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Will Evidence of Infidelity Impact My Divorce Case?

Many divorcing couples in Virginia grapple with the question of whether evidence of infidelity will affect the outcome of a divorce case. Even if you are planning to move forward with a no-fault divorce process, you or your former spouse may have questions about whether documented incidents of adultery will impact the legal process.

Understanding the legal implications of adultery in a Virginia divorce can help you manage your expectations as you enter divorce proceedings. Keep reading to learn whether adultery is considered when making important divorce settlement decisions, like property division or alimony.

Adultery & Fault vs. No-Fault Divorce in Virginia

Virginia law recognizes two types of divorce: no-fault and fault-based. A no-fault divorce may be granted without the need to prove wrongdoing by either party, often attributed to irreconcilable differences leading to a breakdown in the marriage. In these cases, it is unlikely that any past infidelity will have any bearing on the divorce proceedings.

On the other hand, a fault-based divorce requires the petitioner to prove that their spouse's misconduct led to the demise of the marriage. Under § 20-91 of the Virginia Code, adultery is explicitly listed as grounds for a fault divorce. Therefore, you or your soon-to-be ex-spouse may cite it as grounds for a divorce if you plan to go the fault-based route.

When Adultery Cannot Be Used as Grounds

Notably, under § 20-94, certain conditions are outlined whereby a claim of adultery might not be sufficient grounds for divorce. These include scenarios where the couple has voluntarily cohabited after the knowledge of adultery or if the infidelity occurred more than five years before the couple filed for divorce. Additionally, it cannot be used as grounds for divorce if it "was committed by the procurement or connivance of the party alleging such act."

Is Adultery a Crime in Virginia?

Interestingly, adultery is not only grounds for divorce but is also classified as a crime within the state. Specifically, § 18.2-365 of the Virginia Code decrees adultery as a Class 4 misdemeanor. Though this classification underscores the seriousness with which Virginia law regards marital fidelity, many see this as a relic of the past. Criminal charges for adultery are infrequently pursued in contemporary legal practices.

Impact of Adultery on Divorce Outcomes

Recognizing adultery as grounds for divorce inherently acknowledges its potential to impact divorce settlements. Should one party file for divorce citing adultery, or if adultery is proven in court, it can notably influence the division of marital property.

Virginia courts may consider the circumstances of adultery when determining how to divide assets between spouses equitably. While this does not mean the "innocent" spouse will automatically receive all or most of the assets, the presence of adultery could lead to a more favorable settlement for them, depending on the specifics of the case.

Adultery in Context with Dissipation of Marital Assets

When examining claims of adultery in divorce proceedings, it's crucial to consider how these allegations may interact with claims of dissipation of marital assets. Dissipation occurs when one spouse uses marital funds or assets for purposes unrelated to the marriage, especially in a manner that benefits them individually or in a way that is intentionally at the expense of the other spouse.

If adultery is proven, courts may scrutinize whether the adulterous spouse spent marital assets on their affair, such as gifts, trips, or housing for their affair partner.

Virginia courts are empowered to consider both the act of adultery and the financial implications of that behavior when making equitable distribution decisions. If it is determined that marital assets were indeed dissipated as part of adulterous activities, this could lead to adjustments in the division of property that serve to compensate the other party for what would have been their share of the wasted assets.

Effects on Alimony/Spousal Support

Equally important to consider is how evidence of infidelity might affect alimony or spousal support decisions. In Virginia, courts have discretion in awarding spousal support and can take into account the circumstances leading to the dissolution of the marriage, including adultery.

If a court finds that infidelity had a significant role in the breakdown of the marriage, this could result in a reduction or elimination of the amount of spousal support awarded to the unfaithful spouse. It is vital, however, to remember that each case is unique, and outcomes can vary greatly depending on the facts and evidence presented.

If you are going through a divorce and believe that infidelity may affect your case, reach out to our law firm for guidance. The divorce lawyers at The Law Offices of Daniel J. Miller are here to help.

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