Dannenbaum Law Firm, PLLC

Grounds For Divorce: Adultery

In Virginia, you can file for a divorce based on the your spouse's fault. One ground for filing for divorce is that your spouse is unfaithful, that is he or she has committed adultery. In Virginia, adultery is an act by one spouse of voluntarily having sexual intercourse (heterosexual and homosexual) with a person who is not their spouse.

Besides being a grounds for filing for divorce, adultery is also a criminal offense--a class 4 misdemeanor crime in Virginia, though it is rarely prosecuted. However, the fact that adultery is crime can have an impact on the divorce case. Your spouse and his/her spouse can invoke the Fifth Amendment to refuse to answer any questions relating to the adultery on the basis that their answers my incriminate them.

Adultery is difficult to prove. It must be proven by "clear and convincing" evidence, which is a higher standard of proof than the "preponderance of the evidence" standard used in civil cases. Adultery can proven by direct evidence--where the adulterous act is seen by someone, like a private investigator took pictures or video of your spouse and his/her lover having intercourse. However, adultery can also be proven by circumstantial evidence or indirect evidence. Circumstantial or indirect evidence are facts that are closely associated with adultery that adultery can be proved be inference rather than by someone actually seeing the act of adultery. Circumstantial evidence to prove adultery may exist where the adulterous spouse displays affection, was at the lover's house or a hotel overnight, cannot credibly explain why he or she is undressed at night in his or her lover's bedroom, and other such circumstances.

So there are two ways to prove adultery: We will discuss one way in this blog.

Direct evidence. The best way to prove adultery is through direct evidence. Most often this mean hiring a competent private investigator to follow your spouse.

There are many things you need to do when hiring a private investigator.

Your divorce attorney has probably worked with many private investigators over the years and can best tell you the pros and cons of a few investigators.

Interview at least two investigators. Ask them a lot of questions. Get a feel for who is the best fit for you. Here are some questions and issues to discuss at the interview:

How much does the investigator charge on an hour basis; how much do they charge for expenses; how much do they want for an upfront retainer; is their retainer non-refundable or do they charge their fees against the initial retainer; how many investigators will they work on the case; will there be occasions when more than one investigator will work at the same time and what is the cost; what is the range of how much these types of cases cost: what is their background, experience, and training; do they have law enforcement experience; how long have they worked in this field; have they had any complaints; can they provide transcripts of testimony; how many cases have they testified in; do they provide the results of their investigation in real time (as in the same night or the next day) or if not, then how often; how often do they send you invoices; can you see a copy of an invoice; will they contact you if the cost goes above certain predetermine amounts; are they licensed; what is their plan of action in this case to obtain photos and videos; are they ethical (if they talk about pulling driver's license numbers through police contacts, attaching GPS devices to cars, tracking cell phones; obtaining emails and text messages, then you know they are using unethical methods and you must not hire them); can they put you in touch (anonymously) with references; how do they do criminal background checks of your spouse's lover; how do they intend to communicate with you so that your spouse cannot discover you have a private investigator; what type of still and video cameras do they use.

Unsurprisingly, knowing adultery has occurred and persuasively proving it to a Virginia Circuit Court judge are two very different things. Proving Adultery in Virginia Divorce requires "clear and convincing" evidence. While that standard is lower than the classic "beyond a reasonable doubt" criminal standard, it is as high a standard as is available in a civil courtroom. In the face of both the Fifth Amendment denials and the high "clear and convincing" standard - and often without any direct evidence of adultery - successfully demonstrating what you believe has occurred may seem daunting. How do you demonstrate for a judge that your spouse has committed adultery? The answer: circumstantial evidence.

  • Did the adulterer say or write things to the paramour; were letters, notes, cards or e-mails exchanged between the adulterer and paramour? Attorneys can issue subpoenas to internet service providers and obtain existing e-mails. Introducing e-mails at trial can present certain evidentiary challenges, but the information they contain can be crucial to helping you frame your allegation and corroborate testimony. E-mails alone, however, do not prove adultery.
  • Did the adulterer use a cell phone to call his or her paramour? Attorneys can issue subpoenas to cellular phone service providers and obtain records of out-going and in-coming calls. (NB: Instant messages and text messages are typically not available via subpoena.) Phone records can demonstrate repeated calls to a suspected paramour and help establish the relationship. Suspicious, yes. But, like e-mails, phone calls alone do not prove adultery.
  • Did the adulterer use a credit or debit card to purchase meals, gifts, hotel rooms, plane tickets or other such items for his or her paramour? Attorneys can issue subpoena to financial institutions and obtain records of charges made on selected accounts. Credit card statements can be used to establish where the adulterer was on any given day and on what he spent marital funds. Helpful, certainly. Definitive? No.

Individually, e-mails, phone calls and expenses may not suffice, but together you can use them to persuasively tell a "common sense story" of the illicit relationship. For example, e-mails may illustrate the early stages of a relationship, record day-to-day contact and certain activities a boyfriend and girlfriend might do together. Phone records showing frequent phone calls may further confirm the improper relationship and reflect calling patterns closer to what one might expect from a boyfriend/girlfriend. Charge account statements confirm the relationship still further by recording activities and supporting the notion that expenses incurred were consistent with traditional courting behavior. Circumstantial evidence of this sort, coupled with limited direct evidence (e.g. private investigator's reports and pictures) and an adulterer's less than credible attempts to rationalize the evidence, may suffice to demonstrate wrongdoing.

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