Proving Adultery in Virginia Divorces | Law Offices of Daniel J. Miller

Unlike some "no-fault" divorce states, Virginia does allow spouses to file for fault-based divorces. Proving your spouse committed adultery could enable you to achieve a better outcome in your divorce, especially during the property division process.

At the Law Offices of Daniel J. Miller, our attorneys will help you pursue an adultery-based divorce if it's the best option, or work with you to find the best path forward in your divorce. Contact us online or via phone at (757) 267-4949 to schedule a consultation with our team.

How Can I Prove Adultery in a Divorce?

Virginia law defines adultery as "sexual intercourse by a married person with any person who is not their spouse."

Courts have a high standard of proof when it comes to supporting allegations of adultery in a divorce case, meaning you must have "clear and convincing" evidence that adultery occurred. Importantly, emotional or mental cheating do not qualify as adultery. Your spouse must engage in physical intercourse with another party for the court to agree they engaged in adultery.

You must also have at least one third-party witness who can corroborate your allegations of adultery. Even if your spouse admits they committed adultery, you need another party who is willing to support those allegations as well. This may seem like a high standard of proof, and it is, but it's designed to prevent a spouse from blackmailing or coercing their partner into admitting to adultery they didn't actually commit.

It's especially important to note that adultery can be proven using circumstantial evidence. In other words, evidence such as e-mails, text messages, or social media direct messages could be evidence to prove adultery. However, these forms of evidence must show that your spouse engaged in physical intercourse with the other party.

So, a message from your spouse to someone telling them that they'd like to engage in intercourse or look a certain way would not be enough to prove adultery. However, if your spouse sends a message to another person saying that they enjoyed having intercourse with them, and the other person agrees that intercourse took place, it may be enough evidence to prove that adultery took place. In many cases - especially today, during the social media age - forms of evidence such as direct messages are the backbone of adultery allegations and cases.

If you don't have such evidence, you may want to look into hiring a private investigator to prove adultery took place. If you're positive that adultery occurred, hiring a private investigator may end up being an investment that pays for itself during the outcome of the divorce, which brings us to the next section of this blog.

What Are the Benefits of Proving Adultery in My Divorce?

Proving adultery rarely impacts child custody or support arrangements. Courts tend to hold the position that, while adultery may be immoral and lead to the breakdown of a marriage, it doesn't necessarily mean the adulterous parent has worse parenting abilities than their more faithful spouse.

However, if the adulterer chooses to bring the individual they cheated with into their life, and that person is a negative influence on the children, it could change the outcome of your custody case. For this to be the case, however, you may have to prove that the partner in question is indeed harmful to your children or their lives in some way. Regardless, courts tend to look unfavorably on individuals who immediately bring another partner into their life while a divorce is still ongoing, which could impact the your custody battle somewhat.

When it comes to property distribution, adultery may not change the outcome significantly. You won't be entitled to more than 50% of your spouse's marital assets or liabilities even if you prove they committed adultery and, importantly, your own property will not be off the table for distribution either.

If you want your adultery allegations to impact your property division case, you need to prove that your spouse's adulterous activities had a negative impact on your finances. Fortunately, in most cases where couples keep their funds in a joint bank account, this will be the case. You may be able to prove that your spouse was withholding funds you should have had access to, or was spending funds that you both owned on their endeavors. Either way, the court will probably compensate you for your spouse's adultery. In high-asset divorces or cases where the adulterous party spent a significant amount on their trysts, this can lead to a well-timed financial windfall that could help you pay for post-divorce expenses more easily.

Where adultery does tend to have a guaranteed impact on a divorce is concerning spousal support. In many divorces, if one partner is the primary breadwinner, they may need to pay their spouse alimony post-divorce. However, if that spouse can prove that alimony played a role in their divorce, they may no longer be responsible for spousal support payments. This can be a huge boon for potential alimony payors, especially in high-asset divorces.

In cases where the adulterous spouse can still receive alimony, their support payments may be significantly reduced, which is still a win for the payor.

How Could My Spouse Defend Themselves?

Spouses who find themselves alleged of adultery often defend themselves by:

Claiming the other party knew of the adultery and still maintained the relationship, or encouraged the adulterous behavior, both of which may prevent the adulterous spouse from being penalized;
The other party engaged in adultery as well (in cases where the accused party did not commit adultery but can prove the other did, this can be called a "recrimination" defense);
The adultery occurred more than five years ago, which means the statute of limitations has passed and the court can no longer grant a divorce on the grounds of adultery.

Should I Pursue Adultery Allegations in a Fault-Based Divorce?

This is a question that can really only be answered by a seasoned divorce attorney. In some cases, a spouse may simply be unable to provide convincing evidence of adultery to the court, or may need to expend more resources on proving adultery than they will get back from the court or divorce decree in reparations for doing so.

However, in other cases where a spouse has solid evidence of adultery or knows it would be easy to procure solid evidence, and significant financial assets are at stake, using adultery as a ground for your divorce could easily be worth it.

Filing for a fault-based divorce on the grounds of a felony conviction or adultery is one of the quickest ways to divorce because you may be granted an immediate absolute divorce. Other reasons for fault-based divorces include cruelty, bodily harm, abandonment, and desertion.