Adultery is defined under Virginia law as “sexual intercourse by a married individual with any person who is not their spouse.” Under Virginia Code 20-91, adultery is a fault-based reason for divorce. Unlike other grounds for divorce, there is no waiting time before filing on the basis of adultery. Adultery is difficult to establish, but if proven, it can have considerable financial consequences in a divorce, especially when pertaining to spousal maintenance.
Proving Adultery in Virginia
To get a divorce in Virginia, the state needs “clear and convincing” proof of adultery. To qualify as grounds for divorce, your spouse’s affair must have progressed to the point of physical contact, resulting in sexual intercourse. Mental or emotional relationships are not taken into account. Being extremely close with a new coworker, friend, or another person is insufficient. Proving adultery as grounds for divorce requires establishing that sexual intercourse took place.
Another complication is that because adultery is a crime in Virginia, your spouse may invoke their Fifth Amendment privilege against self-incrimination and refuse to answer questions regarding their infidelity. However, on July 1, 2020, new legislation went into effect in Virginia, allowing judges to view an individual’s invoking of their Fight Amendment negatively. This threatens to significantly limit the ability of the accused to invoke the Fifth Amendment as a defense in divorce disputes.
Direct Confession by the Spouse
A direct confession by the spouse or the testimony of the paramour are two of the most popular ways to prove adultery in Virginia. In the latter situation, the testimony must be accompanied by conclusive proof, such as images, videos, or communications to persuade the Court.
Text Messages or Emails
Text messages, emails, phone calls, credit/debit card uses, and letters can all be used to support – but not prove – the affair. The phrasing of the words, however, is crucial. Emails arranging romantic dinners aren’t always indicative of adultery. As the basis of your case, you’ll need something more substantial.
For example, if your spouse admits to adultery in a text or email to you, such admission might form the basis of your case. Other messages and emails that prove nothing on their own become more helpful as supporting evidence with that proof.
The Birth of a Child
A strong indicator of adultery in Virginia is if the spouse’s infidelity resulted in the birth of a child. Adultery is proven if the birth certificate lists the spouse and the paramour’s names as the parents (assuming they conceived the child during the spouse’s marriage). If a birth certificate proves to be inconclusive, the court may order a paternity test.
The above mentioned, when combined with the accused’s dubious testimony, might be grounds for an at-fault divorce.
Corroboration of the Evidence in Virginia Divorce Court
Virginia law also needs “corroboration” of the adultery—that is, proof or testimony from a third party proving your spouse’s infidelity.
All of those previous messages and emails will come in helpful at this point. If your spouse sends a message to another person claiming they loved having intercourse with them, and the other person agrees, it might be enough proof to establish adultery.
Hiring a Private Investigator
If you don’t have such proof, you might want to consider hiring a private investigator to establish that adultery occurred. A qualified private investigator can furnish the strong evidence required by Virginia law to prove adultery.
It is essential that all evidence must confirm a case of extramarital sexual activity; a romantic dinner date, seductive gestures, or recurring periods of prolonged absence are not enough.
For example, the investigator might capture the cheating couple holding hands at an intimate dinner before checking into a motel room. The investigator may see them entering their room and leaving the following morning. The investigator has now constructed a case for adultery. It’s also worth noting that the defendant can refute any obtained evidence with a well-established reason.
Contact Holcomb Law, P.C. today
Filing for divorce on the basis of adultery is complicated and requires the services of an experienced Virginia divorce attorney. Contact Holcomb Law, P.C. for more information about Virginia adultery laws or to discuss your case.
Call us now at (757) 656-1000. You may also book your consultation by contacting us online.