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Can you make a cheating spouse pay in a Virginia divorce?

On Behalf of | Mar 30, 2020 | Divorce

A cheating spouse wronged you and now you hope to get revenge in divorce court. This might happen, but Virginia’s laws make it tough in several ways. It may be wise to realistically consider your chances for making the spouse suffer, and then compare it to other divorce options.

Although there certainly can be advantages, here are some troubles you might face as you go through a divorce on the grounds that your spouse has cheated.

Less confrontational options exist

There are three main ways to get a divorce in Virginia, but we are focusing on a fault-based divorce.

We will set aside a no-fault where courts do not really consider the failings of either spouse and a so-called a divorce from bed and board, which is more like a legal separation than a complete divorce.

What you are likely to go for is a so-called “fault” divorce.

You must clearly and convincingly prove the affair

A fault divorce is a little like a criminal trial in that one spouse makes accusations, and the accused defends themselves. You do not have to prove your accusations “beyond a reasonable doubt,” but the standard is fairly strong, namely “clear and convincing evidence.”

And the other spouse has a lot of options for defense. They can argue you knew and did not object to the affair. They might also argue that you also had an affair, making things “even.”

If you two stayed together for any length of time after you knew, shared the same home and/or bed, and especially if you had “marital relations” after you knew, this might sink your grounds of an affair. Even if you prove the extra-marital activity (video, photos, for example), disproving these defenses might be tricky.

Virginia lists adultery as a crime

Finally, consider that but the above defenses against your accusations involve admitting in court that they had an affair.

But in Virginia, having an affair is a crime (believe it or not). And no court can force someone to admit to a crime.

The Fifth Amendment to the U.S. Constitution, for example, allows a defendant to refuse to answer these questions. Your spouse’s right to not discuss the issue makes your burden of proof even higher.

Succeeding can have its rewards

On the other hand, the judge does have considerable leeway in giving the wronged spouse a significant financial advantage, if they want to and only if you can meet your burden of proof.

Getting a financial pay-off for the affair is possible, but the satisfying vision should not cloud a clear understanding of the challenges that may await you.

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