Alienation of affection allows a married person to sue a third party for damages based upon that party's willful or malicious interference with a person's relationship to their spouse.
Only a few states currently permit alienation of affection lawsuits; Virginia is not one of those states.
What Is Alienation of Affection?
Only six states recognize alienation of affection, a legal term describing a civil lawsuit that a spouse can file against a third party for causing the breakdown of a marital relationship by having an affair with a married spouse or engaging in conduct that causes the emotional estrangement of one spouse from the other.
Virginia does not recognize alienation of affection claims. Though not limited to cases of adultery, this type of claim is typically used as a way to extract compensation from a spouse's lover for damages that relationship caused.
What Is Criminal Conversation?
Virginia law also does not recognize criminal conversation claims—tort claims describing the act of sexual intercourse with someone else's spouse. (While the the word “criminal” is used in this description, a criminal conversation claims is actually a civil claim for monetary damages.)
Just one act of sexual intercourse is enough for a criminal conversation claim.
Virginia Laws on Alienation of Affection
Virginia once allowed alienation of affection lawsuits, but these civil actions are no longer permitted in divorce cases involving adultery. The Virginia General Assembly eliminated alienation of affection lawsuits after enacting a state law based on events occurring on or after June 28, 1968.
Virginia also eliminated an individual’s ability to file a lawsuit based on seduction from a third party to a married spouse occurring on or after July 1, 1974. In Virginia, extramarital affairs are unlikely to bring about alienation of affection lawsuits that meet state law timing requirements.
Intentional Infliction of Emotional Distress Lawsuits in Virginia
Some states allow tort lawsuits to be filed for the intentional infliction of emotional distress against a third party based on a spouse’s extramarital affairs with that person.
Once again, Virginia's laws do not allow a spouse to file a tort lawsuit against a third party involved in an affair with the cheating spouse.
In 2000, the Supreme Court of Virginia ruled that the statute that addresses alienation of affection lawsuits bars intentional infliction of emotional distress lawsuits against third parties.
Adultery Laws in Virginia
Virginia law states that adultery occurs when a married person voluntarily has sexual intercourse with another individual who is not their spouse.
To qualify as a ground for divorce in Virginia, an affair must have been physical and include sexual intercourse. Emotional or mental affairs are not considered adultery.
Adultery is also a crime in Virginia. A married person who voluntarily has sexual intercourse with any person who is not their spouse faces a Class 4 misdemeanor charge.
Proving Adultery in a Virginia Divorce Case
Proving adultery in a Virginia divorce case means proving the occurrence of sexual intercourse, as “clear and convincing” evidence is necessary for a legal finding of adultery in the state. In the Commonwealth, adultery carries a higher standard of proof than other grounds for divorce.
Virginia law also requires proof of corroboration of adultery testimony or evidence from an outside source other than a spouse. Circumstantial evidence can be used as proof; there is no requirement for eyewitness testimony. Circumstantial evidence can include a spouse’s specific statements in emails or texts that clearly point to sexual intercourse.
In Virginia, as in other states, a spouse may hire a private investigator to help someone build their case against the spouse under suspicion.
Types of Divorce in Virginia
"Divorce from bed and board" and "divorce from the bond of matrimony" are the two types of divorce recognized in Virginia.
A divorce from the bond of matrimony is an absolute divorce. Once it is granted, both spouses are free to remarry. A divorce from bed and board is similar to legal separation in other states – the couple are separated legally but they cannot remarry.
Grounds for a Virginia Divorce From Bed and Board
In the Commonwealth, grounds for divorce from bed and board include at least one of these elements:
- Apprehension of bodily harm.
- Willful desertion.
In a divorce from bed and board, one spouse will allege misconduct as the reason for separation. They may wish to begin the divorce process immediately after the misconduct occurs, however, Virginia courts will only initially grant the spouse a "limited" divorce.
In a divorce from bed and board, the court will divide property between the spouses and award custody or support, but the spouses continue to be married until an absolute divorce is granted, which can take up to an additional year, depending on the court.
What Is a No-Fault Divorce Without Children?
A no-fault divorce doesn’t require a spouse to have an excuse to obtain a divorce, but it does have some requirements.
A spouse may file for a no-fault divorce if they have lived physically separate and apart from the other spouse for six months if they do not have any minor children under 18 years old.
They must also have signed a written separation agreement that divides their property with their spouse and solves other issues relating to the marriage, such as spousal support.
No-Fault Divorce With Children
A spouse may file for a no-fault divorce if they have lived physically separate and apart from their spouse for one year if they have minor children, even if they have signed a separation agreement.
Whether the duration of physical separation is six months or a year, it must be continuous and without interruption or cohabitation, and with the intent that the separation is permanent.
What Is a Separation Agreement?
Legal separation is not recognized by Virginia courts. Spouses who wish to separate may simply live apart, even if they are still under the same roof. A separation agreement (marital settlement agreement or property settlement agreement) is a document stating that the couple has made an agreement to:
- Live separate and apart from one another.
- Divide debts and property in a mutually acceptable way.
- Provide child visitation, support and custody for minors.
- Include other appropriate provisions, such as spousal support.
Separation agreements impart that a future divorce will be on no-fault grounds. Once the agreement is in place, and the spouses have lived apart for six months to a year (depending upon whether they have minor children), either spouse may file for an uncontested divorce.
How to Prepare Divorce Papers in Virginia
Unlike most other states, Virginia does not offer spouses official court forms when filing for divorce. Instead, they can contact the Virginia Legal Aid office to get a do-it-yourself packet.
The packet includes filing instructions and an interactive tool to guide the user on how to create documents for an uncontested divorce. Some supporting documents can also be found at Virginia Circuit Court Civil Forms.
Virginia divorce cases are heard in its circuit courts, but can also be held in city and county courts, all of which have different rules regarding filing. Some courthouses also have their own forms. Before filing, individuals should check with their local circuit court or clerk court’s office to ask for forms.
Filing the Divorce Complaint
The spouse will declare a complaint informing the court of what they want in the divorce. When filing for an uncontested divorce, they will include a separation agreement with the final divorce decree.
The decree must match the separation agreement stipulations. Each spouse signs the separation agreement and final divorce decree.
Waiver of Service of Documents to Speed the Process
To quickly and easily file for an uncontested divorce, the filing spouse should have their spouse agree to waive service of the divorce papers and fill out an Acceptance/Waiver of Service of Process (Form CC-1406). This must be done in front of a notary.
After all the forms are completed and signed, the filing spouse makes two copies of each document. The court keeps the original forms, and each spouse gets a copy.
How to File for Virginia Divorce Proceedings
Virginia couples filing for divorce will do so at a county or city court clerk's office. If one spouse objects to the other’s choice of court, it can transfer the case to the city or county where:
- Couple last cohabited.
- Non-filing spouse currently resides.
- Filing spouse resides, if they cannot serve their spouse with divorce papers.
Payment of Filing Fees
When the filing spouse goes to the court clerk's office to file the papers, they’ll need to pay a filing fee. The total cost can vary depending upon the location of the court. By using the Virginia's Circuit Court Civil Filing Fee Calculator, filers can determine what they’ll pay for a divorce.
If they can’t afford to file, they must request a waiver by using a Petition for Proceeding in No-Fault Divorce Without Payment of Fees or Costs if it is an uncontested divorce.
How to Serve Virginia Divorce Papers
After filing the paperwork with the court, the filing spouse must serve the other spouse with papers by service of process. A member of law enforcement, like a constable or sheriff, hand-delivers the documents to the individual for a small fee.
If a spouse cannot be served because they can’t be located or they live out of state, the filer can ask the court for permission to use an alternative method of service.
Completing the Acceptance/Waiver of Service of Process
The filer does not have to serve their spouse with divorce papers if that individual has completed the Acceptance/Waiver of Service of Process, which the filer must include with their documents when filing with the courts.
Otherwise, the spouse must submit Acceptance/Waiver of Service of Process and the complaint copy within a reasonable period of time.
When a Court Date is Required
In a contested divorce, the filer’s spouse has a maximum of 21 days to file a complaint from the day they were served. The case then goes through the legal process of discovery.
At this time, evidence is gathered, including information from the served spouse and others, such as experts. Several court hearings may take place.
If the case is uncontested, the filing spouse can finalize the divorce without the necessity of any court hearings. They just need to submit an affidavit with their paperwork.
- FindLaw: Alienation of Affection
- Virginia Code: Section 8.01-220. Action for alienation of affection, breach of promise, criminal conversation and seduction abolished.
- Law for Families: Can a Third Party in Virginia Be Held in a Divorce Case in an Extramarital Affair?
- Virginia Code: Section 20-91. Grounds for divorce from bond of matrimony; contents of decree.
- Manassas Law: Virginia Adultery Laws
- Case Text: Va. Code Section 20-95
- Divorce Law Info: Virginia Divorce Law Explained - What You Need to Know About Virginia Divorce Law
- Virginia Legal Aid: No Fault Divorce Self-Help Brochure
- Melone Hatley PC: Do I Need a Separation Agreement in Virginia?
- Virginia Legal Aid: Virginia Do-it-Yourself Divorce Instructions
- VA Courts: Circuit Court Civil Forms
- VA Courts: Acceptance/Waiver of service of Process and Waiver of Future Service of Process
- Virginia Courts: Circuit Court Civil Filing Fee Calculation
- VA Courts: Petition for Proceeding in a No-fault Divorce Without Payment of Fees or Costs
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.