Few wounds in a crumbling marriage cut as deeply as adultery. Finding out your wife cheated on you constricts you like a coiling snake, cutting off options and taking the breath from you. You react, separate, and then file for a Virginia divorce. You seek an attorney focusing on protecting your rights as a man, and together you move ahead with a divorce based on her fault: her adultery. Do you still have to pay spousal support? The answer lies in the Code of Virginia, and may be small compensation for the hurt she inflicted.
Adultery is a Crime
Adultery, under Code of Virginia § 18.2-365, is defined simply as
“Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.”
This makes it a crime, which must be proven legally. That is your first hurdle: proving your wife committed adultery. Adultery is one of the fault grounds for divorce in Virginia. In fact, it is the first fault mentioned in Virginia Code § 20-91:
“A divorce from the bond of matrimony may be decreed for adultery; or for sodomy or buggery committed outside the marriage …”
Can Your Prove She Committed Adultery?
Since adultery is a crime, the court requires “clear and convincing evidence” that your wife cheated. This could be circumstantial evidence like hotel receipts or legally obtained text messages and e-mails.
Not only do you need clear and convincing evidence, you need multiple strands as corroboration, so just media messages are not enough. You need outside sources, such as testimony from former friends, a bartender, front desk clerk or the like. You are not required to have eyewitnesses, but proving adultery is often challenging.
The Virginia divorce decree granting you a full divorce from your adulterous wife will also identify the grounds as adultery, and identify her as at fault. This is important because without fault grounds you have no way to affect later issues of child custody, visitation, or spousal support.
No Waiting, In Theory
Adultery is a fault ground for divorce, which means you do not have to wait six months (if you have no children) or a year (if you have children) to move from separation to final divorce. Virginia’s court system labors under too many cases and too few judges and clerks, so you may still be waiting an entire year from the time you discover her adultery to the day you are finally divorced, but you do not have to wait idly through a period of separation before filing for divorce.
When Will the Court Consider Spousal Support?
After your divorce is granted, the court will consider spousal support. This is where Code of Virginia brings its weight to bear in your favor. We quote here the entire first sentence of the preamble of § 20-107.1 (E) because you are going to enjoy this:
The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision A (3) or (6) of § 20-91 or § 20-95.
This is poetic justice. That little preamble orders a Virginia judge to take into account your wife’s proven guilt as an adulterer. It does not just list adultery as one of several circumstances, either, but names it explicitly without offering up the other grounds.
The phrase often associated with this is “manifest injustice.” It would be a manifest injustice to force a victim of adultery —you to pay an adulteress — your ex-wife — for inflicting that wound on you.
Manifest Injustice and Why You Just Might Have to Pay Up
The many authors of the Code of Virginia like the phrase “manifest injustice.” They like it so much, the two words appear 13 times throughout the Code. We quoted nearly all of the beginning of § 20-107.1 (E) to offer you a strong ray of hope amid the dismal darkness of your divorce. But the “manifest injustice” of § 20-107.1 actually appears elsewhere, and may snuff a bit of that hopeful light. Under § 20-107.1 (B) we find this zinger, with our added emphasis:
B. … 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. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.
So, theoretically, if your cheating, no-good, ornery cuss of a wife committed adultery and you went through all the right moves to end that ruined marriage, she could still collect spousal support. How? Two key parts:
- Respective degrees of fault
- Relative economic circumstances
If she committed adultery but you were convicted of a felony, you were both at fault. If she committed adultery and you condoned it, that removes her adultery as a fault ground.
If you just won the Virginia Lottery (we do not mean a Bullseye Bingo card, we mean big bucks, like Bank a Million) and she is living on peanut butter and crackers, you could be compelled to provide spousal support. That is manifest injustice, in our humble opinion.
In addition to the information we offer here, we also offer personal consultations at The Firm For Men. Please call our offices, 757-383-9184, or contact us online, to speak with one of our attorneys. We can help you with your contested divorce, spousal support, and more.
