Divorce and Adultery in Virginia: I want to depose his girlfriend!

Posted on Jul 27, 2020 by Katie Carter

As far as procedure is concerned, adultery cases are some of the most difficult fault based divorce cases you can come across in Virginia. You have to meet a pretty strict standard of proof to satisfy the judge, you have to have a corroborating witness, and, of course, you have to follow all the local court rules about setting contested trials – which often require things like pretrial briefs, proffers, judicial settlement conferences, and more – just to get a trial date set.

Adultery, since it’s also a criminal offense in Virginia, impacts (or, at least, potentially impacts) more than just a divorce. It’s also a bar to spousal support (assuming, of course, that the cheating spouse would get it anyway), absent “manifest injustice”. There’s a statute of limitations, too, and all sorts of other rules. Did you know that if he cheats and you sleep with him afterwards, you’ve legally forgiven the adultery? Also of note, if you’ve BOTH committed adultery, then you lose it as a grounds for divorce.

Anyway, all that to say, there are a LOT of rules. We talked the other day about pleading the fifth and the ways that law has changed since July 1. Because there are evidentiary requirements, and because adultery can have such an impact on a divorce case, there are a lot of procedural things we can do that we maybe couldn’t do in other types of cases (or wouldn’t do, because there’d be no point).

Technically, the equitable distribution statute allows the court to award a different amount of money to one party because of the other’s negative nonmonetary contribution. Equitable distribution, by its very nature, assumes a division that is EQUITABLE, but equity doesn’t necessarily equate to 50/50. It’s probably safe to say that in most cases it does look something like 50/50, but still – there’s the possibility that it won’t be.

That possibility often has people thinking that they have a golden ticket in adultery. When you couple that feeling with the feelings of anger and betrayal that often accompany an affair, you might start to think that maybe you should see this thing through in court. There’s a lot of reasons people say this, but common ones I tend to hear are so that they’ll get their day in court, so that their family or friends (or religious circle) will know why the divorce happened, and also because it means they could get more of the assets.

I wrote all last week about a woman I met at Second Saturday monthly divorce seminar the other day, and this article is inspired by her, too, believe it or not. She asked a lot of questions, which gave me a lot of material. She was concerned, too, about her husband’s adultery, and one of the first things she told me was that she planned to depose his girlfriend.

Now, I’m all for pursuing every single legal right to which you are entitled (actually, it’s my job), but I also wanted to say: whoa, whoa there. Slow down. What’s your objective here? What’s the goal? What do you expect to happen? And, most importantly, my favorite question: is the juice worth the squeeze?

To go to trial, especially if you’re alleging adultery, you’re already going down a pretty expensive, stressful, and time consuming road. Is it worth it? Now, I can’t answer that question for you; you and I haven’t even ever had a conversation. I just want to point out that, in some cases, it’s better to avoid costly litigation, even if you’ll win, than it is to barrel in head first. Remember: there’s a cost here. A financial cost certainly, and one you should consider – do you have $20, $40, or even $60+ THOUSAND dollars to spare? Well, then, maybe worth considering whether you want to fight on fault.

What are you hoping to get in the deposition? Proof? Well, I’d tread carefully, especially if she’s still dating your husband. Hostile witnesses are tricky no matter what!

Adultery isn’t some golden ticket; in fact, in most cases, it doesn’t make much difference at all. I recommend that you talk plainly with your attorney about your allegations, the facts, the evidence, and your overall goals as you come up with a strategy for how to move your case forward. Don’t just assume that because he committed adultery that he will pay in some way, or that the judge will be hellbent to see him held accountable in some way for his actions.

In most cases, adultery won’t change an allocation of assets. But it will require you to take on a steep evidentiary burden in order to have your divorce granted on these grounds, and that’s not even counting any other evidence and witnesses you might have to introduce in order to support your other arguments.

Before you get all excited about deposing his girlfriend, before you hire a private investigator, before you start gathering evidence and preparing your subpoenas, talk to an attorney about your case. Ask what expectations you should have. Ask about costs. Ask about timeline. Ask, too, about your other options – because it may very well be that pursuing a fault based divorce is not your best course of action under the circumstances.

For more information, give our office a call at 757-425-5200, request a copy of our Virginia divorce book, or consider attending our in person seminar on divorce in Virginia Beach or Newport News.

I know you’re grappling with a lot, but I think its always well worth the time to come up with a plan of action that takes your unique needs into account. Talk to an attorney, weigh your options, and make sure you figure out what might be most beneficial to you. For more information, or to schedule an appointment with one of our attorneys, call us, or visit our website.  We’re happy to help! You’re asking the right questions, and you’re in the right place.