Adultery is a fault ground for divorce in Virginia and must be proved by clear and convincing evidence. It does not require direct evidence and can be proven by circumstantial evidence.
There are a number of consquences to adultery in Virginia. It is still a crime in Virginia, a class 4 misdemeanor, although it is rarely prosecuted, and there have recently arisen some questions about what kind of private consensual behavior is constitutionally protected from prosecution by a right of privacy. Unless it would constitute a manifest injustice, a judge may refuse to award permanent support to a spouse if the fault ground of adultery exists in favor of the other spouse. In addition, a judge may consider the circumstances and factors which contributed to the dissolution of the marriage, including fault grounds such as adultery, when dividing up the marital property and debts in equitable distribution in Virginia.
Adultery consists of a married person voluntarily having sexual intercourse with a person who is not his or her spouse. Certainly the literal meaning of the term "dates" would not constitute adultery. Until the parties are divorced, they are still married and post-separation sexual intercourse would still be adultery, although it would be difficult to claim that post-separation adultery contributed to the dissolution of the marriage for equitable distribution purposes.
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