Adultery and Divorce in Virginia

AdulteryAdultery is a fault-based ground for divorce in Virginia. Unlike some other grounds for divorce, there is no waiting period before filing on the ground of adultery. Adultery can be very difficult to prove, but if proven may have serious financial implications in the divorce, particularly on the issue of spousal support.

Proving Adultery. Adultery occurs when a married person voluntarily engages in sexual intercourse with a person that is not his or her spouse.Virginia law requires that the proof of adultery be based upon “clear and convincing” evidence, a higher standard of proof than other grounds for divorce. Thus, to prove adultery, one must provide the Court with “clear and convincing evidence” that one’s spouse in fact had sexual intercourse with another person.

Virginia law also requires “corroboration” of the adultery—i.e., evidence or testimony from some outside source (not just your own word) that your spouse committed adultery. Eyewitness testimony, though, is not required. Adultery can be proven using other evidence of the circumstances involved.

Given the high standard of proof, and the corroboration requirement, adultery is notoriously difficult to prove, thus causing divorces filed on this ground to be among the most expensive in legal fees.

Defenses to an Adultery Charge. Virginia law provides several possible defenses to a charge of adultery. The successful establishment of any one of these defenses will bar the entry of divorce on the ground of adultery:

Condonation. Condonation occurs when the innocent spouse voluntarily continues to live with the adulterous spouse after learning of the adultery.

Connivance/Procurement. Connivance or Procurement occurs when the “innocent” spouse actually encourages or facilitates the adultery.

Recrimination. Recrimination is proof that the accusing spouse is guilty of one of the fault grounds for divorce. For example, if the wife is accusing her husband of adultery, but the husband can prove that his wife also engaged in adultery, then the husband could use the defense of “recrimination.”

Time Barred. If the divorce suit is filed more than five years after the adultery, the divorce will not be granted on the adultery ground.

Adultery and Spousal Support. Under Virginia law, adultery is no longer necessarily a complete bar to the adulterous spouse receiving spousal support. Rather, the Court may still award the adulterous spouse support in some cases, based on (1) the relative degrees of “fault” of the parties, and (2) the relative finances of the parties. For example, where a husband can prove his wife committed adultery, but the wife can show (a) that her husband earns much more money than she does, and (b) that her husband engaged in egregious behavior that was (rather than her adultery) the central cause of their breakup, then the court could still award the wife alimony.

Adultery and Property Distribution. Adultery may or may not have an impact on the Court’s “equitable distribution” of the property and debts of the parties—depending upon whether the adultery is shown to have had “economic consequences.”

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