This isn’t the first time we’ve spoken about adultery here. Adultery is one of those topics most people politely skirt with euphemisms and more left unsaid than said. Yet in a Virginia court, when claiming your wife committed adultery, you need to legally prove it. How do you prove your wife had sex with another person outside your marriage?

Adultery in Virginia

The Code of Virginia in §18.2-365 tells us “Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.” A Class 4 misdemeanor is a crime, so you are accusing your wife of a criminal act, and the Class 4 crime (besides being fault grounds for your divorce) carries a penalty of a fine of not more than $250 (Code of Virginia §18.2-11).

The law makes adultery the very first of the grounds for divorce under Code of Virginia §20-91, along with sodomy or buggery committed outside of marriage. If you go along with your wife’s sexual promiscuity outside your marriage, though, you do not have grounds for divorce, since §20-94 clearly addresses that. You also only have five years (from when the adulterous act first occurred) to claim adultery as grounds for divorce.

So, if your wife had sex with another person (man or woman) without your consent, and you find out, and her affair is not more than five years old, and you refuse to continue living with her because of it, then you have grounds for divorce in Virginia.

Next you have to prove adultery.

Clear and Convincing Evidence

Here when what we see on television actually does mirror what goes on in a courtroom (one of the very few times). Evidence of adultery is called for under Code of Virginia §20-107.1, which is interesting, because that section is about spousal support, not adultery.

Virginia does not mandate that you, as the aggrieved and emasculated husband (ouch!), must support your trampy, sleepin’-around, skanky sleazebag ex-wife if she committed adultery. The court must have “clear and convincing evidence” of her sexual escapades.

No, Virginia judges are not thrilled to hear or see evidence of other people’s tawdry sex lives. They must have one or more of two kinds of evidence:

  1. Direct evidence — Photographs, video (without audio), eyewitnesses, a confession, e-mails, text messages, love letters (how old-fashioned!)
  2. Indirect evidence — Also called circumstantial evidence, this is hotel registration records, credit card receipts, opportunity, and inclination

In most adultery cases, direct evidence is very hard to get. You can hire a private detective to gather direct evidence, such as photographs of your wife and her sexual partner in a restaurant without your knowledge, the same two arriving at a hotel, and the same two departing the hotel several hours later (or the next morning). You cannot record audio of anyone without their permission, so unless you stumble upon (and this happens a lot) accessible amateur video of your wife and her lover, you will have to mostly rely on indirect evidence.

Obtaining Indirect Evidence of Adultery

Most people are not stupid, nor are they professional spies. Though they lack the skills to hide their motives thoroughly, they also have a knack for self-preservation. Do not count on your wife to leave hotel room cards and the other person’s romantic notes around your dining table. If you can establish that your wife is already dissatisfied with your marriage, has opportunities to have sexual liaisons with other people, and has the means to do it, you can build a good circumstantial case against her.

Say you go out of town on a predictable schedule. That gives her opportunity. You two fight a lot, and she much less sexually active with you. That gives her inclination. If she has credit cards, access to funds, a cell phone and a car, she has all the means she needs to fulfill her adulterous ambitions.

What Exactly is Considered Adultery?

Adultery is, by its nature, a crime committed out of the spotlight. Proving it as grounds for fault divorce in a Virginia courtroom can be extremely difficult. Short of her very detailed wording that signals an actual sexual act involving her and someone who is not you, you may only prove to a court’s satisfaction that she flirted, had a platonic relationship, or got a little smoochy with another person.

Adultery is sex. It is not kissing, or fondling, or hugging. Proving to the court’s high standard that your wife had penetrative sex of any kind with another man or woman could be nearly impossible. Expect her attorney to put up a vigorous defense:

  • You are no better than she; you had an affair, too!
  • You knew she had sex with another person and yet you still had sex with her!
  • You set her up with another person deliberately so they would be attracted to each other!
  • You have no physical proof or testimony that she engaged in actual sex!

You Need a Solid Divorce Attorney with a Solid Strategy

Ultimately, too, your wife is facing a Class 4 misdemeanor, a criminal charge, which means she can avoid incriminating herself by pleading the Fifth Amendment to the U.S. Constitution. And for that, you have nothing to push back with, because the Constitution protecting her overshadows your divorce case affecting you both.

The best strategy to mounting a charge of adultery is to get a strong divorce attorney for men, one familiar with Virginia’s laws and courts. Adultery is a sad and serious way to destroy a marriage. If you find yourself staring at the stark reality of adultery, contact us for a consultation today by calling 757-383-9184. We can separate emotion from fact, rumor from law, and help you present your case against your wife.

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