Virginia Family Law
A Blog by Jason A Weis, Esq.
Virginia & Maryland Family Law Attorney

Proving Adultery in Virginia Divorce

Proving Adultery in Virginia Divorce

Of the four fault-based grounds for divorce, adultery garners by far the most attention. Making the decision to pursue adultery as a grounds for divorce can be complicated for a number of reasons. This posting is not my attempt to flush out those considerations. Rather, it is my aim to examine methods used by attorneys for proving adultery in Virginia divorce, so you might better understand the relative merits of your claim.

If you don’t already know, adultery involves one spouse voluntarily having sexual intercourse with another person who is not his or her spouse. Along with adultery, sodomy (i.e. oral or anal sex with a person of the same sex, opposite sex or animal) and buggery (i.e. bestiality) are also fault-based grounds within this general category of fault. See Virginia Code Annotated Sec. 20-91(1). Adultery is also a Class 4 misdemeanor in Virginia. See Virginia Code Annotated Sec. 18.2-365. As a practical matter, this means that an adulterer and his or her significant other have a constitutional right under the Fifth Amendment of the U.S. Constitution to refuse to testify about their illegal acts.

Unsurprisingly, knowing adultery has occurred and persuasively proving it to a Virginia Circuit Court judge are two very different things.  Proving Adultery in Virginia Divorce requires “clear and convincing” evidence. While that standard is lower than the classic “beyond a reasonable doubt” criminal standard, it is as high a standard as is available in a civil courtroom. In the face of both the Fifth Amendment denials and the high “clear and convincing” standard – and often without any direct evidence of adultery – successfully demonstrating what you believe has occurred may seem daunting. How do you demonstrate for a judge that your spouse has committed adultery? The answer: circumstantial evidence.

  • Did the adulterer say or write things to the paramour; were letters, notes, cards or e-mails exchanged between the adulterer and paramour? Attorneys can issue subpoenas to internet service providers and obtain existing e-mails. Introducing e-mails at trial can present certain evidentiary challenges, but the information they contain can be crucial to helping you frame your allegation and corroborate testimony. E-mails alone, however, do not prove adultery.
  • Did the adulterer use a cell phone to call his or her paramour? Attorneys can issue subpoenas to cellular phone service providers and obtain records of out-going and in-coming calls. (NB: Instant messages and text messages are typically not available via subpoena.) Phone records can demonstrate repeated calls to a suspected paramour and help establish the relationship. Suspicious, yes. But, like e-mails, phone calls alone do not prove adultery.
  • Did the adulterer use a credit or debit card to purchase meals, gifts, hotel rooms, plane tickets or other such items for his or her paramour? Attorneys can issue subpoena to financial institutions and obtain records of charges made on selected accounts. Credit card statements can be used to establish where the adulterer was on any given day and on what he spent marital funds. Helpful, certainly. Definitive? No.

Individually, e-mails, phone calls and expenses may not suffice, but together you can use them to persuasively tell a “common sense story” of the illicit relationship. For example, e-mails may illustrate the early stages of a relationship, record day-to-day contact and certain activities a boyfriend and girlfriend might do together. Phone records showing frequent phone calls may further confirm the improper relationship and reflect calling patterns closer to what one might expect from a boyfriend/girlfriend. Charge account statements confirm the relationship still further by recording activities and supporting the notion that expenses incurred were consistent with traditional courting behavior. Circumstantial evidence of this sort, coupled with limited direct evidence (e.g. private investigator’s reports and pictures) and an adulterer’s less than credible attempts to rationalize the evidence, may suffice to demonstrate wrongdoing.

If you have questions about your adultery claim, feel free to drop me a line.

Checklist For Establishing In-House Separation In Virginia

Checklist For Establishing In-House Separation In Virginia

If you and your spouse are considering divorce, you are probably already aware of Virginia’s requirement that you separate for 6 or 12 months, depending on your circumstances. Maintaining separate households during this mandatory separation period can be a serious strain on your budget. In my practice, I am seeing a significant rise in “in-house separations” – living together during separation.

Some time ago, the Commonwealth recognized the economic difficulties inherent in maintaining two separate households on an income previously budgeted for one. For couples contemplating divorce, making an additional rent or mortgage payment for the required six or twelve months of separation was all but impossible; couples, who wanted and needed to live separately, simply could not afford to do so.

Enter “In-House Separation.”
“In-house separations” have become more prevalent, in my practice, as couples attempt to tightly manage their out flow of divorce-related expenses. Such separations, however, require more than one spouse merely moving into the spare bedroom.

How to Establish In-House Separation?
Couples considering an in-house separation must strive to establish a second household under a single roof. Below is a checklist of factors a court might consider when determining whether a separate household has been established. Though no single factor is determinative (save perhaps sexual intimacy), couples should strive to meet as many as possible.

Checklist For Establishing In-House Separation In Virginia:

  • Establish, maintain and demonstrate intent to permanently separate. (In other words, you must be committed to the divorce. “Intent” is key.)
  • Establish separate bedrooms.
  • Cease romantic or sexual intimacy.
  • Stop wearing wedding rings.
  • Shop for your own food and prepare your own meals.
  • Do not shop for any other categories of items (clothing, other necessities, etc.) on behalf of your spouse.
  • Do not use your spouse’s food or other purchases.
  • Do not eat meals together (except holidays or children’s birthdays).
  • Care for and clean your own space within the home, such as your bedroom.
  • Do your own laundry.
  • Establish separate checking accounts.
  • Cease socializing (e.g. do not attend parties, movies, theater together).
  • Do not attend church together.
  • If you have young children, interact as parents only where strictly necessary from the children’s perspective and their well-being (e.g., it is appropriate to attend a meeting with a school official relative to problems confronting a particular child, but less appropriate for the parents to ride together and sit together at a child’s school play or soccer game).
  • Cease gift-giving between spouses for such occasions as birthdays, Christmas, anniversary, Valentine’s Day, etc.
  • Make it known to close associates and relatives that you and your spouse are separated within the residence, though continuing to reside under the same roof.
  • Have a third party come to the home from time to time to personally observe the your separate and distinct living quarters (bedrooms, bathrooms, etc.).
  • Use separate entrances to residence, if feasible.

It is important to note that like traditional physical separations, in-house separations require corroboration (you need a third-party witness to verify the separation). In many jurisdictions the success of an in-house separation depends entirely upon the level of corroboration presented to the court. A relative, nanny, friend or domestic helper who is present in the home several times a week for several hours at a time may prove necessary to confirm that a second household has in fact been established.

If you’ve got questions about the information above, please feel free to drop me a line.  Jason A. Weis, Esquire – Curran Moher Weis P.C. – – 10300 Eaton Place, Suite 520, Fairfax, VA 22030 – 571-328-5020.


My experience and background reflect the hallmarks of success one must demand of a lawyer in Northern Virginia's legal landscape.  As a native of this area, I have here focused my practice on providing sound and balanced representation to clients navigating the difficult legal waters of family law, including contested divorce, custody, visitation, spousal and child support, and equitable distribution.  More >>>

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Jason A. Weis, Esquire
Curran Moher Weis
10300 Eaton Place, Suite 520
Fairfax, Virginia 22030

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Phone: (571) 328-5020

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Legal Disclaimer

Thank you for taking the time to read this blog. I hope you find the information here as enjoyable to read as I find to write. Please note that reading this blog does not create a legal relationship between you and Jason A. Weis, Esquire or any other attorney associated with Moreover, all postings on this blog are merely attorneys' commentary on the state of family law in the Commonwealth of Virginia. THE POSTINGS ARE NOT LEGAL ADVICE – if you have a legal issue or question, I strongly encourage you to contact a lawyer. I would be pleased to refer you to someone if I am able.