A recent Virginia case suggests that engaging in extramarital affairs can come back to hurt you later on, even if your spouse did not raise your alleged adultery as an issue in the initial filings. That’s because in some states the divorce itself and spousal support, while related, may be separate issues with different considerations.

The case in question involved a couple, Julia Karabaic-Chaney and Jacob Chaney, who got married in 2012 and separated in 2017. Julia filed a complaint for divorce, seeking equitable distribution of their property (in other words, a court dividing their marital assets and liabilities in a way deemed fair under state law), alimony, child support and attorney fees. Jacob did not mention Julia’s alleged adultery in his answer to her complaint.

After hearing testimony from both spouses, the judge granted Julia a divorce, divided the property,ordered Jacob to pay child support and awarded Julia $45,000 in alimony to be paid in installments over the next five years. The judge also gave Julia the right to go to court to seek further spousal support once the five years were up.

In fighting the alimony award, Jacob sought to introduce evidence of Julia’s alleged unfaithfulness, but the judge said it was inadmissible because he didn’t bring it up in his pleadings.

Jacob appealed and the Virginia Court of Appeals reversed the decision, pointing out that state law on spousal support says a judge can consider a variety of factors, including adultery. This language “commands” a court to consider adultery when awarding alimony, even if the person introducing the evidence didn’t raise it as grounds for divorce or as a defense.

This is a Virginia case and not all states will handle the issue the same way. So consult with a family law attorney in your state if you’re facing a similar situation.