The Fifth Amendment and Adultery

Posted on Jul 15, 2020 by Katie Carter

Like everyone else, I’m a little obsessed with Hamilton right now; I saw it at Chrysler Hall this past winter, and watched it on July 3rd as soon as it came on Disney+. I’m also (no secret here) a Virginia attorney, and I’ve been reading up, since July 1st, on the new law changes that went into effect. One of the newest relates to the Fifth Amendment and claims of adultery.

It makes me think of an exchange between Alexander Hamilton and Aaron Burr in the song ‘Non-Stop” where Hamilton is trying to get Burr to write the Federalist Papers with him; Burr says, referring to the Constitution, “It’s a mess,” and Hamilton says, “so it needs amendments,” and Burr says, “it’s full of contradictions,” and Hamilton replies, “So is independence!”

It’s a really cool exchange, and one that applies perfectly here. As the law evolves with us over time, we change the laws to adapt to the times. The Fifth Amendment is one such change (it’s actually part of the “Bill of Rights” which the founders added to the Constitution in 1791); specifically, it provides that no one will be forced to testify against themselves. In order to prevent self incrimination, a person can plead the 5th. It’s not an admission of guilt; it basically is a legal sidestepping of it.

In divorce cases, one of the most common ways this comes up is as adultery. In Virginia, adultery is a crime, so, when we ask about it in a divorce, a party can claim the 5th amendment and refuse to answer. If the question were something else (something that wasn’t a crime) a person couldn’t plead the 5th just because they didn’t want to answer it; it relates specifically to testimony that would incriminate a person. For other questions, you either admit or deny, and you’re under penalty of perjury.

The Fifth Amendment and Adultery: The Old Rule

It used to be that, if you claimed the fifth amendment, no negative inference could be drawn.

The Fifth Amendment and Adultery: The NEW Rule

For cases filed after July 1, 2020, a negative inference is allowed.

What do you mean, a “negative inference” to an allegation of adultery where someone pleads the fifth?

Well, practically, probably not a whole lot. Even before, it was sort of a negative inference, though it’s impossible for me to tell, exactly, what weight a judge would or would not give to it at trial. Practically speaking, if there’s any way to deny it, a person accused of adultery will probably still try to find a way to deny it anyway. Right? I mean, very few of us are in the habit of going to court and admitting that we’ve committed crimes, right there on the stand. (Especially if spousal support is at risk in the case at hand!)

So, what should I do with this information? Adultery is an issue in my case.

A case involving adultery should always be handled by a lawyer. Whether it’s your adultery or his, if you’re planning to move forward using adultery as your grounds, there will be a number of complicated issues. Pleading the fifth may be the least of your concerns, but you’ll want to make sure, at a bare minimum, that your pleadings are set up in such a way that they allow you the benefit of any possible legal arguments if your case goes to trial.

Adultery cases are complicated, and can have an impact on your entitlements under the law, so you want to be sure that you’re taking steps to preserve all of your arguments. Before you hire a private investigator or make any big decisions, you’ll want to consult one on one with experienced local counsel.

There are lots of complications with adultery cases, especially if you or your husband is active duty military.  Admitting it is more complicated than just the fact that he has said that he has done it; as far as the court is concerned, there will need to be specific evidence and other steps taken to ensure that that the information is presented in as strong a light as possible.  Whether he (or you!) pleads the 5th or not, it should only be done after carefully consulting with an attorney and weighing the strengths of the various legal arguments available to you.

For more information, or to schedule an appointment with one of our attorneys, give our office a call at 757-425-5200.