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Pleading the Fifth about Adultery in a Virginia Divorce

No one wants to be interrogated about adultery. Even someone who has never done anything adulterous will find the grilling offensive.  So it is quite common for people to invoke their 5th amendment right to remain silent in the face of such questions. Former speaker of the House, Newt Gingrich invoked the 5th amendment in his divorce.  And had former President Bill Clinton done the same, he would probably not have have been impeached and would not have lost his Arkansas law license.

Virginia Code Section 18.2-365 makes adultery a misdemeanor in Virginia.  It says:  “Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.”

There is considerable doubt whether this law is constitutional.  The U.S. Supreme Court in the case of Lawrence v. Texas held that sodomy laws are unconstitutional.  And the Virginia Supreme Court in Martin v. Ziherl held that Virginia’s law criminalizing fornication was unconstitutional.  So it is easy to see adultery laws being the next to be held unconstitutional.

That said,  the law is still on the books and a prosecution for violating it, however unlikely, is still possible.  So if you are married, you cannot be compelled to answer questions about sexual activity with people other than your spouse.

The issue then becomes whether you can be asked about non-sexual activity with the suspected paramour.   For example, a question about whether you entered a hotel with the paramour does not ask about sexual activity directly, but it comes close enough that you should be able to decline to answer it.  In contrast, a question about whether you knew the person or had lunch with them would be more likely to be found permissible.  The argument is that such questions provide “links in a chain of evidence” that could support the inference that adultery occurred.  The sturdier the link, the more likely it is you will not have to answer the question.

I like to subpoena the paramour and ask them about it.  In one case, the paramour was unmarried.  You will notice that the law refers to a person who, “being married” has sexual intercourse.   I took the position that because they were not married, they could never commit adultery and therefore had no fear of prosecution.  The commissioner in chancery hearing the case agreed and required the paramour to testify to the adultery.  In another case with a similar scenario, the paramour took the 5th amendment during their deposition claiming they might be prosecuted for “conspiracy to commit adultery.”   The case settled and we never got a ruling on whether that objection was valid.

The takeaway is that you can avoid the indignity of questions about sexual misconduct by invoking your 5th amendment rights and the party seeking to prove the adultery will have find another way to prove it.

Divorce in Virginia: How Can I Prove Adultery?

The easiest case I ever had was one where the wife was the one having an affair.   Her low life boyfriend took video of them having sex.  When she dumped him for someone else, he sent the video to the husband. Having evidence like that is very rare.  I had another case where the wife was involved with a woman.  She and the lady took still photos of themselves engaging in cunnilingus.  In the case of homosexual, extramarital relationships the terms are either sodomy or buggery rather than adultery but the legal consequences in a Virginia divorce are the same.

So, if you are not lucky enough to have undeniable photographic or video evidence, how can you prove that the spouse is committing adultery? Back in the 1950′s, before no-fault divorce, proving adultery was necessary much more often than it is today.  And the method lawyers used then is still in use today.   You hire a private investigator who observes and documents the cheating spouse’s behavior.

The investigator’s observations of the passionate kiss in the parking lot followed by the stroll into the hotel holding hands are circumstantial evidence.  Public displays of affection are helpful but not enough by themselves.    If the investigator then sees them go up to the room and not come out until the next day, then you have enough to meet the requirement of clear and convincing evidence.   One of the things you look for in an investigator is the ability to take photographs or video that can be used in court.  If it’s out of focus or too dark or only shows the car, they haven’t really earned their fee.

Often people call and say they have emails or text messages they have somehow captured.  That sort of evidence can be helpful but won’t usually be enough by itself.  You really have to have someone observe them under circumstances where the only reasonable inference is that they are engaging in sexual activity, specifically oral, genital or anal intercourse.  So  save that evidence, but just understand you will have to put it together with evidence of them being alone together for some period of time.

The other path is to try to force the paramour to testify.  If they are married, they will take the fifth amendment and refuse to answer the questions.  But if they aren’t, I have known judges to rule that they have to answer the questions.   The paramour’s testimony is going to be sufficient unless there is some strong reason to doubt their honesty.

Sometimes there are friends or relatives of the cheating spouse who are willing to testify about admissions the spouse made to them or behavior they witnessed directly.  It is not uncommon for someone close to the cheater to disapprove enough to provide the necessary evidence.

Divorce in Virginia: Adultery and Child Custody

Some people want to know whether one spouse’s adultery can affect who gets custody of the children in a Virginia divorce.   It is an interesting question.   This is one sphere in which gender bias can make a difference.

Strictly speaking, the fact that either parent is engaging in an affair is not by itself relevant to who should have custody.   However, in my observation, it can make a difference.  Despite the fact that the presumption in favor of mothers having custody has been abolished, the gender assumptions behind it have not gone away.   The mother normally has a significant advantage in a custody battle. However, that same set of gender prejudices can work against the mother if she is engaging in an affair.

Especially if the mother places the children in a situation where they are living with the boyfriend or even having the boyfriend stay overnight, the father will have a good chance of getting custody.  If the wife is living in the marital home but carrying on an affair, she has a risk that at the pendente lite hearing the judge will order her to move out and grant custody to the husband.   Anything that casts the wife in a promiscuous light will hurt her chances to get custody of her children.  Adultery on the part of the husband clearly doesn’t help but it doesn’t seem to  hurt as much as adultery hurts the wife’s chances.

So if there is going to be a custody contest, both parties are better off to cool their passions and wait until the issue is settled before starting a new sexual relationship.

When Spousal Support can be Awarded Despite Adultery

In Virginia, a spouse who is guilty of adultery usually is denied spousal support.   The spousal support statute, Virginia Code Section 20-107.1, says that “no permanent maintenance and support shall be awarded” to a spouse who is guilty of adultery.  The word “shall” means the judge has to apply the rule.  If adultery is proven, the judge’s hands are tied and no spousal support can be awarded.

There is, however, a loophole.   The same code section includes an exception.  The next sentence says:  “However, the court may make such an award notwithstanding the existence of [adultery]  if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.”

The phrase “manifest injustice” is very vague.   It could be loosely translated as meaning “really unfair.”  So, if it would be “really unfair” to deny spousal support, the guilty spouse can still get it.   To give the judges some further guidance as to what should be considered “really unfair,” the legislature directed them to look at “the respective degrees of fault” and the “relative economic circumstances of the parties.”  So if the adulterous spouse can show that, even though they were bad themselves, the other spouse was even worse AND the other spouse is significantly better off financially, the judge can award spousal support despite the adultery.  It is important to understand that the exception is not mandatory.  The judge can, but does not have to, grant spousal support despite the adultery.

This code section illustrates the difference between two kinds of authority that the legislature gives judges.   In some cases, the judge has to do what the rule says, like it or not.  If certain things are proved, the judge has to apply the rule.  The first part of  the no spousal support to the cheating spouse rule is like that.  This is called a “non-discretionary” decision.

The other kind of authority entrusts the judge with some leeway.  The manifest injustice exception is an example of this.  The code says that if the guilty spouse can show they are less at fault and the other party is  better off financially, the judge “may” award spousal support despite their misconduct.   The key word is “may” which means the judge can weigh the facts and make a judgment call.  This is what is called a “discretionary decision.”

It is a lot easier for the lawyers in a case to predict the outcome when the decision is non-discretionary.   When the judge has discretion however, it can be very hard to predict what they will do.

Divorce in Virginia: Does Adultery Make a Difference?

Adultery is, of course, one of the most common reasons that people divorce.  Many people who call me for advice want to know what  the legal consequences are in a Virginia divorce when one spouse has committed adultery.  The answer is that there are some, but the impact is probably less than most people imagine.

Although there is a criminal statute in the Virginia Code that makes adultery a misdemeanor, it is probably unconstitutional.  It is not enforced.  No cheating spouses go to jail for their infidelity in Virginia.

Under Virginia’s divorce law, there are two things that are different in cases where adultery can be proved.  The first is that, regardless of whether the parties have children, a divorce can be granted without them having been separated for a year.  If one party has the evidence and can get a trial date, the divorce can be granted at any time.

This is largely theoretical, at least in Hampton Roads, because it can be hard to get to trial quickly enough to take advantage of the difference.  Most cases settle.  And getting the divorce done a little quicker, usually does not confer much of an advantage.

In the last few years I have done it once.  The wife and her boyfriend had documented their sexual relationship with photographs and video.  All of the other issues were resolved through an agreement.  Both parties wanted the case to be over quickly.  So we had the wife authenticate the photos and the judge granted the divorce after only a few months of separation.

The second and more significant difference is that spousal support must be denied to the guilty spouse.  Because spousal support is almost always paid to the wife, the wives are the ones who are most affected by this feature of Virginia’s divorce law.  There is a loophole, but usually provable adultery will mean that there will be no spousal support.

In one case, where I was representing the husband, the wife was demanding that he pay her spousal support for a number of years.  The total over time would have been significant.  She was living openly with her boyfriend.  We had a private investigator document their behavior with observations and really clear video courtesy of a helpful neighbor who did not approve of the situation.  Once I disclosed this evidence to the wife’s attorney, she dropped the spousal support demand.

Bear in mind that the standard of proof is higher than for other claims.  So really solid evidence, like what we had in the two cases I’ve mentioned, will be needed.    Proving a relationship is not enough by itself.  There has to be a good reason to believe the parties are actually engaging in sexual relations.

See the video about Divorce in Virginia: Does Adultery Make a Difference?