Thursday, July 3, 2014

Proving Adultery in Virginia Divorce Cases

As always, before reading this post, please review our disclaimer by following the link above or by clicking on this link.  As always, legal principles I discuss apply only to the Commonwealth of Virginia.

Update:  Some portions of this blog post are outdated due to changes in the law since this post was first made.  Please see my 2020 relevant changes in the law post for details.

Introduction

Despite the onset of the availability of no-fault divorces, adultery remains a very important part of divorce law in Virginia.  Adultery, for example, is the only divorce ground, fault or no-fault, for which a full divorce can be granted without any waiting period.  Moreover, if adultery is proven, the person committing adultery is generally barred from receiving spousal support (although there can be exceptions to this), and can get pretty harshly penalized in the division of property.  If it is the payor of spousal support who committed the adultery, that too can be a factor used by the court in determining how much spousal support to award.  Finally, if children are involved, adultery can play a substantial role in the awarding of custody and visitation.

Proving adultery, however, remains challenging.  Under Virginia law, adultery must be proven by "clear and convincing evidence," a standard tougher than your typical civil "preponderance" ("more likely than not"), although still not all the way to the criminal "beyond a reasonable doubt."  Add to that the additional obstacles that are in place, and you've got adultery being nearly impossible to prove.  Nearly impossible and impossible are not the same thing, however, and in this blog post I will discuss some of the obstacles to proving adultery that exist and some ways around them.

Confessions

Obviously, the fastest way to prove adultery is by having the adulterer confess.  Note that this is actually not sufficient for getting a divorce granted on the basis of the adultery - the confession would need to be corroborated - but for other purposes it is.  Also obviously, this is not an easy thing to do.  If the person was willing to betray your trust, why would you expect him or her to be truthful just because they are under oath?

Moreover, in Virginia we have another problem.  Despite practically no prosecutions in decades, we still have on the books Virginia Code Section 18.2-365 which makes adultery a class 4 misdemeanor.  This means that, when pressed, an accused adulterer has the ability to plead the fifth.  In most states that wouldn't be a huge problem since pleading the fifth only protects the plea from being used against you in a criminal case, not a civil case, but in Virginia we have Code Section 8.01-223.1 which forbids the assertion of any constitutional right, including pleading the fifth, from being used against you in even a civil case.

Now, there is a potential, but imperfect, way around the fifth amendment issue.  Virginia Code Section 19.2-8 states that for all misdemeanors for which another time is not prescribed (which includes the adultery misdemeanor), there is a statute of limitations of one year.  Because the fifth amendment only protects you from being compelled to give testimony about a crime for which you could actually be prosecuted, it would theoretically not survive a situation where the adultery occurred more than a year ago.  Some judges have held, however, that if adultery is ongoing, then the adultery older than a year could be used as evidence of ongoing adultery, and thus would still be covered by the fifth amendment.

In short, it is unlikely you will be able to procure a confession by any means, forcing you to resort to other means.

Paramour

The next best way to prove adultery is confession from the paramour (the person with whom the adultery was committed) him or herself.  I've been surprised in my work how often the paramour actually is willing to testify.  Usually this occurs if the paramour did not know that the person was married at the time of the affair, or they are no longer together and the breakup was particularly unpleasant.

Now, a paramour's testimony is not inherently considered reliable by the court.  If the adulterer pleads the fifth, then there's a good chance the testimony will be accepted, but if the adulterer denies it and you get into a he said/she said, reaching the clear and convincing evidence standard of proof becomes difficult.  Usually the paramour will have to have some real evidence, which can range from pictures and videos (yes, we have to deal with those when we work in family law... and no, it's not as "fun" as you might think - "horrifying" is probably closer to the word I use when it comes up) to descriptions of anatomy that become very uncomfortable for everyone in the courtroom.  Nonetheless, if the paramour can back up the story, you've got a very strong case.

Obviously, there are obstacles here too.  Unless the paramour did not know your spouse was married, the criminal code applies equally to the paramour and he or she can just as readily plead the fifth.  Moreover, if the relationship is ongoing, the paramour might not be willing to testify truthfully.  Even if the relationship is no longer ongoing, if they are still friendly, it can still be hard to get testimony.  And that's all ignoring the fact that many paramours simply don't have the back-up to win a he said/she said (especially if it was a one night stand, instead of a prolonged affair).

Circumstantial Evidence

If you don't have a confession from the spouse or the paramour, you are left with circumstantial evidence.  Many people admit defeat if they are at this point, but the reality is circumstantial evidence can still win.  If criminals are convicted "beyond a reasonable doubt" on circumstantial evidence, why shouldn't you be able to prove adultery by "clear and convincing evidence" with only circumstantial evidence?

Obviously, some circumstantial evidence is more powerful than others.  If your husband is named as the father on the birth certificate of another woman's baby, for example.  I still remember a case where a client found out about her husband's affair when she was served as a family member (a valid form of process service in Virginia) with the other woman's petition for our client's husband to pay child support - so these things do happen.  However, without a baby and a DNA test on your side, spending nights in a single bed hotel room together, being loud enough for the neighbors to hear, being seen in public holding hands, etc., can all serve as circumstantial evidence to build a case.

Of course, you might be thinking "how would I know?"  Beyond credit card bills and phone records, a private investigator is frequently the best way to find out.  A private investigator can follow your spouse and provide evidence of an affair, or, at least, names of people who could provide evidence.  Private investigators are not cheap, and signal a severe breakdown in trust in a relationship, so you should always be cautious before hiring one, but if you think an affair is likely, that can be the way to go.

Conclusion

Adultery still plays a large role in family law, even in our current no-fault era.  Proving adultery, however, is very difficult, and takes some level of expertise.  If you are suspicious that your spouse is cheating, or you know your spouse has cheated, or you are being accused of cheating, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour.

No comments:

Post a Comment