 misdemeanor.”

What are the penalties for a Class 4 misdemeanor, you ask? We have to thumb through Code of Virginia to § 18.2-11 where we learn:

The authorized punishments for conviction of a misdemeanor are … (d) For Class 4 misdemeanors, a fine of not more than $250

Some Virginians spend more than $250 on monthly streaming services. You or your spouse may even consider such a “punishment” as simply the cost of — er — doing business.

And bear in mind that $250 is the maximum fine. So to recap at this stage of the story:

  • You commit adultery in the eyes of the law if you have sexual intercourse with someone other than your spouse even while you and your spouse are legally separated
  • The legal penalty for committing adultery is laughably minor

Proving Adultery in Virginia

In addition to the almost nonsensically small penalty for adultery in the Commonwealth, the victimized spouse must prove adultery in court. Most attorneys will tell you, proving adultery is extremely difficult.

Adultery is one of the few fault grounds for divorce, as outlined (rather murkily) in Virginia Code § 20-91. (That’s the same Code that mentions sodomy and buggery without bothering to define either.)

A fault ground is your ticket to a speedy divorce, but it leaves an indelible stain on everyone: your spouse, you, perhaps your children. It is a scarlet letter, a nasty legal mark against you on your permanent record.

To successfully prove your spouse committed adultery, you need corroborating evidence, which comes in two types:

  • Direct evidence — Your spouse’s written or recorded confession, photographs, video of the act (without audio), eyewitnesses, e-mails, text messages, love letters and the like
  • Indirect evidence — Circumstantial evidence such as hotel registration records, credit card receipts, your spouse’s inclination to commit adultery, and an opportunity

Proving adultery can be very expensive. You may need to hire a licensed private investigator. Your family law attorney will consume a lot of time and your money advancing your argument. And all for what? To get a $250 fine against your spouse and speed up your divorce.

Condonation of Adultery in Virginia

The unfortunate case of Wang v. Wang illustrates some of the problems with proving adultery. Christina Wang’s attorney has claimed condonation in defense of her adultery. Condonation is the tacit approval by the aggrieved spouse. Condonation is demonstrated if:

  • The victimized spouse becomes aware of adultery, and
  • Continues to cohabitate with the adulterer, and
  • Continue to have sexual relations with the adulterer

This defense weakens an assertion of adultery: you knew about it, forgave your spouse by continuing to live together and have sex, and so you cannot be aggrieved. Such an argument is effective with an open marriage, swingers, and two people too battered and broken to end their marriage.

A truly awful way to simultaneously ruin an adultery charge and reset your separation calendar for divorce is for you and your separated spouse to — er — shake the sheets just once during your time apart.

Do some horizontal bone burying while you are claiming adultery and you just condoned your spouse’s behavior. No more fast track to divorce.

Then all you can do is start the six-month waiting period (without children) or 12-month waiting period (with children) for your divorce.

One more recap and then we are out of here:

  • Sexual intercourse with anyone other than your spouse, even while separated, is adultery in Virginia
  • Adultery in Virginia is a misdemeanor offense that is difficult and costly to prove
  • Even a one-night resumption of marital relations with your separated spouse destroys any adultery charge
  • That one-night roll in the hay instantly delays the eventual divorce and extends the waiting period up to a year

Chat with an Experienced Divorce Attorney

Sex is (usually) really good for your health. Sex can be rough on the furniture and deplete some kitchen items, but everyone expects two grown, consenting adults to partake.

If you hope to penalize your spouse for banging boots, you cannot carve out a double standard for yourself. If you two are separated and have healthy sex lives, leave that aspect of your relationship out of any divorce proceedings. Both of you, technically and legally speaking, commit adultery if you “see someone else,” butter the biscuit, or plant the parsnip.

Talk with an experienced family law attorney to get the best strategies for separation and divorce. Ask for clarification on defending against charges of adultery if you worry you have committed it. Ask about the wisdom of making a charge of adultery against your spouse.

We hope we earned your respect in this informative piece by refraining from using murder defendant Christina Wang’s last name in connection with, to quote Virginia law, “sexual intercourse.”

And please, practice safe ex sex.

Contact The Firm For Men today or call our office at (757) 383-9184 to arrange an initial consultation. We work only with Virginia’s men to secure their rights and ensure restful nights (because you will sleep like a baby knowing your case is in good hands; that’s all we meant).