Five Reasons Why Adultery Matters in Virginia Divorce Cases

Five Reasons Why Adultery Matters in Virginia Divorce Cases

  1. Adultery is a fault ground for divorce.

Under Virginia Code §20-91, a divorce may be granted based on the fault ground of adultery, or sodomy or buggery committed outside the marriage.  The crime of adultery is defined in Virginia Code §18.2-365 as a married person voluntarily engaging in sexual intercourse with a person not his or her spouse. ““Sexual intercourse” is defined as actual penetration to some extent of the male sexual organ into the female sexual organ”. Desper v. Commonwealth of Virginia (Va. App., 2011), citing Johnson v. Commonwealth, 53 Va. App. 608, 674 S.E.2d 541 (2009) and McCall v. Commonwealth, 192 Va. 422, 65 S.E.2d 540 (1951).  Consequently, adultery is a purely heterosexual crime and cannot be committed by same sex partners.

While “sodomy” itself is not defined in the Code of Virgina, the crime of forcible sodomy is, which includes aggravating circumstances resulting from the age of the victim or the force used to overcome the victim’s will, or forcibly causing another to commit sodomy.  Under Virginia Code §18.2-67.1 forcible sodomy occurs when the accused “…engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person…”  Such conduct would have to perpetrated by a spouse with a person not his or her spouse in order for it to constitute a fault ground for divorce.  Sodomy would include both heterosexual and homosexual activity.

“Buggery” is also not defined in the Code of Virginia.  At common-law, “buggery” included anal intercourse between males and sodomy between a male and an animal.    “”If any person commit the crime of buggery, either with mankind or with any brute animal, he shall be confined in the penitentiary not less than two nor more than five years.” 1 Davis’ Cr. Law, 133; 1 Rev. Code 1819, c. 159, p. 586; Code 1849, c. 196, § 12, p. 740; Code 1860, c. 196, § 12; Code 1873, c. 192, § 12, p. 1208; Code 1887, § 3793.  There was no definition explanation, qualification, or enlargement of the word “buggery” in any Virginia statute prior to the aforesaid amendment. The word was used in its common-law sense, whatever that was. No Virginia case ever construed it, but when it first appeared in the statutes of this state it was undoubtedly understood by the law of England, from which we took it, to mean carnal copulation per anum.”  Wise v. Commonwealth, 135 Va. 757, 115 S.E. 508 (Va. 1923).  The exact definition of buggery became less important in the criminal law with the enactment of the statutory crime of crimes against nature, now in Virginia Code §18.2-361, which does not include the term “buggery”, but includes the conduct which constituted buggery under the common law.  As with sodomy, such conduct would have to perpetrated by a spouse with a person not his or her spouse in order for it to constitute a fault ground for divorce, since it must be “outside the marriage.”


Under Virginia Code § 20-94, condonation is a defense to the fault ground of adultery or sodomy or buggery committed outside the marriage.  Condonation occurs when the spouses voluntarily cohabit after knowledge of the adultery, sodomy or buggery, or if the injured spouse waits more than five years after the conduct before filing for divorce, or if the spouse procured or connived the adultery, buggery, or sodomy by the guilty spouse.

Recrimination is also a defense to adultery.  A plea of recrimination may be raised when the other spouse is also guilty of a fault ground for divorce.  In effect, the mutual fault bars either party from obtaining a divorce based on fault.  Virginia Code §20-91(A)(9)(a) expressly provides that such recrimination does not, however, bar the spouses from obtaining a no fault divorce after the required waiting period.  In fact, the current caseload of many of the Virginia Circuit Courts makes it difficult for many couples to obtain a final hearing date or trial before the required one year separation period elapses.  As a result, the judge may simply grant a party a no fault divorce despite the fault pled and proved at trial by either party since the required one year separation has elapsed.


Nevertheless, adultery remains a fault ground for divorce in Virginia, and an innocent spouse who has not condoned the guilty spouse’s conduct has the legal right to obtain a divorce from his or her spouse on fault grounds of adultery, which may have other advantages and disadvantages in a Virginia divorce case, as explained below.


  1. Adultery can bar the guilty spouse from receiving permanent spousal support.

Adultery is unique among the fault grounds for divorce in Virginia in mandating that the judge not award permanent maintenance and support to the guilty spouse, unless there is clear and convincing evidence that a denial would constitute a manifest injustice. Va. Code §20-107.1(B).  In considering whether the denial would constitute a manifest injustice, the judge should consider the respective degrees of fault during the marriage and the relative economic circumstances of the parties. (For an analysis of such an example, see a related post on my other blawg: “When a Virginia Divorce is Based on Adultery, Would It Be a Manifest Injustice to Deny Support to a Wife Who is Still Living With Her Paramour and Their Son?”) ,

In addition, a judge is also required under Virginia Code §20-107.1(E) to consider fault grounds, including adultery, “which contributed to the dissolution of the marriage”, as a threshold issue in deciding whether to award support and maintenance to a spouse.  Interestingly, adultery may bar support or be considered as a threshold issue in deciding whether to award support, but should not affect the nature, amount or duration of support, which the Virginia Code requires be determined according to the 13 factors set forth in Section 20-107.1(E).

  1. Adultery is one of the factors considered by a Virginia judge in conducting equitable distribution

Among the eleven factors in Virginia Code §20-107.3(E) a judge is required to consider in conducting distribution of property and debts in equitable distribution is “the circumstances and factors which contributed to the dissolution of the marriage”, specifically including the fault grounds of adultery, felony conviction, cruelty and desertion.  Case law in Virginia has limited that factor somewhat to only the extent to which the circumstances affect the marital partnership’s economic condition, Aster v. Gross, 371 S.E.2d 833 (Va. App.1988), or only to the extent of the negative impact on the well-being of the family and the mental condition of the parties. Smith v. Smith, 444 S.E.2d 269 (Va. App. 1994).  These cases recognize that marriage is considered an economic partnership in Virginia; while adultery may lead to the dissolution of the marriage, it does not in all cases affect the property of the parties, such that the guilty spouse should be deprived of the fruits of that long partnership, simply because of brief period of misconduct leading to the termination of that relationship.

  1. A final divorce based on adultery has no required period of separation.

A divorce from the bond of matrimony in Virginia may be filed and granted with no required period of separation, only if based on one of two fault grounds: adultery and a felony conviction, sentence and confinement under Virginia Code §20-91(A)(1) and (3).  While a spouse may file immediately for a divorce from bed and board, an intermediate form of divorce in Virginia under Virginia Code §20-95, which if decreed, legally determines that the spouses are “perpetually separated in their persons and property” under Virginia Code §20-116, the spouse may not receive a full and final divorce, which allows him or her to remarry, until after one year from the date of the fault grounds for such a divorce and for a final divorce from the bonds of matrimony: cruelty, reasonably apprehension of bodily hurt, or willful desertion or abandonment.

Under Virginia Code §20-121, a spouse who has filed for a fault-based divorce in Virginia may move the court to recognize the existence of the grounds for a no fault divorce and grant such a divorce after the required one year period, or six months with no minor children and a written separation agreement.

Some separated spouses crave resolution of their broken marriage, and want nothing more than to move on with their new lives without any legal connection to their guilty spouses.  Of course, this desire conflicts with the public policy of the Commonwealth of Virginia in promoting marriage and the family relationship.  The Virginia Code, however, reflects the significance of adultery or a felony conviction in causing an irreconcilable marital breakdown by not imposing a waiting period during which the spouses might reconcile.

While in theory separated spouses could respect each other’s rights to privacy and independence, free from the control of the other estranged spouse while they remain apart from one another, in practice that rarely occurs, particularly if either believes the other is primarily responsible for the breakdown of the marriage or if they have minor children together.  In fact, a pending contested divorce produces stress of its own and requires the parties to relive, again and again, throughout the divorce case, the causes and consequences of their marital problems, as they prepare and answer discovery, negotiate a separation agreement, attend hearings, sit in depositions, and otherwise prepare for trial.

While the Virginia courts’ currently overloaded dockets rarely allow for a contested case to go to final hearing within a year of the date of separation, and counsel must spend substantial time to properly prepare a case for trial, at least a divorce filed on the grounds of adultery holds out the hope that a spouse can move on with his or her life without waiting a year to be granted a final divorce.

  1. Adultery has tremendous emotional impact in a Virginia divorce case.

Adultery matters in Virginia divorce cases because it often overloads an emotional process with powerful, mostly negative emotions, including feelings of anger, anxiety, betrayal, embarrassment, fear, guilt, shame and a desire for degradation, humiliation, punishment, and revenge.  Although divorces are usually resolved according to the cold hard facts of income, expenses, assets and liabilities, they may be driven by the hot emotions of marital infidelity.  Contrary to depictions in the popular media, marital fault or the grounds for the divorce is rarely the central focus of a final hearing on divorce, which is largely concerned with more mundane subjects such as health insurance costs, report cards, work histories, property values and the balances on debts.

A spouse who files a divorce based on fault grounds is more likely to receive an answer and counterclaim in response.  Adultery may be used in an attempt to extract a more favorable settlement from the guilty party, due to the desire to avoid public scrutiny and the undesirable prospects of involving the paramour in the proceedings.  On the other hand the spouse proceeding on adultery grounds in a divorce may actually care more about revenge and punishing the guilty spouse than monetary recovery.  As discussed above, adultery may be used to deprive a guilty spouse of support, the realization of which may provide both financial and emotional reward to the victimized spouse.  While the long-term best interests of all litigants are usually best served by approaching the divorce process rationally and objectively, the strong emotions of adultery may cause a party to pursue a different course.

You should discuss with your Virginia attorney or Richmond divorce lawyer James H. Wilson, Jr., how allegations of adultery may affect your divorce case.