Adultery is often committed in secret or without the innocent spouse’s knowledge.  Some states, including Florida, for example, consider adultery to be a “No Harm – No Foul,” concept and grant a divorce based on one party’s desire to end the marriage. Virginia, on the other hand, is a fault-based state, which considers statutorily prescribed fault in dividing marital estates, awarding spousal support and in granting divorces.  The trial courts in Virginia must consider Virginia Code Section 20-107.3 and the 11 factors contained in sub-section E when deciding how to equitably divide the
marital assets.  Three of those factors are:

• Factor 1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

• Factor 5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91or § 20-95;

• Factor 10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties.

When one party spends marital funds buying his or her paramour jewelry, cars or vacations or setting up an apartment, giving cash or paying expenses for that paramour, the Courts in Virginia may consider those expenditures of marital funds as a negative monetary contribution to the family and further may consider the adultery as a negative non-monetary contribution to the well-being of the family.  The court has the ability to divide the marital estate such the cheating spouse receives less than fifty percent.  Despite the fact that your spouse may not know you were committing adultery and spending marital funds on your paramour, in a litigated divorce, those facts may affect the division of your marital estate.