Proving Adultery in a Virginia Divorce
Virginia allows for both fault-based and no-fault divorces. If you opt for a no-fault divorce, you must be living separately for at least 12 months before filing; with no cohabitation at all. If you don’t have any minor children, this time is reduced, and you only have to live apart without cohabitation for six months. If you want to divorce because your spouse has been cheating, it would be an at-fault divorce, which can be harder in many cases. Proving adultery in Virginia is very challenging, which is why you need a skilled Virginia family law attorney to guide you through the process.
Adultery is also a Criminal Offense
While not prosecuted much at all, the Code of Virginia still classifies adultery as a criminal offense. Section 18.2-365 notes that any person who is married and has sexual intercourse with another person who is not his or her spouse can be found guilty of a Class 4 misdemeanor. You might think this is good for a divorce because the courts take adultery seriously; however, it’s not uncommon that someone might “plead the 5th” and protect themselves from self-incrimination during a civil case to ensure they are not prosecuted for a criminal matter based on their testimony.
Proving Your Spouse Cheated
You cannot go into court with a hunch or allegation that your spouse cheated and expect to prevail with a Circuit Court judge. Your spouse can admit to you that they cheated, but unless there is a way to corroborate that statement at court, the allegation might not stick. Some courts will count circumstantial evidence while others want more concrete proof, like an eyewitness.
One of the best ways to prove adultery is through the confession of the paramour, which is the person your spouse had an affair with. It may sound surprising that some paramours would testify, but they are often willing to help when they find out the person is married. It helps if the paramour has concrete proof like photos or videos, but that can be difficult at best to watch in the courtroom.
If the paramour knows your spouse was married and had sex with him or her anyway, then the risk of criminal prosecution for adultery applies. This is where the 5th amendment comes into play, as most people are not going to voluntarily go on record stating something that could carry criminal consequences.
While circumstantial evidence is less desirable, sometimes you luck out with the type of evidence out there. One such case would be if your husband fathered a baby with another woman during your marriage and his name is listed on the birth certificate.
It’s not uncommon to utilize the services of a private investigator during a divorce based on adultery. You need to use a good investigator who can do excellent field work and be a likeable witness on the stand during testimony. And, if they crumble under the stress of cross-examination, it can weaken your position for sure.
Retaining a Virginia Divorce Attorney
Retaining the right Virginia divorce attorney is as important as preparing the proper litigation strategy to prove adultery. Contact the attorneys at Whitbeck Cisneros McElroy PC and schedule a consultation with one of our skilled attorneys. Our team has years of experiencing handling all areas of family law matters, including divorces involving adultery.