Proving Adultery In Virginia

You might be certain that your spouse committed adultery, but your word won’t hold up in the eyes of the law without concrete evidence. This is true no matter where you live, but Virginia residents face a few unique challenges and considerations; let’s examine the best way to proceed with proving adultery in the state.

Fault-Based vs. No-Fault Divorces

Unlike some states, you can file for either a “fault” (if one party is to blame) or a “no-fault” (if nobody is to blame) divorce in Virginia. Just because your partner is guilty of adultery, it doesn’t mean that you have to file a fault-based divorce — some people opt for a no-fault divorce to avoid the additional complications and expenses.

So, even if you can’t prove adultery, you can still end your marriage.

Yet a fault-based divorce is preferable for many since you can file your petition immediately instead of waiting up to a year.

Key Considerations

If you’ve decided that a fault-based divorce is the right path for you, make sure you know what’s involved. 

Third-Party Confessions

Many people plan to rely on the testimonies of their friends and family to prove adultery took place — it’s common for the adulterous party to confess to other people in their life.

This alone won’t be sufficient evidence unless there’s proof the confession took place (e.g., text messages), but it can still count as evidence unless the knowledge of adultery isn’t derived directly from you.

The Fifth Amendment 

To make things even more complex, all US citizens have the right to protect themselves from self-incrimination by invoking their Fifth Amendment rights. Since adultery is a crime in Virginia, your spouse will be able to take advantage of this “loophole” if they wish — and as a result, any confession your spouse made to you directly also won’t apply. To make matters worse, the judge isn’t even allowed to infer that invoking the Fifth Amendment is a sign of guilt.

Still, even if the adulterer takes this path, there are other ways to prove their guilt.

Circumstantial Evidence

Another option for proving adultery is circumstantial evidence. In other words, anything that infers somebody committed adultery rather than knowledge elicited from a confession or observation.

There are no clear rules about what exactly constitutes circumstantial evidence due to the case law in Virginia, but examples could include:

  • Proof that the adulterer stayed in a hotel with the person they had an affair with
  • Love letters
  • Flirty texts
  • Proof of the adulterer and the person they had an affair with went on a date

In general, the validity of a claim will come down to the strength of the unfaithful spouse’s explanation for the circumstantial evidence produced and whether there’s concrete proof of them spending the night with another person. This is a much more credible inference than evidence they simply ate at a restaurant together, for instance.

Give Yourself the Best Chance of Success

Being a victim of adultery and deciding to opt for a divorce is difficult enough already without having to contend with the law. To stand a chance of getting through the process with your sanity intact, you might want to consider mediation for more control and flexibility. The other side might also prefer this confidential process and be more generous as a result, saving both parties time, stress, and costs

Fortunately, Donita King is an experienced lawyer-mediator who can assist you with divorce mediation. To find out more about how she and her team can help you, contact her law offices today.

Donita King

Ms. King is a member of the Virginia, Pennsylvania, and D.C. State Bars. She also serves as a University of Richmond School of Law Adjunct Professor of Mediation. She previously served on the Virginia Bar Association Joint ADR Council (2015 Chair), and served for several years on the Governor of Virginia’s Interagency Dispute Resolution Council. Ms. King currently serves as a board member of the Virginia State Bar Disciplinary Board by appointment of the Virginia Supreme Court and has been active with the Hispanic Chamber of Commerce, Hispanic Women in Business as well. Se habla espanol.

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