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Sexual infidelity is a factor in many divorces.  It can have an impact on spousal support, the distribution of the parties’ property, and child custody.  The effect on spousal support is the most important.

 

The spousal support statute is Section 20-107.1 of the Virginia Code.  It provides that a  spouse who is guilty of adultery cannot receive spousal support.  There is an exception when it would be a “manifest injustice” to deny support.  But otherwise the innocent spouse can defeat a claim for spousal support by proving adultery.

 

The statute that controls distribution of the parties’ property is Section 20-107.3 of the Virginia Code.  It says that judge can consider the reasons for the dissolution of the marriage in deciding how to divide the parties’ property.  It mentions adultery specifically.  In practice, however, the tendency to divide property equally is so strong that adultery rarely has any effect at all on how the property is divided.

 

While adultery is not a statutory factor for deciding child custody cases, it can have an impact. Strictly speaking, the fact that either parent is engaging in an affair is not by itself relevant to who should have custody.   However, in my observation, it can hurt the wife’s custody case if she is having an extra-marital relationship.

Despite the fact that the presumption in favor of mothers having custody has been abolished, the gender assumptions behind it have not gone away.   The mother normally has a significant advantage in a custody battle. However, that same set of gender prejudices can work against the mother if she is engaging in an affair.

Especially if the mother places the children in a situation where they are living with the boyfriend or even just having the boyfriend stay overnight, the father will have a better chance of getting custody than they otherwise would.  If the wife is living in the marital home but carrying on an affair, she has a risk that at the pendente lite hearing the judge will order her to move out and grant custody of the children to the husband.

 

Anything that casts the wife in a promiscuous light will hurt her chances to get custody of her children.  Adultery on the part of the husband doesn’t help him either.  Usually the husband will have an uphill fight to get custody even without any misconduct.  Adding adultery to the gender bias against husbands having custody will sink the husband’s chances unless the wife had a really serious problem such as mental illness, past abuse or neglect of the children, substance abuse, or a criminal history.