Infidelity is one of the most painful experiences a person can endure. When the trust in a marriage is broken by an affair, it often leads to the difficult decision to divorce. In the midst of this emotional turmoil, a common and logical question arises: “Since my spouse was the one who cheated, do I get more in the divorce?”
In Virginia, the answer is complex. While the law does address adultery, its impact on the final divorce settlement may not be as straightforward as many people assume. This article explains how cheating can—and cannot—affect the outcome of your divorce in Virginia.
Adultery as a “Fault” Ground for Divorce
Virginia is a hybrid state that allows for both “no-fault” and “fault-based” divorces. Adultery is one of the primary fault grounds. To get a divorce based on adultery, you do not have to wait for the one-year or six-month separation period to end. You can file for divorce immediately.
However, there’s a catch: you must prove the adultery with “clear and convincing evidence.” This is a high legal standard. It means the proof must be more than just suspicion, text messages, or emails. It often requires corroborating evidence from a third party, such as testimony from a private investigator or a witness.
The Biggest Impact of Adultery: A Potential Bar to Spousal Support
The most significant consequence of adultery in a Virginia divorce relates to spousal support (alimony). Under Virginia Code § 20-107.1, a spouse who is proven to have committed adultery is generally not entitled to receive any spousal support.
There is a narrow exception to this rule. If the court finds that denying spousal support would constitute a “manifest injustice,” based on the respective degrees of fault during the marriage and the financial circumstances of the parties, it can still award support. However, overcoming the bar created by adultery is very difficult.
It is important to note that this rule applies to the spouse seeking support. If the financially dependent spouse commits adultery, they may be barred from receiving it. If the financially independent spouse (the one who would likely pay support) commits adultery, it does not automatically mean they have to pay more; it simply means the other spouse has a strong claim to receive it.
Does Adultery Affect Property Division?
This is a common misconception. Many people believe that a cheating spouse should be punished by receiving a smaller share of the marital assets. However, Virginia is an “equitable distribution” state. This means the court will divide marital property in a way that is fair and equitable, but not necessarily 50/50.
While the court will consider the “circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery,” it is just one of many factors. Unless the cheating spouse wasted a significant amount of marital assets on the affair (for example, buying expensive gifts, trips, or an apartment for their partner), the adultery itself is unlikely to dramatically shift the division of property. The court is more focused on the financial contributions and needs of each party.
Does Adultery Affect Child Custody?
Similar to property division, the court’s primary consideration in child custody and visitation matters is the “best interests of the child.” A parent’s infidelity is generally not a factor in a custody decision unless the behavior directly and negatively impacted the child.
For example, if a parent’s affair involved exposing the child to inappropriate situations, neglecting the child’s needs, or if the new partner poses a risk to the child, then the court may consider the conduct. However, the affair itself, without a direct negative impact on the child, will likely not be a deciding factor in the custody arrangement.
Infidelity Can Complicate Your Divorce. Get Clear Answers.
The emotional fallout from an affair is devastating, and navigating the legal system at the same time is incredibly challenging. It is crucial to have a clear understanding of your rights and how your spouse’s actions may impact the final outcome of your divorce.
The attorneys at Raheen Family Law can provide the compassionate guidance and strong legal representation you need. We will help you understand your options and fight to protect your interests. Contact us today for a confidential consultation.