You probably are familiar with the burden of proof required in criminal cases – beyond a reasonable doubt. It is the highest burden of proof possible under the law, and it’s a fundamental component of American justice. You are innocent until you are proven guilty, and you must be so guilty that there is not even a lingering reasonable doubt left.
We would rather guilty men go free than innocent men sit in prison for crimes they didn’t commit.
But that’s criminal law. Family law is a lot different.
For one thing, family law cases aren’t designed to be punitive. So, even though in some cases we use “fault” based grounds, we’re not there to determine guilt or innocence in the way that we might in a criminal case. In most cases, ‘fault,’ doesn’t even mean that the ‘innocent’ spouse will get more of the assets (or less of the liabilities) or that the ‘guilty’ spouse will get less (or more). Though it could mean that in a theoretical sense – Virginia is an equitable distribution state and not a community property state – it almost never really does in practice.
Divorce doesn’t exist to punish people for getting divorced, or even for committing a ‘fault’ that leads to divorce – like adultery or domestic violence. It just exists to divide up the assets between parties. Like a failed business, a divorce is the dissolution of what is, essentially, a partnership. It’s an unemotional (on the court’s part, not yours) division of the assets, liabilities, and responsibilities between those parties so that they can go their own way with no further ties to each other.
If you use fault based grounds, you must prove – to the satisfaction of the judge – that those grounds exist. There is no divorce option where you agree, in your separation agreement or any other writing, that fault based grounds exist and then have the ability to use that agreement to secure a divorce on those grounds.
No – because there are civil and, in some cases, potential criminal penalties for fault based divorce, the judge must make that determination. A fault based divorce, then, is always contested; you’re going to have to meet minimum evidentiary standards to prove that your grounds exist and then to secure a divorce using those grounds.
Different grounds for divorce require different levels of proof. Let’s talk about it.
There are three levels of proof in American jurisprudence: beyond a reasonable doubt (we talked about this; it’s the standard used in criminal cases), clear and convincing, and preponderance of the evidence. Let’s talk about it.
Clear and Convincing Evidence
Clear and convincing evidence is below ‘beyond a reasonable doubt,’ but not by too much. We still require a lot of proof in order to grant a divorce with clear and convincing evidence.
In Virginia, to prove adultery, you must meet the clear and convincing standard. Because adultery is a crime in Virginia – it’s a level IV misdemeanor – it requires a higher evidentiary standard than the other fault based grounds for divorce. In the divorce context, we’re not prosecuting it like in a criminal case – it’s still a civil (or non-criminal) case – but granting a divorce on grounds of adultery could then open up the possibility that the ‘guilty’ spouse might be prosecuted.
Adultery has some of the stiffest other penalties too – most specifically, a complete bar on spousal support except in cases of manifest injustice. It also allows a party to obtain an ‘immediate divorce,’ though that’s not something that happens very often in practice.
For clear and convincing evidence, we’d need something strong – sometimes, evidence from a private investigator (like that he went into a hotel with his lady love and didn’t emerge until morning, leaving no other conclusion but …), the testimony of his ex-girlfriend (it especially helps if they’ve broken up and she’s angry), the paternity of a child conceived out of wedlock, etc. It’s a high burden to meet and, sometimes, the juice isn’t worth the squeeze.
Preponderance of the Evidence
If you have a preponderance, it just means that something is more likely than not. If you have a perfectly balanced scale and you put a single feather on one side and ever so slightly tip that balance, you have a preponderance.
A preponderance is the standard used in all the other grounds for fault based divorce – cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction.
Like adultery, these grounds for divorce are unlikely to result in an uneven division of the assets – but there may be plenty of reasons why you might file anyway, like (1) if he says he won’t agree no matter what, (2) if you don’t have an idea of the assets and liabilities, and/or (3) he has cut you off from support and you need child support and/or spousal support NOW. The court system gives us the opportunity to have a pendente lite hearing and conduct formal discovery, so those can be important benefits, depending on your situation.
It’s not necessarily difficult to prove fault, depending on the evidence that you have, but it does require that you have evidence and that you go to court to satisfy the judge that your divorce can be granted on those grounds – so that means your divorce will almost certainly take longer and potentially cost a lot more than if you were able to negotiate a separation agreement.
It’s still a choice and important that you know your options! Talk to an attorney in your area to get an idea about what might be the best, most strategic choice for you.
For more information or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.