Adultery is one of the more common fault-based grounds on which at-fault divorces are built in accordance with the laws of Virginia. Not only that, but it is also considered a criminal offence (Class 4 misdemeanor) that may warrant criminal prosecution on both the unfaithful spouse and their paramour. As a result, they are entitled to their constitutional right under the Fifth Amendment as a means of protection from self-incrimination. Additionally, there are numerous defenses to adultery charges including condonation (when the couple resumes sexual relations even after the incident of adultery is made known), recrimination (if the suspecting spouse also committed adultery), connivance (when the accusing spouse encourages the relationship), and time-barring (when a case is filed over five years after the incident occurred).
Courts require ‘clear and convincing’ evidence to prove adultery, which paired with the spouse’s right to the Fifth Amendment along with a plethora of defenses, make proof very difficult, time consuming and – at times – costly.
One of the more common means of proving adultery in Virginia is through a direct confession by the spouse, or through the testimony of the paramour. In the latter case, the testimony must accompany some form of conclusive evidence to persuade the Court, whether photos, videos, or communications. Both cases tend to be highly unlikely due to the implications that entail charges of adultery. These means usually work when the paramour was unaware of the marriage, hence guilty of no allegations. Confessions of mutual friends, family members, or coworkers by no means prove adultery, and will more than often be dismissed by the Court.
If a confession is not possible, then it is necessary to build a case against the accused using circumstantial evidence. Keeping in mind the Court requires ‘clear and convincing evidence’; this may prove a hard and convoluted process.
Emails, texts, phone calls, financial records (credit/debit card uses) and letters can all help substantiate – but not prove – the adultery. Generally, emails, credit records, and phone call recordings can be obtained through a subpoena filed by the suspecting spouse’s divorce attorney. Text messages are more difficult to obtain due to the legality of their form. If such evidence can be procured, a case is valid. It is not uncommon for the accusing spouse to hire a private investigator. Note that all evidence must prove a case of extra-marital sexual intercourse; a romantic dinner date, flirty gestures, or regular periods of extended absence are not sufficient. It must also be noted that any gathered evidence can be negated by the defendant through a well established explanation.
A powerful means of corroborating a case of adultery in Virginia is if the spouse’s infidelity culminated in the birth of a child. If the spouse and the paramour are listed as parents on the birth certificate, then adultery is proven (given that the time of conception was during the spouse’s marriage). If a birth certificate proves inconclusive, a paternity test can be requested by the Court.
The aforementioned, once coupled with a shaky testimony by the accused, can be grounds for an at-fault divorce.
Spouses considering pursuing an at-fault divorce through proof of adultery must evaluate the consequences. Virginia law does not waive the accusing spouse’s share to the marital estate of the couple, nor will a case of adultery impact child support and custody, nor property distribution (at least not to a substantial degree). Moreover, the Court will not charge any punitive fines. Alimony tends to be the one facet of divorce finances that is most impacted by adultery. The Plaintiff’s responsibility to spousal support can be waived, unless in certain circumstances where the accused’s adulterous behavior was not the primary reason behind the divorce.