When a spouse prepares his/her application for divorce, courts require the filing spouse to list a specific reason for the request. Some states allow parties to file for divorce based on fault, meaning the spouse claims that his/her other half’s actions during the marriage are the cause of the breakup. In Virginia, adultery is considered as grounds for a fault divorce.
At Fault Divorces
- Adultery: Even if the spouse admits to having an affair, establishing an adultery claim can be hard in the state of Virginia. The spouse needs to call witnesses, and/or name names to prove adultery in court. The evidence required is strict and specific, and certain acts of infidelity are not considered adultery under the law. Also, if the spouse knew about the adultery but continued to live and be intimate with his/her other half, the Court may decide the spouse has forgiven the affair.
Virginia law demands clear and convincing evidence for a finding of adultery. Thus, to prove adultery, a person must provide the court with clear and convincing evidence that one’s spouse actually had sexual relations with another person. Virginia law also requires corroboration of the adultery, evidence or testimony from some outside source that the accused spouse committed adultery. The accused spouse’s own statements, in text messages or other forms of communication, would potentially be powerful evidence as to whether he/she had sexual relations with another person.
The Fifth Amendment
Adultery is not only a ground for divorce in Virginia, but it is also a class four misdemeanor under Virginia law. Because adultery is a crime in Virginia, a spouse accused of adultery in a divorce can use his/her Fifth Amendment right against self-incrimination, and deny answering questions about the adulterous behavior.
What Is a Separation Agreement?
Most divorces settle long before the need for a trial, but only when the couples are willing to discuss the terms. In cases where the spouses can still communicate, drafting a separation agreement is the essential part of a divorce. During negotiations, couples agree on how to divide marital property, assign marital debt, and determine if either spouse will provide support for the other spouse. If the couple can agree to these terms, the legal process to divorce is less controversial and less expensive.
Adultery occasionally provides some helpful leverage in negotiating a favorable settlement. When having the accused spouse indiscretions showcased in open court, he/she will agree to give their wronged ex a little more home equity, provide a higher support payment.
Adultery has a five-year statute of limitations as a divorce ground in the state of Virginia. This means that if the divorce suit is filed more than five years after the adultery was committed, the divorce will not be granted on the adultery ground.
Custody, Child Support, and Visitation
The way of deciding who will get custody is what is in the best interest of the children. There are also certain presumptions which help the court in determining the best interest of the child:
- Parental rights: Parents must be proven to be unfit before the children will be given to someone else.
- Continuity of placement: If children are doing fine where they are, do not cause problems by moving them.
- Children’s choice: A judge will take into consideration who the children want to live with.