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Adultery, Condonation and Recrimination in Virginia Divorce

Adultery is a fault-based ground for divorce in Virginia that a spouse can use to access the courthouse much earlier than having to wait for the statutory separation period to run before seeking legal relief. However, the wronged spouse should know that their ground for divorce must be defended by abstaining from sexual intercourse with their spouse from the moment they discover the infidelity. Those whose spouses have engaged in adultery must also avoid “getting revenge” by committing adultery in return. A failure on either count could result in a loss of the ability to secure a divorce on the ground of adultery.

“Condonation” is defined in the same way across several case law examples in Virginia:

Condonation is the remission, by one of the married parties, of an offense which he or she knows the other has committed against the marriage, on the condition of being continually afterward treated by the other with conjugal kindness. However, condoned adultery is revived where the guilty party resumes his or her association with his or her paramour. Kidd v. Kidd, 2014 Va. App. LEXIS 236 (Va. Ct. App. 2014); Brown v. Va. State Bar ex rel. Sixth Dist. Comm., 886 S.E.2d 492 (Va. 2023).

In plain language, this means that should the wronged spouse re-engage sexually with the adulterous spouse after discovering infidelity, the wronged spouse can no longer claim that instance of adultery as a ground for divorce. Generally, a single act of sexual intercourse after the innocent party has knowledge of the adultery is regarded as condonation. Tarr v. Tarr, 184 Va. 443 (Va. 1945).

However, this is not always the case, as more recent case law examples have highlighted instances where the adulterous spouse solicited the condoning act, and thereafter displayed no intent to reform whatsoever. In such instances, a lone misstep has been held insufficient to constitute condonation.

Regardless, in all cases, what is consistent is that having adulterous sexual relations after the condonation occurs revives the previously condoned adultery. Even after being forgiven for a discovered act of adultery, if the adulterous spouse commits further acts of adultery, then the grounds for divorce are revived.

Furthermore, Virginia courts have also held that one cannot condone what one does not know about. Condonation requires knowledge. Therefore, if the wronged spouse does not know of the adultery and continues to be sexually active with the adulterous spouse, then condonation has not occurred.

Condonation is an “affirmative defense,” meaning that the party invoking condonation must specifically plead and prove that condonation occurred. If condonation is then proven or admitted to, the court may deny a fault-based divorce on those grounds.

“Recrimination” functions in much the same manner. The wronged spouse must approach the court for relief with “clean hands,” meaning that they themselves cannot be guilty of the same conduct from which they are pleading for relief. Otherwise, the original adulterous spouse may invoke the defense of recrimination. If after discovering adultery, the wronged spouse commits adultery as well, they have effectively barred themselves from an adultery-based divorce.

Adultery, as it remains a misdemeanor crime in Virginia (though it is never prosecuted), carries with it several strong ramifications for the divorce process. Adultery can function as a bar to receiving spousal support, and if an affair is exposed to any of the parties’ minor children, it can negatively impact the adulterous spouse’s custody and visitation rights. This is why even if you have informally reached an understanding with your spouse to separate, it is vital that you remain celibate. Failing to do so still constitutes adultery, and could void important protections you otherwise might have.

For more information on this topic, see Adultery and Divorce in Virginia.

If you are in a marriage in which either party has engaged in adultery, be sure to consult with an experienced family lawyer to review your options. The family law attorneys at Livesay & Myers, P.C. are experienced with every ground for divorce available in Virginia. Contact us to schedule a consultation today.