Can a Third Party in Virginia Be Held in a Divorce Case in an Extramarital Affair?

By Cindy Chung

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If an extramarital affair leads to divorce, the jilted spouse might want to know whether Virginia laws provide a way to sue the third party, or the person involved in the affair with her spouse. Although adultery may become relevant to a divorce case, state law does not allow a spouse to sue the third party as part of the divorce proceedings.

Divorce Case and a Third Party

Virginia recognizes two types of divorce: "divorce from bed and board" and "divorce from the bond of matrimony." To obtain a divorce from the bond of matrimony, a complete and absolute divorce that allows former spouses to remarry, the spouse filing for divorce, or both spouses, must demonstrate at least one of the divorce grounds permitted by state law. Although spouses can establish a no-fault divorce by living separately and apart, a husband or wife can also request a divorce from the bond of matrimony by alleging the other spouse's adultery. While an extramarital affair may serve as grounds for divorce under state law, the divorce is a legal action between the husband and wife only; the jilted spouse generally cannot bring in the third party as a party to the divorce case.

Alienation of Affection Lawsuit

Although a divorce case involves only two parties — the husband and wife — some states do allow a spouse to file a separate lawsuit against the third party involved in the extramarital affair. Based in tort law, an alienation of affection lawsuit allows a jilted spouse to file a civil action against the third party for interference with the marriage. However, only a few states currently permit alienation of affection lawsuits; Virginia is not one of those states.

Current Virginia Law on Alienation of Affection Lawsuits

At one time, Virginia allowed spouses to file alienation of affection lawsuits against third parties, but the state no longer permits civil actions in response to adultery. The Virginia General Assembly enacted a state law specifically prohibiting alienation of affection lawsuits based on acts arising or occurring after June 28, 1968. The same state law also eliminates the right to file a lawsuit based on a third party's seduction of a spouse arising or occurring after July 1, 1974. Accordingly, a recent extramarital affair is unlikely to result in an alienation of alienation lawsuit that would meet the timing requirement set by state law.

Lawsuit for Intentional Infliction of Emotional Distress

A tort lawsuit is a legal action separate from a couple's divorce case. Some states permit tort lawsuits filed against third parties for the intentional infliction of emotional distress based on their participation in extramarital affairs. However, Virginia state laws currently do not allow a jilted spouse to file a tort lawsuit against the third party in an extramarital affair. In the 2000 case of McDermott v. Reynolds, the Supreme Court of Virginia held that the statute prohibiting alienation of affection lawsuits also bars lawsuits against third parties for the intentional infliction of emotional distress.