If about 3 years ago my wife and I separated (not legally), what are my rights in a divorce ifI am now living with someone else?

I moved into a rental property we had owned together. Now I’ve been with someone else for the last 2 years and she wants me to get a divorce but my ex’s attorney says that since I live with someone else, the courts under state law will look at it as adultery and I will not be entitled to any of our shared assets. Is this true?

Asked on October 24, 2011 under Family Law, Virginia


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You need to get a lawyer as soon as you can.  It is my understanding that under Virginia law, the court can consider adulterous behaviors as a factor in determining the distribution of marital assets in a divorce.  Now, it does NOT mean that you get nothing.  It usually means - at least in other states - that if you dissipated marital assets because of the adultery - blew your life savings on your girlfriend - then the court will weigh that against you in the distribution.  It can also mean that if the adultery was the cause of the break down of the marriage that could be used against you.  But from what you have said here neither is true and these "presumptions" that the attorney has made can be rebutted.  But you need muscle behind you.  Good luck.

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