Condonation in Virginia

By avoiding condonation in Virginia, you can increase your chances of gaining a fair division of property, and prevent your spouse from obtaining alimony.
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by | Last updated Jun 29, 2020 | Published on Jul 5, 2016 | Virginia Family Law

Condonation is a legal defense that often comes up during fault-based divorce proceedings.

Essentially, it’s a type of legal forgiveness that operates as a defense to adultery during a divorce.

Condonation occurs when, after learning about a spouse’s adultery, the other spouse continues to voluntarily have sexual intercourse with them.

Under Virginia Law, if you resume sexual intercourse with your spouse after learning of his or her adultery then the guilty spouse is legally forgiven of the adulterous act.

This is based on the idea that if you are willing to resume sexual relations, then you have “condoned” this behavior.

The law is not willing to punish an act that you have forgiven. This legal forgiveness can have a significant impact in fault-based divorce litigation.

If your spouse has committed adultery, then condonation in Virginia has the ability to nullify your advantage in divorce proceedings and provide your spouse with a legal defense which could serve to erase the “fault.”

What is the Impact of Adultery on a Virginia Divorce Proceeding?

Adultery can have a substantial impact in Virginia divorce proceedings.

Adultery, which is legally defined as the act of a married person voluntarily engaging in sexual intercourse with another person other than their spouse, is punishable as a Class 4 misdemeanor. [1]

In the context of a contested divorce proceeding, the act of adultery by one spouse can provide the innocent spouse a significant advantage. Reengaging in sexual intercourse with your spouse can negate this advantage entirely.

First of all, adultery can provide the innocent spouse leverage in divorce proceedings. This leverage could be used to persuade the guilty spouse of agreeing to a settlement. Agreeing to a settlement can help you avoid a lengthy and expensive divorce proceeding.

Adultery can also have a significant impact on all major aspects of a divorce proceeding such as: gaining child custody, gaining a fair division of property, and avoiding the payment of spousal support.

For this reason, if your spouse has been unfaithful you might wish to avoid condoning such behavior by re-engaging intimate relations with them.

Child Custody

If you and your spouse have minor children, your spouse’s act of adultery could help you gain primary custody. Though, adultery alone would not be a complete bar to your spouse’s visitation rights.

However, the court will likely be more sympathetic to the innocent spouse in child custody proceedings. Hence, your spouse’s act of adultery could improve your chances of obtaining primary custody of your children.

Division of Property

One of the most stressful and time consuming periods of any divorce can be property division. Property division is the period of the divorce when you and your spouse have to divide up all separate and marital property.

While the court must issue a fair and equitable distribution of property in Virginia divorce, the court may take under consideration a spouse’s adultery. Courts are required to consider the circumstances and factors that contributed to the dissolution of the marriage when dividing property. [2]

Because courts are required to consider the grounds for divorce, one spouse’s adultery can play a factor in the division of property. [3] As a result, the court could reward you with a more favorable division of marital property.

Spousal Support

The aspect of divorce where your spouse’s adultery can be most beneficial is the issuance of spousal support.

Also called alimony, spousal support is a form of financial support where one spouse pays their former spouse monthly payments in order to help support that spouse financially.

In most instances, spousal support is paid by the primary earner in the marriage. However, your spouse’s adultery could operate as a bar to the issuance of spousal support. [4] Before your spouse can be granted alimony, the court is required to take under consideration their act of adultery. [5]

This means that if you are the primary earner in your marriage and your spouse cheats on you, then you may be off the hook for alimony payments. By avoiding condonation, in Virginia you could potentially save thousands of dollars a month in future alimony payments.

In some instances, the court can still award your spouse alimony even if they committed adultery. [6] This can occur if the court finds that by not granting your spouse alimony there would be “manifest injustice.” [7]

To determine “manifest injustice” the court takes into consideration the fault of the spouse who did not commit adultery. [8] The court will also look at the overall economic circumstances of both parties. [9]

However, most of the time your spouse’s act of adultery will lower their chances of obtaining alimony.


From a legal perspective, your spouse’s act of adultery can provide you a significant advantage in divorce proceedings. Reengaging in sexual intercourse with your spouse has the potential to nullify this advantage by granting your spouse a legal defense to their adultery.

By avoiding condonation in Virginia, you can increase your chances of obtaining custody of your children, gaining a fair division of property, and prevent your spouse from obtaining alimony.

Hiring an experienced and competent family law attorney is recommended in any divorce proceeding. Ultimately, having an experienced attorney by your side can best serve to protect the things most important to you.

[1] Va. Code § 18.2-365

[2] Va. Code § 20-107.3

[3] Va. Code § 20-91

[4] Va. Code § 20-107.1

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

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