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 your spouse was seen leaving a lover’s house late at night - on multiple occasions. When confronted, your spouse admits the affair to you as well.
You decide that you want to end your marriage and pursue a divorce right away. Based on numerous films and television programs you’ve seen, you believe that you can use this affair to your advantage in the divorce. 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.
Virginia recognizes both “no-fault” and “fault” divorces. However, if you want to pursue a no-fault divorce in Virginia, you must meet the following requirements:
You become somewhat disheartened until you learn that adultery is a “fault” ground for divorce, and it may provide a possible bar to spousal support.
For more information on these topics, see Va. Code Ann. § § 20-91(1), 20-107.1(B).
In addition, with a fault divorce based on adultery, you can file immediately. You are elated because you don’t want to wait six to 12 months to file; you want to end your marriage now. Plus, you might not have to pay your cheating spouse alimony.
But after you hire an attorney, you find out that proving adultery is not that easy. In fact, your lawyer tells you that it would be in your financial interest to separate from your spouse, and seek a no-fault divorce six or 12 months later. Counsel tells you that proving extramarital sex is too difficult.
But what about the confession? What about the friend? Your spouse even confessed. Counsel sits you down, notices the crestfallen look on your face, and begins to explain Virginia’s laws on proving extramarital sex.
Your spouse’s right against self-incrimination
You are first informed that in Virginia divorce cases, spouses have the privilege to not discuss matters relating to extramarital sex, 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 a negative inference against the witness. That is, 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.
Under Virginia Code Ann. § 8.01-223.1, a spouse’s use of the constitutional protection against self-incrimination cannot be used against him or her. In other words, when the privilege against self-incrimination is used in a divorce, the judge is forbidden from inferring or assuming that spouse is hiding something. So, if your spouse invokes the privilege, the confession made to you is worthless.
You then ask: “What about the confession to the friend? Isn’t this enough?” Counsel answers: “No. Not even close.”
Virginia Code Ann. § 20-99 requires corroboration (confirmation) of the grounds for divorce. A divorce will not be granted on 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 the ground of adultery for a divorce. If the third-party witnesses’ knowledge of the affair comes only from the plaintiff’s own admission, it does not constitute independent corroboration of the event as it happened.
Exasperated, you wonder out loud: “Well how can I prove adultery?” Counsel sits you back down and informs you that “circumstantial evidence” can be used to prove extramarital sex. But you need a lot of it.
Extramarital sex can be proven through “circumstantial evidence,” which is evidence based on inference, not on personal knowledge or observation. Bowen v. Pernell, 190 Va. 389 (1950). Nevertheless, circumstantial evidence must be clear and convincing. Haskins v. Haskins, 188 Va. 525, 530-531 (1948); Coe v. Coe, 225 Va. 616, 622 (1983). 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 extramarital sex doesn’t really provide a set of hard and fast rules. For a while, it seemed almost impossible to prove extramarital sex. See, e.g., Painter v. Painter, 215 Va. 418, 211 S.E.2d 37 (1975) (holding that adultery wasn’t proven despite evidence of lipstick on husband’s shirts; a discovered love letter; public kissing and embraces between the husband and his paramour; and the husband’s departure from the paramour’s darkened house at 1:45 a.m.)
The Supreme Court of Virginia adopted a more common-sense approach to the subject in the mid 1980’s. In Dooley v. Dooley, 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 she had been separated from her husband for almost a year and was thus free to date. 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. Rather, 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. The court clarified the scope of Dooley two years later in Coe v. Coe. In that case, the husband’s private investigator testified that, on at least two occasions, the wife spent the night at her alleged paramour’s darkened apartment. Neither the wife, nor a witness on her behalf, provided any explanation of her activities with the alleged paramour.
The Supreme Court of Virginia held that such circumstantial evidence was sufficient to prove extramarital sex. The Court reasoned that Dooley v. Dooley was distinguishable on the following grounds:
Since Coe, the presence or absence of an explanation for a late-night rendezvous has become an important factor. For example, in Watts v. Watts, 40 Va. App. 685 (2003), the husband and his lover had no explanation for a private investigator’s testimony that she spent the night in his darkened home on two occasions. Instead of providing an explanation, the husband invoked the privilege against self-incrimination. The Virginia Court of Appeals found the case indistinguishable from Coe, where no explanation was offered, and held that the husband’s extramarital sex had been proven by clear and convincing evidence.
Based on this decision, it is quite obvious that a greater inference of extramarital sex can be made when there is no explanation offered for the reasons one spent the night with an alleged paramour.
Finally, in Hughes v. Hughes, 33 Va. App. 141 (2000), the wife and her paramour lived together and were open about their mutual love and sexual attraction. Nevertheless, each denied having sex with each other. Rather, the wife explained that their living arrangement was predicated on her economic difficulties. Thus, with a reasonable explanation in tow, the Court of Appeals found the case indistinguishable from Dooley and held that extramarital sex had not been proven 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 his or her alleged paramour, and
(2) whether the spouse has a credible explanation for his or her secret meetings with the alleged paramour.
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 extramarital sex. 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, extramarital sex will be easier to prove.
Proving adultery in Virginia is difficult; you can’t just offer uncorroborated testimony, you will likely need to hire 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. This prevents some spouses from even pursuing a divorce on the ground of adultery, because the costs of litigation exceed the benefit of owing no spousal support. Unless you might owe expensive, long-term spousal support, seeking a divorce on this ground might not be worth the expense.
If you are considering a divorce based on adultery, you should speak to an experienced family law attorney for advice.
Collier v. Collier, 341 S.E.2d 827 (1986)
Va. Code Ann. § 20-99(2)
Johnson v. Johnson, 213 Va. 204 (1973)
McIlwain v. McIlwain, 215 Va. 633 (1975)
Venable v. Venable, 2 Va. App. 178 (1986)
Bowen v. Pernell, 190 Va. 389 (1950)
Haskins v. Haskins, 188 Va. 525 (1948)
Dooley v. Dooley, 225 Va. 240, 278 (1981)
Coe v. Coe, 225 Va. 616, 622, 303 S.E.2d 923, 927 (1983)