What is a corroborating witness in Virginia? Who can be one?
In Virginia, you often need a corroborating witness in your divorce case. You can use a corroborating witness for all sorts of things, but usually its related to providing that your grounds — whether fault or no fault – are proven to the satisfaction of the judge.
It’s not enough for you to testify to some fact or other, and, actually, it’s not even enough for your husband to agree that what you’re saying is true. To prove your grounds, a corroborating witness – basically, a disinterested third party – is needed.
What corroborating witnesses do in fault based divorces
In a case where you’re using adultery as your grounds, for example, you’ll need a corroborating witness. In this case, we’re talking about someone who knew or should have known that the affair was taking place.
Sometimes, we use the girlfriend. Though you have to be careful, as you can probably imagine, because if she’s truly hostile to you, there may be no telling exactly what she’ll say when she gets on the stand. It will probably work best to use his girlfriend if, by the time you go to trial, they’ve broken up. That way, you’re probably much more likely to get what you want out of her.
You can also use someone like your private investigator, if you have one. In an adultery case, you’ll need to show that your husband had the opportunity to have an affair, and that’s often accomplished by using a private investigator. (Though, to add a bit of caution here, I’d say that, if you’re interested in proving adultery, talk to an attorney and come up with a custom tailored plan of action BEFORE you hire a private investigator, just to make sure that you’re being as strategic as possible.)
Whatever you’re planning, talk to an attorney and come up with a plan. It may be that you need a specific type of person to be your corroborating witness, or also that maybe the result is not entirely worth the effort and cost you put into it. It’s a good idea to talk about these things now, before you make any big decisions, and make sure that the juice is really going to be worth the squeeze.
What corroborating witnesses do in no fault divorces
While you might need a corroborating witness to testify in a fault based case, that’s rarely necessary these days in no fault cases.
Most no fault divorces are handled by affidavit, which just means that you and your corroborating witness will have to sign a statement in front of a notary. Your witness’s statement will set forth things like the date of separation and whether, at the time of the separation, the parties (that is, you and your husband) intended for that separation to be permanent. That’s really the main substance of their testimony – since no fault divorces are based on having met the statutory period for separation (one year, or six months if you have a signed separation agreement AND no minor children).
In some cases, a hearing can still be necessary – like, if you and your husband lived separate under the same roof for any of your period of separation – but it’s case by case and court by court.
Any person who you ask to be your corroborating witness should be someone who has known you since BEFORE you and your husband separated (you know – obviously, since that’s the whole point of them testifying). They should also have knowledge of the separation, which basically means that they should be a fairly intimate friend of yours. It helps if they can say that they’ve been to your house, noted that you occupy separate bedrooms, and so on.
It’s probably also a good idea to be careful who you ask. A new boyfriend is generally not the best person to testify on this particular point, even though he may actually be the person who knows best that you and your husband have separated. It’s definitely better to use a family member, a close friend, a work acquaintance, or a nearby neighbor.
Though I can understand being uncomfortable about asking someone else to get so involved in your divorce case – well, the truth is, you’ll have to! It’s a legal requirement, and the judge can’t grant your divorce without this evidence.
For more information, or to discuss your case with one of our licensed and experienced Virginia divorce attorneys, give our office a call at 757-425-5200.