As divorce attorneys in Virginia, we’ve seen how infidelity can shake the foundations of a marriage, affecting each spouse emotionally and financially. Divorcing spouses often wonder about its impact on their divorce settlement. The short answer? Yes, cheating can indeed affect your divorce settlement in Virginia, but perhaps not in the ways you might expect.
Here, we explain how infidelity impacts a Virginia divorce. For further legal advice, don’t hesitate to consult with us confidentially at Holcomb Law.
The Impact of Adultery on Divorce in Virginia
In Virginia, adultery isn’t just a moral failing – it’s a crime. While rarely prosecuted, this classification can have significant implications for your divorce proceedings in the following ways:
Grounds for Divorce
In Virginia, adultery is one of the fault-based grounds for divorce. This means that if you can prove your spouse cheated, you may be able to file for an immediate divorce without the mandatory separation period typically required for no-fault divorces.
Let’s consider the scenario of Sarah, a wife who was devastated after discovering her husband’s affair. She was ready to end the marriage immediately, and thanks to Virginia’s adultery laws, she was able to file for divorce right away. This saved Sarah months of emotional turmoil and allowed her to start moving forward with her life sooner.
Financial Implications
Many people assume that if their spouse cheated, they’ll automatically be entitled to a larger share of the marital assets. However, it’s not that simple in Virginia.
While adultery can be a factor in determining spousal support (alimony), it doesn’t automatically guarantee a more favorable financial settlement. The court will consider various factors, including:
- The circumstances that led to the breakdown of the marriage
- The duration of the marriage
- The financial needs and resources of each party
- The standard of living established during the marriage
- The contributions, both monetary and non-monetary, of each party to the well-being of the family.
Judges are more likely to consider adultery in the financial settlement if it had a direct impact on the family’s finances. For instance, if the cheating spouse spent significant marital funds on their affair partner, the court might award the innocent spouse a larger share of the assets to compensate.
Custody and Visitation
When it comes to child custody and visitation rights, adultery itself isn’t typically a determining factor unless it directly affects the children’s well-being. The court’s primary concern is always the best interests of the child.
However, if the cheating spouse’s behavior has negatively impacted the children, then it could influence custody decisions. For instance, if the children were exposed to inappropriate situations or if the affair partner poses a risk to their safety, the judge would not look favorably on the unfaithful parent.
Proving Adultery in Virginia
If you’re considering using adultery as grounds for divorce in Virginia, it’s crucial to understand the burden of proof. Virginia law requires “clear and convincing evidence” of adultery, which is a higher standard than the “preponderance of evidence” used in most civil cases.
This means you’ll need more than just suspicions or circumstantial evidence. Typically, you’ll need to provide:
- Evidence of your spouse’s opportunity to commit adultery (such as hotel receipts and witness testimony)
- Proof of your spouse’s inclination to commit adultery (for example, love letters or explicit messages).
Note that obtaining this evidence must be done legally. Virginia has strict laws about privacy and surveillance, so hiring a private investigator or installing tracking devices without consent could backfire spectacularly.
For example, it’s not advisable to install hidden cameras in the home without the spouse’s knowledge. Not only is the evidence gathered inadmissible in court, but there is also the potential for criminal charges for invasion of privacy. Always consult with a lawyer before taking any steps to gather evidence of adultery.
The Fifth Amendment and Adultery
Here’s an interesting twist: because adultery is technically a crime in Virginia, an accused spouse can invoke their Fifth Amendment right against self-incrimination when questioned about the affair in court. This can make proving adultery even more challenging.
In practice, this means that even if you have strong evidence of your spouse’s infidelity, they can refuse to answer questions about it during divorce proceedings. While this doesn’t prevent you from presenting your evidence, it can limit your ability to get your spouse to admit to the affair under oath.
The “Clean Hands” Doctrine
Virginia also applies what’s known as the “clean hands” doctrine in divorce cases involving adultery. This means that if both spouses have committed adultery, neither can use it as grounds for divorce or as leverage in settlement negotiations.
There are sometimes cases where a spouse is ready to use their partner’s infidelity as a bargaining chip, only to have it backfire when their own indiscretions come to light. It’s a stark reminder that in divorce, as in life, honesty is often the best policy.
The Emotional Cost of Proving Adultery
While adultery has significant legal implications in a Virginia divorce, it’s crucial to consider the emotional toll as well. Proving adultery often requires airing intimate details of your marriage in court, which can be humiliating and traumatic for all involved, especially children, if any.
If you’re thinking about proving your spouse’s adultery, carefully weigh the potential benefits against the emotional cost. For some spouses, opting for a no-fault divorce and negotiating a fair settlement out of court can be less stressful and more beneficial in the long run.
Alternatives to Fault-Based Divorce
Given the challenges of proving adultery and the potential emotional fallout, many couples in Virginia opt for a no-fault divorce, even when infidelity has occurred. In a no-fault divorce, there is no need to prove wrongdoing by either spouse. The couple only has to cite “irreconcilable differences” and live separately for the required period: one year if they have minor children, or six months if they have none.
This approach can often lead to a smoother, less contentious divorce process. However, it doesn’t necessarily mean that the infidelity won’t be considered in settlement negotiations. Even in a no-fault divorce, the behavior of both parties during the marriage can be relevant when determining things like spousal support.
The Role of Prenuptial and Postnuptial Agreements
For some couples, the uncertainty around marital issues becomes motivation to create prenuptial or postnuptial agreements. These legal documents can specify exactly what will happen in the event of infidelity, potentially simplifying the divorce process if cheating does occur. A prenup or postnup can, for instance, dictate property division and alimony arrangements in a situation where one spouse cheats.
Creating a prenup or postnup doesn’t mean you’re anticipating infidelity in the marriage. Instead, it is a form of security to help prevent messy disputes in various marital situations. The spouses can agree on what would be fair to do, should a divorce issue arise. Prenuptial and postnuptial agreements can provide peace of mind and clear expectations for both parties.
The Importance of Legal Representation
Navigating a divorce involving adultery in Virginia can be complex and emotionally charged. That’s why it’s crucial to have experienced legal representation on your side. At Holcomb Law, we understand the nuances of Virginia divorce law and can help you understand your rights and options.
Whether you’re the spouse who’s been cheated on or the one who strayed, we’re here to guide you through the process and fight for a fair settlement. Don’t let the complexities of adultery in Virginia divorce law overwhelm you – call us today at (757) 656-1000 for a consultation.
FAQ: Does Cheating Affect Divorce Settlement in Virginia?
Q: How long do I have to file for divorce on the grounds of adultery in Virginia?
A: In Virginia, there is no specific time limit for filing for divorce on the grounds of adultery. However, it’s generally advisable to file as soon as you become aware of the infidelity and have gathered sufficient evidence to prove it.
That being said, there are a few important considerations: The longer you wait to file, the more difficult it may become to prove the adultery. Evidence can disappear or become less reliable over time. It’s generally in your best interest to consult with a divorce attorney and consider filing soon after discovering the infidelity. We at Holcomb Law can help you understand your options and the best timing for your specific situation.
Q: Will I have to pay alimony if my spouse cheated on me in Virginia?
A: The short answer is: possibly. While adultery is a significant factor in the court’s alimony decision, it’s not the only one. Even if your spouse cheated, you might still be ordered to pay spousal support if, for instance, there’s a significant disparity in your incomes or earning potential.
In Virginia, adultery can be a bar to receiving spousal support, except in cases where denying support would result in “manifest injustice.” This means that if your spouse cheated on you, they may be denied spousal support unless the court determines that it would be grossly unfair based on the financial circumstances of both parties.
However, this works both ways. If you committed adultery and your spouse is seeking a divorce on these grounds, you may be barred from receiving spousal support yourself.
The court considers several factors when determining spousal support, including the earning capacity and financial resources of each spouse. Every case is unique, and the outcome depends on the specific circumstances of your marriage and divorce. That’s why it’s crucial to work with an experienced divorce attorney who can help you understand how adultery might impact spousal support in your particular case.
Q: How does adultery affect property division in a Virginia divorce?
A: In Virginia, adultery doesn’t directly impact property division in the same way it might affect spousal support. Virginia follows the principle of “equitable distribution” when it comes to dividing marital property in a divorce. This means that the court aims to divide property fairly, but not necessarily equally.
While adultery itself isn’t a factor in property division, there are circumstances where it could indirectly affect the division of assets. An example is when the cheating spouse wasted or “dissipated” marital assets. If they used marital funds to support their affair (perhaps on expensive gifts, trips, or maintaining a separate household), the court may take this into account. The faithful spouse might be awarded a larger share of the remaining assets to compensate for this “waste” of marital property.
If you’re concerned about how adultery might affect property division in your divorce, it’s crucial to discuss your specific situation with an experienced divorce attorney. Talk to us at Holcomb Law. We can help you understand your rights and fight for a fair division of assets, regardless of whether adultery was a factor in your marriage’s dissolution.
Q: Can adultery affect child custody decisions in Virginia?
A: In Virginia, as in most states, the primary consideration in child custody decisions is always the best interests of the child. While adultery itself is not typically a determining factor in custody arrangements, there are circumstances where it could potentially influence the court’s decision.
For example, a parent’s adultery could cast doubt on their “moral fitness.” If a parent’s adulterous behavior has had a negative impact on the children (for example, if a minor was exposed to inappropriate situations), the court will take this into account.
Note that the court’s focus will always be on how the parent’s behavior affects the children, not on punishing a parent for infidelity. A parent who has committed adultery can still be awarded custody if the court determines it’s in the best interests of the child.
If you’re concerned about how adultery might affect your child custody case, it’s important to focus on demonstrating your ability to provide a stable, loving environment for your children. Document your involvement in their lives and your ability to cooperate with your co-parent despite personal conflicts. It’s best to have a lawyer’s guidance and representation to strengthen your position, especially as this situation can get highly contentious.
If Adultery May Be an Issue in Your Virginia Divorce, Call the Experienced Divorce Lawyers Holcomb Law
Whether you’re concerned about property division, alimony, or child custody after an infidelity issue, we at Holcomb Law have the experience and skill to assist you. For nearly 15 years now, we’ve successfully advocated for the rights and interests of Virginian spouses, even in divorce cases involving adultery. We can help you navigate these complex issues and present the strongest possible case. Reach out to us at (757) 656-1000 to consult on your specific situation.
