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Defenses to Adultery in Virginia Divorce Actions

Posted by attorney Mary Commander

Defenses to Adultery in Virginia Divorce Actions

In Virginia, adultery is the only ground for divorce that can serve as a bar to spousal support by statute. Accordingly, proof of adultery can have a significant impact in a divorce case.

Adultery in Virginia must be proven by clear and convincing evidence, which is a higher standard of proof than the usual required in civil cases.

Other than the defense that adultery did not occur or that the moving party did not meet its burden of proof, the Code of Virginia establishes other defenses to adultery claims.

Virginia Code Section 20-94 provides:

When the suit is for divorce for adultery, sodomy, or buggery, the divorce shall not be granted, if it appear that the parties voluntarily cohabited after the knowledge of the fact of adultery, sodomy or buggery, or that it occurred more than five years before the institution of the suit, or that it was committed by the procurement or connivance of the party alleging such act.

Adultery also remains a crime in Virginia (Virginia Code Section 18.2-366).

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