Is adultery relevant to my divorce?

In Virginia, adultery happens when a married person has voluntary sexual intercourse with an individual who is not a spouse. Adultery is hard to prove, and the standard of proof that must be met is higher than for other aspects of a divorce. Eyewitness testimony, text messages, and emails are types of evidence that can be used to establish that infidelity occurred. 

Having an affair can impact the outcome of a divorce, but the cheating spouse is not greatly punished for his actions. The following provides a brief look at how infidelity can affect decisions in a divorce.

Child Custody and Visitation #

A spouse’s adultery will not impact child custody and visitation. When making a decision on these issues, the judge must consider the best interests of the child. Having an affair is not one of the factors used to determine this. However, the judge could order that no visitation occur when the girlfriend or boyfriend is present until the divorce is finalized.

Property Settlement #

Infidelity can have some effect on the property division in a divorce. The court is allowed to consider it when dividing the martial property. This can result in the non-cheating spouse obtaining a slightly larger share of the property, but it will not happen in all cases.

The impact on the division of property is usually minor—for example a 55% percent award to the innocent spouse. However, it may be more relevant if it can be shown that the cheating spouse used marital assets in the pursuit of his affair.

Spousal Support #

Adultery can have the greatest influence on spousal support. A spouse who is having an affair will generally receive no spousal support. However, a judge could award a cheating spouse some support based on the following factors:

  • The finances of the parties
  • The degree of fault of each spouse in the divorce

Do you suspect your spouse is having an affair? You need an experienced and compassionate divorce lawyer in Midlothian to advise you of your options and whether it is worth your time and money to raise adultery in your divorce. Start a live chat to schedule a free consultation with a member of our legal team to learn how we can help.