Unfortunately, infidelity continues to be one of the main causes of divorce. If you or your spouse has had or is having an extra-marital affair, it is important to understand how that might impact your divorce case.
It can lead to a fault-based divorce
Most divorces in Virginia are filed on no-fault grounds meaning that they are based on the couple’s separation after a required period of time. In most cases, that is one year. When there is no evidence of fault, neither party can file for divorce unless the parties have been separated for more than one year. In cases where spouse has committed adultery, a divorce can been filed immediately, without waiting until the parties have been separated for one year. While it may seem tempting to want to filevon grounds of adultery immediately, there may be reasons to postpone doing so and it would therefore be important to talk to a lawyer.
It can impact certain court decisions
For the most part, the Virginia family courts will not look at marital misconduct, including adultery, when making determinations about child custody unless there is reason to worry about the safety of the children. However, the reasons for the dissolution of a marriage is a factor for the court to consider in both the determination of spousal support and the division of property known as equitable distribution.
With respect to equitable distribution, even though adultery is a factor that the court may consider, barring proof of financial misconduct using marital resources during the affair, adultery will likely have very little or no impact on the overall outcome of the case.
As it relates to the determination of spousal support, if the spouse who had the affair is in need of or would otherwise be entitled to spousal support, his or her adultery could be a bar to spousal support unless the denial of spousal support would result in a manifest injustice.
Additionally, although the court is required to consider the circumstances and factors which contributed to the dissolution of the marriage, there are numerous other factors that the court must also consider as set forth in Virginia Code Section 20-107.1.
These are complicated issues which should be discussed and explored with an experienced family law attorney.
It can make the process far more emotional and expensive
Divorce is difficult for everyone, but even more so when a spouse is has had an extra-marital affair. The spouse who did not engage in infidelity may find it nearly impossible to compromise because of the betrayal they experienced and may set unrealistic expectations because they feel like they deserve justice. When a spouse has had an extra-marital affair or relationship, it often increases litigation costs and legal fees, conflict, and distrust. The emotional, financial, and physical toll on the couple and the family is significantly increased.
When a spouse cheats and a divorce is filed on fault grounds, the situation often becomes more complicated, more expensive, more burdensome, and more challenging than it otherwise could have been. If you or your spouse has been unfaithful, it is imperative to work with a knowledgeable family law attorney to assist you.