Although adultery is a common reason why a marriage ends in divorce, in Virginia, it is rare for a party to try to prove adultery at trial. The first reason is cost. Any trial is going to cost the parties thousands of dollars in attorney’s fees.
The second reason is the standard of proof. Adultery must be proved by “clear and convincing evidence.” This vague phrase falls somewhere between proof beyond a reasonable doubt, the standard in criminal cases, and a preponderance of the evidence, the usual standard in civil cases. Given that the specific sexual acts that Virginia Code Section 20-91(A)(1) requires are normally performed in private, direct proof is rarely available.
Every now and then a guilty spouse and their paramour document their actions with video or still photos, but it is unusual for that kind of evidence to find its way into the hands of the innocent spouse. In one case years ago, the wife’s boyfriend got mad when she took up with someone else and gave my client the video and still images that left no doubt about the wife’s adultery. In another, the husband’s wife and her girlfriend took pictures of themselves. He stumbled upon them in their computer when he came back from a deployment.
In the usual case, however, the client hires a private investigator to conduct surveillance and document the spouse and the paramour being together somewhere under circumstances that would suggest sexual activity has likely occurred. This evidence may or may not be enough. Especially if we can only prove a single occasion, the judge is likely to rule that the clear and convincing standard has not been met.
The third reason is that any attempt to question the cheating spouse about their behavior almost always fails. Adultery is still a crime in Virginia. The Fifth Amendment of the federal constitution and a similar clause in Virginia’s state constitution protect the guilty spouse from having to incriminate themselves. So they invoke their Fifth Amendment rights and decline to testify.
Often the paramour “takes the fifth” as well. I have had a number of cases where we subpoenaed the paramour and they refused to answer questions. Asking a judge to order the paramour to testify is an expensive errand and success is far from certain.
For all of these reasons, most people choose to proceed on the no-fault basis of separation for a year except when the guilty spouse is asking the court to order the innocent spouse to pay them spousal support.
