Adultery, Sodomy and Buggery-The Sexual Misconduct Fault Grounds for Divorce in Virginia

Posted on Jan 13, 2009 by Hofheimer Family Law


The fault grounds based on sexual misconduct:
1) Adultery—sexual intercourse; 2) Sodomy—oral or
anal sex and 3) Buggery—sex with animals, are difficult
grounds to prove in Virginia. Adultery and sodomy
are defined as any married person voluntarily having
sexual intercourse, oral sex, or anal sex with any person
who is not his or her spouse. The problem in Virginia
is that the proof must be strict, satisfactory and
conclusive. Testimony or admissions must be corroborated.
This means there must be some definitive evidence
beyond the mere suspicions or admissions by
your husband that he had an affair.

Oftentimes, if your husband’s girlfriend (we will call
her “Ms. Feckless”) was subsequently jilted by your
husband, she may be willing to testify against him. If
Ms. Feckless will speak to you or your attorney, she
may give you detailed facts and information that will
help you prove your case and may often help catch
your husband lying in court. She can give you the location
where they met (The No-tell Motel), the dates
and times of day, what each was wearing-lots of information
that implies that either you had a private investigator
present or that she is “spilling the beans.”

If you are not fortunate enough to have Ms. Feckless
in an alliance with you, then the effort to prove adultery
becomes more difficult.

To prove adultery, you must prove a sexual relationship.
Obviously, 99.9% of the time this is impossible to
do by picture, video, audio, or communication tracking
(putting a GPS responder on a car). More often than not,
adultery is proven in stages—you first find out that
something is going on with your husband, (i.e.) changes
in his lifestyle, sexual habits, text messaging, surprising
e-mails, or cell phone irregularities—something that
raises your level of vigilance. Often, either you or your
private investigator begin putting facts together. I have
had many clients work with their friends to observe
their husband meeting someone. For verification purposes,
always take one or two friends with you who can
serve as witnesses to the same things you observed. Also,
use rental cars so license plates can’t be traced.

both entrances to ensure that no one can say they left
an hour later by way of the back door. The investigator
sees all the lights go out in the house, and records your
soon-to-be ex opening the front door in his “shorts” to
retrieve the newspaper. One and a half hours later, he
again opens the door dressed in his suit and kisses Ms.
Feckless and walks to his car. BINGO! You probably
have proved your case! But remember, “clear and convincing”
evidence is a tougher legal standard than “preponderance
of the evidence,” so some judges still may
say the case is insufficiently proven. The courts can be
difficult to navigate, so being armed with this awareness
of your hefty “burden of proof” is essential. You
need to know what you are up against but not lose
sight of your reasons for your divorce. You may be
fighting for your life–your right to live freely and independently,
your right to own and direct your journey.
What you are fighting for is precious–don’t be discouraged.
Sharpen your strategy, using your attorney as
your ally.

**Another important word here: Before employing
a private investigator, ask for referrals from a lawyer.
Some investigators may be good investigators but lousy
in court under cross-examination. You need one who
is good at both.

Also, one error often made by attorneys when pleading
adultery is failing to plead sodomy. I had a client who
performed oral sex on her boyfriend but did not have
intercourse because

in her mind she was married and
intercourse was sacred, only to be experienced with
her husband. His attorney alleged she committed adultery,
which she could honestly deny. But this still raised red flags.
It taught me the importance of including the sodomy allegation
if you are alleging adultery as you seldom, if ever, really
know what takes place behind closed doors.

Now is the appropriate time to issue an

If your husband has had an affair,
and you engage in sex with him after learning of the marital infidelity,
then you have condoned the act,meaning you have forgiven him in the eyes of the law.
Do not let this happen; too much is at stake.

DOUBLE WARNING: Adultery can

have a substantial impact on your ability to plead your
case and have your case legitimated. In stark simple
terms, adultery can have an economic impact affecting
you and your children, if you have children.

If a wife is guilty of adultery or sodomy committed

outside of the marriage and it can be proven sufficiently

to be a grounds of divorce, then the Court shall not award permanent

(note not temporary) maintenance

or spousal support!!! Do not venture into this

risky territory. There is too much to lose. (If you committed

adultery, never admit to it to anyone unless and

until you talk to your lawyer.) Also, know there is a

five year statute of limitations, so an affair older than

five years should be of no legal consequence.


Manifest Injustice-Notwithstanding the denial of

spousal support because the proposed recipient committed

adultery or sodomy, there is an exception that

“if the court determines by clear and convincing evidence

that a denial of support or maintenance would

constitute a manifest injustice, based on the respective

degrees or fault during the marriage and the relative

economic circumstances of the parties, the court can

nonetheless make a spousal support award to the

spouse committing adultery.”

Adultery by either party is often taken seriously by

the courts. It means there need be no waiting period

to get divorced.

In fact, Adultery, Sodomy, and Buggery are the only

fault grounds that don’t require you to wait a specific

period of time before you can obtain a divorce. In

other words, if you can prove any of these was committed

by your husband, you can get a divorce as soon

as the case is prepared and you go to trial. There is no

six month or one year waiting period.

There is nothing wrong with doing some initial “investigating”
on your own, but be aware it is difficult to
unobtrusively follow someone. Before you do so, know
that once your cover is blown, the chances of gathering
future proof dwindle significantly. You may also be
accused of stalking. Think this through before taking
rash actions.

Let’s say you have a picture of Ms. Feckless kissing
or holding hands with your husband, and you have
found a Hallmark card from her to him saying “I Love
You” and “Can’t wait to be with you.” Despite this, you
still lack sufficient legal evidence.

So, the next night you drive by Ms. Feckless’ house
at 11:00 p.m., and there is your husband’s car, parked
in the driveway. Of course, after returning home, you

can’t sleep at all, so you drive by the house at 4:00 a.m.
and every hour thereafter. The car hasn’t moved.
When you return at 7:00 a.m., the car is gone, but, you
have pictures of the car at her house at 11:00 p.m., 4:00
a.m., 5:00 a.m., and 6:00 a.m. This still does not prove
adultery in court. Why? It could be argued that someone
else drove the car, (i.e. Ms. Feckless’ car broke
down; he lent her his, and he slept at the office). While
this is unlikely, the law considers this possibility.

A week later you employ a private investigator who
video tapes the pair walking on the beach, hand in
hand. This investigator observes both of them entering
her home. The investigator stays all night, observing