If you believe your spouse is engaging in an extramarital sexual relationship, you are probably considering filing for divorce on the ground of adultery. Adultery is not only a ground for divorce in Virginia, but it is also a class four misdemeanor under Virginia Code § 18.2-365. While asserting the ground of adultery may seem like the most straightforward and beneficial path for your divorce suit, you should be aware from the outset of certain obstacles, and be prepared to carefully weigh the pros and cons of filing on this ground.
Let’s start with the pros. Filing for divorce on the ground of adultery may be personally cathartic for you. In so filing, you are definitively stating that your spouse has behaved badly in your marriage. Furthermore, you are forcing your spouse to defend his or her behavior, and you may finally get answers to some of your questions. Another positive aspect of filing on the ground of adultery is that there is no waiting period; you can file immediately and get your divorce finalized sooner rather than later (at least in theory). Finally, successfully proving that your spouse committed adultery may well prevent him or her from receiving spousal support.
Unfortunately, there are also cons to filing for divorce on the ground of adultery. First and foremost, proving adultery is not easy—it requires “corroboration.” While you may use circumstantial evidence like hotel room receipts or love letters, the standard of proof required for adultery is “clear and convincing evidence.” Whether the court will find your evidence sufficient to meet this high standard will depend on how credible the judge finds you or your spouse, and how specifically you can prove the time, place, and circumstances of the alleged extramarital affair(s). Another difficulty is that because adultery is a crime in Virginia, your spouse may invoke his or her Fifth Amendment privilege against self-incrimination rather than testify under oath. This claim of privilege may not be used against him or her. Unfortunately, this could leave you with a lot of empty testimony and insufficient evidence.
Finally, if you are debating whether or not to divorce your spouse on the ground of adultery, you should know that “condonation” is an affirmative defense for your spouse. In other words, if your spouse claims and the court believes that you “condoned” the adulterous behavior, the court will not grant you a divorce based on the adultery. Condonation essentially means “forgiveness,” which can be shown through your decision to resume sexual relations and continue living together. However, a new act of adultery by your spouse post-condonation may reactivate your adultery ground for divorce.
If you have questions about filing for divorce based on adultery, it is best to speak with an experienced attorney right away. The divorce lawyers at Livesay & Myers, P.C. have years of experience in proving and defending against adultery grounds for divorce in Virginia. We represent clients in Manassas, Fredericksburg, Fairfax, and throughout Northern Virginia. Contact us to schedule a consultation today.