My Spouse Cheated… So, What Do I Get?

Posted on December 14th, 2012, by James Livesay in Divorce, Family Law. Comments Off

Spousal Support in VirginiaWhen someone rear-ends you at a stoplight and you end up with a broken leg, they (or their auto insurance carrier) pay your medical bills, plus a little extra for your pain, suffering and inconvenience. If your doctor commits medical malpractice in the course of your healthcare, you are compensated in a similar fashion. If you slip on a wet floor at the supermarket, again, the supermarket may have a duty to make things right.

But what about a cheating spouse? Does the law compensate for a broken heart in the same way as a broken leg? Do Virginia courts require your wandering spouse to “make things right” in hard, monetary terms? Will a judge sway a divorce settlement in your favor since you are, after all, the wronged spouse?

Not exactly.

In stark, unforgiving terms, your spouse’s infidelity does not require him or her to fork over more than your share of the marital assets. Virginia law does not exact any type of “fine” or punitive damages from your spouse. So, even though you may feel your cheating spouse wrecked the marriage with their indiscretion, you will not automatically receive more than 50% of the marital portion of their 401(k) as compensation. A sympathetic judge may award you a slightly larger share in select circumstances, but the emphasis here is on “may” and “slightly.” Most judges will adhere to the Virginia Code and case precedents, which dictate that adultery has no effect on equitable distribution of assets. In a seemingly cruel twist, Virginia law also guarantees your philandering spouse his or her share of your contributions to the marital estate. So, don’t presume that your pension is off the table simply because your spouse had an affair.

There is a caveat worth mentioning here. If your spouse dissipated the marital assets in the pursuit of his or her secret tryst, the court will account for this factor in the division of assets. This is to ensure that you are not financially penalized for your spouse’s spontaneous weekends to the Poconos that did not include you.

Take heart, however– all is not lost. There are some legal mechanisms that may help you after your spouse cheats.

First, adultery is usually an absolute bar to spousal support. That means if you were the primary breadwinner during the marriage and would normally owe some monthly amount to your ex-spouse after divorce, that is probably now off the table. If he or she cheated, he or she receives nothing– except in very limited circumstances.

Second, Virginia law acknowledges adultery to be an “at fault” ground, which allows you to file for divorce immediately. This is not to say you would want to, but the option exists if you need closure sooner. Without an at fault ground, you would be required to wait the statutory separation period before filing for divorce.

Finally, adultery provides some helpful leverage in negotiating a favorable settlement. While some adulterous spouses seem completely impervious to the proverbial airing of “dirty laundry,” the arguable majority would prefer to retain some dignity and move on with their lives. When the alternative is having one’s indiscretion showcased in open court, many such spouses agree to give their wronged ex a little more home equity, provide a tad higher support payment, or maybe take on slightly more credit card debt. A good attorney will help you.

This is a very brief overview of the subject, and there are many more variables and legal nuances that factor into a divorce based upon adultery and negotiation of a favorable settlement if you are the wronged spouse. If you discover that your spouse is engaged in an adulterous relationship, contact us to schedule a consultation with one of our divorce lawyers immediately. We can discuss your particular situation, including your legal options, likely outcomes, and most effective case strategies.

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Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s three offices.

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