Proving Adultery in Your Divorce Case

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It’s more than a feeling … your spouse stays out late, “at work,” when they’re at home they’re distracted and on their devices … they have a “friend” who is just a little too close. You know something is wrong, but could you prove it in court?

Virginia makes getting a divorce based on adultery difficult, and for good reason. Adultery is still a class 1 misdemeanor in Virginia; meaning those convicted can face up to 12 months in jail. In divorce cases, adultery must be shown by “clear and convincing” evidence – more than any other ground for divorce requires.

Private Investigators

One of the most frequent questions we get is, “should I hire a private investigator?” The answer is always – it depends. Usually, the cost of the investigator is not worth the benefit of any evidence they provide. Even a showing of a spouse staying overnight in another residence, with another person, is not enough to demonstrate adultery. Proof of sexual intercourse is required in order to meet the burden. Usually that will require an admission by the cheating spouse or testimony of the paramour.

Depositions and Testimony

Since adultery is still a crime in Virginia, cheating spouses used to be able to hide behind their fifth amendment right against self-incrimination. That meant during questioning in a deposition or at trial, the cheating spouse could simply plead the fifth, rather than answer any direct questions regarding the adultery.

As of 2020, Virginia has updated the statute to provide that such a response may be used to draw an “adverse inference” against that party. Declining to respond to an allegation or asserting fifth amendment privilege is essentially the same as admitting that there is no alternative explanation for the conduct. Such testimony is likely not enough on its own to establish the adultery claim, but can be used with other evidence to meet the burden.

If the identity of the paramour is known, they can be subpoenaed for a deposition. There is no right against self-incrimination if the paramour is not married, and so they must answer honestly about the relationship and any sexual acts that occurred with the cheating spouse. This testimony can be used at trial as proof of adultery.

Photos, Videos, and Electronic Evidence

Depending on how it was obtained, spouses may be able to use text messages, emails, and photo or video proof to establish the adultery claim. In many adultery cases, showing proof of previous admissions or multiple communications with the paramour may be used. Before breaking into any of your spouse’s devices or accounts, be sure to consult with a knowledgeable family law attorney. There may be a legal, and practical, way to get the information you are looking for.

Financial Evidence

Where there’s an adulterous relationship, there is also typically a trail of money involved. Cheating spouses will find ways to pay for dates, hotel rooms, travel, and gifts during their affairs. Financial records from credit cards, bank statements, paypal, venmo, and other sources are all discoverable in a divorce matter and can be used to show spending patterns, atypical behavior, out-of-state travel, and other elements relating to the adultery case.

Why Prove Adultery?

A lot of research and effort goes into successfully proving an adultery case, so there should be a significant reason to pursue it. If the parties don’t have a lot of assets or support issues at stake, there may be no benefit to proving an adultery claim.

Adultery, if proven, can be a bar to receiving spousal support. If there is a claim for support involved, there can be a benefit to bringing in the evidence of adultery.

The reasons for dissolution of the marriage can be relevant in division of assets and liabilities, and so adultery may be relevant in that claim as well. If a spouse expended significant resources in pursuit of their affair, or incurred substantial debt as a result, the other spouse should not be held liable. The court has discretion to award property and debts according to the equities of the case and may consider adultery to be relevant in that claim.

About Melone Hatley, P.C.

If your spouse is committing adultery, it’s time to get an attorney. The top-rated attorneys at Melone Hatley, P.C. are here to help! Melone Hatley, P.C. is a family and estate firm serving Virginia Beach and Northern Virginia. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients.

We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about adultery and divorce, contact our office at 800.479.8124 or book your consultation online.

Rebecca Melone

Written By Rebecca Melone

Rebecca Melone established Melone Hatley P.C. in 2014 with the goal of helping families with a range of legal services from estate and family law to traffic tickets and misdemeanor criminal matters.
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