Will I be charged with adultery?

Will I be charged with adultery?

So, as you probably already know (or you wouldn’t be reading this article), adultery is a crime in Virginia. It’s also grounds for divorce. But what happens if you file for divorce (or your husband files for divorce) and alleges adultery as the grounds?

This is especially a concern for active duty military servicemembers, where adultery is expressly forbidden and could result in a dishonorable discharge at worst, or a whole host of other consequences – from losing security clearances, demotions, loss of potential future promotions, and so on.

It’s true in the civilian world, too – criminal charges can bring with them a whole host of problems in the professional world. It’s only natural to worry about what it might mean for you, if your husband alleges adultery against you, and what it might mean for him, if you allege adultery against him.

Wait – why do I care what happens to him, if HE committed adultery?

It’s really important to be careful with allegations of adultery, especially if you’re going to be depending on your husband later on for any kind of support. If you’re asking for either spousal or child support, you’re going to want your husband to be employed so that he can pay it. In fact, ideally, he’d be promoted, so he’d have to pay MORE of it.
The more he earns, the more he can pay in support. The less he earns, the less he can pay in support.

I always advice my clients to not take any steps that would harm their husbands professionally because, in most cases, I see that coming back to bite them in really painful ways later on down the line. I wouldn’t try to prosecute his adultery, or even call his command or his boss, even if I KNEW that adultery was taking place. That’s not to say that I would advise you not to file for divorce using adultery as grounds, though…

Filing for divorce using adultery as grounds

A suit for divorce is civil. It’s not a criminal action. It has nothing to do with any misdemeanor charges. If criminal charges were to be brought against you – or your husband – related to your adultery, it would require a whole separate hearing.
Frankly, it’s unlikely. While there are rapists and murderers and robbers and drug addicts out there, adulterers are not high on the prosecutors lists of bad guys to get off the streets. I don’t do criminal law, so I don’t have exact statistics for you on how often these cases are prosecuted, but I would venture to say that they’re very rarely, if ever, prosecuted.

So, what does it mean to file for divorce on adultery? Well, it means that you’ll get into court faster. You have to have grounds for divorce to file, so using adultery means that you can file today if you found out today. That doesn’t mean your divorce will ultimately be completed faster (in fact, probably it will take longer than a no fault divorce!).

Though you do qualify for an “immediate” divorce if you can prove adultery, that’s no easy feat. In fact, in every single divorce case I’ve ever seen where adultery was alleged, it has taken at least a year. Why? Well, as a practical practice matter, it’s really, really stupid to set your divorce hearing before you’ve been separated a year. Imagine that you do, and the judge doesn’t find your evidence of his adultery (more on this in a minute) clear and convincing. If it hasn’t been a year, the judge has no other grounds of divorce to use. Your case is dismissed. You start over from square one. All that money you’ve paid, and all that time you’ve spent, has been wasted. Any attorney will advise you to wait until your one year separation is up, because then, if the judge doesn’t like your evidence (or, for whatever reason isn’t inclined to award your divorce on adultery grounds), you can use no fault grounds instead. You can still walk out of there divorced, even if all doesn’t go as planned. (Fair warning: when you’re in front of a judge, everything does NOT go as planned. Ever.)

How do you prove adultery?

Adultery is hard to prove. Of all the fault based offenses that qualify you for divorce, adultery is the hardest to prove. Probably because it carries the strongest consequences. If a party has committed adultery, it’s a bar to asking for spousal support. It’s also, as we’ve established, a criminal offense.

When you go to court on a fault based divorce, you have to introduce evidence and witnesses regarding two things: (1) how you want your assets and liabilities divided, and (2) proving your grounds exist. As a practical matter, it’s generally not the best way to preserve your assets. It’s expensive to do that for just your assets and liabilities, let alone to spend time and money actually proving your grounds exist.

To prove adultery, you must do so by clear and convincing evidence. Now, in a continuum of burdens of proof, you have preponderance of the evidence (meaning, on a scale set at exactly 50/50, a single feather on one side would be enough to establish a preponderance) on the easy side, clear and convincing in the middle, and beyond a reasonable doubt (the standard used in criminal cases) on the most difficult side. Clear and convincing is ultimately up to the judge, but fairly difficult to do.

You need a corroborating witness. Usually, we use a private investigator (again, $$$$) or someone like that. We can also use the girlfriend/boyfriend, if the parties have broken up, but that can present some complications as well. (What if they don’t say what we think they’ll say?) Someone else needs to testify about this relationship and prove to the judge that it happened.

How much does it cost to get a divorce on adultery grounds?

A lot. In fact, though we often file on adultery grounds, we rarely actually move forward with the entire divorce that way. Why? It’s too expensive, too time consuming, and too unlikely to yield better results than other alternatives.

We see people get better results, in general, in uncontested divorces. Put simply, the juice is often not worth the squeeze. That’s not to say that it’s NEVER worth the squeeze; I think it’s always an individual determination that you have to be prepared to make after a careful, calculated discussion with your attorney where you set your goals and establish your priorities.

It’s safe to say that most contested divorces cost easily in the tens of thousands of dollars. It’s not unusual for them to cost $20,000 or even more, depending on the issues involved. That, of course, is a per person cost, because you and your husband can’t share attorneys.

Chances are good, therefore, that adultery really won’t be a factor – even if you or your husband chooses to file using those grounds. This isn’t a criminal prosecution, and even if a divorce were granted on adultery grounds (which, again, is unlikely), it doesn’t mean that you’ve been criminally found guilty of adultery. To actually get a divorce using adultery as your grounds, you’d need a lot of money (or he’d need a lot of money) to cover your attorney’s fees up to that point.

Sometimes, using adultery grounds is a good option, and if you’re wondering about your specific situation, you should talk to an attorney. The point of this article is simply to alleviate fears that I often hear from potential clients. What happens IF he files on adultery? What happens IF a divorce is granted on adultery? What are the potential consequences? Well, there certainly are some, but probably the potential of criminal prosecution is a less weighty consequence than the fact that, if you have committed adultery, you can’t also ask for spousal support. More on this on Wednesday.

If you have any questions or need any more information, it may be time to schedule a confidential one-on-one consultation with one of our attorneys. Give our office a call at 757-425-5200 to set up something today.

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