February 16, 2021
20-40% of marriages end because of adultery in the United States. According to a study released in 2018 by the Institute for Family Studies, 20% of married men and 13% of married women have admitted to having intercourse with someone besides their spouse.
While adultery may not be as common as media and popular culture makes it out to be, it is still devastating if you find out your spouse is seeing someone else behind your back. In Virginia, adultery is a “fault” grounds for divorce and can be used to start your divorce proceedings immediately.
Before you start driving to the courthouse, it is important to have evidence before beginning your divorce proceedings. Virginia requires a lot of evidence for adultery, and your case for adultery may not be successful if you do not have the evidence the court requires.
If you believe your spouse is cheating on you, make sure to be prepared before filing for divorce.
How Adultery is Defined in Virginia
Every state has their laws and definitions of adultery. In Virginia, adultery is defined by the law as “Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery.”
Under this law, adultery is considered a Class 4 misdemeanor, making it a criminal act. While most spouses accused of adultery do not receive criminal charges during divorce proceedings, this still shows how seriously adultery is taken in Virginia courts.
While adultery is a serious charge, it also requires serious evidence to use as the basis for your divorce. The state requires “clear and convincing” evidence to grant a divorce under these grounds. This means you need substantial proof that your spouse has had sexual intercourse with another person.
What Evidence Do You Need?
While adultery is a serious charge, it also requires serious evidence to use as the basis for your divorce. The state requires “clear and convincing” evidence to grant a divorce under these grounds.
On top of this, the accused spouse can invoke their Fifth Amendment right and refuse to give any self-incriminating evidence to the court. This means you need substantial proof that your spouse has had sexual intercourse with another person.
The key is to prove that the spouse did act on their infidelity and did not just plan it. While you can use as much incriminating evidence as you want, only a few can serve as the backbone of your divorce case.
- Confession: One form of proof is a confession from the spouse that committed adultery. If you have a voice message, text, or email from them admitting to the infidelity, this can form the core of your argument.
- Corroboration: Virginia requires corroboration of evidence in a divorce proceeding. This means you need a piece of evidence or testimony from a source outside the marriage. Most people resort to a private investigator to gather testimony and photographic evidence.
- Incriminating messages: Access to emails or text messages between your spouse and the other person can only strengthen your argument. While talking about a romantic dinner or planning to visit a hotel are not evidence that anything happened, they can back up the more definitive pieces of evidence.
These are common examples of evidence used in adultery divorce cases. It is important to speak with an experienced family law attorney before building your case and gathering evidence. This attorney can help you gather the best evidence for your case and build the strongest argument possible.
Common Defense for Adultery Charges
No matter how strong your evidence is, it is important to note that the accused spouse can defend adultery accusations in a few ways. There are in fact 4 ways the accused spouse can defend themselves in court when accused of adultery.
- Condonation: If a spouse finds out about the adultery and decides to continue the relationship, that’s condonation. Essentially, if you find out that your spouse has cheated and decide to stay with them, you cannot use adultery as grounds for divorce.
- Connivance/Procurement: One defense is if the “innocent” spouse encourages and facilitates the affair. So, if you intentionally planned or encouraged the infidelity, then adultery cannot be used in your divorce case.
- Recrimination: If both spouses are cheating, and the accused can prove it, then your adultery argument can be thrown out. Of course, the other spouse has the same challenges as you to prove adultery, so this defense is equally difficult to use.
- Time-barred: Adultery has a 5-year statute of limitations in Virginia. So, if the infidelity occurred more than 5 years ago, you cannot use it as the basis for a divorce.
It is important to consider every side of your specific situation and take note if your spouse could use these defenses against you.
Defend Yourself with Experience
As you have seen, adultery is not only a serious offense under Virginia law, but it also requires plenty of clear and decisive evidence to prove in a divorce case. Worst of all, the accused spouse has many avenues to use to defend themselves from the accusation, which can ruin your case in an instant.
Because the proceedings can be so sensitive, it is important to have an experienced family attorney on your side. They can use their expertise to create a case based on your specific situation, advising you on what evidence to gather and what steps to take to give yourself a fighting chance in court.
If you are looking for an accomplished and knowledgeable family law attorney, look no further than Cravens and Noll.
Our family law attorneys care about your family getting the compensation and safety it deserves and will work with you to reach the best possible outcome. They can call on decades of experience to offer you the best legal defense.
Schedule a consultation to begin building your divorce case.