Adultery and Fault-Based Divorce Attorney

Where Fault Changes the Outcome

Spousal support. A spouse whose adultery supplies a ground for divorce is barred from permanent spousal support, unless the court finds by clear and convincing evidence that denying support would be a manifest injustice, based on the parties’ respective degrees of fault during the marriage and their relative economic circumstances. Va. Code § 20-107.1(B). Both considerations are required. Congdon v. Congdon, 40 Va. App. 255 (2003). A disparity in earning capacity, without fault on the other side, is not enough. Mundy v. Mundy, 66 Va. App. 177 (2016). Even where the bar does not apply, the court must consider the circumstances that contributed to the end of the marriage, specifically including adultery, in setting support, and that evidence is not limited to grounds actually pleaded. Chaney v. Karabaic-Chaney, 71 Va. App. 431 (2020).

Property division. In dividing marital property, the court must consider the circumstances and factors that contributed to the dissolution of the marriage, including any fault ground. Va. Code § 20-107.3(E)(5). Fault is weighed for its effect on the marital estate or the well-being of the family. It is “not a ‘wild card’ that may be employed to justify what otherwise would be an arbitrary or punitive award.” O’Loughlin v. O’Loughlin, 20 Va. App. 522 (1995); see Aster v. Gross, 7 Va. App. 1 (1988).

Dissipation. Marital money spent for a purpose unrelated to the marriage, such as on a paramour, while the marriage is breaking down can be treated as waste and charged against the spouse who spent it. Booth v. Booth, 7 Va. App. 22 (1988). Once the other spouse shows that marital funds were withdrawn or used after the breakdown, the spouse who last had the funds must prove they were spent for a proper purpose. Clements v. Clements, 10 Va. App. 580 (1990). Dissipation reaches only spending contemporaneous with the breakdown; earlier spending may still be weighed as fault. Smith v. Smith, 18 Va. App. 427 (1994). Bank, credit card, and payment records usually decide these claims.

Custody. Custody is decided on the child’s best interests under Va. Code § 20-124.3. Marital misconduct matters there only to the extent it bears on the children. See custody and visitation in Fairfax and Loudoun.

Proving Adultery

Adultery must be proven by clear and convincing evidence. Seemann v. Seemann, 233 Va. 290, 293 (1987). “Strongly suspicious circumstances are inadequate.” Painter v. Painter, 215 Va. 418, 420 (1975). Except on the separation ground, a divorce cannot be granted on the uncorroborated testimony of the parties. Va. Code § 20-99.

Since July 1, 2026, adultery supplies a ground for divorce only if it occurred before the parties’ last separation. Va. Code § 20-91(A)(1). A divorce for adultery is also barred if the parties voluntarily cohabited after the accusing spouse learned of it, if it occurred more than five years before the suit, or if the accusing spouse procured or connived at it. Va. Code § 20-94. See Changes to Virginia Divorce Law on July 1, 2026.

Because adultery remains a misdemeanor in Virginia, a spouse asked about it may invoke the privilege against self-incrimination. In a divorce filed on or after July 1, 2020, the court may draw an adverse inference from that refusal. Va. Code § 8.01-223.1. An inference corroborated by independent circumstantial evidence has been held sufficient to meet the clear-and-convincing standard. Drenth v. Drenth, No. 0388-22-4 (Va. Ct. App. Dec. 20, 2022) (unpublished).

The proof in these cases is built through discovery: subpoenaed financial and phone records, depositions, investigators, and the testimony of third parties. It has to be gathered lawfully. Evidence obtained by intercepting communications or accessing another person’s accounts without authorization can create serious civil and criminal exposure for the person who obtained it and may never reach the courtroom. For more, see Proving Adultery in Virginia.

Defending Against a Fault Claim

The burden is on the spouse alleging fault, and it is a high one. Suspicion, opportunity, and an inappropriate relationship do not prove adultery, and an adultery finding resting only on suspicion will not stand. Dooley v. Dooley, 222 Va. 240 (1981). The statutory bars in § 20-94, condonation, and recrimination where both spouses are at fault can each defeat a fault ground. Where adultery is proven, the manifest-injustice exception may still preserve support, but only on findings addressing both degrees of fault and the parties’ economic circumstances. The decision whether to answer questions about the conduct, or to invoke the Fifth Amendment, has consequences of its own and should be made with counsel well before a deposition. See Adultery and the Fifth Amendment in Virginia Divorce.

Cruelty and Desertion

Cruelty, reasonable apprehension of bodily hurt, and willful desertion or abandonment are also grounds for divorce, available one year after the act. Va. Code § 20-91(A)(6). Desertion requires both a breaking off of cohabitation and an intent to end the marriage, and a spouse who leaves with legal justification has not deserted. Where one spouse’s misconduct justifies the other in leaving, the spouse at fault may be treated as the deserter; see Constructive Desertion. These grounds, the corroboration they require, and the defenses to them are discussed in Fault Divorce in Virginia: Grounds, Proof, and Effects.

Deciding Whether to Plead Fault

Pleading fault has costs: a higher standard of proof, corroboration, discovery into private conduct, and a more contested case. It can also be the single largest factor in what a spouse pays or receives in support. Whether to plead fault, and which ground, should be decided early, with the evidence in hand and its effect on support and property in view. See Repair or File? How Marital Conduct Affects a Virginia Divorce and spousal support in Fairfax and Loudoun.