Three Reasons Why It’s Hard to Win an Adultery Case
Even though adultery is the most common reason for divorce in Virginia, it is rare for a party to prove adultery at trial.
The first reason is cost.
Any trial will cost the parties thousands of dollars in attorney’s fees.
The second reason is the standard of proof.
Adultery must be proved by “clear and convincing evidence.” This vague phrase falls somewhere between proof beyond a reasonable doubt, the standard in criminal cases, and a preponderance of evidence, the usual standard in civil cases. Given that Virginia Code Section 20-91(A)(1) requires specific sexual acts performed in private. Direct proof is rarely available.
Every now and then, a guilty spouse and their paramour document their actions on video or in photos. However, it is unusual for that kind of evidence to end up in the hands of an innocent spouse.
In one case years ago, the wife’s boyfriend got mad when she got involved with someone else. He gave my client the video and photos that left no doubt about the wife’s adultery. In another case, the husband’s wife and her girlfriend took pictures of themselves. He stumbled upon them on their computer when he returned from deployment.
In the most typical cases, the client hires a private investigator to conduct surveillance and document the spouse and the paramour being together somewhere. This is under circumstances that suggest sexual activity has likely occurred. This evidence may or may not be enough. Especially if we can only prove one instance, the judge is likely to rule that the clear and convincing standard has not been met.
Thirdly, questioning the spouse usually backfires.
Any attempt to question the cheating spouse about their behavior usually fails. Adultery is still a crime in Virginia. The Fifth Amendment to the federal Constitution and a similar clause in Virginia’s state constitution protect the guilty spouse from incriminating themselves. So they invoke their Fifth Amendment rights and decline to testify.
Often the paramour “takes the fifth” as well. I have had a number of cases where we subpoenaed the paramour and they refused to answer questions. Asking a judge to order the paramour to testify is an expensive request and its success is far from certain.
For all of these reasons, most people choose to proceed on no-fault separation for a year. With the exception of when the guilty spouse asks the court to order the innocent spouse to pay spousal support.
Talk to a Professional
Many people who call me for advice want to know what the legal consequences are in a Virginia divorce when one spouse commits adultery. The answer is that there are some, but the impact is probably less than most people imagine.
