There are a number of reasons that may lead a couple to separate or divorce. Of these, adultery can be especially difficult on both parties, and may have significant financial ramifications.
If you are considering a divorce based on adultery, continue reading to learn the pros and cons of filing on this ground.
What is a Divorce Based on Adultery?
In order to file for divorce based on adultery, one spouse must provide clear and convincing evidence showing that the other spouse engaged in in a sexual relationship outside of the marriage. This is a high evidentiary standard that generally requires evidence from a private investigator of the affair.
Although many relationships can be destroyed by one party having a mental or emotional affair, in order to file for divorce based on adultery, the affair must be of a physical, sexual nature.
Additionally, Virginia requires “corroboration” of adultery, such as testimony of a 3rd party, love letters, texts, or an email from the spouse admitting to a sexual relationship with someone else.
How Does Adultery Affect Divorce in Virginia?
While adultery is a factor that the Court must consider when determining the distribution of assets, adultery tends to have minimal impact on the equitable division of assets, unless evidence shows that the affair had economic consequences.
In addition, adultery is not an explicit factor that Virginia courts are directed to consider when it comes to child custody or visitation. An affair of one party could become significant in child custody and visitation matters, however, if the person having the affair exposes to the children to his/her romantic partner. The Court could view this as the parent’s inability to assess the children’s emotional needs, which is a factor the Court must consider in determining custody and visitation in the best interest of the children. A judge may also place limitations on when a spouse may introduce children to a new romantic partner.
With that being said, adultery can have significant impact on spousal support. In the event that a spouse is found to have committed adultery, that spouse is barred from receiving spousal support. There is a slim exception to the bar, called “manifest injustice,” where the court may award some support to a party who is found to have committed adultery if there is proof of a significant disparity in the parties’ incomes and proof that the spouse that did not commit adultery was also at fault for the demise of the marriage.
Should You Consider Filing for Divorce on the Ground of Adultery?
While a no-fault divorce in Virginia requires a 1-year waiting period, you may file for divorce on the ground of adultery immediately if you have sufficient evidence to allege the adulterous activity (including when and where it occurred). While you may file for divorce immediately, ultimately proving the adultery in a Virginia divorce case has its challenges. Adultery in Virginia is still a crime, so a spouse accused of adultery may assert his or her rights against self-incrimination (by pleading the Fifth Amendment) to any questions posed regarding their alleged affair.
There are also defenses to an allegation of adultery that the accused party may assert, including condonation. Condonation is when parties voluntarily resume sexual relations and continue living together after the innocent spouse learns of the adultery.
Learn More about Divorce Based on Adultery in Virginia
If you are considering a divorce based on adultery in Virginia or would like to learn more, please call Cooper Ginsberg Gray today to schedule a consultation with one of our seasoned family law attorneys.