What if my spouse is cheating?

Single Woman

In Virginia, adultery is still a crime and a ground for divorce. Adultery is the actual act of sex with a person other than a spouse.  

Single Woman Stands Alone

If you or your spouse has committed adultery, it is important to know how that will impact a divorce case. 

  1.  Adultery is a ground for divorce.  If one spouse is having sex with someone else, then the other spouse may ask a court for a divorce.
  2.  A spouse can give up the ground for divorce.  The non-cheating spouse could waive (so to speak) the ground for divorce. Once someone learns about their spouse’s adultery, they must not live together or have sex with them.  If they do, they may waive their right to ask for a divorce based on adultery. 
  3.  Adultery is a bar to spousal support – maybe.  The general rule in Virginia is that the cheating spouse cannot get permanent spousal support. There is an exception to this general rule. Under certain circumstances, a court can give a cheating spouse a spousal support award.  Also, this rule does not apply to temporary spousal support.
  4.  A court must consider adultery in dividing the property of the marriage. Virginia law requires this consideration.   So, if a spouse has cheated, the Court must consider that when dividing the marital property. The reason the marriage has dissolved is only one factor that the Court must consider. There are 10 others that the Court must consider, as well.  For adultery to make a real difference, usually, it must impact the financial condition of the marriage, marital property, or the family. 
  5.  Pleading the 5th Amendment. Adultery is a crime.  So, in a divorce, a person may refuse to answer questions about that crime. Technically, to exercise this right, a person must face a legitimate possibility of prosecution of the crime. This crime is almost never prosecuted. Yet, Courts allow parties to a divorce to exercise this right in refusing to answer questions about adultery. Until this year, exercising this right brought no harm to the person refusing to answer. As of July 1, 2020, if a person refuses to answer a question about adultery, the refusal can be used against them to prove the adultery. 

If you think your spouse is cheating, review the above and talk to an attorney. Often, a person who thinks their spouse is cheating pays a private investigator a lot of money to “catch” the spouse. Hiring a private investigator is an option – sometimes a good one.  You should talk to an attorney before you do so, however, so you can make the best choice possible to help you move forward through such a situation.

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