Adultery as a Divorce Ground in Virginia: What You Need to Know

Cheating might sound like an obvious reason for splitting up, but in Virginia, there’s a lot more to it. Adultery is actually one of the oldest reasons you can give when asking for a divorce in the state. Legally, it’s not just flirting or sending risky texts—it's about having sex with someone who isn’t your spouse.

But here’s where things get tricky: you can’t just make an accusation and expect the court to believe you. Virginia judges want real proof, not just rumors or suspicions. If you’re thinking about ending your marriage because of adultery, you’ll need to know exactly what the court expects. The difference between winning and losing your case usually comes down to the details—what counts as evidence, what’s allowed in court, and what happens if you mess up the process.

• What Counts as Adultery in Virginia?
• Proving Adultery in Court
• Impact on Divorce Settlement
• Mistakes to Avoid and Helpful Tips

What Counts as Adultery in Virginia?

Virginia law doesn’t leave much to guesswork when it talks about adultery. The state code says adultery happens when a married person voluntarily has sex with someone who’s not their spouse. It must be actual sex—courts are strict about this. Affairs that don’t go all the way, like sexting or emotional cheating, just don’t fit the legal definition here.

Now, before you start thinking about getting creative with what to call cheating, understand that Virginia judges want straightforward, old-school proof. That means one spouse had physical sex outside the marriage. The law doesn’t care about why it happened or if things just “weren’t working out.”

• Both men and women can be found guilty of adultery—there’s no bias here.
• Hooking up with someone of the same gender can count, as a 2005 case made clear.
• If both spouses cheated, either one can still use adultery as a ground for divorce, but it gets complicated—especially if there’s a counterclaim.

Here’s a quick look at what’s accepted as adultery (and what’s not):

Be aware that adultery is still technically a crime in Virginia—even though you almost never see someone go to jail for it. Most people see it used as leverage in court, not in criminal cases. So, if you’re planning to use adultery as a reason for divorce, knowing what qualifies (and what doesn’t) keeps you from wasting time and energy on the wrong evidence.

Proving Adultery in Court

Proving adultery in Virginia isn’t as simple as saying your spouse cheated. The law wants solid proof, and honestly, the bar is pretty high. If you're planning to bring this up in a civil court case, there are a few things you really need to know before stepping into the courtroom.

First off, you need “clear and convincing evidence.” It’s not enough to just have a strong hunch or a couple of fishy texts. Judges want something more airtight, something that shows, without much doubt, that actual sexual intercourse happened between your spouse and someone else.

Common types of evidence used to prove adultery include:

• Witness testimony (like a private investigator, or someone who actually saw the affair)
• Photos or videos showing the act, or at least putting the spouse in a situation where adultery probably happened
• Text messages, emails, or social media posts that clearly hint at a sexual relationship
• Hotel receipts, credit card statements, or travel records showing your spouse was with someone else when they claimed to be somewhere else

But even with a lot of evidence, direct admission isn’t common—rarely does someone just confess outright. That’s why Virginia courts let you build a case with circumstantial evidence. It’s about piecing together facts that, when looked at together, paint a pretty clear picture.

Something to keep in mind: Virginia law says if the spouse accusing adultery has forgiven (or "condoned") the cheating and continued the relationship, it can ruin your case. And, you can't set your spouse up or lure them into cheating just to “catch” them—it won’t hold up in court.

If you’re thinking about using adultery as grounds for your divorce, get all your evidence in order before filing. Courts won’t do the digging for you, and if you show up unprepared, your case could fall flat even if you’re telling the truth.

Impact on Divorce Settlement

People are often shocked to find out that proving adultery doesn’t guarantee a slam-dunk win in every part of a Virginia divorce. Sure, adultery is a serious thing, but Virginia law is pretty clear about how it affects splitting stuff up.

Let’s get specific. First, when it comes to dividing money, houses, or other property, Virginia uses a concept called “equitable distribution.” That doesn’t always mean equal—just what the court thinks is fair. Here’s the catch: the judge will look at a bunch of things, like each spouse’s finances, how long you were married, and even if one of you cheated. But adultery usually only impacts your share if it caused a major financial mess. If the cheating spouse blew thousands on a secret getaway or drained savings for gifts, the judge is more likely to ding them when it comes to who gets what.

Now, about spousal support (alimony). This is where adultery can really change the game. In Virginia, if the spouse asking for money after the divorce is proven to have committed adultery, the court will almost always refuse support. There are rare exceptions—like if not paying support would be a huge hardship for that person—but those are tough to pull off. On the other hand, if the non-cheating spouse is the one who normally would get alimony, adultery can help them a lot.

What about child custody? Here’s an interesting twist: Virginia courts focus on what’s best for the kid. Adultery alone usually doesn’t affect who gets the kids, unless the cheating puts the child at risk or suggests the parent is making really bad choices. The court’s eyes are always on the child’s welfare first.

Key takeaway? In a Virginia divorce, adultery doesn’t guarantee a jackpot. It can tip the scale with spousal support and maybe property division, but judges look at the bigger picture. If you want to make adultery part of your case, talk strategy with a lawyer—it’s not as clear-cut as people think.

Mistakes to Avoid and Helpful Tips

Jumping into a divorce case on adultery grounds in Virginia isn’t as simple as pointing a finger. There are some landmines that can ruin your case or even cost you money. Here’s what you need to watch out for, and a few practical tips to make things easier on yourself.

• Don’t try to get revenge: If you start seeing someone new before your divorce is final, you could blow your own argument. Virginia sees post-separation relationships as a problem—yes, even after you’ve split up.
• Avoid illegal snooping: Hacking into phones, emails, or setting up hidden cameras is tempting, but it’s illegal. If you gather proof this way, not only can it get thrown out, you could also face criminal charges.
• Be mindful of deadlines: Virginia has a five-year limit. If you wait too long to file for divorce after learning about the adultery, the court won’t allow it as a ground for your case.
• Don’t rely only on hearsay: The court won’t accept gossip. You need solid evidence like texts, emails, or eyewitnesses—not just your best friend’s word.

Now for some things you should do:

• Put together real evidence: Dates, times, messages, photos, or receipts help. Courts want specific details, not vague claims.
• Talk to a divorce lawyer early: Virginia laws get complicated fast. A good lawyer keeps you from tanking your own case and helps you stay on track.
• Think about the bigger picture: Adultery can affect things like alimony, but not always property or child custody. Sometimes, proving adultery won’t get you any more than a no-fault divorce would. Weigh your options and don’t assume you’ll get everything just because your spouse cheated.

The bottom line is simple: slow down, get legal advice, and don’t cut corners on how you collect your evidence. Adultery may seem obvious, but proving it to a Virginia judge takes careful planning and a cool head.