You cannot sue for alienation of affection in Virginia. The Commonwealth abolished the claim in 1968 under Virginia Code 8.01-220, which also wiped out criminal conversation, breach of promise to marry, and seduction as civil causes of action.1Virginia Code Commission. Virginia Code 8.01-220 – Action for Alienation of Affection, Breach of Promise, Criminal Conversation and Seduction Abolished If your spouse had an affair, your legal recourse runs through the divorce itself, where adultery can shift spousal support, influence property division, and give you grounds to end the marriage without the usual waiting period.
What the Statute Shut Down
Virginia Code 8.01-220 bars any civil action for alienation of affection, breach of promise to marry, or criminal conversation for claims arising on or after June 28, 1968.1Virginia Code Commission. Virginia Code 8.01-220 – Action for Alienation of Affection, Breach of Promise, Criminal Conversation and Seduction Abolished That covers both of the claims most people ask about. Alienation of affection targeted anyone whose deliberate interference destroyed marital love, even without a sexual relationship. Criminal conversation was narrower and simpler, requiring only proof of a valid marriage and sexual intercourse with the other spouse. Both are gone in Virginia. It does not matter how obvious the interference was, how much the affair cost you, or how clearly the third party knew your spouse was married. Virginia courts will not hear the case.
Can You Sue in Another State?
A small group of states still recognize alienation of affection, including North Carolina, Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah. North Carolina is the most active, producing jury verdicts in the millions. Whether a Virginia resident could bring a claim in one of those states turns on jurisdictional questions that depend on where the affair occurred and the parties’ connections to that state. That analysis requires a lawyer licensed where the suit would be filed. Virginia’s own courts will not entertain the claim regardless of where the affair happened.
Where Adultery Still Hits in a Virginia Divorce
The practical consequences for the person who had the affair come through the divorce, not through a separate lawsuit.
Grounds for Divorce
Adultery is the first listed ground for divorce from the bond of matrimony under Virginia Code 20-91.2Virginia Code Commission. Virginia Code 20-91 – Grounds for Divorce from Bond of Matrimony Filing on that ground skips the waiting period that no-fault divorce requires. A no-fault filing in Virginia means living apart for a year, or six months if you have a signed separation agreement and no minor children. An adultery filing can move forward right away, but you need corroborating evidence beyond your own testimony.
Spousal Support
This is the heaviest consequence. Under Virginia Code 20-107.1, a court generally cannot award permanent spousal support to a spouse who committed adultery. The one escape is a finding of “manifest injustice,” which requires clear and convincing evidence weighing both spouses’ relative degrees of fault and their economic circumstances.3Virginia Code Commission. Virginia Code 20-107.1 – Court May Decree as to Maintenance and Support of Spouses That is a hard standard to meet. For a lower-earning spouse who was counting on support, proven adultery can erase it entirely.
Property Division
Virginia divides marital property through equitable distribution, which aims at fairness rather than a strict 50-50 split. One factor the court must weigh is the circumstances that contributed to the end of the marriage, and the statute specifically includes fault grounds like adultery.4Virginia Code Commission. Virginia Code 20-107.3 – Court May Decree as to Property and Debts of the Parties Adultery on its own rarely produces a dramatically uneven division, but it can tilt the result when paired with financial misconduct, such as money spent on the affair partner or other dissipation of marital assets.
Other Theories People Ask About
Two other claims come up when people search for a way around the alienation of affection bar. Both are long shots in the affair context.
Intentional Infliction of Emotional Distress
Virginia recognizes IIED, but the elements are strict: intentional or reckless conduct, conduct that is outrageous and intolerable by generally accepted standards of decency, a direct causal link to the distress, and distress that is severe. The “outrageous” standard is reserved for conduct so extreme that an ordinary person would call it beyond every bound of decency. An affair by itself does not clear that bar. Courts generally require something more, such as knowing exposure to a sexually transmitted disease, sustained harassment, or a calculated effort to publicly humiliate the spouse. A straight affair-only IIED claim is almost certain to be dismissed.
Loss of Consortium
Loss of consortium compensates a spouse for the loss of companionship, affection, and support when their partner is injured. It is a derivative claim, which means it depends on an underlying injury, traditionally a physical one, to the other spouse. A car accident that destroys the marital relationship might support it. An affair generally does not, because there is no underlying physical injury to hang the claim on.
What to Do if You Suspect an Affair
Since the third party is out of reach in Virginia, the useful work is building your position inside the divorce. Documentation matters because the spousal support bar under 20-107.1 is only as strong as the evidence behind it. Text messages, photographs, financial records showing money spent on the affair, and witness testimony all carry weight. Some people hire private investigators for surveillance, which typically runs $175 to $250 or more per hour.
Talk to a family law attorney early. The decision to file on fault grounds, what evidence to collect first, and how adultery interacts with custody and support in your specific situation all benefit from advice before you make a move your spouse’s lawyer can later use against you.