When most people think of grounds for divorce, adultery is the first thing that comes to mind. Adultery goes straight to the heart of a marriage, and nothing points to fault quite like such a violation of the marriage vows. Still, real-life fault and legal fault are two different concepts. Let’s talk about this infamous grounds for divorce and how to prove it in court.
The concept of adultery is simple: It’s when a married person has sexual relations with someone who is not his or her spouse. Virginia law adds a few extra requirements:
- The adultery must have happened within the last 5 years,
- You must not have voluntarily cohabited with the cheating spouse after you found out about the adultery. This means that forgiving a cheating spouse and letting them come back home will defeat this as a grounds for divorce. However, if you forgive your spouse for one adulterous incident and later find out that there are more, you won’t be deemed to have condoned the incidents you didn’t know about.
- The adultery must not have been committed “by the procurement or connivance” of the other spouse. It takes some creativity to imagine a scenario where one spouse arranged for the other to cheat, and I have never had a case like this in my family law practice. But, if you ever find yourself a character in the movie “Indecent Proposal,” know that this could interfere with your fault divorce.
As with many things in the law, grounds for divorce are not just about what happened, but about what we can prove. Evidence is by far the most challenging part of a fault divorce.
Because adultery by nature is something that occurs behind closed doors, proving this grounds for divorce is often difficult. In order to get a fault divorce on the grounds of adultery, you and your attorney must prove the adultery by “clear and convincing” evidence, a fairly high standard of proof. Further complicating the matter, you must have “corroborating evidence” beyond just your word (or even your spouse’s admissions in documents like emails or text messages). While eyewitness testimony is not necessary, you have to have some evidence showing that your spouse actually had sex with someone else. Compromising photographs, love letters, hotel room receipts, or the testimony of a private investigator can all be helpful forms of proof.
Seek Wise Counsel
Because gathering evidence to prove adultery and going through a full trial consumes a lot of your attorney’s time, it can be expensive. Since not all courts give much weight to fault when dividing assets, proving adultery may not be worth it in some cases. A good attorney will sit down with you and carefully analyze what the best course of action is in your situation. For more about the decision to file on fault versus no-fault grounds, click here.