Corroborating Witnesses in Virginia

Posted on Jul 15, 2022 by Katie Carter


One of the more annoying features of the law is that it changes. It changes with some frequency, and usually on July 1st of each year. The changes in the law that are implemented don’t always have to do with us, but sometimes they do – and then, of course, whatever I’ve written up to that point is suddenly wrong.

That’s one big reason why it’s important to always get the information you need from an up to date source that has reason to know something about Virginia law. It’s not like lawyers are the only people who know anything about the law (though, in general, we’re a pretty good place to start), but I’ve also seen a lot of alarming threads on social media from non-lawyers who spread their opinions like gospel. So, you know, just be really careful what advice you’re consuming.

Today, I’m here to talk about corroborating witnesses – it’s one of the areas of law that has changed in a big way recently.

I hate to categorize changes in the law as either good or bad, but, of course, they often fall into one of those two categories, at least from my perspective. So, although you might consider it a bit of a spoiler, I’ll go ahead and tell you: this one’s good.

In Virginia, in an uncontested no fault divorce, you no longer need a corroborating witness.

To be clear, we’ve not done away with the corroborating witness requirement entirely, it’s just that it’s no longer required in an uncontested, no fault divorce.

It used to be that, when you submitted your divorce by affidavit or when you appeared in person for your uncontested divorce hearing, you had to either have a witness testify by affidavit or in person along with you. It was that person’s job to tell the court that you and your spouse have indeed been separated for the statutory period and that you intended for the separation to be permanent.

That person would sometimes be quizzed about his or her knowledge. Have they been to the home? Do they know that you were separated? HOW did they know, specifically?

It always seemed a bit funny to me, if I think about it now, but, then again, it was just how things were done. But, if you think about it, isn’t it a bit odd that we’d ask a corroborating witness to come to court to testify about the period of separation…but we didn’t require the other spouse to come? It only required one of the spouses, but that spouse had to bring along someone else, like a friend, a neighbor, a coworker, or a family member, to testify along with them. But, no, the other party wouldn’t cut it.

I had one case, awhile back, where we had a lot of trouble finding a witness. It was supposed to be someone who knew at least one of the parties in the case dating back to the date of separation. Ideally, that person would know both parties, but they would have very detailed knowledge about the purity of the period of separation, both in terms of the parties intent to separate and eventually divorce and also in terms of the actual, practical situation. Did they sleep together? Did they share a bedroom? Did they live together? Just how separate were they, exactly?

We were always careful, too, not to bring a new boyfriend as a witness if we could avoid it because, well, adultery. If there was no one else, we’d sometimes use a new love interest, but we’d try not to, if there was any way to use someone else.

But sometimes there is no one else. In my one case – I’ll never forget it, because I’ve never had such trouble finding a witness! – the client was a foreigner who’d moved here after meeting her husband abroad. They married and lived here, in Virginia Beach, for a VERY short time, before they separated. They lived separate for awhile, and she moved to another state. Eventually, she started dating someone else – but he lived in the new state, and he didn’t know her when she separated from her husband. He definitely didn’t know the husband.

Because she wasn’t from the US originally, she didn’t really know anyone who could testify on her behalf. All of her friends were in her home country. She didn’t really have friends here, because she lived here such a short time, and, anyway, she didn’t keep in touch with anyone from Virginia Beach after she left her husband. I have never had such trouble finding a witness, but it was clear that these two needed to divorce. There wasn’t even any property in question; it was all finished. There were no loose ends! But it took ages to resolve the situation with the court.

So, really, I welcome this change – it’s really nice not to have to include a witness affidavit in an uncontested divorce. Virginia was actually one of the last states to continue to have this requirement, so it’s just a reflection that we’re moving with the times. Change often comes slowly in Virginia because we’re so conservative, but change does come.

That doesn’t mean we’ve done away with corroborating witnesses altogether; this is a very narrow set of circumstances. In other cases, like where we’re alleging adultery, a corroborating witness is still going to be necessary. But since so many of our cases ultimately resolve on an uncontested basis, it’s an important fact to know.

For more information, or to set up a confidential consultation, give our office a call at 757-425-5200.