Proving Adultery in Virginia: A Guide to Protecting Your Rights

By | September 18, 2023

If you’re facing a situation where you suspect your spouse of infidelity and are considering divorce in Virginia, it’s crucial to understand the legal aspects of proving adultery and how it can impact your case. This guide will provide valuable insights into the proof required, the legal implications, and the role of evidence such as phone records and text messages in proving adultery in Virginia.

What is Adultery?

Virginia Code 20-91 identifies adultery as a ground for divorce.  Virginia Code 18.2-365 defines adultery as “any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery…”  For a comparison between the way Virginia, Maryland, and D.C. address adultery, click:  HERE.  For a look at how proving adultery might benefit your case, click:  HERE.

What Proof Do You Need to Prove Adultery in Virginia?

One of the first questions many individuals ask when contemplating a divorce involving adultery is, “What proof do I need to establish my spouse’s infidelity?” In Virginia, adultery is considered a fault-based ground for divorce, and to successfully prove it, certain elements must be demonstrated:

Clear and Convincing Evidence of Adultery: Virginia law requires clear and convincing evidence of adultery.  See Coe v. Coe, 225 Va. 616.  This typically involves demonstrating that your spouse engaged in sexual relations with someone other than you while you were still married and proving it with clear and substantial evidence.  This standard is greater than a “preponderance of the evidence” but lower than “beyond a reasonable doubt.”  Think more than 50%, but less than 99%.

Corroborating Evidence: In addition to clear evidence such as an admission, it is often helpful to have corroborating evidence that supports your claim. This might include witness testimonies, photographs, written communications, or other forms of documentation.

Duration and Motive of Adultery: While a single instance of infidelity can be enough, proving a pattern of ongoing adultery can further strengthen your case for fault-based divorce and is likely to cause a court to give the adultery additional weight.  In some cases, proving that the adultery had a detrimental impact on the marital relationship and family’s well-being is particularly useful.  This might involve showing that the affair resulted in financial or emotional harm to the innocent spouse.

Does Virginia Prosecute Adultery?

While adultery is a fault ground for divorce in Virginia, it’s important to note that it is sometimes also prosecuted as a criminal offense.  Pursuant to Virginia Code 18.2-365, adultery is punishable as a Class 4 misdemeanor.  Prosecutions for adultery, however, tend to be infrequent.  The primary focus of adultery within the legal system seems to be its role as a ground for divorce rather than a criminal matter.


Can Phone Records Be Used to Prove Adultery in Virginia?

In today’s digital age, phone records can be a valuable source of evidence in divorce cases involving adultery. However, it’s essential to understand the limitations and legal considerations when using phone records.  Virginia has strict laws relating to wiretapping (Virginia Code 19.2-62(A)) and computer trespass (Virginia Code 18.2-152.4(A)).

  • Phone Records as Evidence:

Phone records can potentially provide evidence of communication between your spouse and their alleged paramour. This could include call logs, text messages, and even location data if enabled. These records may help establish a pattern of behavior that supports your claim of adultery.

  • Privacy and Consent:

It’s crucial to be aware of privacy laws and obtain any necessary consent before accessing or using someone else’s phone records. Unauthorized access to phone records can lead to legal issues.

  • Consult with an Attorney:

To navigate the legal complexities surrounding phone records and adultery, it’s advisable to consult with an experienced family law attorney in Virginia. They can provide guidance on how to legally obtain and use this evidence.

Can Text Messages Be Used in Court to Prove Adultery?

Text messages are a common form of communication and can potentially serve as evidence in divorce cases involving adultery. Here’s what you need to know:

  • Admissibility of Text Messages:

Text messages can be admissible in court as evidence if they meet certain criteria. Among other things, they should be relevant to the case, authenticated to prove their origin, and not violate any privacy laws.

  • Content Matters:

The content of the text messages is crucial. While suggestive or romantic messages can indicate an extramarital affair, they may not, on their own, conclusively prove adultery. Corroborating evidence is often necessary for a strong case.

  • Expert Legal Guidance:

To ensure that text messages are used effectively as evidence in your divorce case, consult with a skilled family law attorney who can guide you on their proper use and admissibility.  Click HERE for an additional resource on the complexities associated with electronic evidence like spying software, GPS tracking, etc.


The Role of Social Media in Proving Adultery:

In addition to phone records and text messages, social media has become a prominent source of evidence in divorce cases involving adultery. Platforms like Facebook, Instagram, and Twitter can provide valuable insights into a spouse’s activities and connections. Here’s how social media can play a role:

  • Public Profiles and Posts:

Information shared on public social media profiles can be accessed and used as evidence. This includes posts, photos, and status updates that might suggest an extramarital relationship.

  • Private Messages and Conversations:

Obtaining access to private messages on social media can be more challenging and may require legal authorization. However, if such messages reveal evidence of adultery, they can be valuable in a divorce case.

Consulting with a Family Law Attorney:

Navigating the complexities of divorce cases involving adultery, evidence, and legal procedures can be challenging. That’s why it’s crucial to seek the guidance of an experienced family law attorney in Virginia. An attorney can help you understand the best strategies for proving adultery and protecting your rights throughout the divorce process.


Proving adultery in Virginia can be a challenging endeavor, but with the right evidence and legal support, it’s possible to establish fault grounds for divorce. Remember to gather conclusive and corroborating evidence, consider the role of phone records, text messages, and social media, and consult with a skilled attorney to navigate the legal complexities.

At Curran Moher Weis, P.C. we have a proven track record of helping clients in Fairfax and Loudoun counties navigate divorce cases involving adultery. Our experienced attorneys understand the nuances of Virginia family law and are dedicated to protecting your rights and interests.  If you or someone you know is navigating the complexities of family law, consider reaching out to an experienced family law attorney like Jason A. Weis, Esq.  For further insights and legal assistance, don’t hesitate to explore other posts my website at or my firm’s website at



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