If you have reason to believe that your spouse is engaging in an extramarital affair, you’re probably considering filing for a fault-based divorce on the grounds of adultery. While doing so may seem like the most beneficial course of action, there are several factors that should be considered. The requirement of clear, convincing and corroborated evidence and the inherent difficulty in obtaining this evidence means that successfully proving adultery in a court of law is notoriously difficult. Founding attorney Van Smith proved the grounds of adultery for a divorce client in Chesterfield Circuit Court in July 2017, utilizing witnesses and recovered digital evidence from social media.


Pursuant to Virginia Code §20-91, adultery is a fault-based ground for divorce. The crime of adultery is defined in Virginia Code §18.2-365 as:

“a married person voluntarily engaging in sexual intercourse with a person not his or her spouse.”


Additionally, with a fault-based divorce grounded in adultery, you may file immediately as opposed to the 12-month separation requirement of a no-fault divorce. A successful claim of adultery will have ramifications on the financial elements of a divorce, particularly the issue of spousal support. Additionally, adultery may provide leverage in settlement negotiations when your spouse’s alternative is having their indiscretions showcased in open court.


Proof of Adultery

Adultery does not have to be proven beyond all doubt; however, as established in the case of Coe v. Coe, the Court requires “clear and convincing” evidence “based upon proven facts and reasonable inferences drawn from these facts.” This is a higher standard of proof than what is required for other grounds of divorce, presenting a challenge for spouses and litigators alike. Due to the inherently secretive nature of adulterous behavior, strong linking evidence may be difficult to obtain, even if you have been informed of the unfaithful behavior by a close friend or relative. For this reason, private investigators are sometimes called upon in these instances. The law requires evidence to be corroborated by, at a minimum, circumstantial evidence.


What Evidence May be Sufficient?

Ultimately, whether or not the court will find your evidence sufficient is dependent upon how credible the judge finds your evidence. This includes any witnesses, and how precisely the time, place, and circumstances of the alleged adulterous behavior can be established. Circumstantial evidence may include unexplained disappearances in the evenings, perceived romantic meals, or staying alone in an apartment with another. The reality is, however, that these may all be met with a valid and innocent explanation. The court may take a ‘common sense approach’, refusing to accept a bizarre explanation or bizarre denial, but rather, evaluating the circumstances using their discretion. Although insufficient, unexplained conduct of a certain nature provides further evidence that there was an adulterous relationship. Naturally, any statement of admission by your spouse either in text message or email explicitly outlining their behavior would be damaging. However, even what seems to be direct admission by your spouse will require corroborating evidence.


The Fifth Amendment

As noted above, adultery is a class four misdemeanor under the Virginia Code. This presents a further challenge, as an accused spouse may exercise their Fifth Amendment right against self-incrimination, thereby refusing to answer questions about the adulterous behavior. However, a lack of credible explanation or lack of contradictory evidence from a spouse may then be relevant.


The Dangers of ‘Consequence-free’ Sexting

The digital age we live in today means there are more ways than ever to communicate with one another. The promise of ‘consequence-free’ sexting is attractive to many who believe their indiscretions will go unnoticed. Popular mobile applications such as Snapchat, where images are supposedly deleted after a few seconds mean they are often the platform of choice for such activities and resultantly, the source of critical evidence if obtained. In one matter our firm handled under attorney Van Smith, images and videos of a sexual nature were found hidden deep in a family hard drive, the time/date stamps identifying the files and providing persuasive corroborating evidence. Ultimately, two of the three individuals subpoenaed to appear and provide testimony in court admitted to having sexual relations with the spouse in question, corroborating the digital evidence already found


Finally, if you are considering filing for divorce based on adultery, note that “condonation” represents an available defense for your spouse. Essentially, if it is established that you ‘condoned’ or ‘forgave’ the deviant behavior, (which may be shown through the voluntary resuming of sexual relations and cohabitation after the fact), the court will not grant you a fault-based divorce on the ground of adultery. However, any post-condonation adulterous behavior will mitigate this defense.


If you would like additional information, or are considering filing for divorce, please contact the law offices of Smith Strong, PLC on 804.325.1245 to discuss your legal matter further.



Coe v. Coe 225 VA 616 (1983)

Dodge v. Dodge, 2 Va. App 238 1986

Gamer v. Gamer 16 Va. App 335, 429 S.E.2d 618

Pommerenke v. Pommerenke 372 S.E.2d 630 VA (1988)

Watts v. Watts 40 Va. App. 685, 581 S.E.2d 224 (2003)

H. Van Smith
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