Adultery and Desertion in Virginia Divorce: How Fault Grounds Affect Your Case

How Fault Grounds Work in Virginia

Virginia is one of the states that still allows fault-based divorce, alongside the more common no-fault option. Under Code § 20-91, the fault-based grounds include adultery, sodomy or buggery committed outside the marriage, conviction of a felony with imprisonment of more than one year, and cruelty or desertion that has continued for one year.

Most Virginia divorces proceed on no-fault grounds (living separate and apart for six or twelve months). But fault-based grounds still matter significantly because they affect two things that hit your finances directly: spousal support eligibility and the equitable distribution factors that influence property division.

The Adultery Bar on Spousal Support

Under Code § 20-107.1(B), a spouse who committed adultery is barred from receiving permanent spousal support. The accusing spouse must prove the adultery by clear and convincing evidence — a higher standard than the preponderance of the evidence used for most civil matters. This means more than suspicion or circumstantial evidence. Courts typically require proof of both the opportunity and the inclination, such as hotel records, text messages, witness testimony, or admissions.

The one exception: the court may still award support to the adulterous spouse if denying support would constitute a "manifest injustice." To evaluate manifest injustice, the judge weighs the relative degrees of fault of both parties during the marriage and their relative economic circumstances. In practice, manifest injustice is a high bar — it applies in cases where the adulterous spouse is severely economically disadvantaged (no income, no employable skills, serious health conditions) and the other spouse's conduct also contributed to the breakdown of the marriage.

HB 303 Changed the Adultery Timeline

Virginia House Bill 303 (effective July 1, 2026) clarified a crucial timing issue: adultery must have occurred before the final separation of the parties to serve as a fault-based ground for divorce or to trigger the spousal support bar.

Before HB 303, there was ambiguity about whether post-separation relationships constituted adultery. The new law draws a bright line — once the parties are living separate and apart with the intent that the separation be permanent, a new romantic relationship does not constitute adultery for purposes of fault grounds or the support bar. This narrows the legal impact of post-separation relationships and gives separated spouses more certainty about their spousal support exposure.

Desertion: What It Means and Why Moving Out Is Risky

Desertion in Virginia is the voluntary departure of one spouse from the marital home without the other spouse's consent, without justification, and with the intent to remain away permanently. For desertion to serve as a fault ground, it must have continued for at least one year.

The risk for the spouse who moves out: if you leave the marital home without a written separation agreement and your spouse characterizes your departure as desertion, you may face a fault-based counterclaim. This can affect both spousal support and property division.

There are two important defenses:

Constructive desertion. If you left because your spouse's conduct (cruelty, abuse, refusal to engage in marital relations) made staying intolerable, your departure is classified as constructive desertion by the remaining spouse, not desertion by you. The spouse whose behavior drove you out is the one committing constructive desertion.

Mutual agreement to separate. If both spouses agree to the separation, neither has deserted. This is why family law attorneys strongly recommend executing a written separation agreement or at minimum a letter documenting mutual consent before either spouse moves out.

How Fault Affects Property Division

Virginia Code § 20-107.3(E) lists the "circumstances and factors which contributed to the dissolution of the marriage" as one of the 11 equitable distribution factors. If one spouse's adultery, cruelty, or desertion directly caused the breakdown of the marriage, the judge can weigh that misconduct as a factor supporting an unequal distribution favoring the innocent spouse.

The impact is discretionary, not mandatory. A judge might award 55% of marital assets to the innocent spouse, or might give the fault factor minimal weight if both parties contributed to the breakdown. Fault is one factor among eleven — it does not guarantee a dramatically different split.

Dissipation of marital assets is a related factor. If the adulterous spouse spent marital funds on the affair — hotel rooms, gifts, travel, a separate apartment — the court can treat those expenditures as waste and credit the innocent spouse's share of the marital estate accordingly.

Proving Fault vs. Negotiating Around It

In a negotiated settlement, fault is a leverage point rather than a legal ruling. If you have strong evidence of your spouse's adultery, your spouse knows that a trial could result in the spousal support bar being applied and fault influencing the property split. That knowledge incentivizes settlement on more favorable terms.

Conversely, if the evidence is weak or ambiguous, pursuing fault at trial adds expense and uncertainty. Proving adultery by clear and convincing evidence requires concrete documentation, and the trial itself adds attorney fees, expert costs, and emotional toll. Many attorneys advise clients to use fault as negotiation leverage while pursuing the case on no-fault grounds, reserving the fault claim as a tool rather than a litigation strategy.

Protecting Yourself

If you suspect your spouse's adultery and it may affect spousal support eligibility, document what you can — preserve text messages, emails, and financial records showing unexplained spending — before announcing your intention to divorce. Once divorce is filed, a spouse who knows they are being watched becomes more careful.

If you are the spouse considering moving out, get a written separation agreement signed before you leave, or at minimum, send a documented communication (email, text) confirming that the separation is mutual. This protects you against a desertion claim.

Our Virginia Divorce Financial Split & Asset Division Guide helps you organize the financial documentation — including spending patterns and asset movements — that feeds into both the dissipation analysis and the overall equitable distribution negotiation.

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