What does a corroborating witness need to say?

 

In an action for divorce in the Commonwealth of Virginia, a corroborating witness is needed. It’s not enough to just grant a divorce based upon the testimony of the husband and wife; the statute requires that a third party be able to affirm the allegations of the moving party. It would be nice if that were the case, of course. I think probably the law requires it because we don’t want to grant a divorce fraudulently; theoretically, a husband and wife could team up to lie and get their divorce granted more quickly.

Of course, testimony offered by anyone – the parties to the case or any witnesses – is under oath, under penalty of perjury. But, still, the law as it exists today required that third party corroborating witness to confirm that what the moving party says is true is actually true.

Virginia is considered to have a relatively long waiting period for divorce – six months if (1) there are no children, and (2) there is a signed agreement, and one year otherwise. It’s a “cooling off” period, designed to prevent people from rushing hastily into divorce and regretting it. (Though, honestly, I doubt that this has much impact, if any at all.) Many other states have similar waiting periods; it’s not like we’re the only ones. But, still, it’s on the longer side.

Who can be a corroborating witness?

A corroborating witness can be anyone who can testify to the statutory requirements for divorce. In some cases, a corroborating witness must attend a hearing, but, most of the time, a corroborating witness simply has to sign an affidavit in front of a notary stipulating that the allegations, as set forth by the moving party in either the answer or counterclaim filed in the case, are true to the best of his or her knowledge.

Ideally, a corroborating witness is a friend, family member, neighbor, or coworker. I don’t really like to use a current boyfriend or romantic partner, because it highlights the fact that infidelity has taken place. In case you weren’t already aware, adultery is still a crime in Virginia, and carries with it certain civil and criminal penalties.

I don’t honestly think it matters THAT much at the end stage of divorce; adultery is, after all, rarely (if ever) prosecuted. And once you’ve gotten to the end of your divorce, and a separation agreement has been signed, the relevance of the adultery is probably not all that significant. Still, I do like to stop short of allowing my clients to admit in front of a judge that they’ve committed a crime. It’s just this annoying lawyerly hang up of mine. I have used a boyfriend or romantic partner before – in a case where I had no one else – but it is certainly not my first choice.

In fact, once I had a boyfriend – when I was a brand new, super green lawyer handling cases passed down to me from other, more senior attorneys – who got in front of a judge and literally testified that he could not say for certain EXACTLY when the parties separated. I was shocked. I could have screamed at him, “YOU HAD ONE JOB!” But I didn’t. Luckily, in that case, the judge – who was as obviously annoyed by this yoohoo as I was – pressed him a little more, and ultimately granted the divorce. (The boyfriend eventually said that the date “sounded about right”. Idiot.)

So, someone – hopefully, other than a romantic partner – who has a modicum of intelligence and is able to testify that the things that you alleged in the complaint or counterclaim are, in fact, true.

Like what, you may ask? What kinds of things are in an answer or counterclaim that the corroborating witness will need to – for lack of a better word – corroborate?

That you and your husband have been separated for the statutory period, and that the separation is the same period that you alleged in your agreement/complaint/counterclaim.

This is the biggie. The most important thing that a corroborating witness must be able to attest to is that you’ve been separated.
Ideally, they’d have some personal knowledge of that fact. Something along the lines of, “I visited the home of the plaintiff, and saw that her husband had moved out of the bedroom. I came to her home several times over the course of the year, and her husband was never there, nor was there any trace of him.” That kind of thing.

Still, you just verify – by signing the affidavit – that the information you put forth is true to the best of your knowledge. You’re not guaranteeing that absolutely nothing ever went on that you don’t know about, just that your reasonable belief exists.

It’s also important to note that you don’t just have to satisfy the statute and be separated for your one year or your six months. You need someone who can testify that the dates you used in your separation agreement, complaint, and/or counterclaim are accurate.

I actually ran into this issue recently, and for the first time. My client alleged a date of separation in 2019, and wanted to use a witness who only knew since 2020. She had been separated for more than the statutory period, and the witness could testify to a full six month separation – but he could not testify that she had been separated since 2019, which was what she alleged. We had to find someone else.

You see, the corroborating witness has to do more than support the statutory requirements; he or she also must support your allegations. If he can’t do that, it looks like the dates you pled are untrue, and it raises a red flag. All of your dates need to match up, and you’ll need someone else who can verify that those dates are true.

The names and dates of birth of your children, and whether you’re known to be pregnant of the marriage.

Ugh, geez, I KNOW! It’s like the Stone Ages. It’s offensive! And, yes, I’ve had several cases where the wife was pregnant at the time of divorce and it was not the husband’s. I recoil every time I have to plead that piece of information, because it just seems so needlessly judgmental, so disgustingly prejudicial.

But it’s required.

Whether one (or both of you) was a resident or domiciliary of Virginia for 6 months before the divorce was filed

Again – it’s a reasonable belief thing. And, usually, both parties still live in Virginia, and you just need one. So, if you live in Virginia, and your witness knows you live in Virginia, you’re good. If you’ve moved away and you need a witness to testify that your husband still lived here, again – reasonable belief.

Whether you or your husband on active duty

Because the Servicemember’s Civil Relief act can be triggered in certain cases, it’s relevant whether or not you or your husband was on active duty.

How – and how long – your witness has known you

Often, this is easy. “I’m her mother,” and “all her life,” are sufficient answers. It’s not really so much that someone has to know you for a long time, but certainly they should know you through your period of separation, and sufficiently closely to be able to testify to the other requirements for granting a divorce in Virginia.

Whether you’re over the age of 18, legally competent, and not in jail

Again – requirements. These are easy. But still are things that your corroborating witness must attest to.

Hey, I get it. It’s not easy. You probably are uncomfortable to ask someone to testify on your behalf in your divorce case. And it’s not always possible to have someone else looking over your shoulder.

We’ve talked about separation in Virginia, and the legal requirements: basically that (1) you form the intent to end the marriage (who can witness “forming an intention”??), and (2) that you stop cohabitating.

A separation can be perfectly lawful and true – but altogether without witnesses, right? Because no one can see your intention forming, and just because you guys are no longer cohabitating, doesn’t mean that someone was there to witness. And your spouse’s testimony isn’t going to be enough to overcome the need for the corroborating witness to support your allegations. Fair, unfair, or otherwise, I have no control over the law – I’m just here to try to help you understand it.

How can you resolve a problem like this? Well, there aren’t a lot of options. Some courts are going to look at pleadings with more scrutiny than others; Virginia Beach, for example, is incredibly discerning. You won’t get anything past them and their army of law clerks.

If you can’t find someone who can testify to your specifics, you may find that you have to amend your separation agreement and/or pleadings to reflect the date of separation that your witness can attest to.

It’s a good idea to be aware of what the requirements are to have a divorce granted in Virginia. If you have any questions, or need more information, give our office a call at 757-425-5200, and we can help you schedule a confidential consultation with an attorney to discuss your concerns.

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