How Does Adultery Affect Divorce?

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While no divorce is easy, divorces involving adultery can add new layers of complexity. Not only can they be especially emotionally straining, but there are also significant legal implications. If you are facing a divorce that involves adultery by either or both spouses, consider speaking to an experienced Virginia divorce attorney as soon as possible. Call the Law Office of Afsana Chowdhury at (703) 782-4818 to set up a consultation with a compassionate and skilled Virginia family attorney.

How Does Adultery Affect Divorce in Virginia?

There are numerous ways in which adultery can affect a divorce in Virginia.

Divorcing on Grounds of Adultery in Virginia

One of the most significant ways that adultery can affect a divorce is by serving as a ground for divorce. Spouses generally need to establish a reason for their divorce. In some “no-fault” cases, where the couple simply chooses to separate, there does not have to be a specific ground for divorce. For example, if a couple without minor children chooses to separate, they must only live “separate and apart” from each other for six months in order to establish a ground for divorce.


Adultery, however, is an at fault ground for divorce, according to Virginia Code Section 20-91, which means the offending spouse is to blame. An at fault ground like adultery may also have consequences on the distribution of assets and spousal support, in addition to the tremendous emotional impact it tends to have on the divorce proceedings.

Adultery May Impact Distribution of Assets

When divorcing, the couples may agree to how they wish to distribute their marital property, but in many contentious cases, the court must decide. When deciding how to equitably distribute assets, the judge must consider the factors that caused the marriage to fail. Adultery, for example, could be considered a condition that led to the dissolution of the marriage. Although adultery is not a complete bar to receiving a fair split of the assets, an adulterous relationship that caused the breakdown of the marriage or harmed the couple’s economic position may be considered in the division.

Adultery as a Bar to Spousal Support

When a couple divorces, one spouse may be entitled to spousal support, also known as alimony. The purpose of spousal support is to allow both spouses to keep up their current standard of living and provide for the needs of the spouse who earned less income in the marriage. Adultery can bar that spouse from being able to receive spousal support.


In Virginia, a guilty spouse is not allowed to be awarded permanent maintenance and support unless there would be a “manifest injustice,” according to Virginia Code Section 20-107.1.

Adultery is a Crime

It is also important to note that adultery is still considered a crime in Virginia. It is punishable as a Class 4 misdemeanor.

How Do I Prove Adultery in My VA Divorce Case?

Proving adultery is often an unpleasant and emotionally draining aspect of a divorce because it must be proven by establishing “clear and convincing evidence.” A mere suspicion or gut feeling will not suffice. Consider speaking with an experienced Virginia divorce attorney to identify the best way to prove adultery in your divorce case.


First, there is a specific definition of adultery in Virginia that you must meet. In Virginia, adultery is limited to voluntary sexual intercourse with a person who is not his or her spouse. Virginia Code Section 18.2-365. It is also generally limited to intercourse between a man and a woman. Therefore, proving adultery means providing the court with clear and convincing evidence that your spouse in fact had sexual intercourse with another person, rather than an emotional affair or engaging in physical contact that is not sexual intercourse.

Next, you will generally need to corroborate the adultery by providing evidence from another source, like a witness or a text or email exchange. The evidence needs to prove fairly conclusively that your spouse had sexual intercourse with another person, even if only by circumstantial evidence. In extreme cases, a spouse may even hire a private investigator to obtain photographs or other evidence of a romantic affair. In other cases, the offending spouse may have explicitly admitted the affair, which makes proving adultery slightly easier, however, you must also provide corroborating evidence.

Does Adultery Affect Child Custody in VA?

Adultery generally does not directly affect child custody in Virginia, as it does spousal support and equitable division of the assets. However, the ultimate guiding principle in child custody determinations is the best interest of the child. Because most affairs do not directly impact the child, Virginia courts are less likely to consider infidelity in determining the best interests of the child. That being said, affairs can weigh very heavily on a family, and in many cases, affect the child’s preference as to which parent they would like to live with. A court could consider infidelity as influenced by poor economic or emotional health, or even as a sign of the offending parent’s inability to devote the necessary care and attention to the child.

Talk to a Virginia Divorce Attorney

Adultery in divorce can be devastating to a family, but both spouses deserve fair representation. If you are experiencing a divorce as a result of infidelity, consider speaking with an experienced Virginia family lawyer to help ensure your legal rights are protected. Call the Law Office of Afsana Chowdhury at 703-782-4273 to set up a consultation.

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