How Has Virginia Changed the Rules on Adultery and Divorce?

Adultery and divorce in Virginia are now subject to a new timing rule.

How Has Virginia Changed the Rules on Adultery and Divorce?

If you’ve been separated from your spouse for a while and you’re now wondering whether something that happened after your separation date could still count against them in a divorce, the answer just changed, at least when it comes to adultery.

As of July 1, 2026, Virginia law now says that adultery can only be used as a fault ground for divorce if it happened before the couple’s last separation. That’s a real shift from how things worked before. Previously, the timing of the affair didn’t matter, and someone could file for divorce based on adultery even if the couple had been separated for a long time; provide they were still technically married when the adultery occurred. Now, for adultery specifically, timing matters and you can only file for adultery if it occurs before the couple is separated.

Here’s where it gets interesting. The law didn’t make the same change across the board. There are other similar categories of conduct (sodomy and buggery committed outside the marriage) that can also serve as fault grounds for divorce in Virginia. Yet these categories didn’t get the same timing update. So, there are now closely related grounds sitting side by side in the same law (Virginia Code §20-91), one of which requires conduct to happen before separation, and one of which doesn’t say that at all. This split raises new questions about adultery and divorce in Virginia.

Why the Grounds Are Treated Differently

This year’s update was aimed specifically at adultery. It responds to situations where post-separation relationships were being used as fault grounds even though the marriage had, for all practical purposes, already ended by the time that conduct occurred. Yet sodomy and buggery weren’t part of that legislative change, so its language stayed exactly as it was before the update.

Does this mean that some post-separation sexual activity (sodomy and buggery) can still be a fault ground while other post-separation sexual activity cannot (adultery)? Perhaps. It’s the kind of detail family law attorneys track closely because we’re reading these statutes line by line, but it’s easy to see how a change like this could go unnoticed by people who haven’t had a reason to look closely at this specific section recently.

Does This Change Anything in Practice?

For most divorce cases, not much. The majority of divorces in Virginia proceed on no-fault grounds, meaning the couple lives apart for the required period and finalize the divorce without needing to prove fault at all. Fault grounds tend to matter in a smaller number of cases, usually when a party wants to move faster than the no-fault waiting period allows, or when fault could affect spousal support or the division of property. In those cases, the new rule on adultery and divorce in Virginia may make a real difference.

For cases where fault is at issue, though, this distinction matters. If a spouse’s post-separation conduct is part of the case, the specific category that conduct falls into determines whether it can support a fault-based filing. Conduct that may have worked as a fault ground before this year may not work the same way now, depending on the timing.

It’s also worth noting that even for the grounds that didn’t receive a new timing restriction, courts still have discretion in how they weigh post-separation conduct when deciding fault-based issues like support and property division.

The Bigger Takeaway

Divorce law is full of details like this one, details that often don’t come up until someone is actually in the middle of a case. The date of separation, the exact nature of what happened afterward, and which legal category that conduct falls into can all affect the outcome of a fault-based divorce claim.

Anyone who is separated, or approaching separation, and has questions about how this change applies to their situation should talk with a family law attorney early. Timing issues like this one are far easier to address before a case is filed than after. Questions about adultery and divorce in Virginia often turn on exactly these kinds of timing details.

Key Points About Adultery and Divorce in Virginia

As of July 1, 2026, the rules on adultery and divorce in Virginia changed: adultery can only be used as a fault ground if it happened before the couple’s last separation.
Sodomy and buggery committed outside the marriage did not receive the same timing update under Virginia Code §20-91.
Most Virginia divorces proceed on no-fault grounds, but the change can matter in fault-based cases involving spousal support or property division.
Anyone with questions about adultery and divorce in Virginia should talk with a family law attorney early.

Conclusion

The date of separation has always mattered in a Virginia divorce, but this change makes it matter in a new and more specific way when adultery is part of the case. Understanding exactly when conduct occurred, and which fault ground it falls under, can affect whether that conduct can be used at all. Waiting until a case is already filed to sort out these details puts you at a disadvantage. If you are separated, thinking about separating, or already navigating a fault-based divorce, now is the time to understand how this change may apply to you. If you would like help evaluating your options, contact us today.