Adultery is one of the most common fault-based grounds on which fault divorces are built under Virginia law. Not only that, but it is also considered a criminal offense (Class 4 misdemeanor) that can warrant criminal prosecution for both the cheating spouse and her partner. As a result, they are entitled to their constitutional right under the Fifth Amendment as a means of protection against self-incrimination.
In addition, there are numerous defenses against adultery charges including condonation (when the couple resumes sexual relations even after the incident of adultery is known ), recrimination (if the suspected spouse also committed adultery), collusion (when the accusing spouse encourages the relationship) and the time restriction (when a case is filed more than five years after the incident).
Courts require “clear and convincing” evidence to prove adultery, which, combined with a spouse’s Fifth Amendment right, along with a plethora of defenses, makes proof very difficult, time consuming, and sometimes costly. expensive.
One of the most common means of proving adultery in Virginia is through a direct confession by the spouse, or through the testimony of the lover. In the latter case, the testimony must accompany some form of conclusive evidence to persuade the Court, be it photos, videos or communications. Both cases tend to be highly unlikely due to the implications of adultery charges. These means usually work when the lover is unaware of the marriage, therefore not guilty of any accusation. Confessions from mutual friends, family members, or co-workers in no way prove adultery, and the Court will most often dismiss it.
If a confession is not possible, then it is necessary to build a case against the accused using circumstantial evidence. Bearing in mind that the Court requires “clear and convincing evidence”; This can be a difficult and complicated process.
Emails, text messages, phone calls, financial records (credit/debit card use), and letters can help confirm, but not prove, adultery. Generally, emails, credit records, and phone call recordings can be obtained through a subpoena filed by the suspected spouse’s divorce attorney. Text messages are more difficult to obtain due to the legality of their form. If such evidence can be obtained, a case is valid. It is not uncommon for the accusing spouse to hire a private investigator. Please note that all evidence must prove a case of sexual relations outside of marriage; a romantic dinner, flirtatious gestures or regular periods of prolonged absence are not enough.
A powerful means of substantiating a Virginia adultery case is whether the spouse’s infidelity culminated in the birth of a child. If the spouse and lover are listed as parents on the birth certificate, then adultery is proven (since the time of conception was during the marriage of the spouse). If a birth certificate is inconclusive, the Court may request a paternity test.
The above, once coupled with shaky testimony on the part of the defendant, can be grounds for a guilty divorce .
Spouses considering pursuing a guilty divorce through the adultery test must weigh the consequences. Virginia law does not relieve the charging spouse’s share of the couple’s marital estate, nor will the adultery case affect child support and custody, or distribution of property (at least not to a substantial degree). In addition, the Court will not collect punitive fines. Alimony tends to be the one facet of divorce finances that is most affected by adultery. The plaintiff’s liability for spousal support may be suspended, except in certain circumstances where the defendant’s adulterous behavior was not the primary reason behind the divorce.
If you need a Virginia adultery attorney to help you with your Virginia adultery case, call us at 888-437-7747. Our Virginia adultery attorneys can help. C