The Problems in Proving Adultery in Virginia

Imagine you've just learned that your spouse had an affair. You didn't witness it, but your spouse confessed it to a friend. Other friends told you that they saw your spouse leaving a lover's house late at night—on multiple occasions. When confronted, your spouse admits the affair.

You decide to get a divorce right away. Based on what you've seen on numerous films and television programs, you believe that you can use this affair to your advantage in the divorce. The reality, however, is quite different from what you've seen on screen.

This article covers some of the difficulties of trying to prove an affair in court.

Grounds for Divorce in Virginia

Virginia recognizes both "no-fault" and "fault" divorces. No-fault divorce means that neither spouse blames the other for the breakup, and the court won't require you to air your dirty laundry in a trial. On the other hand, a fault divorce means that at least one spouse is blaming the other's marital misconduct for the divorce.

If you want to pursue a no-fault divorce in Virginia, you must meet the following requirements:

• you and your spouse must live separate and apart for six or 12 months before filing for divorce (the amount of time depends on whether you have children), and
• you must enter into a written agreement resolving all marital issues (e.g., support and distribution of marital assets). (Va. Code Ann. § 20-91.)

When filing for a fault divorce, you must allege (and prove) one of the following grounds before the court will grant your divorce:

• adultery
• your spouse was convicted of a felony and sentenced to more than one year in prison (and you didn't live together after the spouse came home)
• cruelty
• willful desertion, or
• abandonment.

Don't take using the fault-based divorce process lightly. Although it may seem like the best path, it's often more expensive and time-consuming than a no-fault divorce. The purpose of a no-fault divorce is to remove as many barriers to ending a marriage as possible. When you file for a fault divorce, you reintroduce some of those barriers (long trials, evidence requirements, and more) into the process.

Although fault divorce is a more cumbersome way to end your marriage, a benefit of the process is that you can file your petition without waiting 6 or 12 months. Additionally, when you file a fault divorce using adultery as the legal grounds, the court could bar your spouse from receiving alimony. (Va. Code Ann. § 20-107.1(E).) But don't run to the courthouse yet. You should also understand that, while you won't have to wait to file your initial petition, a fault divorce can take months or even years longer than a no-fault divorce, and proving marital fault can be extremely difficult.

But what about the confession? What about the friend? Your spouse even confessed. When you hire an attorney, your lawyer will likely sit you down to explain just how difficult it may be to prove your allegations, thus dragging out the divorce process even longer than you may have expected.

Proving Adultery in Virginia

Your spouse's right against self-incrimination

In Virginia divorce cases, spouses have the privilege not to discuss matters relating to adultery, and judges cannot infer any bad behavior if a spouse chooses to exercise this privilege.

The 5th Amendment of the U.S. Constitution states: "[no person] shall be compelled in any criminal case to be a witness against himself." Through a bit of legal magic, witnesses in both criminal and civil proceedings can exercise this privilege and therefore avoid discussing incriminating matters. (Lefkowitz v. Cunningham, 431 U.S. 810 (1977).)

In most states, using this privilege allows the judge to make an adverse inference against the witness. In other words, the judge can infer that the witness is hiding something if they choose not to talk about it. This, however, is not the law in Virginia.

In Virginia, the law specifically prohibits judges in civil cases from using a spouse's testimony against that spouse in the divorce. (Va. Code Ann. § 8.01-223.1.) In other words, when the spouse invokes the privilege against self-incrimination in a divorce, the law forbids the judge from inferring or assuming that the spouse is hiding something. So, if your spouse invokes the privilege, the confession made to you is worthless.

Corroborating confessions

You may wonder: "What about the fact that my spouse confessed to a friend? Isn't this enough?" Counsel answers: "No. Not even close."

Virginia divorce law requires corroboration (confirmation) of the grounds for divorce, and without it, the judge will not grant the divorce on the uncorroborated testimony of either spouse. In other words, one spouse's claim that there was an affair is not enough.

Moreover, even a third party's testimony that the cheating spouse admitted the affair after it happened isn't enough to establish adultery grounds for a divorce. If the third-party witnesses' knowledge of the affair comes only from the plaintiff's admission, it does not constitute independent corroboration of the event as it happened. (Va. Code Ann. § 20-99.)

Confusing case law

Exasperated, you may wonder: "Well, how can I prove adultery?" Your attorney may begin discussing "circumstantial evidence," which you can use to prove adultery. But you need a lot of it.

In Virginia, a spouse can prove adultery through "circumstantial evidence," but the evidence must be sufficient enough that a reasonable person would also believe the spouse is guilty of adultery. Circumstantial evidence is evidence that is based on inference, not on personal knowledge or observation. (Bowen v. Pernell, 190 Va. 389 (1950).) Nevertheless, because adultery is a criminal offense in Virginia, circumstantial evidence must be clear and convincing and based on proven facts and reasonable inferences. Raising a "considerable or even strong suspicion of guilt is not enough." (Haskins v. Haskins, 188 Va. 525, 530-531 (1948).)

Unfortunately, Virginia's case law on providing adultery doesn't provide a set of hard and fast rules. For a while, it seemed almost impossible to prove adultery. For example, in one Virginia case, the court denied a woman's divorce petition because she didn't convince the judge that her husband committed adultery. During the case, the wife introduced evidence of lipstick on her husband's shirts, a love letter from the "other woman," public kissing and embraces, and testimony from two private investigators noting the husband's departure from the other woman's home early in the morning. (Painter v. Painter, 215 Va. 418, 211 S.E.2d 37 (1975).)

The Supreme Court of Virginia adopted a more common-sense approach to the subject in the mid-1980s. In this case, a husband's private investigator testified that two men, on several separate occasions, left the wife's darkened apartment after midnight. He further testified that she kissed one of the departing visitors. The husband also offered evidence that the wife was dating the husband's former attorney and spent the night with him on at least four occasions, two of which occurred in a hotel room in Myrtle Beach, South Carolina, while on vacation.

In response, the wife testified that she was free to date because she and her husband had been separated for almost a year when she took on the new relationships. She denied ever having sex with another man during the marriage and claimed that she had maintained separate hotel rooms from the attorney-boyfriend while on vacation. The attorney and one of her earlier visitors, likewise, never admitted having sex with the wife. Instead, the attorney claimed to have fallen asleep on her couch "on occasion or two," and the prior visitor, her neighbor, claimed to be just a friend.

The Supreme Court of Virginia held that such circumstantial evidence was insufficient to prove adultery. (Dooley v. Dooley, 278 S.E.2d 865 (1981).) The court clarified the scope of Dooley two years later in a different case. A husband's private investigator testified that the wife spent the night at her alleged lover's darkened apartment on at least two occasions. Neither the wife nor a witness on her behalf provided any explanation of her activities with the third-party.

The Supreme Court of Virginia held that such circumstantial evidence was sufficient to prove adultery. (Coe v. Coe, 225 Va. 616, 622 (1983).) The Court reasoned that Dooley v. Dooley was distinguishable on the following grounds:

• Dooley involved meetings at the wife's home, while Coe involved meetings at the alleged lover's apartment
• the wife in Dooley never spent the night with her alleged lovers, but the wife in Coe did, and,
• the wife in Dooley had a credible response to her activities with the paramour, while the wife in Coe offered no explanation.

Since Coe, the presence or absence of an explanation for a late-night rendezvous has become an essential factor in adultery divorce cases. For example, in one case, a husband and his lover had no explanation for a private investigator's testimony that the lover spent the night in the husband's darkened home on two occasions. Instead of explaining, the husband invoked the privilege against self-incrimination. The Virginia Court of Appeals found the case indistinguishable from Coe because the husband refused to explain his actions. As a result, the court held that the wife proved the husband's adultery by clear and convincing evidence. (Watts v. Watts, 40 Va. App. 685 (2003).)

Based on the above Virginia cases, it becomes evident that the judge may be more likely to infer an affair when the accused fails to explain why one spent the night with an alleged lover.

A reasonable explanation may be enough to avoid a finding of adultery

Finally, in Hughes v. Hughes, 33 Va. App. 141 (2000), the wife and her boyfriend lived together and were open about their mutual love and sexual attraction. Nevertheless, each denied having sex with the other. Instead, the wife explained that her economic difficulties were the sole reason they lived together. Thus, with a reasonable explanation in tow, the Court of Appeals found the case indistinguishable from Dooley and held that the husband failed to prove adultery by clear and convincing evidence.

In sum, the modern focus after Coe is on two paramount factors:

(1) whether the spouse has spent the night, in secret, with an alleged partner, and

(2) whether the spouse has a credible explanation for the secret meetings with the alleged partner.

If your spouse does not exercise the privilege against self-incrimination and does provide a credible explanation for any late-night rendezvous, it will be very difficult to prove adultery. If your spouse does not exercise the privilege against self-incrimination (or even if your spouse does) and fails to provide a credible explanation for any late-night escapades, it will be easier for you to prove adultery.

Conclusion

Proving adultery in Virginia is difficult. You can't just offer uncorroborated testimony; you'll need a private investigator that can document a trail of late-night, secret meetings. Even then, your spouse may be able to explain it all away.

Virginia's laws for proving adultery prevent some spouses from pursuing a fault divorce based on adultery because the litigation costs exceed any potential financial benefit from spousal support. Unless you might owe expensive, long-term spousal support, seeking a divorce on this ground might not be worth it.

If you're considering a divorce based on adultery, you should speak to an experienced family law attorney for advice.